EDUARDO PENALVER: Thank you all for coming out tonight for this first event in Cornell's new presidential speaker series on free speech, which is sponsored jointly by President Pollack and Cornell Law School. My name is Eduardo Penalver. I'm the Allen R. Tessler Dean at Cornell Law School. And I'd like to begin by thanking Erwin Chemerinsky for traveling here across the country to serve as our inaugural speaker in this series. Dean Chemerinsky just took up the reins at the University of California Berkeley's Law School this past summer. And so his willingness to come to Ithaca to be with us here tonight is a testament to his passion for this subject.
Before I turn the podium over to Dean Chemerinsky, I want to take the opportunity to announce that we'll continue our examination of issues surrounding free speech next spring on April 10 with a debate on hate speech prohibitions between two individuals who have very different views on the subject, Nadine Strossen, who's the former president of the ACLU, now a professor at New York Law School, and Jeremy Waldron, who is a university professor at NYU Law School. He was formerly a faculty member here at Cornell.
Arguments about speech on campus go back generations and even centuries. They wax and wane with the times. But there's no question that we're very much in a waxing phase at the moment. Many people on and off campus view the very fact of these debates as a sign of a kind of moral decay. And they believe that questions about the scope of freedom of speech reflect perhaps weakness on the part of the present generation of students or the fecklessness of today's university administrators, perhaps a little bit of both.
But I actually see the robust debate over speech on campuses as emblematic of the kinds of institutions and communities that universities are. Where else in our society do people from so many different backgrounds and with so many different points of view come together and live together and engage with one another in a world where we are more geographically segregated by viewpoint than ever, where social media allows us to surround ourselves within a cocoon of the like minded? Universities stand apart for their embrace of engagement across all kinds of differences. And of course when that happens, we're going to have disagreements about the boundaries of appropriate speech.
How do we provide a supportive educational environment for students from different backgrounds, and at the same time, allow for the expression of different points of view? How do we deal with speech that we find hateful or even frightening? What are the rights of those who want to protest someone else's speech? Should our status as a private institution of higher learning make the scope of speech rights different here than it would be in the proverbial public square? And how can universities, public and private, thread these various needles in ways that protect public safety and advance the pursuit of knowledge and our educational missions all at the same time?
Tonight's speaker will offer one important perspective on these complex questions. Dean Chemerinsky is one of the nation's most knowledgeable and articulate legal experts on the First Amendment. With his colleague, Howard Gillman, chancellor of the University of California Irvine, he's the author of the book Free Speech on Campus, which was recently published by the Yale University Press.
In their book, Dean Chemerinsky and Chancellor Gillman argue that institutions of higher learning must steadfastly uphold the value of free expression and demonstrate a willingness to engage across the boundaries of opposing viewpoints. And the authors offer their own perspectives on what universities can and cannot do, or in the case of private institutions like our own, which are not directly subject to the First Amendment, what we should and should not do. Last month, Dean Chemerinsky and Chancellor Gillman had a piece in The Chronicle of Higher Education, in which they discuss the heckler's veto and argued in their words that simply put, the right to speak does not include the right to use speech to keep others from speaking.
Erwin Chemerinsky became the dean of Berkeley Law School this past July. And before assuming that position, he was the founding dean and distinguished professor of law at the University of California Irvine. While at UC Irvine, he was also the Raymond Pryke Professor of First Amendment Law and taught courses on constitutional analysis, appellate litigation, and free speech rights, among others.
Earlier in his career, he was a professor at Duke University School of Law and at the University of Southern California's Gould School of Law. Dean Chemerinsky is the author of 10 books and more than 200 law review articles. In recognition of his accomplishments as a legal scholar, he's been elected as a member of the American Academy of Arts and Sciences.
In January 2017, National Jurist magazine named him the most influential person in legal education. And just last month, he and Chancellor Gillman were named co-chairs of the advisory board for a new National Center for Free Speech and Civic Engagement at the University of California and plans to establish in Washington, DC.
I should also say I owe him a special personal debt of gratitude for helping me survive my federal courts course when I was a law student. His treatise on Federal Jurisdiction, now in its seventh edition, has saved generations of law students from the impenetrable Hart and Wechsler casebook used by most professors for that subject. Thank you, dean. Please join me in welcoming Erwin Chemerinsky to Cornell.
ERWING CHEMERINSKY: Thank you.
Thank you so much for the incredibly kind introduction and the very warm welcome. It's truly my great honor and pleasure to be with you tonight. I want to thank President Pollack for inviting me and what's really been a truly wonderful day here at Cornell. Issues of free speech on campus are nothing new. They've probably arisen as long as there have been colleges and universities.
But I think the context is different now. Our image of free speech on campus was so shaped by the free speech movement at the University of California Berkeley in the mid-1960s. That was about college students demonstrating to try to establish their right to engage in speech that was unrelated to university activities. Campus administrators tried to stop them.
But so often now, issues of free speech and campus arise when outsiders to the campus want to use the college or university as their platform. The last year, so many of the issues of free speech come up when people like Richard Spencer, or Milo Yiannopoulos, or Ann Coulter, who wanted to go on to campuses. And what often happens is outside groups, like Antifa, have threatened to even engage in violence to keep the speech from occurring.
I think there's also a difference now, in terms of the attitudes of some students with regard to speech on campus. As best I can tell, in the mid-1960s, there was a strong consensus of student opinion that students should have been able to engage in that speech on the Berkeley campus. Now, we hear from so many students that they believe that offensive or racist speech should be stopped. There was a survey done by the Pew Research Institute that said among college undergraduates, 40% thought that campuses should be able to prohibit and punish offensive and racist speech.
