Free Speech on Campus: An Exchange

To the Editors:

It’s unfortunate that David Cole thought his point about the dangers cancel culture poses to free speech in America would be strengthened if he could link me—someone he identifies as a “prominent liberal”—to the “staunch Republican” Elise Stefanik’s humiliation of three university presidents [“Who’s Canceling Whom?,” NYR, February 8].

To that end, Cole wrote that I “joined” Representative Stefanik in denouncing the response the presidents gave to the congresswoman’s question about whether their universities would tolerate students on campus calling for the genocide of Jews. I did, indeed, describe the presidents’ failure to answer that simple yes-or-no question as “hesitant, formulaic, and bizarrely evasive.” Far from joining the congresswoman, however, I criticized Representative Stefanik’s hypocritical and opportunistic attack on universities; defended Harvard’s initial decision to resist what I described as dangerous outside meddling with academic freedom; and continue to lament Harvard’s ultimate decision to cave to the pressure from wealthy donors and politicians like Representative Stefanik.

I write not principally to correct this distortion of my views but to address the way the public debate over free speech on college campuses is in danger of being reduced to an oversimplified binary: either you are for college students feeling safe, or you are for virtually absolute freedom of speech. The current doctrinaire insistence that we cannot restrict speech unless it falls within previously recognized narrow exceptions such as the “incitement of violence,” “fighting words,” or “true threats” wrongly elevates free speech above all other freedoms—including the bedrock principle that every student should be free to access education without discrimination. Just as a commitment to free speech can surely coexist with a campus rule banning calls for killing Black students or shunning LGBTQ students even if those calls single out no student in particular, so a commitment to free speech can certainly coexist with a rule banning calls on campus for killing all Jews, whatever the specific context. To insist that such speech be permitted unless it fits snugly into some predefined categorical exception is to forsake our commitment, as the Supreme Court once put it, to “freedom in all of its dimensions.”

In the classroom and other academic forums, maintaining maximum speech protection is necessary for robust conversation. But it doesn’t follow that, in shared spaces outside the formal academic setting, as in the areas surrounding dorms and libraries, rallies that reasonably induce fear in identifiable parts of the student body must be tolerated whenever they don’t target particular individuals and thereby don’t constitute punishable “true threats.” Transplanting to university campuses rigid legal categories developed for the evaluation of criminal laws conflicts with the discrimination-free environment that the Constitution requires public universities to afford all their students and that federal civil rights laws demand of private universities receiving federal funding.

But wherever one believes the free speech lines should be drawn on campus, they should not be drawn under fire by donors and politicians advancing a partisan agenda. A balanced commitment to student safety and free speech is incompatible with bowing to pressure campaigns that threaten to destroy academic freedom by dictating how universities admit or treat their students, hire or fire their faculty, and select their leaders.

Laurence H. Tribe
Carl M. Loeb University Professor Emeritus
Harvard University
Cambridge, Massachusetts

To the Editors:

I was very pleased to see that David Cole, a serious thinker on free speech for whom I have tremendous respect, was chosen to review my book with Rikki Schlott, The Canceling of the American Mind. Still, the piece contained some arguments that I think are unfair.

Cole claims that Rikki and I “assert…that the past decade has seen repression of speech akin to or worse than that of the McCarthy era.” In fact, we only referenced McCarthyism (as the second Red Scare) three times in the book. First, to say that we believe cancel culture will be studied the same way we study the 1798 Sedition Act or the two Red Scares. Second, to point out that the Hollywood Red Scare only targeted about three hundred people, giving a sense of the comparative scale of cancel culture, which has seen more than one thousand attempts to cancel professors since 2014. In the third, we simply noted that an estimated one hundred professors were fired during the eleven years of McCarthyism/the Second Red Scare, whereas almost two hundred have been fired in the past nine and a half years of cancel culture. 

And those are only the individual cases we know of. In a 2022 FIRE survey, one in six college faculty reported that their speech had been investigated or punished or that they were threatened with investigation or punishment. One in ten students surveyed by FIRE in 2023 reported the same thing. Extrapolated out, that’s more than one million students and tens of thousands of professors, something that has no historical analogue of which we are aware. Some things, like the effect this has on the willingness of scientists to tell us hard truths, should worry us more. At the end of McCarthyism, only 9 percent of social scientists said they had toned down anything they had written because it might cause controversy. In a 2021 survey by the Center for the Study of Partisanship and Ideology, more than 90 percent of faculty said they were likely to self-censor their beliefs in the future.

