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[AUDIO LOGO] [SIDE CONVERSATION]
JENS OHLIN: Good evening. My name is Jens Ohlin, and I'm the Allan R. Tessler Dean of Cornell Law School. I'm delighted to welcome all of you to this pivotal event, the kickoff for a historic year at Cornell University. Tonight, we embark on a transformative journey into the heart of freedom of expression in which we'll explore the legal foundations of free speech, grapple with the challenges of applying those principles in our diverse society, and navigate the evolving landscape of speech in the digital age.
This ambitious initiative has been made possible through the visionary leadership of President Martha Pollack. Her unwavering commitment to free expression and academic freedom has propelled us into this momentous year. From attempts to silence campus speakers elsewhere to legislation that seeks to ban certain ideas, the concept of free expression is facing unprecedented threats nationwide.
I commend President Pollack for recognizing that it is our collective responsibility as educators and as scholars to address these challenges head-on. It is only fitting that we begin this theme year here at Cornell Law School, where we teach future lawyers how to engage in civil debate and how to engage in the adversarial process while still remaining collegial with one another.
As I've noted before, the need for civility increases proportionally as our disagreements become sharper. Indeed, civility becomes easiest when we largely agree. But it is when we disagree that we must strain to engage with each other in ways that are both productive and broad-minded.
As we commence this academic theme year, let us embrace the challenge of preserving and promoting free expression and academic freedom, not only for the sake of our university, but as a contribution to the very fabric of democracy itself. Thank you for joining us on this remarkable journey. And now, would you please join me in welcoming President Martha Pollack?
[APPLAUSE]
MARTHA POLLACK: Thank you, Jens, and good evening, everyone. Welcome to the Cornell Law School. I am just very, very delighted to have all of you here with us in Myron Taylor Hall and on the live stream for tonight's discussion, tonight's kickoff event, as Jens said, of our first-ever university-wide academic theme year, The Indispensable Condition, Freedom of Expression at Cornell.
The title, I think as most people know by now, comes from the words of the late Supreme Court Justice Benjamin Cardozo, who called freedom of expression the matrix, the indispensable condition of nearly every other form of freedom. The First Amendment guarantees that Congress shall make no law abridging the freedom of speech or of the press, but since the Bill of Rights was ratified in 1791, our understanding of that right has been continually interpreted and refined by our legal system, and it's also evolved within our society.
Freedom of speech is in many ways a bedrock assumption on which we've all built our lives. The ability to say what we think, to ask questions, and to listen to others is essential to democratic government, to our right to self-determination, and of course, to our academic enterprise. But over 232 years of American history, we've concluded that the right to free speech is not absolute, and understanding that freedom and its nuances is essential to the work ahead.
Tonight's discussion will lay the foundation for that work by delving into the concepts of free speech and free expression and their history, importance, and challenges. And so I'm delighted to welcome our moderator for this evening's discussion, Gautam Hans, associate clinical professor of law and associate director of the First Amendment clinic here at Cornell, as well as a member of the planning committee for our free expression theme here.
Who's second? Karen Levy, associate professor in the Department of Information Science and associate member of the faculty of Cornell Law School, Michael Dorf, the Robert S. Stevens Professor of Law, and Nelson Tebbe, the Jane MG Foster Professor of Law. Gautam, over to you.
GAUTAM HANS: Thank you.
[APPLAUSE]
Is it on? Oh, it is on. Good. Perfect. Good evening, everyone. It's great to be here. Thank you, Dean Ohlin and President Pollack for your introductory remarks. As President Pollack mentioned, I am Gautam Hans. I teach in the First Amendment clinic here at Cornell Law School.
I am really grateful to have our panelists with us today and grateful that they said yes to my invitation. When you ask friends to do something, you always hope that they don't view it as some kind of mandatory imposition, so I'm grateful that they were able to take time from their schedule for us.
So I will set out a little bit of what we're hoping to accomplish today, specifically in terms of substance. I have some questions that I'll ask for the panel, some that are for specific members of the panel, some that are open. We'll have time for a Q&A, and then we will go out into the hopefully not-raining evening.
I sort of conceptualized this discussion as having two goals, understanding that our audience is not just lawyers, the law school, but people who are part of our academic community who have an interest in this topic but may not have as much background as they think they might need or just simply want to learn more about the context of free expression and the First Amendment.
And it's for that reason that this event is being both live streamed and recorded as we, of course, understand that some people may not be able to join us in person or may want to refer to this discussion subsequently. So substantively, we're hoping to introduce concepts of First Amendment law, principles underlying freedom of expression, and particular issues salient to academic settings.
This we hope will achieve our second law, which is to allow attendees and viewers to engage with subsequent programming throughout the theme year with a greater knowledge of how First Amendment law operates and what values it attempts to promote. I would also say that the planning committee is working on a range of programming and events, not just academically-oriented in terms of First Amendment research, but also things that evoke the interdisciplinary nature of our research and community.
So it's not just lectures and panels. It's also the fashion show that the College of Human Ecology is putting on, the Scalia/Ginsburg opera, which I think was sold out very quickly. I didn't know we have so many opera fans here, but I'm glad to see it.
We will have subsequent speakers here at the law school on September 26, Eugene Volokh and Jameel Jaffer, and more events to be announced, which you can find on the website, which I believe is www.cornell.edu/expression. Perfect. Great. So I'm going to start with Mike. An easy softball question-- what principles underlie the First Amendment and its protections?
MICHAEL DORF: So the First Amendment, first of all, I'll say, is a restriction on governments in the United States, so the federal government, state, and local governments. It is not a restriction on private actors, such as Cornell University. But it is a-- I recognize that Cornell is partly a land grant institution. There are cases in New York State courts that say it is not a state actor for those purposes. But let's put all that aside for now.
When we talk about the First Amendment, we sometimes have in mind not merely the technical legal requirements of the First Amendment as limit on government, but also the principles behind it, which have been broadly adopted by many institutions throughout our society, including Cornell and many other universities and colleges.
And so there are essentially two sorts of purposes that you might think of the free speech principles serving, and when I say essentially two, I mean, it could be 20. But I'll sort of group them into two. Some are instrumental, and others are sort of inherent.
So by instrumental, I mean they serve other purposes. The most obvious other purposes that free speech serves are, first, to promote democracy. It's essential to self-government if people are going to make decisions about how they want to be governed, what rules, policies to adopt, they need information. And for there to be free flow of information, you need to have freedom of speech, so that's one reason why we have freedom of speech, why we value it.
A second reason why we value it instrumentally is because for the pursuit of truth. We'll talk a little bit later on about what Oliver Wendell Holmes, Jr., called the marketplace of ideas. But the idea here is that if you want to get to the truth, whether or not it's about public policy-- it could be about something in your personal life. Could be about scientific discovery, or I think about Galileo, right? You need to be able to express unpopular, even heretical ideas, so that you can track them down.
So those are the instrumental reasons why we value free speech. But we also might value free speech inherently because it is a form of liberty that is very valuable to individuals. You mentioned a fashion show, and I should say I'm a little bit insulted that I wasn't invited to the fashion show--
GAUTAM HANS: I didn't see that tie beforehand.
MICHAEL DORF: As a participant.
[LAUGHTER]
But that's one way by which someone can express their individuality, right? Music, dance, art-- none of these have great instrumental value for democracy or for the discovery of truth, but they are sort of fundamental aspects of human freedom. So that's where I would start.