I think often this impulse of students comes from as laudable of motives. It's their desire to create an inclusive learning environment for all of their colleagues on campus. I also think that the context has changed, in terms of what's going on in the last year. I often have the sense that we've turned over a rock. And somehow it's become possible for people to express hateful messages than in any time in recent memory.
Did you read some of the signs that were held up in Charlottesville, Virginia, a few months ago? One of the signs that felt like a punch in the stomach to me said, and I quote, "Kikes belong in the oven." I'm 64 years old, but I don't remember ever seeing a sign saying that in public.
There was an incident at my law school at the University of California Berkeley a couple of months ago. Harvard Law professor Alan Dershowitz came to speak on issues with regard to Israel. Thankfully his speech went off without incident. But later that afternoon, someone drew a swastika over his picture. It was on a poster on a bulletin board in the law school. I've been a law professor for 38 years now. I've never been in a building where somebody drew a swastika on the wall.
All of this is the context with which we have to talk about these issues with regard to free speech on campus. As I participate in these discussions, especially in my own campus, I realize it's very important to draw a distinction between discussing what the current law is, as opposed to discussing what we think the law should be. Both are very valuable discussions, but they're quite different.
I saw this at a forum at University of California Berkeley campus a couple of months ago. Milo Yiannopoulos had announced there was going to be a free speech week at Berkeley. And he, Ann Coulter, Stephen Bannon, and Charles Murray were all going to appear. And the chancellor, Carol Christ, convened a forum to discuss this. It was in a large auditorium like this. It was packed. Every space in the aisles and in the front of the first row of chairs was taken.
And one of the faculty members on the panel, a law professor, said it didn't matter what the law required, Chancellor Christ should not allow these hateful speakers on campus. He got resounding applause. And in the question and answer period, several of the students said that they were made to feel unsafe. The speakers came and expressed hate on campus. And so therefore, it doesn't matter what the First Amendment is, Chancellor Christ should exclude these speakers. Each time a student said that, there was loud applause.
Finally, towards the end of the discussion, I spoke as a lawyer and a law professor. I said, be clear. If Chancellor Christ would try to exclude Milo Yiannopoulos and others, based on their viewpoints, excluded speakers would sue. They would win and get an injunction, establishing the right to speak.
When Auburn University attempted to exclude the white supremacist Richard Spencer from speaking, he sued and he won in court. I said the university would have to pay the excluded speakers' attorneys fees. Chancellor Christ might be personally liable for money damages. The excluded speakers would present themselves as victims and martyrs. And nothing would be gained. They would be able to speak anyway.
No one applauded when I said that.
So what I want to focus on in my remarks tonight is what is the current law, with regard to speech on campus. I'll certainly acknowledge some places where the law is uncertain. And I'm glad to discuss what the law should be, though I think that's a different conversation.
I can summarize the current law in three principles. First, all ideas and views can be expressed on a college campus, period. Now, of course, I'm speaking here of public universities. The First Amendment, where generally the Constitution's protection of rights apply only to the government. I find that non-lawyers are often surprised by this.
A few weeks ago I got a call from a reporter. This was after President Trump said that the NFL should fire football players who don't stand for the national anthem. And the reporter said to me, wouldn't it violate the First Amendment for the NFL to fire football players for this? I said the National Football League is a private entity. The teams are private. The First Amendment doesn't apply to what they do, to which the reporter said, Professor, are you sure about that?
I said sure. Where the best illustration of this principle that I've ever had comes from a true story of conversation with my older two children. This was 25 years ago when they were nice and six, and we were in a grocery store together. Diet Coke was giving away free baseball cards. Three baseball cards were pictured on the outside of the package. As we went up and down the aisles of the grocery store, my two sons were arguing over who was going to get the extra baseball card. Finally, I said, be quiet. I don't want hear anything else about baseball cards until we leave the grocery store. My then nine-year-old turned to me and said, you can't tell me to be quiet, I've got freedom of speech.
I was ready for him. I said freedom of speech means the government can't tell you to be quiet. I'm not the government, so I can, to which he, without missing a beat, turned me and said, well, you're like the government to me, so you shouldn't be able to tell me to be quiet.
It's when I first knew someday he was going to go to law school. And now, he's a federal prosecutor. But I emphasize this point because, when I speak of the First Amendment, it applies only to public universities. Now, I believe that private universities also should follow the principles of free speech. If it's in the faculty or the student handbook, it's a contract with the faculty and students, respectively. So there's a legal duty. Otherwise, it's much more the question of what they should be doing, not what the law requires them to do.
In terms of the First Amendment, the Supreme Court has long said that it's very core means that the government can never prevent speech, or punish speech, or hold speech liable, based on the viewpoint expressed. Even if it's very offensive speech, it's still protected by the First Amendment.
A case that would illustrate this from earlier this decade was Snyder v. Phelps. You probably have heard about it, even if the case name doesn't mean anything to you. It involves a small church out of Topeka, Kansas, the Westboro Baptist Church. They made it a practice of going to funerals of those who died in military service, and using the funerals, the occasion, for expressing a very vile anti-gay, anti-lesbian message.
