Episode 111: Free Speech, Political Speech, and Hate Speech on Campus

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On This Episode

In response to recent events, protest and discord have reached a fever pitch on university campuses. It is in this context that Harvard Radcliffe Institute gathered interdisciplinary experts for a crucial discussion about hate speech, academic freedom, and the legal norms that govern how universities can respond to protest.

In this episode, we explore the underpinnings of how antisemitism, Islamophobia, and other identity-based hatreds—issues that have received increased attention in the context of the ongoing Gaza crisis and attendant campus controversies—fit into a broader set of questions about the role of institutions of higher education.

This episode was recorded on December 12, 2023.
Released on December 20, 2023.

Guests

Tomiko Brown-Nagin, dean, Harvard Radcliffe Institute; Daniel P.S. Paul Professor of Constitutional Law, Harvard Law School; and professor of history, Harvard Faculty of Arts and Sciences

Erica Chenoweth, Susan S. and Kenneth L. Wallach Professor, Harvard Radcliffe Institute; academic dean for faculty engagement and the Frank Stanton Professor of the First Amendment, Harvard Kennedy School; and faculty dean at Pforzheimer House, Harvard College

Jeannie Suk Gersen, John H. Watson, Jr. Professor of Law, Harvard Law School

Nadine Strossen, John Marshall Harlan II Professor of Law Emerita, New York Law School; past president, American Civil Liberties Union

Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University

Related Content

Event: Free Speech, Political Speech, and Hate Speech on Campus

Credits

Ivelisse Estrada is your cohost and the editorial lead at Harvard Radcliffe Institute (HRI), where she edits Radcliffe Magazine.

Alan Catello Grazioso is the executive producer of BornCurious and the senior multimedia manager at HRI.

Jeff Hayash is a freelance sound engineer and recordist.

Marcus Knoke is a multimedia intern at HRI, a Harvard College student, and the general manager of Harvard Radio Broadcasting.

Heather Min is your cohost and the senior manager of digital strategy at HRI.

Anna Soong is the production assistant at HRI.

Special thanks to Kevin Grady and Max Doyle from Radcliffe’s event streaming team for their invaluable contributions to recording this podcast episode.

Transcript

Heather Min:
Welcome back to BornCurious. Hello again.

Ivelisse Estrada:
We thought that we had wrapped season one of BornCurious last week, but Heather and I are back today with a bonus episode to share.

Heather Min:
Our initial plan was to hold this episode for season two, but given recent events, our executive producer burned the midnight oil to get this out early.

Ivelisse Estrada:
We feel strongly that the topic of today’s episode is too important in the context of current national debates to sit on it.

Heather Min:
So Ivelisse and I are bringing you some highlights from a conversation about free speech, hate speech, and political speech on college and university campuses.

Ivelisse Estrada:
Radcliffe’s own Tomiko Brown-Nagin hosted this fascinating discussion recently with experts from around the country. Let’s dive in.

[APPLAUSE]

Tomiko Brown-Nagin:
Good afternoon, everyone. I’m Tomiko Brown-Nagin, dean of the Harvard Radcliffe Institute, and it is my pleasure to welcome all of you, whether you’re joining us in person or online, to today’s panel, “Free Speech, Political Speech, and Hate Speech on Campus.” Now, we planned this conversation some weeks ago, but I bet you know that it’s become an increasingly crucial conversation.

Before I introduce the substance of today’s program, allow me to express my gratitude to the Radcliffe Institute Leadership Society and all our annual donors whose generosity keeps our programs free and open to the public. I also want to thank today’s distinguished speakers for sharing their expertise and their perspectives, and I thank everyone who is joining us this afternoon for engaging in this critically important conversation.

As I move to an introduction of the substance of the program, I have a request for you. During this fraught period of understandably strong opinions and strong emotions, I ask that we engage with one another as generous listeners, with open minds and open hearts. Thank you in advance for doing so.