GAUTAM HANS: Perfect. In the clinic, we sometimes talk about First Amendment values as much as doctrines, and I think those values about self-expression, that sort of developing your own identity are really central to sometimes what in the legal world we think about when analyzing First Amendment cases or principles. And actually speaking of courts brings me to the next question, for Nelson. Why do courts take such a skeptical view of government actions that potentially implicate speech?
NELSON TEBBE: Well, in thinking about that question, which you kindly provided to me beforehand, I prepared essentially the same remarks that Mike just delivered about the importance of free speech for democratic self-governance, for the pursuit of knowledge even apart from democratic self-governance, although it certainly serves to reinforce our efforts to govern together as a collectivity, and also for individual actualization or the actualization of communities living together.
But to say something else in response to your question, I think the lessons of history loom very large in the Supreme Court's jurisprudence. And the history that we're talking about for purposes of the First Amendment is not very long. The sort of Marbury against Madison decisions of the First Amendment date only back to the 19-teens and '20s.
And the kinds of conflicts that I think the court and then the society as a whole learned the most from were, first, conflicts around the First World War and the rise of global communism and efforts by some in the society here in the United States to protest the actions of the United States in pursuing that conflict. And then after World War II, the rise of McCarthyism and the lessons learned from McCarthyism.
Even though the Supreme Court was, I think, not as effective as in retrospect we would have liked in policing free speech during that time, the lessons of those failures, I think, have stuck with the Court and with the society in really tenacious and important ways. And so that the Court has learned, as we all have, that when the government is tempted to discriminate among ideas based on their viewpoint or content, we should be very, very careful.
Not that that's always impermissible, but that when the government is engaged in that kind of regulation of expression on the basis of content or viewpoint, courts should take a hard look and force the government to really give good reasons, almost as like a prophylactic device, because we have learned over time that the dangers are very, very present and real when the government engages in that kind of regulation.
And then also, during the Civil Rights movement of the-- sometimes called the second reconstruction of the 1950s and '60s, and then stretching into the 1970s too, with liberation movements for women. During this period as well, the First Amendment was crucially important, and the Court learned, and I think, again, we all learned important lessons about the value, not just of expression itself, but also of the ability of people to gather together, to associate with one another for the purpose of forming ideas and expressing ideas, even when those ideas don't conform to the views of the government or to orthodoxies that are prevalent at the time.
So I just add a historical gloss to what Mike said, like why the Court is so sensitive when it comes to efforts by the government or indeed other powerful private actors to discriminate on the basis of viewpoint or content.
GAUTAM HANS: Turning from history to the present day, Karen, you and I both spend a lot of time, maybe for me, too much time, thinking about technology and speech and those difficult questions that come up. How do you think about speech protections in a digital economy, and why does the First Amendment present so many challenges for regulation of technology?
KAREN LEVY: Yeah, so I was so glad to hear Mike start with his very first sentence about state action, right? The First Amendment constrains what governments do, right-- what federal, state, and local governments do. You need be on the internet for only maybe, like, 11 seconds, I would say, before you find someone who asserts that Facebook or Twitter or YouTube or just some other person, like random actor on the internet, has infringed upon their First Amendment rights, right?
This is a really common rejoinder in discourse online when people are upset that their content is moderated or demonetized or that they're not listed high in search results or they're not amplified or recommended. There's often this assertion that that's a violation of their First Amendment rights on the part of the platform that has made those designer policy decisions. And that is really unequivocally false.
And courts have been pretty clear. There have been a couple of cases recently-- the two that I teach in my class are Jian versus Baidu and Prager University versus Google, both of which are cases in which a party is aggrieved because they-- in some cases, they've been demonetized or they don't feel that a search engine is listing their results highly enough or at all.
And they bring these First Amendment claims, saying, you know, oftentimes, the rhetoric that's leaned upon is that in some ways, these tech platforms operate as public squares today. And I think there is some validity to that argument. But that has not translated to the analogous principle that because a lot of speech happens on these platforms, those platforms constitute state actors.
So if anything, what courts have found is that those platforms themselves have free speech rights, and oftentimes, they have no choice but to decide what content to prioritize. It's well within their editorial discretion to decide not to amplify or even include content that they find objectionable for pretty much any reason.
So it doesn't get us very far, right, to lean on the First Amendment, when we deal with some of these really pressing problems around speech and harassment, misinformation, et cetera, online. Of course, this isn't to say that, well, the law has settled this, and therefore everyone is happy. Everyone is not happy, necessarily, with this state of affairs. And there's quite a bit we could say about accountability and big tech, but I'll say only here that the First Amendment is really not a tool that is of particular utility in some of those arguments.
GAUTAM HANS: Yeah, [INAUDIBLE] you mentioned the editorial discretion issue, and I think people who may be following some of the technical litigation may know that there's a current two cases pending in front of the Supreme Court. They have not decided to take them. I think we expect them to this term, so perhaps we'll have some more guidance on that, or not, from the Court in the coming years.
Mike, you mentioned the marketplace of ideas question, or dynamic, and I wanted to see if you would explore that a little bit more. How does that concept of a marketplace of ideas function in First Amendment cases?
MICHAEL DORF: Yeah, so this is a line from Oliver Wendell Holmes, Jr., who was not originally a free speech enthusiast. In the first of the Red Scare cases, he did vote to convict the people who were charged with sedition based on relatively minor offenses. It was really only after Louis Brandeis joins the Court that Holmes becomes more enthusiastic about freedom of speech.
And Holmes, you have to understand, is a product of a specific historical experience, which for him was the Civil War. He was virtually killed-- nearly killed-- three times on the battlefield. After each of the first two times, his father, who was a famous essayist, sent him back and said, OK, you're still alive.
[LAUGHTER]
And he emerged from the war with a view of the world as a hostile place, in some respects, a sort of a battle. And he became a Social Darwinist. Now, this was before Social Darwinism was fully discredited by the Nazis, but it was already controversial. And I think he came to see the battle for ideas and for ways of governance in military terms, so that when he talks about the marketplace of ideas, right, that's a way for him to cabin that kind of activity.
He very much understands that the government can go to pieces, that the US government, like the tsarist government in Russia, could be overthrown. And so what he's trying to do is to come up with a metaphor that is less martial, less about war, and more about something that is more civilized. And that is this notion that ideas will compete in the marketplace in the same way that goods and services do.
And so the theory is somewhat similar to what we lawyers think of as the adversary process, right? Which is that you get all the arguments out there, you marshal your evidence, your opponent marshals their evidence, and out of that, truth emerges. Now, in some ways, Holmes is also very much a pragmatist in the classical American sense of pragmatism.
He was a friend of William James, Charles Sanders Peirce, Dewey, and so he thinks that the ideas that emerge from this are almost by definition the truth. It's not necessarily that this leads to the discovery of truth in the sense of what corresponds with ultimate reality. But that's the basic concept, right? It's that we've got to have some way of living together that is not constant warfare, and so something like the marketplace, in which there's this competition of ideas, is what's driving him.
GAUTAM HANS: Yes, it's something that I think we have really internalized a lot in thinking about how courts adjudicate or conceptualize first Amendment cases and their skepticism, to some degree, of regulation. We've talked a lot about prose or sort of defenses of this approach. But certainly, it's not the only approach, and one that we could criticize. And Nelson, if you could talk a little bit about the downsides of this American approach to speech and regulation.
And in particular, a piece of rhetoric that I often hear, which is that the US is an outlier as among constitutional democracies in the First Amendment. Why is that, and what does that mean as compared to some other nations that have made a different choice when it comes to speech?
