Getting Started: Where Posner and I Agree (and Disagree)

Before diving into a detailed response to Eric Posner’s piece, “Campus Free Speech Problems Are Less Than Meets the Eye,” I want to get a few things out of the way.

First of all, I’d like to thank Cato and Jason Kuznicki for hosting this online debate on such an important topic. When Jason initially asked me to participate, I very nearly gave him a regretful “no” because I was set to be on paternity leave for the birth of my first child during the response period. Jason was very understanding and agreed to allow several of FIRE’s top lawyers to handle parts of the discussion that will ensue here. So some of the forthcoming responses will be authored or co-authored by FIRE staff members: Will Creeley, Vice President of Legal and Public Advocacy; Samantha Harris, Director of Policy Research; and Susan Kruth, Senior Program Officer for Legal and Public Advocacy.

I also wanted to thank Catherine Ross for her contribution to the debate and her defense of free speech at every level of education. While Catherine suggests FIRE is overstating the problem, I think our responses over the rest of the month will demonstrate conclusively that we aren’t. After all, administrators have to be pretty far gone before telling students that they can’t protest the NSA, can’t support veganism, or can’t hand out the Constitution without asking state permission. They have to be pretty far gone to tell students to restrict themselves to a tiny “zone” on campus and to require students to wear a name badge verifying their right to speak freely at a public university. But at any rate, I greatly enjoyed her piece. I especially appreciated her refutation of the frankly odd idea that saying that someone has a First Amendment right to ask for restriction on the First Amendment is somehow a “cop out.”

And I’d also like to sincerely thank Eric Posner. Some might be surprised to hear that, given how Posner has become a sort of go-to contrarian voice on all things related to the First Amendment. For example, he has criticized the emphasis Americans place on the First Amendment, argued that the Charlie Hebdo attacks could have been prevented if the magazine had been punished under hate speech laws, suggested that college students are children who must be protected from offensive speech, defended the NSA’s metadata collection program, and, most recently, supported restrictions on the Internet as a means to combat ISIS and other terrorist groups.

But even though Posner and I disagree an awful lot, I truly appreciate the opportunity to debate and discuss free speech, a topic I hold near and dear to my heart. In fact, I’ve had the pleasure of debating Posner several times in recent years—critiquing his support for blasphemy laws, for example, and taking on his assertions that the “sacred status” of the First Amendment is some kind of new phenomenon. And in 2014, Jonathan Rauch and I debated Posner and Stanley Fish on the nature and role of freedom of expression:

Frankly, I’m happy to have someone to argue against. In my experience, hostility to relatively purist views on freedom of speech is quite common in higher education, but few academics or administrators are willing to publicly defend this point of view. This fact is evidenced by my first point of agreement with Posner, his admission that “most universities have speech codes.”

Given that speech codes have been routinely ruled unconstitutional at public colleges or withdrawn in the face of public ridicule at private colleges, the fact that so many institutions still maintain these codes indicates that many of the people running our universities are hostile to the First Amendment, or, in the case of private colleges, First Amendment values.

That being said, in the hundreds of speeches I have given on college campuses, whenever people look for someone for me to debate on campus, I rarely find anyone who is willing to openly disagree with my defense of robust protections for freedom of speech. Even when I’m given an opponent in a debate, he or she often mostly agrees with me, or at least claims to. This is, of course, frustrating, because if universities actually respected free speech values as much as they claim to, speech codes wouldn’t still be a problem. That’s why I appreciate that a professor is willing to come forward and defend publicly what I believe so many faculty members and certainly administrators believe privately. This is no small task, given that although there have been disturbing poll numbers about millennials’ attitudes concerning freedom of speech, an anti-free speech position is generally still a pretty unpopular position to take off-campus.

Another point of agreement I have with Posner is that the intellectual basis of freedom of speech is “epistemic humility,” which, as I explain in my short book Freedom From Speech, is my “fancy way of saying that we must always keep in mind that we could be wrong or, at least, that we can always learn something from listening to the other side.” Epistemic humility encourages healthy intellectual habits, such as reserving judgment, giving the other side a fair hearing, and tolerating opinions that offend or anger us.