We must begin the session by acknowledging the devastating and continuing effects of the October 7th Hamas terror attack on Israel, the ensuing humanitarian crisis in Gaza following Israel’s counterstrikes, and the impact of these events around the world, including in our country on our college and university campuses. In the wake of these terrible events, we’ve witnessed protests and counterprotests expressing a range of political viewpoints in support of Israelis and all Jewish people, in support of the Palestinian people, and in support of justice and peace for all.

Meanwhile, many are grieving and afraid for themselves and their loved ones. And I want to say that whatever your political viewpoints, we must not harden our hearts to human suffering anywhere, including on our campus. We also must acknowledge that in the wake of this crisis, law enforcement officials in the US have noted a sharp increase in anti-Semitic, anti-Arab, Islamophobic speech, harassment, threats, and assaults.

And they have included graphic online death threats and grievous, even fatal, assaults. These horrific events have underscored, to quote NPR journalist Juliana Kim, "the increased violence against Jewish, Muslim, and Arab communities in the US since the Israel-Hamas war broke out." Yes, these are tumultuous and disturbing times, and it is my sincere hope and my expectation that we stand against all hatreds.

Realizing that injustice anywhere is a threat to justice everywhere, as Dr. Martin Luther King Jr. once said during his leadership of the American civil rights struggle—a movement that was predicated on nonviolence and one aided by First Amendment freedoms. That movement, we should remember, helped produce the civil rights laws that enable us all to be here together today, united in the search for knowledge across lines of race, ethnicity, national origin, gender, religion, ideology, and so many more categories.

The questions that we’ll engage today about how to reconcile free speech, hate speech, and political speech at colleges and universities are far from new. The current moment joins a long history of contested speech in higher education and beyond. For decades, university communities have sought to establish the boundaries of protected speech in protest. Flashpoints have erupted at many points.

Perhaps most famously during the 1960s and ’70s, during the civil rights, free speech, and anti–Vietnam War protests. Students engaged in political activities and protest and insisted that universities honor their freedom of expression. Society and college and university campuses were deeply divided on domestic and international issues. Around the same time, federal and state authorities passed laws that ban discrimination and harassment, including Titles VI and Title IX of the Civil Rights Act of 1964.

And students from all walks of life, diverse along multiple identities, matriculated to college and university campuses. Campus communities became more diverse than ever before, and administrators sought to create positive learning environments—sometimes by regulating speech and conduct deemed hateful or otherwise harmful. But critics have long argued that some of these on campus efforts infringe on academic freedom and freedom of expression, as we’ll discuss momentarily.

In short, today’s political and societal context is unique, but the tension surrounding speech on college campuses are not unprecedented. Today’s challenges underscore enduring questions about the appropriate role of institutions of higher education during times of political and social conflict, and how the mission, policies, and values of universities intersect with constitutional and statutory law.

Our panel seeks to address these complex questions, and we ask these experts to do so because our ability to weather deeply emotional challenging periods as a community requires us to know about our rights and responsibilities. And it demands dialogue even, and especially, when we strongly disagree. And now I’m pleased to introduce our panelists. The full bios of our distinguished panelists are available on the event page for today’s program. I’ll provide highlights of the many accomplishments that make them so well suited for today’s discussion.

Jeannie Suk Gersen is the John H. Watson Jr. Professor of Law at Harvard Law School. Before joining the faculty in 2006, she served as a law clerk to Justice David Souter of the US Supreme Court and to judge Harry Edwards on the US Court of Appeals for the DC circuit. The recipient of numerous awards, she is the author of At Home in the Law and is a contributing writer to the New Yorker.

Nadine Strossen is the John Marshall Harlan II Professor of Law Emerita at New York Law School and a senior fellow with the Foundation for Individual Rights in Education. From 1991 to 2008, she served as president of the American Civil Liberties Union. She is the recipient of many honors and the author of several books, including Free Speech: What Everyone Needs to Know, released in October.