NELSON TEBBE: Yeah, I'm happy to talk about it. I mean, I don't know that I would phrase in terms of downsides, but instead, it's important to think about the complexities of freedom of speech. Because like other rights, it's not absolute. And like other rights, it runs up against competing kinds of commitments, some of which themselves have very fundamental status for us.
In particular these days, of course, there have been conflicts between freedom of expression and our commitment to freedom of expression and another commitment that's also fundamental importance, which is the commitment to the right of citizens to be free of structural injustice-- just to enjoy equal citizenship without stratification.
And this concern for equality, like our concern, for freedom of speech has constitutional status. I don't mean, necessarily, that it applies directly against private actors or anything like that. But just in the sense that we're speaking about freedom of speech as a value that many institutions have adopted.
Similarly, equality, especially equal citizenship standing for all people, is a value that many institutions in America have adopted, even if they're not required by law, or by constitutional law, to do that. And when basic values like these conflict, communities react in different kinds of ways, and we would expect to see, and we do we do see diversity, and there are kinds of solutions to those conflicts.
With regard to the conflict between freedom of speech and equal citizenship standing, many countries, many democracies in the world, including those located throughout Europe and in Canada, have taken a different approach to the United States in one very visible way, which is that they allow for some regulation of hate speech-- some recognition that not just governments but private actors can contribute to the unjust stratification of society along lines that are historically problematic, like racial identity or sexual identity and so forth.
Not only, though, at the national level, but also at the institutional level, even within the United States, institutions have taken different approaches to these kinds of conflicts. So many digital intermediaries, platforms and so forth, do regulate hate speech. These are American companies that profess to apply American values, including freedom of speech, to their governance structures. And yet, they have found it necessary to take a different approach to the regulation of speech than the one that the Supreme Court has adopted with respect to national government.
In a way, like one way to think about this is that the competing values are not themselves that different across these different domains, right? Everyone agrees that freedom of speech is of vital importance. And I think everyone also agrees that people shouldn't be subordinated on the basis of inherent characteristics in their citizenship status but instead should stand before one another in the public as equals.
But there's also plenty of room for complex negotiation of these competing values at the court level but also at institutional levels, including at the university level. The specificities kind of multiply once you start taking into account not just the abstract values but also the values of the particular institutional location. What is a digital platform for? In what ways should that specificity inform the way it balances commitments to freedom of speech and to equal citizenship?
Similarly, in a university, we might expect the answer is to vary somewhat, right, that the academic freedom is a value that is specific to universities. Doesn't affect the internet in the same kind of way, doesn't affect the national community in the same kind of way, and may inform the ways in which we negotiate these very difficult and complex conflicts between competing rights that have fundamental status for us.
GAUTAM HANS: Karen, we talked a little bit about technology, and one of the things that I've been hearing a lot of questions about for me and maybe you as well-- AI, any other kind of technology-- people love to think about the interactions between technology and speech. And certainly, it's something that the rapidity of technical development is striking.
How do we think about speech regulation, even if it were constitutional, in a world where, I think, technical developments are really hard for legislators and regulators to keep up with? Is it something that designed or other kinds of forms of structural assessment can be more effective in protecting these rights?
KAREN LEVY: I too have been hearing a lot about AI. You're right about that. But I think your question hits at something really important, which is in technology law sometimes called the pacing problem, which-- this is not unique to technology law, but I think it's especially acute in the context of regulating technology, which is that law moves pretty slow, right?
Legislation happens slowly. Things make their way through the courts and the appeals process relatively slowly. Regulatory agencies move a little faster, but still pretty slowly, right? These things happen slowly, and sometimes that's for the good, right? Sometimes that's quite deliberate. Sometimes it's more unfortunate. Technology, as you point out, Gautam, moves unbelievably quickly. And this presents a problem, right, when we're trying to regulate this inherent moving target.
There's kind of two poles, I think, that regulators often have. And when I say regulators, I just mean people who are policymakers who are thinking about these problems. On one hand, they can try to make like forward-looking rules that are guided by principle and aren't really too specific to the technology that's currently present but will still have applicability in 10 years.
That's really hard to do, right? It's really hard to foresee what technology is going to look like. It's hard to formulate policies that aren't too vague or too broad that are actually going to be effective to solve the problems that might arise due to those technologies.
On the other hand, they can try and solve the solve problems related to the technology that's right in front of them. And the risk there is that these things become instantly outdated. The sort of paradigmatic law that people bring up in this context is this statute from 1988 called the Video Privacy Protection-- or Video Rental Privacy Protection Act, which is about protecting-- you have these privacy rights in your video rental history from like Blockbuster stores, which is, like, cute and archaic, because it's so irrelevant to anyone's life today.
But you can see that courts and lawmakers are constantly trying to reckon with these two things. And so what you brought up, Gautam, as an alternative to this is kind of what we might think of as "small p" policymaking, right? What are the policy decisions or the design decisions that are being made, often within tech companies or in civil society, right, among actors who are not actually governmental actors, who are less constrained by the Constitution and who also can be much more nimble and much more agile and responsive.
And we have seen really, really impactful and important policy decisions made by those actors. So if you take Google, for example, right? Google is constantly making policy-- really impactful policy changes that affect billions of people. Google unilaterally decided no longer to list ads for payday loans, right? These exorbitant usurious loans that impact poor people. Just decided they weren't going to host those ads anymore.
Google has made a lot of decisions over the years about how they're going to treat search results for racial or ethnic or religious slurs, right? And has sometimes just decided just to completely delist offensive results. It has either delisted or maybe altogether banned mugshot websites, right, that often create the suggestion that somebody has a criminal record when they maybe actually don't and which are empirically demonstrated to negatively impact people who have statistically more likely names among communities of color, right?
These are all things that, even if lawmakers wanted to do something about these problems, they would be very likely to be unable to do that, either substantively because of constitutional constraints or just pragmatically because these things take a long time to do. Google can just make that decision, right? And so as a result, people who do advocacy around technology policy have relationships with private companies to the same extent that they have lobbying relationships or advocacy relationships with lawmakers.
And we might say, like, is this a problem? Should we be worried that a lot of decision-making ability lies in private actors? And I, actually, I'm not particularly concerned about that. I think with any sort of wicked problem or really difficult problem-- climate change, economic inequality, anything like that-- it's a really all-hands-on-deck approach, right? And you need public action, and you need private action.
One thing that I really like, actually, about being at Cornell and to work in between the law school and the Computing and Information Science College is that there's a lot of opportunity for students to become involved in these topics even when they're not lawyers, right? Sometimes even more so when they have design expertise or when they know a lot about social science or they think about engineering or they think about hard science, right? These are problems that everyone can and really should be contributing to solving.
GAUTAM HANS: In my pre-academic life, I worked at a nonprofit based in DC that worked on technology policy, and a lot of it was, in the course of my time there, less oriented towards public policymaking and Congress or in regulatory agencies or in the states and more towards private entities. And I it was interesting is that there's certainly-- my concerns about that are less about the-- I mean, I think you're right that it's just a dynamic that we have in many realms in this country.
But sometimes, the kinds of horrible eventualities that we could come up with were sometimes surprising to the people in these private entities making those decisions, and I found it very striking that you have a group of people who are to some degree unaccountable and are not always-- I think, in many instances, have good have good intentions, but maybe not always available able to conceptualize the negative repercussions of those decisions. And that's, as you know, a whole area of scholarly inquiry and also advocacy in different disciplines.