Matthew Snyder died while in military service as a marine in Iraq. The members of the Westboro Baptist Church traveled to his funeral in Maryland. Before the funeral, they asked the police where they could stand. The officers pointed to an area about 1,000 feet away from where the funerals was going be held. Before the service, they chanted and sang. During the funeral, they were silent, but they held up signs.
That night, Matthew's father, Albert, was watching TV. He was able to read what was written on the signs. He was deeply offended. He was understandably very upset. He sued the members of the Westboro Baptist Church for intentional infliction of emotional distress and invasion of privacy. The jury awarded him $10 million in damages. But the United States Supreme Court, in an 8 to 1 decision, held that the members of the Westboro Baptist Church could not be a libel. Chief Justice Roberts wrote for the court and said the government never can punish speech, or hold speech liable, on the grounds that it is offensive, even deeply offensive.
The second principle is that free speech is not absolute. There are categories of unprotected speech. The idea that free speech is not absolute is familiar with all of us. We all know the words of the late Justice Oliver Wendell Holmes, there's no right to falsely shout fire in a crowded theater.
At least since 1942, the Supreme Court has said there are some categories of speech that are unprotected by the First Amendment, where the speech can be punished. Child pornography would be an example of unprotected speech. People can be punished, not only for selling or distributing child pornography, but even for possessing it in their home. False and deceptive advertising is speech not protected by the First Amendment.
There are three categories of speech unprotected with the First Amendment that are relevant to our discussion. One is incitement of illegal activity. The Supreme Court has held for almost a century that incitement is not protected by the First Amendment. But here is the regard to all of these categories. It's very important to separate the colloquial use of the term from the legal test that's used for the category.
The legal test for incitement comes from Brandenburg v. Ohio in 1969. There the Supreme Court said speech can be punished as incitement only if there's a substantial likelihood of imminent illegal activity and only if the speech is directed at advocating imminent illegal activity.
Example, imagine that there is an angry crowd in the middle of campus. And imagine that a speaker exhorts that crowd to commit acts of violence and vandalism on campus to go and break windows, to deface property. I think in that context the speaker could constitutionally be punished for incitement. But what about a controversial speaker, like Richard Spencer or Milo Yiannopoulos, that's going to provoke a response, maybe even a violent response? I don't think that could be punished as incitement because the speaker isn't directing the speech and advocating imminent illegal activity.
A second category of unprotected speech or so-called true threats-- that's the Supreme Court's phrase. This comes from a case in the mid-1960s, United States v. Watts. It involves a federal statute that makes it a federal crime to threaten the President of the United States. The Supreme Court said the statute is constitutional, but the court stressed it's important to separate hyperbole from quote, "true threats."
The Supreme Court hasn't done much in the years since to clarify when does speech rise to the level of a true threat that's unprotected. In fact, there's now a split among the federal courts of appeals of how to determine what's a true threat. I think the better approach is to say there's no First Amendment right to cause a person to reasonably fear imminent danger to his or her physical safety.
Imagine a student is walking across campus. Imagine an angry group surrounds the student. What they yell at the student causes that individual to fear imminent danger to physical safety. Even though no blows were struck, even though it was just words, I think that would be a true threat.
A third category of unprotected speech is harassment. Here, especially, I think it's important to separate the colloquial use the word harassment from a legal test for harassment. I know on my campus in September, I heard many students say merely having hateful speakers express a message on campus made them feel harassed. No court would ever find, though, that that was enough to meet the test for harassing speech unprotected by the First Amendment. There is relatively little law, in terms of when speech on campus constitutes harassment that can be punished that might be a basis for liability. But there's a good deal of law in the workplace context. And the Supreme Court has said that speech that constitutes a hostile or intimidating environment can be the basis for liability for employment discrimination.
The cases with regard to employment have said that, generally to constitute harassment, the speech has to be directed at a person, or it has to be so pervasive in the workplace as to materially interfere with employment opportunities, based on race, or sex, or religion, or sexual orientation. I think we can apply that standard to the campus and say, if the speech is directed at a person in a harassing manner, or if it's so pervasive as to materially interfere with educational opportunities based on race, sex, religion, sexual orientation, then it can be punished.
Let me contrast two examples. A couple of years ago at the University of California San Diego, there was an incident where somebody looped over a tree branch what looked like the noose. Vile, but it wouldn't be harassment by itself. But imagine that someone tacked onto a door in a dormitory what appeared to be a noose. And imagine is was an African-American student. I think that kind of directed speech would be harassment.
Undoubtedly, as to all of these categories is the question of where do you draw the line between what is protected speech and what's harassment? But at least, I think, there's a test to apply. Now, you'll notice I've listed three categories of unprotected speech where the university could punish the speech, incitement, true threats, and harassment.
You'll also notice a couple of categories I didn't mention. One category is called fighting words. In 1942, in Chaplinsky v. New Hampshire, the Supreme Court said that fighting words, words that are likely to provoke a violent response from another, are not protected by the First Amendment. But since Chaplinsky, 75 years ago, never again has the Supreme Court upheld the conviction for fighting words. In virtually every case, what the Supreme Court has done is say that the law prohibiting fighting words is unconstitutionally vague, unconstitutionally over-broad. Thus, I'm skeptical-- most courts and commentators are skeptical-- that there really is such a category of unprotected speech as fighting words.
The other category you'll notice I didn't mention was hate speech. Many scholars have argued that hateful speech should be beyond the pale and outside the scope of the First Amendment. Jeremy Waldron, who will be here to debate Nadine Strossen, has taken that position. Scholars like Richard Delgado and Mari Matsuda have very powerfully described the harmful effects of hate speech on campus. They've talked about hateful expression, because especially traditionally under-represented students to feel threatened and unwelcome.
