As a former college professor and university senior administrator, I was saddened to read a recent op-ed by Columbia University’s president, Lee Bollinger. Titled, “Free Speech on Campus Is Doing Just Fine, Thank You,” the immediate object of Bollinger’s ire is President Trump’s March Executive Order, which threatens universities that fail to uphold the First Amendment with the loss of federal research dollars. Bollinger labels this a “transparent exercise in politics,” one which ignores the fact that today’s schools are friendlier to “open debate than the nation as a whole.” Moreover, “fierce arguments” over “acceptable speech” have occurred often over the past century and have “also been indispensable to building a society that embraces the First Amendment.” These “exchanges over the boundaries of campus speech should . . . be welcomed rather than reviled.”
Before proceeding to examine his case, note that no one is “reviling” “exchanges” over acceptable speech—so long as those exchanges are verbal, not physical. Lawful, verbal exchanges are precisely what the First Amendment makes possible. But Bollinger here seems to conflate opposition to free speech with protected free speech. Of course, the very same First Amendment that makes possible free speech makes it possible to criticize both the concept of free speech and to protest and/or speak against others’ views. But we violate the First Amendment when we prevent others from speaking or listening at an authorized event. This is what is reviling.
But such concern over campus intolerance is overblown, writes Bollinger. He cites a 2016 Knight Foundation survey, which found that “78 percent of college students reported they favor an open learning environment that includes offensive views,” whereas the U.S. adult population tallies only 66 percent in support of such “uninhibited discourse.”
This is a fair point and it is good news for campus free speech—or, it would be good news, if Knight had stopped its surveys in 2016. But it didn’t. Bollinger does not cite Knight’s latest study of student attitudes toward campus free speech. Had he done so, his essay would perhaps have been less dismissive of the Executive Order. (As of this date, Bollinger’s office has not replied to my request for comment.)
Knight’s 2019 survey is troubling, not only to me, but also—given his reliance on the 2016 survey—to Bollinger’s thesis that “free speech on campus is doing just fine.” This year’s Knight survey found that, by a more than two to one margin (68% to 31%) college students “largely agree” that the campus climate today prevents some students from being able truly to speak their minds for fear of offending someone.
Equally alarmingly, a majority of students now believe that it is sometimes acceptable to shout down speakers or prevent them from speaking. Worse, the numbers of students harboring this intolerant attitude are growing. In just one year (December 2017 to December 2018), the proportion of students who now deem it sometimes or always acceptable to shout down speakers grew from 37% to 51%. Moreover, the percentage who answered that it is never acceptable dropped 14 percentage points to 48%.
In sum, only a minority of students today believe in the First Amendment.
Bollinger also cites another national study, this time from the nonpartisan campus free-speech watchdog, the Foundation for Individual Rights in Education (FIRE). Bollinger writes, “According to FIRE . . . only 11 speakers were disinvited from addressing college audiences in 2018. This is a minuscule fraction of the universe of speakers who express their views annually on American campuses.”
But Bollinger also neglects FIRE’s latest assessment of campus free speech, titled “Speaker shout-down support gets double-digit boost in one year.” The FIRE study chronicles a “particularly notable uptick in campus shout-downs and calls for disinvitation.” FIRE finds that, as of this June, “14 speakers have been disinvited and an additional nine have been threatened with disinvitation.” It adds that “this year’s combined 23 cases is higher than 2018’s total of 16 — and we’re not even halfway through the year.”
It gets worse: FIRE’s latest report also finds that “16% of students believe it is at least ‘sometimes acceptable’ to use violence to stop a speech, a six-point increase from 2017.”
These most-recent studies leave me hard-pressed to agree that free speech on campus is doing just fine.
To his credit, Bollinger next argues that, because he views even one disinvitation as “one too many,” he “will personally introduce controversial figures who were rejected elsewhere.” Good for him, and good for Columbia’s students!