I'm going to switch gears a little bit because I think, Nelson, you mentioned academic freedom, and Mike, I would love for you to talk a little bit more about academic freedom in the university setting and how, if at all, it relates to First Amendment doctrines.
MICHAEL DORF: Sure. So as we've been talking about so far throughout the evening, private actors are not bound by the First Amendment. And so all of us have academic freedom, but that is not as a matter of the First Amendment. That is as a matter of our contract with Cornell University, which has held itself out as committed to academic freedom.
So academic freedom is related to the First Amendment in state colleges and universities, although again, it's not required, exactly. So that if a state university decided it didn't want to have tenured faculty, it could do that. If it decided it didn't want to give faculty the full measure of academic freedom that the AAUP, which is the union for professors, adopted in its foundational statement, it could probably do that too.
There would be some limits, because the government as employer is bound by the First Amendment to some extent. But when we talk about academic freedom, I think what we have in mind is an ideal that is closely related to the ideal of freedom of speech and I think especially closely related to the truth-seeking function of the ideal of freedom of speech, namely the notion that faculty, students, to a lesser extent administrators, ought to be free in their research and, to a slightly lesser extent, in their teaching, to explore all sorts of ideas.
I'll say a little bit about teaching in a moment, but with respect to research, here again, the notion is that the way that progress is made in the sciences, in social sciences and the humanities, is by challenging conventional wisdom. That's what we do in our scholarship.
Otherwise, there would be no point in having new scholarship. You would just keep the books that they had in the Library of Alexandria and you would read them constantly. But we produce new scholarship presumably because we hope to make advancements in our knowledge or at least to move the ball forward in one way or another.
So that's with respect to scholarship. Now, that doesn't mean that there can't be disciplinary standards of excellence, right? So somebody who says, hey, I've got an unconventional idea. My unconventional idea is that vaccines cause autism. If you have evidence of that, sure, that's great.
But if you're just spouting that and you're distorting the evidence, then it would be perfectly appropriate for a biology department or a microbiology department or medical school to say we're not going to reward you for trying to espouse those ideas, and you're going to have a hard time getting it published in a peer-reviewed journal and so forth.
So there are disciplinary limits on academic freedom, and then I would say there are also curricular limits and decorum limits. So I teach classes. I take devil's advocate positions. I espouse my own views. But I don't say the first crazy thing that pops into my head because that would be inappropriate, right? We have a teaching mission.
Same thing for students, right? If you're asked a question, you're not asked to give a speech on some unrelated topic. So academic freedom does not mean the liberty to say anything you want in a college or university setting. It means the freedom to pursue knowledge and truth in good faith according to the disciplinary standards and the decorum standards and the respect one shows for fellow students and others within the community.
GAUTAM HANS: One of the things that often comes up in the context of a university setting is speakers and views that someone in the university setting may find objectionable and challenging. Nelson, would you talk a little bit about that dynamic-- how universities think about speakers and viewpoints that some in their community may find objectionable or even threatening?
NELSON TEBBE: Yeah, sure. I mean, look, this is an enormously complicated topic. It's also highly charged, I think largely because it often happens at a high level of abstraction. My real hope is that in a community like ours, that's marked both by care for one another and also by intellectual rigor and standards of the highest academic kind, that we can find kind of ground-level solutions that both protect freedom of speech and also honor our commitment to respect one another.
And even though some of the doctrines of the First Amendment are highly controversial in our society, like the United States Supreme Court's position on hate speech, for example, or truthful speech. Other countries have taken other positions on those questions, as I've mentioned. Even within the bounds of the First Amendment as it currently stands and even if we were to apply it pretty straightforwardly to the university setting, I still think there's a lot of consensus.
There's a good deal of common ground around ways in which the universities can act to thread the needle, to do both things-- protect freedom of expression and ideas, make sure that ideas are exposed to the most rigorous kind of criticism, but also to express and vindicate our care for one another and also our commitment to not treat members of our community as if they have unequal status in some kind of structural or permanent kind of way.
And so as I've been thinking about university-specific controversies that have erupted in recent years, without going into detail on any one of them, it seems like there's actually quite a bit of common ground among people who are quite strong free speech advocates on the one hand and those who are more concerned about learning the lessons of the Civil Rights movement and avoiding structural injustice.
So for example, although debate persists about the propriety of hate speech regulations at the national level, there's widespread agreement that universities can and should ban true threats that are expressed on campus and patterned harassment that subordinates and excludes members of the community. So both sides, I think, agree with that. And then the trick is like how to implement those kinds of provisions in a way that's fair across the campus.
Another one is that although, and Mike mentioned this a minute ago, although content discrimination is presumptively unconstitutional at the national level, we're in the business of making judgments on the basis of content within the intellectual endeavors that we care about here at the university. We constantly make judgments on the basis of content. We deem some ideas more worthy than others, right? This is kind of what we do, not only when we're teaching, but also when we're engaged in scholarship, when we're promoting colleagues, and so forth.
When we're thinking about it in this way, even racist or sexist speech could be ruled out of bounds when it speaks to, right, when it's relevant to norms of academic rigor and excellence. That itself is an exercise of academic freedom-- the ability of the university to make those kinds of distinctions.
Although trigger warnings have drawn lots of controversy here at Cornell and in other places, everyone agrees that they should be available as an option to teachers in a classroom-- that common courtesy and respect may, may prompt a teacher to give students a heads-up that material is coming that may be difficult for them and to give them an opportunity to encounter that material in a more caring and protective kind of way and so forth, right?
So in some, I think there ought to be and is, hopefully, significant room for creative and sensitive solutions, even within the bounds of the existing norms of the First Amendment, whatever we think of them as a matter of first principles.
GAUTAM HANS: You mentioned something about threats and harassment and how that in and of itself is something the university can regulate. And one of the things that we see, quite unfortunately, with the rise of digital technologies, the increased ease of those kinds of behaviors-- doxing, online harassment, other speech online.
Karen, how do we think about that in the context of academic setting? In particular, what universities can and can't do when a student posts online about something that happens on campus or when something is reported that a student said and outsiders are engaging in targeted harassment or maybe even doxing? This is a common theme, I think, that people are concerned about, understandably, given the polarization that we see.
KAREN LEVY: Yeah, there's one kind of common rule of thumb in jurisprudence, and this is, I think, more with K through 12 education than in the university level, but maybe logistically it's useful to talk about it. But it's that there's sort of this about the schoolhouse door, right?
And that what goes on-- K through 12 schools have a little more latitude to regulate the types of speech that goes on in those schools because they're seen as-- the Supreme Court language has been nurseries of democracy, right? And they have very strong pedagogical missions. They're working mostly with children. So they get a little bit more latitude to regulate than the university does.
But even for those, even for K through 12 schools, social media has been a real point of tension, right? If a student says something threatening online or hateful or something that seems like it should potentially lead to discipline, how do schools decide when it's appropriate to discipline students for that?
There's a really, I think, really fun case that the Supreme Court dealt with a couple of years ago, called Mahanoy, where a student didn't make the varsity cheerleading squad, I think it was. And on her Snapchat, used some profanities about the school's cheer program. One of my favorite things about the law is that it takes these very small-- like, it was almost sweet, right? Like, take these very small, everyday things that happen in people's lives and elevates them to, like, literal federal Supreme Court cases.