Keith E. Whittington is William Nelson Cromwell Professor of Politics at Princeton University. He is the award-winning author of numerous books, including Speak Freely: Why Universities Must Defend Free Speech. Keith also served on the Presidential Commission on the Supreme Court of the United States, and his writing has appeared in media outlets, including the New York Times and the Wall Street Journal. Later in our discussion, we’ll be joined by Erica Chenoweth.

Erica Chenoweth is a Susan S. and Kenneth L. Wallach Professor here at Radcliffe, academic dean for faculty engagement, and the Frank Stanton Professor of the First Amendment at Harvard Kennedy School, and faculty dean at Pforzheimer House at Harvard College. Erica directs the Nonviolent Action Lab at Harvard, and they’re the author of several books, including Civil Resistance: What Everyone Needs to Know. Erica also chaired Harvard University’s anti-bullying policy working group and was a member of the University Discrimination and Harassment Policy Steering Committee. The University’s new nondiscrimination and anti-bullying policies took effect this September.

And I will moderate today’s discussion. In addition to leading Radcliffe, I’m a professor of constitutional law at Harvard Law School and a professor of history in the Faculty of Arts and Sciences with expertise in constitutional law and postwar American history. And now, please join me in warmly welcoming Jeannie, Nadine, and Keith to the stage.

[APPLAUSE]

Tomiko Brown-Nagin:
Well, thank you all again for being here. We have a big task in front of us, and I’m looking forward to modeling civil dialogue with you. I would like to begin with you, Nadine Strossen. You have an extraordinary depth of expertise on the subjects that we’ll discuss today, and I would like you to start us off by explaining the constitutional and legal rules governing expression and protest on public and private campuses, what kind of speech and activities are protected, and any exceptions to the general rule? In five minutes or less.

Nadine Strossen:
If you want the full story you’ll have to read my new book, but hopefully this will be an introduction. Thank you so much, Tomiko, and thanks to my distinguished co-panelists and everybody for organizing this really, really important seminar. So, the United States’ First Amendment free speech standards, which, by the way, are only directly binding on public universities along with the rest of the Constitution, but which the vast majority of private universities, including Harvard, have voluntarily decided to adhere to as a matter of academic freedom and pedagogical excellence.

So I will refer to the First Amendment, but please be aware that we’re not literally talking about the First Amendment. We’re talking about Harvard’s own rules, a private university’s own rules which mirror the First Amendment. And for all of the disparaging commentary that we tend to hear about First Amendment exceptionalism, in fact, the more you know about the rules, the more they make just plain common sense and, not surprisingly, are echoed in the laws of many other countries and in international human rights free speech law as well.

What the Supreme Court has said is the bedrock principle underlying our whole system of free speech is the best starting point. If I can only give you one principle, let’s start with the bedrock principle. And it’s what’s often called content neutrality or viewpoint neutrality. Government and universities must remain neutral with respect to the idea, the viewpoint, the message, the content of the expression.

They may neither favor nor disfavor particular expression because they agree with, disagree with, even loathe or generally fear the content of the expression. However, government and universities may and indeed should restrict speech when they do so for reasons that get beyond solely disfavoring the content, and those fall into two basic categories. One is content-neutral time, place, and manner restrictions.

So no matter what you say, you may not disrupt a class. No matter what you say, you may not interfere with peaceful studying in a library, and so forth. The second situation in which government and universities may and should restrict speech because the concerns go beyond mere disfavor of the content is when the speech, considered in its overall context, imminently, directly causes or threatens certain specific serious harm.

And this is often referred to as the emergency concept. The Supreme Court has recognized several subcategories of speech that, considering all the facts and circumstances, may well constitute punishable restricted emergency. Many of these will sound very familiar to you intentional incitement of imminent violence that is likely to happen imminently. Targeted harassment or bullying. Hostile environment harassment where there is a pervasive climate of intimidation.

That may include expression that is so unwelcome, objectively offensive, severe, and pervasive that it deprives the student of an equal educational opportunity or an employee of an equal employment opportunity. One other example is a genuine threat. A true threat where the speaker intends to or recklessly instills a reasonable—that is, objective—fear on the part of the targeted person that they will be subject to physical attack. And note that the speaker doesn’t have to intend to actually carry out the attack.