And yet the law is clear that hateful speech is protected by the First Amendment. I give you examples. You might remember in the late 1970s and early 1980s, the Nazi party wanted to hold a demonstration in Skokie, Illinois. Skokie is a suburb of Chicago. At that time, it was predominantly Jewish and had a large population of Holocaust survivors. Every court to rule, including the United States Supreme Court, held that the Nazi party had a right to march in Skokie, no matter how much it would upset or offend the residents of that town.
Another example is the Supreme Court case from 1992, RAV v. City of St. Paul. St. Paul, Minnesota, after a number of ugly racist incidents, adopted an ordinance that prohibited burning a cross or painting a swastika, violent symbols of hate, in a manner are likely to anger, alarm or cause resentment. The Supreme Court, 9 to 0, declared the St. Paul ordinance unconstitutional, making clear that such hate speech is protected by the First Amendment. There's a case in 2003, Virginia v. Black. It involved a Virginia law that prohibited cross burning. The Supreme Court, 8 to 1, declared that hate speech law unconstitutional.
In the early 1990s, over 350 colleges and universities adopted so-called hate speech codes. Every one to be challenged in court, without exception, was declared unconstitutional. Why? Why this protection of such a vile speech?
I think some of the answer to that is the inability to define hate speech in a way that's not unduly vague or unduly over-broad. Any law, any government code regulating speech, has to be clear about what's prohibited and what's permitted. Think about how the hate speech codes were written in this country or how the hate speech laws have been written in Europe.
The University of Michigan adopted a very famous hate speech code after a series of racist incidents on campus. It prohibits speech that stigmatizes or demeans on the basis of race, sex, religion, or sexual orientation. Most of the hate speech laws in Europe use similar language. Often they add, or speech that insults on the basis of race, sex, religion, or sexual orientation.
But what does it mean to say that speech demeans, or stigmatizes, or insults? One of the plaintiffs in the University of Michigan case-- Doe v. University of Michigan-- was a sociobiology graduate student who said his research was about whether there are inherent differences between men and women. He worried that the results of his research might be thought to stigmatize or demean on the basis of sex.
Also the experience under these hate speech codes and hate speech laws, I think, should give us pause before endorsing them. At the University of Michigan, before the hate speech code was struck down by the federal court, every enforcement action under it was brought against African-American and Latino students, the very individuals it was meant to protect.
When England adopted its first hate speech law, the initial prosecution was against a Zionist group. The prosecutor said that Zionism should be regarded as a form of racism under a United Nations resolution. France has a very strict hate speech law. I think the most frequently prosecuted person under it is the actress Brigitte Bardot because it said that, in her animal rights activism, some of her criticism of religions that practice animal slaughter cross the line into hate speech.
But most of all, I think every court to rule has said that hate speech is protected by the First Amendment because it expresses an idea. It's a vile viewpoint. But as I said, under the First Amendment, all ideas and views, no matter how offensive, can be expressed.
These things brings me to the third and final principle, and that's that campuses can have time, place, and manner restrictions, with regard guard to speech, so long as they leave open adequate alternative places for communication. This idea that there can be time, place, manner restrictions, with regard to speech is well-established. The Supreme Court has said there's a right to use public streets for speech, but that doesn't mean there's a First Amendment right to have a demonstration down in the middle of a freeway at rush hour.
Campuses can have time, place, and manner restrictions, especially to prevent disruption of campus activities, and so as to protect safety. With regard to disruption of campus activities, a campus, for example, could prevent demonstrations in or near classroom buildings while classes are in session. A campus, likewise, could say we're going to have a free speech zone, so long as it's an area that allows adequate places for communication.
One of the issues that's come up just this fall with regard to disruption is to what extent can students use speech to disrupt those who are invited on to campus to express themselves. There was an incident at William and Mary Law School in September, when an ACLU lawyer was invited to speak. And a group of students came and chanted and sang so loud that the speaker couldn't be heard. Or there's an incident at the University of Oregon at the beginning of October, where President Michael Schill was going to give a state of the campus address. And a group of students made so much noise that he couldn't be heard.
And the response of those who engaged in the protests said they were just engaged in speech. They were just expressing their view that the campus shouldn't provide a platform to these speakers. But I believe strongly that the First Amendment does not protect a right to use speech in this way, to disrupt the speech of others. Otherwise, there would always be a heckler's veto. Any speaker could be silenced just if people wanted to stand and cause enough noise. The only speech, then, we'd ever hear is that which is superficially non-controversial that no one wants to stop it.
Now, I said there can also be time, place, and manner restrictions, so as to protect safety on campus. Campus have a legal as well as an ethical duty to ensure the safety of their students, staff, and faculty. There can be a point at which a campus can say we can't allow this speaker and protect safety. So the speaker has to be vetted. That should always be a last resort. It should never be based on a view point.
In August, the chancellor on my campus, Carol Christ, was kind enough to ask my advice about what to do in anticipation of many controversial speakers scheduled to appear. So one of the things I thought the campus should do is require that most controversial speakers appear in an auditorium, rather than being able to speak in an open area of campus. If a speaker is in an auditorium, it's possible to acquire identification or tickets. There'd be metal detectors outside the door. The police can secure the perimeters. All of that is infinitely more difficult if it's in the middle of the campus in an open area.