But one of the things that the Court wrote about-- the Court said that the school was wrong for disciplining the student for something that happened outside of school, and it kind of reckoned with this boundary that you describe, right, about things happen inside or outside of school, but social media sort of seems to cross that boundary because maybe it's about people in the school. You can view it from inside the school.
But even then, they said, things that happen outside of school are really outside the purview of what we want schools regulating. And I think that's even more true in the university context. Some of the historical examples that Nelson brought up, where people have been disciplined for political views that they hold, like faculty, in particular, have been disciplined for political views that they hold very much outside from their jobs or the professional obligations they have to a university.
I think that almost always, in hindsight, is a poor idea, right, or history ends up looking not kindly on those decisions. I mean, we still have the question that you raised about, what should universities do when there are truly threatening situations? This is something I've unfortunately dealt with firsthand, some of my students have dealt with firsthand.
I know some of the Cornell administration a few years ago put out kind of a guidebook about digital security-- ways to ensure that your accounts aren't infiltrated. I've gone through those trainings and found them really helpful. I think in truly egregious cases, the university can make statements when someone's safety is truly threatened.
Another thing I think universities can do for both faculty and students is to ensure that everyone has sufficient access to physical and mental health care that's sufficient. But I kind think those types of policy choices are probably the best that universities can do in those contexts.
GAUTAM HANS: Right. I mean, what's really challenging is that there are so many situations in which third parties with no relationship to university can interact with university members and, though something may have happened on campus or in a classroom, there's very little, just practically, that the university can do in some situations, which I don't think anyone thinks is a good result. But it certainly evades a lot of obvious solutions.
A couple of questions I wanted to toss out in general to the panel before we move to Q&A in a few minutes, one of which I think we already did. Great. I feel like this is like when you get through class a little faster than you anticipate. The heckler's veto is a concept in the First Amendment that I think comes up a lot in some of the speaker settings we've talked about, and it would be great to hear some thoughts about what that concept is and how it applies in an academic setting.
MICHAEL DORF: Yeah, so a classic example of a heckler's veto is if while I were talking now, people were to start booing loudly, right?
AUDIENCE: Boo. Boo.
[LAUGHTER]
MICHAEL DORF: Thank you very much.
GAUTAM HANS: The invitation was given.
MICHAEL DORF: Which I don't really regard as heckling. I mean, heckling seems to me to imply at least a clever riposte of some sort. Even hissing isn't heckling. But in any event, the idea is that somehow you give the power of shutting up the speaker to the audience.
And so this has arisen in some contexts in which you have audience members, at university settings and in other settings, trying to shut down a speaker because they find the speaker's statements offensive, disagreeable, or what have you. There is case law on this. The leading case in the Supreme Court is actually a fairly obscure case called Forsyth County against the Nationalist Party, which happened to be decided the year I was a law clerk there.
And so the case involved a group called the Nationalist Party, which was really-- they're basically neo-Nazis. And they wanted to hold a March in this little place, Forsyth County, and under the Supreme Court's precedents, localities can require people who want to use the public streets and sidewalks for a march, something other than the ordinary passage of traffic, to get a permit, so long as the permitting process is neutral with respect to the content of it and reasonable-- so-called neutral time, place, and manner restrictions.
This particular county, at least the guy who was responsible for giving the permits here, had a policy of charging the marchers based on what he anticipated would be the costs of the march. And some of those costs are relatively uncontroversial, like, is there going to be a lot of cleanup afterwards, because you're going to have horses and they're going to befoul the streets as they march along?
But I don't think there were horses involved. But in the particular case, the worry was that they were going to charge the marchers an additional premium because, due to the unpopularity of their message, they expected there to be counterprotesters, and so they were-- the county was legitimately worried about the possibility of violence between the marchers and counterprotesters and was therefore going to need to hire extra police, pay them overtime, and so forth.
And so this was deemed by the Supreme Court an impermissible heckler's veto-- that is to say that, by all means, provide for extra security, but don't charge people more because you're going to have to hire extra security if the mechanism of the extra security runs through the unpopularity of the speech. So that's the classic heckler's veto.
I should say that this can be problematic in a college or university setting if you have a policy whereby any group can invite any speaker and you get a few extremely unpopular speakers and you'll exhaust your budget for security relatively quickly. And then you can't have events where you have less incendiary speakers. I don't have a solution to that problem, by the way.
GAUTAM HANS: Just increase the budget. Isn't that always a solution? The last thing I wanted to talk about-- Nelson, you spoke so eloquently about how speech exists and interacts with other principles, like equality. In the context of the university, how do we think about free speech and our commitment to it-- in concert or maybe in conflict or both or neither or something else-- with those other values that a university might try to propound?
We talk about diversity, equity, inclusion, and belonging, non-discrimination. I think there are equal access. There are all sorts of things that a university stands for in addition to speech. How do we think about that kind of coexistence?
NELSON TEBBE: Yeah, I tried to speak to that a minute ago, and I do think that these kinds of issues are just very, very fraught. But I have noticed that they're most difficult and most emotional at a high level of abstraction. That when we get down to the concrete specifics of a particular event, it's often possible to find solutions that kind of honor all of the University's commitments, at least to a tolerable degree, right?
We had an event a year and a half ago here in the law school. I think it was-- maybe it wasn't in this room. It was next door. Where a student a student group, the Federalist Society, invited a speaker who was highly controversial, and then also invited me to debate that person. And the details are fascinating to me, but probably not to you.
But it ended up being enormously controversial, not only here among the students at the law school, but also among students outside the law school at the university. And we, through careful deliberation and debate but also planning, which was spearheaded, I must say, and give a lot of credit to our Dean of Students, Markeisha Miner, who's sitting right there, and did an amazing job just sort of planning out how this was going to happen.
But the end result was an event that was, I think, a model-- should be a model for many law schools across the country and universities in general. The speaker who came was from an organization called ADF, or Alliance Defending Freedom. Another person from that same organization had visited Yale Law School just a couple of weeks beforehand, and it was a total disaster. There's lots of blame on both sides, but total chaos. Students felt treated badly, the speaker felt treated badly, and so forth. Well, nothing like that happened here.
There was vigorous protests-- like, really vigorous-- outside the room, outside the law school, and also in the room. A student of mine held up a sign throughout the entire debate that said something like, no debate with hate, which I think was directed not only at the speaker but also at me, and that was fine.
I criticized the speaker, the speaker defended himself, and we all learned a lot. Not so much about the topic of the debate, which was an obscure Supreme Court case. It didn't end up mattering much. But we learned a lot about free expression itself from the event and how it was handled. There was a die in after the event, so that we had to step over bodies in order to leave the room.
But that was good. That was all to the good, and I think it was great for the community and for everyone involved. Not that it was comfortable-- I think it was deeply uncomfortable for everyone. But it's an example of how focusing not so much on the abstract sort of principles at stake but instead on the specificities of a particular event can lead to solutions that really do vindicate all of our most cherished values, if not maximally in every case, at least tolerably in the case that you're dealing with.
GAUTAM HANS: I remember this, too, because it was on the visit when I was deciding whether or not to join the Cornell community. And I was like, wow, they created a free speech controversy for me. This is really great. Thank you. Karen, I think you wanted to say something, too, about this question.
NELSON TEBBE: Yeah, I don't have quite as colorful of a story as Nelson has, but I think-- but I really appreciate what you shared, because I think the First Amendment is kind of about permission and what you can't do, right? Like, what constraints you can't create. But it doesn't give us a lot of affirmative guidance about how to create an environment of positive intellectual exchange, like it sounds like this event was.