Cole also disputed our supposed assertion that “cancel culture began in 2013 and is worse today than ever before,” but we’re always careful to say that cancel culture is the worst period of censorship since the First Amendment began to be strictly interpreted on campus, following a series of cases that ended in 1973. The state of free speech was far worse before that, and we never claim otherwise. But when the first generation who grew up with social media and smartphones hit college, which happened around 2014, a dramatic shift took place. I ran a more thorough response to Cole’s review in my Substack newsletter, “The Eternally Radical Idea,” with several graphs and comprehensive data. I encourage readers to check that out for a more in-depth response.

Greg Lukianoff
President and CEO
Foundation for Individual Rights and Expression
Washington, D.C.

David Cole replies:

I’m sorry that Laurence Tribe, whom I deeply respect as one of the nation’s leading constitutional scholars, feels that I misrepresented him when I noted that “while Stefanik, a staunch Republican, led the charge, she was joined by many prominent liberals, including…Laurence Tribe.” But here’s what Tribe said, in his own words, on his Twitter page, retweeting with approval Stefanik’s attack on then Harvard President Claudine Gay: “I’m no fan of @RepStefanik but I’m with her here. Claudine Gay’s hesitant, formulaic, and bizarrely evasive answers were deeply troubling to me and many of my colleagues, students, and friends.” In my book, when you say “I’m with her,” you’ve “joined” her.

On Tribe’s broader point, he is correct that when speech crosses the line into harassment based on race, religion, or sex, it violates federal civil rights laws, and schools can—and indeed must, if they receive federal funding—prohibit it. I said as much in my essay, noting that when antisemitic speech is targeted at an individual because of his or her religion, or becomes so pervasive as to create a “hostile learning environment,” universities can take action to ensure that students are not denied equal access to education. On that we agree.

But we appear to part company on two points. First, Tribe (with Stefanik) thinks that any statement calling for genocide of the Jews can be prohibited on campus, even if it is merely a stupid choice of words at a spirited rally. Would he say the same about calls for “intifada,” which Stefanik equated with calling for genocide? What about “from the river to the sea”? What about calls supporting the Israeli military offensive against Gaza, which has led to more than 25,000 deaths? Can all such speech be prohibited because it calls for violence, no matter how rhetorical and no matter how far removed from actual violence on campus? Where would Tribe draw the line? He doesn’t say.

And that’s exactly the problem. Once you maintain that certain political viewpoints, however repellent, cannot be expressed, you’ve crossed the line into censorship of ideas. And trying to define which ideas are not allowed is extremely fraught, as the failed campus speech codes of the 1980s demonstrated.

Second, Tribe argues that while speech must be free in the classroom, it need not be free at other places on campus. With respect, I think that gets it backward. Speech is appropriately subject to much greater control in the classroom than on the campus lawn. In my classrooms, I can call on students, demand that they answer my questions, stop them if they are not answering the question, and even require them to advocate a particular position. I can also dictate that they speak to one another with the respect necessary for a civil conversation. I’m sure Tribe does the same. But those standards have never applied to protests on the quad, nor should they ever apply.

I agree wholeheartedly that politicians and donors should not be calling the shots, and that applying free speech principles in the campus setting requires nuanced judgment, not political exploitation. Which is why it’s dangerous to stand “with her” when Stefanik opts for political exploitation.

I also have tremendous respect for Greg Lukianoff and the work FIRE has done to protect speech on campus. As I wrote in my review, cancel culture is undoubtedly real; in fact, in both my ACLU and Georgetown capacities, I am actively engaged in trying to promote free speech on campus. So I share Lukianoff’s and his coauthor Rikki Schlott’s concern. But I question their claims that intolerance is worse today than in prior periods. Their comparison of cancel culture to McCarthyism fails to acknowledge the stark difference between a campaign of censorship coordinated and compelled by the government, carried out through criminal convictions, loyalty hearings, blacklists, and widespread political spying—ultimately directly affecting millions of Americans—and a private “culture” of intolerance on campuses.

Nor do the authors provide convincing evidence that campuses are substantially less tolerant today than in decades past. The fact that there are more conflicts and more complaints on today’s heterogeneous campuses does not mean that the more homogeneous campuses of the past were islands of tolerance. As I wrote, the conformity of consensus should not be confused with tolerance. And FIRE’s own numbers, based on self-reporting surveys, are hardly an objective measure of the situation. The authors claim that they know of “more than 1,000 attempts to get professors fired, punished, or otherwise silenced” since 2014. But that contention is based on FIRE’s database, which indiscriminately lumps together actual terminations with many more instances of mere criticism of professors. Criticizing a professor for what he or she has said is an exercise of free speech, not evidence of its suppression. No doubt some of the criticisms were unfounded, but FIRE’s database provides no basis for making that assessment.

So yes, intolerance on campuses today is a real concern. But exaggerating the scope of the problem, much less likening it to periods of officially sanctioned state repression, is unnecessary to make the point.