In fact, when the controversial conservative speaker Ben Shapiro appeared on campus, officials required that he appear in an auditorium. They allowed him to speak in the largest auditorium on campus, Zellerbach Hall. The campus also spent $600,000 to ensure security. It worked. He was able to speak. And there was no violent incidents.
This, though, does raise a question where the First Amendment is yet to provide an answer. How much do to campuses have to spend in order to protect safety and allow the speaker? At what point can the campus say, we just can't afford this anymore, so we can't permit the speakers where the cost is going to be too great.
Chancellor Christ has said that this semester, the University of California Berkeley has spent over $2 million in security costs to ensure that controversial speakers could be able to convey their message. She thought it's so important to be able to show that Berkeley is a pro-free speech campus. But what if it was not a free speech week, but a free speech semester? What if the cost was not $2 million, but $20 million? There's got to be a point at which a campus can say, we just can't allow the speaker and bear the costs. The law, though, doesn't tell us that point.
I think that this framework of time, place, and manner restrictions doesn't work for some of the hardest issues that are going to come up with regard to free speech on campus, those posed by the internet and social media. Our image with regard to free speech on campus, as I said at the outset of my remarks, is so shaped by the idea, speakers or outsiders wanting to come on the campus, they're wanting to use that to express a message. But when you're dealing with the internet or social media, it's speech that's really not physically on campus. It's not physically anywhere. But it could have enormous effects.
I think, as I've alluded to, some of the most difficult questions arise in this context. What about when the internet or social media is used to reveal very private information about individuals, so-called doxing where the internet is used to reveal that somebody is transgender or somebody is undocumented? The traditional answer of the law is let the person for whom the information was disclosed sue for it in the tort of public disclosure of private facts. But if something private is revealed, the last thing you want to do is call more attention to it by filing a lawsuit.
We now know that the internet and social media are often used to target and harass students on campus. And particularly women and minority students are subject to this. When should the campus be able to punish that kind of speech, that behavior? The law still doesn't provide us an answer.
So what I've tried to do during these remarks is summarize for you the law as it now stands. I realize that some of you, this may be very unacceptable, that you may believe that campuses should and indeed, perhaps, must be able to punish the speech that's harmful, that's hateful. I doubt that what I said would persuade you to change your mind. But I would ask you to think about the following.
The reason we protect free speech is not for the speech we like. We'd let that go on anyway. I have a real sense that the only way I'm going to have the right to speak tomorrow is to safeguard the speech that I don't like today. If we're going to allow campus officials to punish ideas and viewpoints, we're giving them tremendous discretion. They have the ability to decide what's good and should be allowed and what's bad and what should be stopped.
History causes me great pause when that occurs. I look at the 1950s, when so many campuses fired professors being suspected of being communists. I look at the 1960s where many campuses tried to fire professors or expel students for participating in anti-war protests, or with that, civil rights protests.
I have to admit, as much as I am skeptical of any notion of a marketplace of ideas, I'm even more skeptical of giving campus officials or government officials the power to pick and choose among messages to permit some and to stop others. The First Amendment is ultimately based on a faith that we're better off allowing all ideas to be expressed than allow government officials to punish some of them.
And I have to say, they generally share that faith, though there's moments that I have doubts, too. Thank you so much.
EDUARDO PENALVER: So we have about 20 minutes for questions from the audience. There are microphones on each aisle here. If people want to come forward with their questions. I can get us started. Your discussion of social media made me wonder what your thoughts were on the right to be forgotten. And whether you think that this idea of being able to expunge information from the internet is a suitable remedy for the kinds of public disclosures you were talking about or whether it raises its own First Amendment problems that make it a remedy worse than the disease?
ERWING CHEMERINSKY: And it's interesting, as you may know, Europe is now adopting laws that create this right to be forgotten. In the United States, no such right exists. And when you deal with a medium that does not respect national boundaries, it's going to create enormous problems when the laws that exist in Europe is incompatible the law in the United States.
In theory, I like the idea of a right to have information removed. There's a point, at which I think, that almost a statute of limitations on embarrassing or harmful information. I think it's going to be almost impossible in Europe here to implement that. It is so difficult to expunge things once they're on the internet. That once they're there and they're downloaded and everybody's found, what does it mean then to take it away? And so I think the technology there is the problem, much more than the influence.
EDUARDO PENALVER: More than money. Go ahead.
AUDIENCE: Hi, one thing that you mentioned was the high cost of having controversial speakers on campus. And if I remember right, Richard Spencer was bragging about it costing-- I think it was the University of Florida, somewhere down in Florida-- over $500,000 for protection. I'm wondering if there's a way that technology can obviate that.
Would it be constitutionally protected, or can you get around it by having a huge screen and have them Skype in their lecture in such a way that people come up to the mic after the lecture and ask questions, thus removing the target from campus, while allowing him to have his speech on campus? Would that be a way to get around that and to diminish the costs of protecting the speech, while passing constitutional muster?
ERWING CHEMERINSKY: I think it's very clever. There is no law that I can point to that answers the question. My instinct is that absent truly extraordinary circumstances, the court would say that's not an acceptable alternative. The court, I think, would believe that there is a difference in speaking to an audience by being there, as opposed to speaking via technology on a screen. And if the speaker wants to be there, has been invited, say, by a student group to be there, to say you can only speak digitally wouldn't be regarded as sufficient.