And I think many of us on the faculty could probably do more to like affirmatively work as part of our pedagogical mission to train students for those types of exchanges. And it sounds like this was an example of that. On the first day of my-- right now, I'm teaching a graduate seminar, and on the first day I talk about the principle of intellectual generosity that I want to underlie all of our conversations together.
I tell them, I think it's very-- I think it's natural, right, that in academic exchanges, there's a tendency to be critical, right? And critical can be really positive when critical means rigorous and you're interrogating ideas and you're thinking hard and you're challenging orthodoxy. But sometimes, critical just means fault-finding or negative, and I think there's a really natural tendency to conflate those two things.
One of them, I think, serves us, and the other doesn't necessarily serve us. So what I always tell them is that they should approach new ideas-- the things that their colleagues say, the things that I say, the things they read-- both selfishly and generously.
And when I say that, I explain they should read selfishly, they should listen to other people selfishly, meaning, what's in this for me? What can I do with this information? What can I learn from this? Which might be really different from what the person next to them learns from this or can do with this information. But I think that encourages them to put themselves in dialogue with the things they hear instead of just reacting against it.
And generously, in that it means, what's the best version of this argument that's not the straw man, but what's the kernel of truth in what they're reading or what they're hearing? It also means being generous to themselves, right? To make mistakes, to recognize that saying things that are imperfect should be the kind of thing that we should be able to do, and trusting intellectual exchanges.
And it's a process, right? And I think I've improved at it over time. I think the students improve over the course of the semester. But I think ideally, we should be creating an environment in which those skills and those values are being furthered.
GAUTAM HANS: I really love that. I think I'll have to use it, in part because one of the I think dynamics that the planning committee and those who are involved in this work have seen is that much-- many of the questions we're talking about involve speech, to a greater or lesser degree, but they also implicate this larger question of socialization and what it means to exist in a pluralistic democracy, a question that dissertations and classes can be taught about.
But so much of what we're interacting with when it comes to speech and disagreement has to do with what it means to develop intellectually and humanistically. And I think speech is a core component of that. But some of the dynamics that we've seen that are challenging are not really about speech but about coexistence and the human condition that requires us to do that, even when it can be not always the most straightforward process.
I think we're going to turn it over to questions, although I'm not totally sure how we're going to do that. So are we going to have a mic, or are people going to be called on? Perfect. Great. There's one right down front.
AUDIENCE: Oh, I won't need a mic. It's all right. [INAUDIBLE]
MICHAEL DORF: It's for the people in the--
AUDIENCE: Oh, sure. Well, first I'd like to thank all of you for your time. Thank you very much for speaking to all of us. I am an undergraduate student at Cornell University, and I can list many examples, be it Trump's appearance at the CNN Town Hall or Ann Coulter's appearance at Cornell. Oftentimes, the people I love-- my family, my friends, refuse to hear any opinions from another side, a side that may not suit their own beliefs.
I'm very afraid of this, looking at future, how am I going to dig through all this uncertainty? How am I going to encourage real conversation? If all of you were in my place, looking towards the future of this country and, really, the world, what would your concerns be? Are you worried about the context of freedom of speech in America? That's all I-- yup.
MICHAEL DORF: It looks like I'm taking this one.
GAUTAM HANS: We can all take it.
MICHAEL DORF: I would distinguish between Ann Coulter and Donald Trump. Ann Coulter is a provocateur, but she is engaged in getting out ideas-- ideas I disagree with, ideas that other people can disagree with, but she is fundamentally engaged in speech. Some of what Trump does is speech, but a lot of what he and his supporters do is aimed at shutting down some of the premises of democracy and a culture, not just of free speech, but of what we have understood to be the sort of core of our republic for hundreds of years.
So yeah, the threat to democracy, to my mind, is very real. I don't think it's wholly embodied in Trump. I think it's embodied in a lot of people who have become enamored of those ideas. Now, that's not to say that the only threats to democracy and freedom of speech come from what now counts as the political right, which I don't think is-- it's not traditionally conservative, but the sort of populist right.
There are threats to freedom of speech from the people you've described as your friends who wouldn't go to hear people they disagree with, right, so-called cancel culture and so forth. I think those threats are also real. I think that it's useful to distinguish between somebody being beaten or killed for their views or fired, even, on the one hand, from someone like losing a platform. But I do think that losing a platform is a real problem, because it means that those views don't get out there.
So I think it's important to avoid what is sometimes called "both sides-ism," but that doesn't mean that there aren't actual concerns coming from across the political spectrum. Again, easier to identify the concerns than to articulate a solution, other than to say that all you can do is engage on your own, try to model.
I'll give you one example of something I do. So I have-- among other things, I have a blog. And I no longer take comments on the blog because, mostly because I just got too many spam comments, like advertisements for things I can't mention here. But when I had comments, and I still get emails, I sometimes get sort of outraged emails. And the immediate tendency is to want to fire back and say, oh yeah? Well, good luck with your divorce, or whatever.
[LAUGHTER]
But it's important not to do that, and I have found that if I try to find the kernel of truth in what they're saying and respond to that, that more often than you'd think, they're sort of disarmed, and then we can have a kind of real conversation. So that's-- I mean, that's the closest thing I have to advice.
GAUTAM HANS: I see the dean has his hand up.
AUDIENCE: So quick question-- so quick question. This, I think, has been-- you've-- sorry. Everyone's kind of circled around this theme, but I was wondering if we could address it a little bit more squarely, which is, how should we conceptualize harm in the free expression context?
Clearly, there are some circumstances where harm caused by words is legally significant, and Professor Tebbe mentioned some examples of them-- defamation, harassment that meets a particular legal standard, tortious interference, true threats. Those are situations where the law really stands up and takes notice to the harm caused by speech.
But in other contexts, just consuming speech that you disagree with or that's really upsetting or offensive is not something that is very legally significant, and why is that? And is there any kind of underlying principle why those specific examples of harms that the law cares about are cared about by the law, or is it just a random list of things that the legislature has decided to take action upon it? And why exactly is simply listening to offensive ideas not something that the law takes action on?
MICHAEL DORF: Do you want to take this one, Nelson?
NELSON TEBBE: OK. I think this is a really interesting and deep question, and I hesitate to offer a complete solution-- I mean, a complete answer, because I'm sure I'm going to miss things. But just as you were speaking, and with reference to the conflict between freedom of expression and, let's say, equality norms, right? An analogy struck me, like, to civil rights law.
And so let's say you're a customer and you're approaching a store. And we have basically at-will kinds of arrangements in our economic laws, right, so a store can refuse to serve you because they don't like the look of you. They don't like you. You have long earlobes, to use an example that Professor Andy Koppelman likes to use.
That could be highly offensive. You know, you're excluded from the store. You're not served, for reasons that have nothing to do with your worth as a person. And you might take offense at that, and you might be right to take offense. But we treat exclusion for other reasons differently.
So if a store refuses to serve you because of your race or because of your sex or because of your sexual orientation or because of your gender identity or because of your religion, we think that's different. Why? Because it that's a different kind of harm because it contributes to structural injustice that we have identified as a real problem in the society as a whole.
So we treat different kinds of offense differently in that setting, right? I don't know of a direct free-speech analog to that, but it strikes me as, like, there's something there that we can work with, like by analogy. Maybe it doesn't translate directly into the free speech realm.