However, he next opines that student “concern and discomfort about speech that is hateful, racist, or noxious in other ways” is “nothing unreasonable or historically unprecedented.” After all, he tells us, “a number of other democracies take a less absolute view on this topic—yet remain democracies.” His claim is problematic on two grounds: First, no one is objecting to student “concern and discomfort” over hateful or racist speech. We are all concerned over that. But neither concern nor discomfort entitles us to abridge the speech rights of others.
Second, other, less-free-speech-protecting democracies “remain democracies” because democracy means only that the majority rules. But the whole purpose of the First Amendment is to prevent overbearing majorities from depriving minority viewpoints of their chance to speak and be heard. As Jefferson put it, majority rule, to be “rightful,” must also be “reasonable.” Therefore, noting that “other democracies” lack our robust protection of free speech proves little.
Bollinger next adds that “the prevailing American conception of free speech and press rights is a relatively recent development.” Free speech rights “have repeatedly been given new meaning during moments in our nation’s history. . . . Over the past century . . . threats to free speech—from the Red Scare following World War I to the McCarthy era and beyond—ultimately gave way to the restoration of a belief in the power of reasoned debate.” What we are experiencing now is the same “dynamic,” which like the past crises, can be expected to “strengthen” the First Amendment through “the invention of new doctrines suitable for the times,” he contends.
Bollinger’s relapse into historical relativism here is perhaps the most problematic element of his well-intentioned thesis. Yes, “we leave the ultimate decisions” on the First Amendment “to judges.” But his very defense of a robust First Amendment is undercut by his simultaneous claims about the status of the Supreme Court’s rulings over the past half-century, all of which have declared that even “hateful” and “offensive” speech is protected by the First Amendment. Is the Court’s take on the First Amendment itself merely a doctrine that is or was “suitable for the times”? Bollinger’s historicist and cultural relativist take on the First Amendment suggests that he has no principled, constitutional argument by which to condemn free-speech-censoring democracies, which, after all, “remain democracies,” as he tells us.
This confusion on Bollinger’s part becomes apparent at his essay’s conclusion. He recounts that, 50 years ago, he “was on campus when students demanded access to ‘shocking’ works of literature their parents and other adults had condemned.” Now, “50 years later, students sensitive to expression that marginalizes and threatens may condemn those same books—albeit for entirely different reasons.”
This comparison seems less than apt. Yes, students 50 years ago agitated, but it was forthe First Amendment, whereas students today are arguing against it.
Nonetheless, Bollinger urges that “struggling to decide how strong” the First Amendment’s protections should be,” as well as “when speech is so offensive as to become intolerable” is all part of the healthy process needed to decide “how to apply First Amendment norms in our era.”
Bollinger is correct that the courts will decide, but beneath this clear fact about process lies the truly important question: How should the courts decide on campus free speech issues? Those who take individual liberty seriously answer that the Court’s embrace over the past 60-plus years of robust First Amendment protections best serves American democracy as well as American education, both of which require free debate.
But Bollinger’s historical-cultural relativism prevents him from being able consistently to affirm this position, even though he agrees with it. Why? Because cultural relativism (some democracies protect free speech less than the U.S. but “remain democracies”) and historical relativism (the meaning of the First Amendment changes according “to the times”) leave us with no principled basis on which to affirm or condemn future Court decisions on the meaning of the First Amendment. Bollinger responds that the courts will act on “precedent,” etc. All true, but aren’t some precedents good and others, bad (e.g., Dred Scott v. Sandford)? Bollinger can’t tell us that.
What is left, then, as “guidance” on free speech, is no longer the Constitution. Free speech rights “have repeatedly been given new meaning during moments in our nation’s history.” In the absence of moral and constitutional standards, how will we know whether this or that “invention of new doctrines” is in fact “suitable for the times?”
The only answer left for Bollinger is that “the times” will determine the meaning of not only the First Amendment but the entire Constitution. Recourse to “the times” is only a euphemism for “presentism,” slavish acquiescence to current opinions. This is how historical relativism undermines reverence for our Constitution, opening the door to what Lincoln feared—“the mobocratic spirit,” through which the rule of law is sacrificed to fleeting popular passions.
As Bollinger implies, at least the mob will be in tune with “the times.”