Now, I think that there are other things that can be done. I testified about a month ago before the Judiciary Committee of the California State Senate, saying that I thought that the state should reimburse public universities for the costs that they incur in allowing speech. Because since they are constitutionally required to do this service public, they should do that.
But, again, there's no law. I can't tell you it wouldn't be allowed. I don't think, though, a court would permit it.
AUDIENCE: OK, thank you.
AUDIENCE: Hi, thank you for the excellent talk.
ERWING CHEMERINSKY: Thank you.
AUDIENCE: I want to bring something to your attention. From my perspective, the real problem of free speech on this campus is the biased reporting system at this university. And the problem is it has created a real hostile environment for moderates, contrarians, conservatives. If you offend someone, there's a real threat that you'll get reported to this biased system, especially when the administration is advertising that you can report every little issue that you may encounter here. So a lot of the people I know that have sort of contrary opinions have been already disciplined by this university. And it's made it very hard for graduate students or professors to sort of speak out against sort of radical ideology. They're scared of, you know, getting reported and punished by this administration.
So how can we have a biased reporting system that's very vague in what you can report, yet also has free speech? It seems inconsistent to me.
ERWING CHEMERINSKY: If I understand the question, right, let me try to break it down step by step. I believe that all ideas and views expressed on campus, however contrarian, however conservative, however liberal, I don't believe that ideas or views can ever be punished on a campus. Now, social pressure will exist against certain ideas and views being expressed. There's nothing a campus can do about social pressure, other than try to put its own pressure on, creating an environment where all ideas and views can be there.
But I think you've got to separate the legal regulation and apparatus for legal regulation from the social pressures that might exist in an environment. Am I understanding your question or am I missing it?
AUDIENCE: Well, the problem is, as I see it, is that we do have a biased reporting system already in place. So if you say something that is offensive or controversial, there's a good chance you can, if you find the right people, you can get reported. And people are getting reported and getting punished. So what-- I think this is a serious problem with private institutions, and I'm wondering what we can do about it.
ERWING CHEMERINSKY: Well, I don't think there should be a system where people can be punished for the ideas they express and so--
AUDIENCE: I agree.
ERWING CHEMERINSKY: --and if that's happening, I'm saying that's wrong. If it's a public university, that violates the First Amendment. And if somebody were to come to me as a dean and say, I'm reporting this person who expressed this view, I would say that's what free speech is all about. They have the right to express the view. And how can we facilitate you're expressing your view?
AUDIENCE: Thank you. I agree with you, but it is happening, and it's through the Title IX.
ERWING CHEMERINSKY: Then, we should stop it.
AUDIENCE: Thank you.
ERWING CHEMERINSKY: We would agree.
AUDIENCE: All right, thanks. So you said earlier that the chancellor of Berkeley was defending it as a free speech campus, and that stuck with me. And I was wondering who kind of decides what campus is a free speech campus? Like, is it the administration or the faculty? Or if all the students are coming up, and they're there heckling, and they're shouting down the speakers, is it still a free speech campus because the president decides that or the Board of Trustees? It's not strictly a legal question, but I was just wondering your thoughts on that.
ERWING CHEMERINSKY: If it's a public university, ultimately, it's the Constitution and the courts that enforce the Constitution that make it a free speech campus. Now, in this instance, the context that I was talking about was the question of, at what point could the chancellor say, we just can't afford this anymore. We can't afford the security for the speakers who going to prevent it.
And I can tell you, since I wasn't in an attorney client role really with the chancellor-- I'm a professor, I'm not campus counsel-- I said she had to consider two questions. First, what was her stomach for getting sued? Because if she excluded a particular speaker, that speaker is likely to sue. And the law is sufficiently uncertain that there's no way to predict what the result is going to be in the court. If she loses, the campus has to pay attorney's fees. There's always the prospect of money damages, too.
And the second is, what do you want the message to be at this point in time? And she thought it important that the message right now be that Berkeley is a free speech campus. Now, in terms of your question, obviously, there's ways with shared governance that all of the groups you mentioned are part of determining the policy and the ethos of campus.
The campus administrators play a very important role in that regard. You know, she could have decided, as chancellor, to instruct the university that certain speakers wouldn't be present and the campus police should keep them from being there. She made the opposite choice. But she had to make that call. There's points at which a chancellor or university president has to make certain calls with regard to that.
AUDIENCE: Thank you very much.
AUDIENCE: Thank you. Thank you for your comments.
EDUARDO PENALVER: Oh, up there. Sorry, I didn't-- yeah, so why don't we go there and then you? Sorry, I didn't see the microphone up there.
AUDIENCE: Hello, so earlier in your speaking, you said so the government doesn't have the legal right to suppress and pick and choose which speakers they want to disagree with or not include in their presentations. And that's within the governmental and the public domain. However, in our private institutions, in the private domain, I would infer from what you said earlier that they do have the right to pick and choose. So how might that the right to allow all free speech be extended to private institutions or private universities?
ERWING CHEMERINSKY: Sure. One way in which speech is extended to private universities is sometimes by state laws. So in California, there's a statute known as the Leonard Law that says that a private school-- high school, college, university-- cannot punish speech that the First Amendment would not allow a public university to punish, a public high school to punish. So there, by statute, not the Constitution, there's the protection of speech.
Also, there are a number of cases that have said that a faculty handbook constitutes a contract between the university and the faculty. But a student handbook constitutes a contract between the university and the students. Many faculty and student handbooks have declarations about academic freedom and protection of speech. So that would create a legally-enforceable duty in that context.