Maybe it doesn't translate directly into the university setting. But there's at least precedent in our legal system for thinking about different kinds of harms differently. And one way we might distinguish among them is whether a harm kind of contributes to structural subordination of a particular group or not.
KAREN LEVY: Just to add on to that, I think actually the civil rights analogy is quite useful. I used to have a law professor who would say, it's not illegal to be a jerk. Jerk wasn't the word he used, but we're streaming, so I'm going to use the word jerk. And I think the point he was making is similar to what you raised, Nelson, which is that there's a lot of bad stuff that happens.
People say terrible things to us. Our feelings get hurt. People treat us poorly, in ways that the law doesn't cognize, right? And I think some of that is because there are certain things that the law privileges, a sort of systemic harm. I think some of it is because of just pragmatic line-drawing problems, that figuring out, well, which of these things-- we have to draw a line somewhere. Is it better to be overinclusive or underinclusive as to which things are cognizable harms under the law?
I do a lot of work in privacy. This comes up a lot in privacy, right, where there's a lot of privacy invasions that don't rise to the level of being legally cognizable. There's a lot of debate over where that line should be, which, I think, speaks to the point that we discussed earlier about the fact that free speech is a useful guidepost for how universities ought to conduct themselves, for how we all ought to think about living in society together. But it can't be the only value we hold dear, right?
We also have to think about values like getting along in a plural democracy, learning how to interact with each other, equality, right? And those other norms and values, I think, help us decide how to deal with and mitigate other forms of harm that the law doesn't help us with.
GAUTAM HANS: There's a hand in the back I see. Sorry.
MICHAEL DORF: It's a race. Who will get-- which microphone get--
GAUTAM HANS: The tennis ball person at the Open.
AUDIENCE: Hi. I'm Liz, just for context, because I think it will help inform my question. And I went here for undergrad study, communication, graduated in 2020, then went here for grad school in the Brooks School of Public Policy, graduated in '22, and now I'm extension faculty in the ILR school, and I work in the Sheinman Institute on Conflict Resolution. So lots of Cornell life, seven years being here.
And also, thank you all for being here. This is a really great programming, and shout out to everyone who's been planning all of these events. So I have a question for the group at large I feel like the convo has been, or the convo around how the First Amendment functions, I guess, in the University setting today has been pretty faculty and student-centric. And I'm curious to hear your thoughts in relation to other members of the Cornell community more broadly who will be impacted by these conversations-- in particular, staff.
MICHAEL DORF: Can I take that? So a few years ago, Erwin Chemerinsky, who's the dean of the UC Berkeley Law School, was here giving a talk on roughly the same subject on the occasion of the then-recent publication of his book, Free Speech on Campus, co-authored with another university administrator named Howard Gillman, which Nelson apparently has the book right here. And I believe I was the-- I don't have a copy with me.
NELSON TEBBE: Neither do I. I have it memorized, so I don't need one.
MICHAEL DORF: I believe at the time, I was either the moderator or the respondent, and I remember thinking that while the book was in many ways quite good and interesting, that the title was quite deceptive, because it suggests that free speech on campus is a singular entity. And in fact, it's a number of different things, right?
It's about the scope of free speech of students in the classroom. It's about the scope of free speech of professors in the classroom. It's about students interacting with each other outside of the class, both person to person and online. It's about the university as a forum for the views of the public, right?
So it happens that this is an auditorium in Cornell University, but one could imagine something like this going on at the State Theatre downtown, or some other smaller venue where we wouldn't be dwarfed by the empty seats. But a lot of campus is physically indistinguishable from streets and sidewalks that are open to the public.
And so it strikes me that if we think that the free speech rules we have for DeWitt Park in Ithaca are sensible, we ought to have roughly the same free speech rules for the Slope, subject only to limitations of access and so forth.
And one of the wonderful things about Cornell is that it is open to the community, right, not just for enrollment-- any person, any study-- but also that when my kids were in high school, they would come here and study sometimes because they just walked up the hill from Ithaca High School and there was a nice-- they'd go to the library here rather than go to Gimme! Coffee, and they'd save a few dollars, which I appreciated.
So the campus does have relationships to staff, to community members, to students and faculty. And I think in many respects, those are just like the relationships that all of us have to one another as community members in other contexts. And so I would hope, and it's always been my experience here, that to the extent that it's practicable and not inconsistent with other things going on on campus, we treat it like just an extension of the community.
GAUTAM HANS: I see a hand over there.
AUDIENCE: [INAUDIBLE]
AUDIENCE: Which one?
GAUTAM HANS: Oh, I saw both of them, actually.
AUDIENCE: I'd like to ask you about the applicability of the First Amendment to a certain case. So we know that the First Amendment is to protect us against the government. We know the purpose of the First Amendment is for the search for truth and to create a marketplace of ideas. And I'm wondering whether the First Amendment is applicable to Jay Bhattacharya's case, where Francis Collins, who was director of the NIH, sent an email that we know from the Freedom of Information Act to Anthony Fauci and said, take them down. I have an easier question, too.
[LAUGHTER]
MICHAEL DORF: This is a technology question, isn't it, right? It's for you, Karen.
KAREN LEVY: I don't-- no. I don't know enough about the case.
AUDIENCE: It is in part because Jay Bhattacharya was de-platformed from Twitter, and we know from Michael Shellenberger's work that there was a censorship industrial complex involved with the government too.
MICHAEL DORF: Yeah. So I'll speak to that. So the claim by the people that you're channeling is that the government was basically telling private actors what to do. And so that those private actors, in particular, Twitter, was an arm of the state. And my understanding-- so there's--
AUDIENCE: Francis Collins was definitely an arm of the state.
MICHAEL DORF: Well, but Twitter is not. The claim is that Twitter was an arm of the state because Twitter was not owned by the government. So the claim is that Twitter was acting as an agent of these federal government agents because the government agents were telling them what to do. And that's pretty-- that's a bit of a stretch, and I'll tell you why it's a stretch.
When you look at the-- there's a doctrine in constitutional law known as state action, right, that says, what is it that a private actor has to do to become an arm of the state, such that the private actor is subject to the Constitution? So for example-- I'll give you a couple of examples.
If a state decides, we're going to have private prisons, the prison guards in that state are going to be deemed state actors, even if they are private contractors. Why? Because running a prison is inherently a governmental function, right? If a private actor tried to imprison somebody, they'd be guilty of kidnapping. So it's only through the exercise of state power that you can do that.
On the other hand, being the subject or the object of regulation is not ordinarily sufficient to make one a state actor. So that even if the government were not just sort of saying, hey, what do you think? Take it down. But actually ordering them to do various things-- it's not clear to me that even that would make Twitter a state actor.
And that doesn't mean that it would be right, but I don't think that sort of pressure from government officials to private actors to do things that the government officials can't do directly necessarily means that there has been censorship and violation of the First Amendment. Might be a bad idea. Might be unfair. But that's how I analyze that without knowing more facts.
AUDIENCE: [INAUDIBLE] Francis Collins, who was a [INAUDIBLE].
MICHAEL DORF: So the question then is, what was the state action that Francis Collins did, right? And if it's just jawboned somebody, right, I mean, think about the movie ratings. Hollywood has movie ratings, right? Why? Because they're afraid of direct government regulation.
That doesn't mean that the members of Congress or the administrations that were in power at the time that were sort of pressuring the movie industry to adopt ratings violated the First Amendment. There are a lot of things the government does to pressure people to act in certain ways which we might think are not exactly cricket but don't violate the Constitution.