But there isn’t too much agreement between us beyond that. Before going into detail about the many things we disagree about, I want to address Posner’s overarching assertion that I “unfairly [blame] universities when the problem really lies with students.” If you want an even more over-simplified explanation of my alleged viewpoint, he summarized it on his own blog thusly:


JANUARY 8, 2016

Him: campus speech is under assault by clueless university administrators.

Me: blame the students.

I confess, after reading that, I have to wonder if Posner actually read what I wrote. His summary mischaracterizes my lead essay. My point was that, yes, for most of my career the main people we at FIRE battled were administrators. Sometimes the censorship was also pushed for by faculty, and sometimes by students, but for most of my career students tended to be more reliably pro-free speech than any other campus group. This has changed appreciably only in the last two years or so. So Posner and I actually both agree that student sentiment against free speech is a problem. But to deny that administrative overreach is also a problem just strikes me as willfully ignoring lawsuit after lawsuit and incident after incident. As you will see in forthcoming examples, there are just too many instances of administrative censorship that Posner chose to ignore.

The most jarring thing about this assertion is that it’s just that—an assertion. And when you look at Posner’s response, it seems his assertion is based solely on his experience as a professor at the University of Chicago. My beliefs, on the other hand, are based on FIRE’s experience being on the front lines of free speech controversies taking place on American college campuses over the last 17 years. We at FIRE have looked at literally thousands of cases over the years since we were founded in 1999. Last year alone we received over 800 case submissions, and that does not include many of the cases we have discovered via the media, nor the hundred or so additional schools that are currently facing campus protests, some of which include student demands for new speech codes.

If I were to base my opinion of the issue just on my experience co-teaching a class on First Amendment law at George Mason University, I hopefully would at least qualify a blanket assertion like Posner’s with something to the effect of, “Administrators don’t punish student speech—that is, in my limited experience, based on what my University of Chicago students say, and not knowing whether any of my students would actually tell me if they’d been brought up on charges by administrators in law school or in their undergraduate career.” Posner, however, feels no such compulsion. Somehow he just knows it has to be students who are the problem, not administrators.

Over the next several posts, we’ll be taking on a few more assertions Posner makes. I hope you’ll tune in, because I think the discussion will be fun.

Also from this issue

Lead Essay

  • Greg Lukianoff reviews the recent media attention to cases of speech suppression on college campuses. He agrees that they are troubling, but notes that they aren’t all that new: Political correctness and expansive speech codes were widespread in the 90s, and most of those codes never disappeared. Lukianoff traces their origins to the federal Department of Education’s Office for Civil Rights, which has significantly confused administrators and students about the prevailing law in these matters. Administrators in particular want expansive speech codes because such codes shield them from legal liability. Lately, though, students have begun to demand them too, in the hope of suppressing hate speech and so-called microaggressions.

Response Essays

  • Speech codes may sound menacing, but they are actually designed to enhance speech, writes Eric Posner. No classroom instructor tolerates rudeness or disruption of the learning environment, and speech codes are an outgrowth of this laudable practice. Administrators, too, are less guilty than it may seem by relying on Greg Lukianoff’s anecdotes: They have not been punishing students merely for their speech. Universities face a difficult task, in that they must accommodate highly diverse student cohorts with wildly divergent ideas, all while preserving an atmosphere of collegiality and of learning. It is inevitable that mistakes will arise. These mistakes, though, do not indicate any sinister trend about American education or public life. Would an absolutist free-speech policy do better at educating college students? That’s an empirical claim, and one that Lukianoff does not even try to substantiate.

  • Catherine J. Ross argues that the issue of free speech on college campuses is far more nuanced than either side seems willing to admit. We have become much more aware of the problem than previously, thanks in part to social media and the efforts of advocates like Greg Lukianoff, who rightly points out some troubling examples here. And yet there is room for exaggeration: Eric Posner is certainly onto something, she writes, that Lukianoff exaggerates the severity of the problem. Ross searches for evidence in both directions and concludes that a chilling effect has clearly been at work in recent years. Professors should never feel as though their students scare them; students should not be scared of one another. The crux of the matter, as she puts it, is that liberals have recently been divided: Some have kept to their traditional First Amendment commitments, while others have come to prefer equality in many instances where equality and freedom of expression appear to conflict.