But when you come to private universities, my basic point is it's a question of what should the policy be. It's not, what does the law require. Because generally for private universities, they can make those choices. My own argument is that I think that private universities should be as committed to speech as public universities because their role in advancing ideas, academic freedom, though we could certainly have that discussion and there are countervailing arguments.
AUDIENCE: Thank you.
AUDIENCE: That's actually a nice transition to the question that I had, which was you at the beginning made a very clear distinction between what the law is and what it should be. But at the very end, you started to suggest here are some places where we don't have law yet. And I wondered if you could expand a little bit on that of where do you think it's appropriate for us to create laws. You just suggested one, particularly with respect to private university and ways where the law can speak. Are there other areas-- for example, in the internet area-- where you think it might be appropriate to create laws that you think would pass muster?
ERWING CHEMERINSKY: Sure. The easiest place to start is the debate that you're going to have this spring between Nadine Strossen and Jeremy Waldron. The law is clear that hate speech is now protected the First Amendment. It doesn't have to be that way. We can have a discussion of should hate speech be unprotected by the First Amendment.
Now, I can explain, I don't think we now have or in the foreseeable future we'll have a Supreme Court receptive to creating an exception to hate speech and the First Amendment. But we can still talk about should it be. And I find that a very difficult question.
I think the arguments that are made by people like Jeremy Waldron, and Charles Lawrence, and Richard Delgado, and Mari Matsuda are very powerful against protecting hate speech. I'm ultimately persuaded by the arguments on the other side. But I have a certain degree of uncertainty about that. So we can talk about that.
What I was trying to identify is, even within the framework of current law, there's so much that's unsettled. What's the standard for what's a true threat? Some of the circuits have said that the standard is, would it cause a reasonable person to imminently fear danger to his or physical safety? Other circuits have said that it has to be that speech is intended to cause the person to fear for his or safety. Should it be an objective or a subjective standard? | have a view on that. I think it should be an objective standard, which is more protective of individuals and less protective of speech. But you could have that discussion.
When does speech rise to the level of harassment that a campus can punish or even prevent? The law is so unclear in this regard. When can schools punish speech over social media or the internet? What if a student reveals very private information about another student? What if the student posts sexually explicit photos by another student, so-called revenge porn? When can the campus punish that?
I have my views on that, but the law hasn't developed. So these are the places within in the current framework we can talk about. Where should the law go? I think generally, in terms of the internet and social media, the law just hasn't kept up with the technology in these areas.
AUDIENCE: I was wondering how do you distinguish between, for example, a professor's freedom of speech and a student's right to learn? So can a university say a professor has to teach many different theories or can he only teach the one that he agrees with?
ERWING CHEMERINSKY: It's a great question. And I think it requires that we distinguish between speech in a professional role versus in all other roles for a faculty member. When a university evaluates a professor for, say, promotion or tenure, they have to look at the content of the work of the professor. When a professor evaluates student work, he has to look at the content of the work in making that determination.
Now, that's very different from what the professor does in writing a blog or an op-ed, or going to rallies on the weekend. I don't think that the campus can punish the professor for those. You're focusing on the former category. And to what extent can a campus control what a professor says in his or her classroom?
On the one hand, there's academic freedom. I certainly should have some freedom to be able to decide how to teach material. On the other hand, the campus can say, we regard this as how we want this particular material covered in this course. If I'm teaching constitutional law, the school can say, if you're just out there teaching astrology or talking about the World Series, you're not doing your job.
Or where I used to teach at the University of California Irvine School of Law, we made a choice as a faculty that we were going to teach first-year contracts in terms of the common law and a method of common law analysis. If a professor didn't want to teach that course that way, that's fine. Then don't teach that course. But I think we, as a school, can say for our curriculum, we want it covered this way.
And when there's curriculum choices, say in terms of sequencing, I think a school can make those decisions. So if the school wants to say, this is how this subject is taught at the school, I think it can do that without infringing the First Amendment. But that's different than saying the professor, when you write in your blogs or your tweets, you can't say this. That, I think, would be violating the First Amendment for public university.
AUDIENCE: Thank you.
EDUARDO PENALVER: I want to piggyback on the question about private institutions. So you--
ERWING CHEMERINSKY: Sure.
EDUARDO PENALVER: --in the book, you stake out a strong claim that private universities ought to, in a kind of a normative matter, protect speech to the same degree required by the First Amendment. And the First Amendment is also thought to protect not just speech, but also associational freedom. And so I wonder whether there is a value in what Heather Gerken calls second-order diversity, the idea of a kind of diversity among types of associations, a diversity among types of communities.
On the private side, is there a value to having universities that can stake out distinctive identities around categories of speech so that the idea of the Libertarian university, or the Evangelical Christian university, or the Catholic university-- is there space in your theory for that kind of diversity around speech categories in higher education?
ERWING CHEMERINSKY: I'm not sure. It's something that Howard Gellman and I struggled with a great deal in writing the book and, ultimately, have taken the position that we believe for all colleges and universities, there should be a commitment to academic freedom. Let me go back to your premise, the idea of second-order diversity. There are places where we don't accept it. We wouldn't allow a college or university experiment with having race discrimination. I would hope that we wouldn't allow a culture of extremity, even it was a religious school, with sexual orientation discrimination.