NELSON TEBBE: I think I think there's a case--
AUDIENCE: [INAUDIBLE]
MICHAEL DORF: Oh, OK.
GAUTAM HANS: There's a question right behind. Yep.
AUDIENCE: Hi. Thank you all for bringing this very pressing issue to our attention. My question comes from the point of view of a private citizen who has conversations with people about ideas. And when I'm in conversation in person or on the internet, I don't know if necessarily the facts that they're presenting are true and unsavory to listen to, if they're misleading, or if they're blatantly false.
So in evaluating how to use my time, what guidance would you give to strike a balance between maybe entertaining possibly false information and presenting your own ideas?
KAREN LEVY: It's a great question, and I certainly have no claim to a great answer for it. But I would say, I mean, one thing I think is really critical, and this is something that I know the Cornell libraries spend a lot of time working with students on, is just information literacy. So there are certain kind of heuristics or shortcuts that I'm imagine you're aware of and that I think we serve our students well by highlighting to help find authoritative sources of information.
That's certainly something that's become more difficult. The internet both opens up our awareness of a lot of facts that we would not have had access to before and makes it more difficult to ascertain which facts have credence, right? And so that it has always been and will always be a double-edged sword in that way. I think the rise of generative AI is very likely to exacerbate some of those problems around being able to ascertain what information has veracity and what doesn't.
But I think information literacy, digital literacy, is the type of thing that gets partway with your question. The other part of your question, I think, is a little bit more normative, right? Like, what's worth your time? That's a pretty personal question, so I think it depends a little bit, right? But I do think one thing that is important to keep in mind is, again, to return to this idea of generosity or of finding common ground.
Deciding whether or not we need to agree with someone on every basis in order to have a relationship with that person, right? Like, we sometimes, I think, have a tendency to be of the opinion that if we don't share every political view or every normative view with a person, then we can't have a social relationship with that person. And I think everyone can come out-- I think there are lots of reasonable points of disagreement on that.
But one thing that I really like about being in a diverse intellectual environment like Cornell is that you meet a lot of people who you're just never going to find entirely common ground with, and that's part of what makes it generative, right. is that that person challenges your ideas or you find things that you have in common that are completely outside of that disagreement. So I think in some cases, you can put it to rest, right, or you can decide that that's not maybe the most important thing.
GAUTAM HANS: One of the challenges that relates to something you're saying is that, sort of law, it feels that the internet is infinite. And you could spend, like, infinite amount of times interacting with people who agree or disagree with you to various levels. And I thought, Mike, your response about emailing people who disagree with you was actually really instructive, because it's choices, right?
I mean, you could stay up all day, all night, and choose to interact with people, and that would be not only unwise, it may not get you very far. It would have its own limits. And I think that the information literacy dynamic is really crucial to trying to assist with that. But it is, I think, quite personal, too, how people choose to spend that time.
And I think that the sort of spectrum of views can be salient in making that determination. I mean, amongst the four of us, I'm sure we don't agree on everything. And that's, I think, part of the reason that we have this kind of diversity of viewpoint in discussing these issues. I think we have time for maybe two more, we'll say. I see more than two hands. Oh, yes. I see [? Risa ?] in the front.
AUDIENCE: Thank you. Thanks, everybody. It's been a great discussion to listen to and learn from. And there's so much here, so I'm going to choose. And one of the themes that I heard, which I find really interesting and positive, is the idea that we can create institutions and organizations that we wish to have. That is, we're not constrained by whether the First Amendment applies to the private sector or not.
And I think the university and colleges are great examples of that. And what I want to point to is the fact that academic freedom, which was really introduced into US vernacular in 1915 with the creation of the American Association of University Professors, the AAUP, was really created as extralegal, in that sense. It's based on professional norms that have the advantage of applying, whether you're in the public sector or the private sector.
But it's a statement of academic freedom broadly defined, of course with teaching and research, but also, as we call it, extramural speech and governance, to apply broadly. And I think that also links to another theme that I heard, which I very much, is the idea of association and collective action. Because it's the desire for democracy and institutions that can create those professional norms here, education for the common good, and also that the collective, the faculty and others in the organization of colleges and universities, can engage in collective self-governance to both create those individual rights and then also strengthen them.
And so I heard all of those themes, and it seems to me that this is a place where this, as the academy, can really provide a good example. I realize it's not a question. I can say, well, what do you think?
KAREN LEVY: I have a very short little thing to say in response. I agree wholeheartedly with what you said, and I love the way you put it. I used to assign this essay to my students about the film critic Roger Ebert. Do people know Roger Ebert, right-- this really famous film critic who has since passed, but was extremely popular, had a TV show and a column for a long time.
And the essay is making the point that Roger Ebert was a film critic who just really, really liked movies. He went to all the movies, and he'd sit down to the movie, and he just was ready to love it. And that was actually what made him a good critic, right?
We sometimes think being a critic means you have to be poking at stuff and talking about how much it stinks, and it really-- in his case, the reason, I think, he connected so much with people was just a desire-- and he said negative things, right? He said critical things. But he said them coming from this place of really wanting to engage with the thing for its own worth, for its own quality. And I think-- and the essay that I sometimes assign is like, maybe we should all be a little bit more like Roger Ebert when we engage with ideas.
And I feel like universities-- it's a great gift to be associated with a university, because people who really love intellectual exchange, who really love thought, who really love the sometimes uncomfortable disagreement that arises when people with different viewpoints or different backgrounds are in a room together-- I mean, what a gift to be able to engage with those things in a generative way.
And it's hard, right? It's not to say-- like, this sounds woo-woo, and I know it's not always woo-woo in practice, but I think it can honestly be a wonderful experience if we cultivate that in ourselves and in our students. And I think the way you put it really gets at that.
NELSON TEBBE: Can I just highlight one other thing that you said? Which is that we normally think about academic freedom as, and I think Mike invoked this primary meaning as the protection that faculty have against their employer, right? That the employer can't fire them for saying things that are controversial and so forth, and that is important.
But it has another meaning, which is that academic freedom protects the university against outside influences, especially government regulation. So when the university wants to create a community that enshrines and protects the values that it holds dear, whatever those values may be, it has some protection against government efforts to interfere with that.
And unfortunately, we're seeing a lot of those efforts, especially on the state level in certain regions of the country. So I just wanted to highlight that aspect of what you said as well.
GAUTAM HANS: We are at time, unfortunately, but I want to thank our panel for their wonderful contributions today.
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Thank you again to President Pollack, Dean Ohlin, the members of the steering committee, and our audience, both in person and elsewhere. We will have future programming. You can go to cornell.edu/expression, and as I mentioned, on Tuesday, September 26, a conversation in this very room with Jameel Jaffer and Eugene Volokh. I hope you have a great evening. Thank you.
[APPLAUSE]
Freedom of Expression Foundational Theme Year Kickoff Event
“The Indispensable Condition: Freedom of Expression at Cornell” is designed to advance a shared understanding of the significance, history, and challenges of free expression and academic freedom, as well as of the various challenges and approaches to honoring our commitments to both free expression and to being a community of belonging.
The fundamentals of free speech will be explored from a legal perspective. We will discuss foundations of the First Amendment’s protections for speech and assembly; challenges in applying those protections in a democratic and pluralistic society; and how speech principles play out in a rapidly changing digital world. We will also address dynamics of academic freedom and the role of speech and debate in an academic setting, with particular attention to how individuals from different backgrounds and perspectives interact on campus. A Q&A session will follow the main discussion.