Should we allow it to experiment with restrictions of speech? I am so afraid of giving campus officials in any campus, public or private, that ability. As I alluded to briefly at the end, when I look at the history of how it's been used, it causes me great concern. And I think I would rather, at this point, say I'm willing to put my chips on the side of free speech at the institutions, rather my chips on the side of I'm going to let campus officials at these private schools decide that they're going to punish the professor for participating in the anti-war protests, or for the civil rights protests, or the like.
EDUARDO PENALVER: Even if they join the community knowing this is-- I'm going to Wheaton College and it's an Evangelical Christian school. And so I guess I accept, by joining that community, that there are restrictions on my speech perhaps, right?
ERWING CHEMERINSKY: Well, but there's a difference between the ability of the school to express its message and the ability of the school to punish students or faculty for having a different view. Wheaton College-- I'll take your example-- can express in every way it wants that it's a religious institution. It can require, as part of its curriculum, that there be religious instruction. It can require chapel services if it wants. That's who it is as an institution.
The question is can it enforce that by then punishing faculty and students whose speech is at odds with that? And that's what I've often said I'd rather take my chances on letting the speech occur and letting there be academic freedom in these institutions, at the risk of keeping the institution from defining itself by restricting speech. But I find that an enormously difficult question. And I don't have a lot of confidence in my answer.
AUDIENCE: Hi. I really enjoyed your talk.
ERWING CHEMERINSKY: Thank you.
AUDIENCE: And my question is-- so I went to a private liberal arts undergraduate institute. And right after I left, apparently, there was a policy put in place with respect to gendered pronouns. And at the time, I was-- I mean, personally, if someone asked me, I would prefer these pronouns, that's fine. I don't really-- you're free to be expressed by whatever pronouns you want to be expressed by.
But my question is not necessarily a restriction on speech, but more of an imposition on speech. Namely, what sort of happens when a university says you must use these? You must give your preferred pronouns at the end of all your e-mails, or at the beginning of your course, or something like that? Yeah, I was just curious about the imposition of speech, rather than the regulation of it.
ERWING CHEMERINSKY: To me, it's the difference between teaching and requiring. I have no problem with the school saying that we think you should use for people the pronoun that they prefer. It's respectful to them. And often, people don't realize as they come to college that there are choices that people make, as to the pronoun. And to me, that's all part of teaching how we should talk to one another.
When I said this, I've often been accused of engaging in political correctness.
ERWING CHEMERINSKY: I said, no, we all learn from a young age there's some things you shouldn't say in public. There's certain things you don't say to people. And this is just about teaching people to treat others with respect. That's, to me, different than requiring. That, I think, if a campus were to say, we're going to punish you if you don't use the pronoun that somebody prefers, then I think that does restrict freedom of speech. And I would say that's unconstitutional.
So I think campuses have a huge role in teaching students about how to talk to one another. But I don't think that should be enforced by legal or disciplinary sanctions.
EDUARDO PENALVER: We have time for one more question.
AUDIENCE: Yeah, so I just wanted to squeeze in the last one about safe spaces. And if you could comment on that for us, please. Safe spaces.
ERWING CHEMERINSKY: Safe spaces.
ERWING CHEMERINSKY: Oh, sure. Safe spaces is a phrase that's much in vogue. But I think you have to be very careful how you use the phrase because it can mean many different things, some of which are laudable, but some which are really objectionable. So safe spaces might mean the legal duty of the campus to protect the physical safety of students, staff, and faculty. And I believe that campuses do have that obligation.
Safe spaces might mean a place of repose. We all need a place of repose, a place to get away from things. So I think that campuses can have more restrictions of speech in dormitories than in public areas because students should be able to have repose there. The restricted speech in dormitories still have to be viewpoint neutral, but I would support much more in the way of protecting students from unpleasant speech in dormitories than in public areas of the campus. If that's what safe spaces means, I'm all in favor of them. I've supported at the University of California Irving creating a black student union, or having a Latino student union, or a women's student union. It's a place to give people repose, a safe space.
But how the phrase safe space is often used is saying that a campus should prohibit and punish speech that students find objectionable or offensive. I heard this a lot on the Berkeley campus in September of students saying the campus needs to be a safe space for me. And if you have hateful speakers on campus, I don't feel safe on campus. That campuses never can do. It can't be that we're going to make a safe space by protecting students from being offended.
I think, often, part of higher education and coming to a university is being exposed to things that upset us, maybe even offend us. And you can't achieve safe space by restricting speech. And so if there's anything-- I can tie this to the last thing I'm going to say-- is that to my thesis, I strongly feel that college and universities have the duty to be an inclusive environment for all students. But I don't think that can be achieved by censoring speech. We can't achieve safe spaces by stopping speech that might offend people.
EDUARDO PENALVER: Please join me in thanking Dean Chemerinsky.
ERWING CHEMERINSKY: Thank you.
We've received your request
You will be notified by email when the transcript and captions are available. The process may take up to 5 business days. Please contact email@example.com if you have any questions about this request.
UC Berkeley. Middlebury College. University of Chicago. Controversial speakers and their opponents have entangled campuses across the country in fraught, sometimes violent clashes. When speakers with provocative – or biased – points of view come knocking, should universities welcome them and safeguard their right to speak?
Constitutional scholar Erwin Chemerinsky, dean of Berkeley Law at the University of California, argues that institutions of higher learning must find a way to create supportive academic environments for all students while also upholding free speech, even for speakers who espouse hateful ideologies. Co-author of the book “Free Speech on Campus,” Chemerinsky brings a reasoned, scholarly perspective to a polarizing topic that has divided university campuses and the country.