Merely instilling a fear that is reasonable already does harm because if you’re subject to that fear, it’s going to impede your freedom of speech as well as your freedom of movement. Sadly, we’ve heard many accounts, Tomiko, coming from Harvard and other universities that much of the expression that is taking place could and should be subject to restriction for violating these content neutral rules in the case of time, place, and manner restrictions or because they satisfy the emergency concepts of targeted harassment or genuine threats or hostile environment harassment.

If I can make one other point, it’s that those of us who strongly support these free speech principles, and far more important than myself are all nine justices of the United States Supreme Court basically going back to the second half of the 20th century when the court began to adopt these speech protective standards.

Not coincidentally in the crucible of the Civil Rights Movement that you referred to, Tomiko, because the leaders of that movement recognized that their advocacy absolutely depended on these robust speech protective principles and, for that reason, were very supportive of them. But the Supreme Court justices have acknowledged that even speech that doesn’t satisfy the emergency test may well still cause a lot of harm. I really appreciated your reference to we have to be compassionate and sympathetic to all the ways that people are hurting on campus, students in particular, but also faculty members and others.

And even if the remedy is not to censor certain speech. Well, first of all, the one remedy which you alluded to is make sure to punish and to restrict actual violence and threatened violence, of which we sadly see too much. Also, to punish the expression that transgresses the generous but still finite bounds of protected free speech. That must be done.

But even with respect to core constitutionally protected speech that is advocating ideas that we consider offensive and loathsome and evil, our remedy is not just to say, well, don’t censor it. Our remedy, as educators in particular, is to do something more. It’s often called counterspeech in the law. The Supreme Court justice that first phrased the concept of the emergency standard, Louis Brandeis—interestingly enough, the first Jewish justice on the Supreme Court—he first framed that concept in a dissent.

It was ultimately accepted unanimously by the court in 1969. He said the fitting remedy to evil counsels is good ones. And I think it is not enough for those of us who oppose censoring speech whose content we loathe and find loathsome. We have a special responsibility to affirmatively raise our voices to denounce the messages and to provide the kind of education and support that will deepen understanding and ultimately, hopefully, eliminate or reduce the hateful attitudes of which the speech is just a symptom.

Tomiko Brown-Nagin:
Wonderful. Thank you so much. Let me go to Keith, who is a political scientist. You’ve argued that free speech is under attack on campus, and you’ve made the really important points that these attacks have come from across the political spectrum. You also argue that these attacks are corrosive to the very mission of higher education. I wonder if you can say more about your diagnosis of the problem.

Keith Whittington:
Yeah. I appreciate the opportunity to participate in a panel, and I really appreciate the initiative of the institute to do a panel on this really important topic at this important time. Obviously, speech issues have been front and center on university campuses, as well as elsewhere over the last couple of months. But unfortunately, they’ve really been front and center on university campuses over the last several years.

And this was an issue that I think I mostly tended to take for granted earlier in my career, and I was drawn into thinking about speech disputes and the relationship between speech and universities in particular because of the light I thought it shed on the fundamental purposes of a university in the first place. Why we value universities, which I think have ultimately important implications, then, for how we ought to conduct ourselves within those universities and what kind of policies and practices we ought to engage in.

Central to me is a vision of a university as a place that’s all about advancing human knowledge and trying to share what we’ve gained to others. And those others include not only our colleagues in scholarly professions, not only our students in the classroom, but also people out in the wider world. Society benefits from having institutions like this that can push on the frontiers of human knowledge, try to expand out those frontiers, try to expose weakness and flaws in our conventional wisdom, and then share those lessons to society as a whole.

We’ve made a bet that we’re better off as a society if we know things that are true, and we can reveal things that are false or flawed or weak and can be undermined. And that we’re better off despite the sometimes painful process of exposing those weaknesses, we’re better off at the end of the day by exposing those weaknesses, laying them bare, and trying to build on firmer foundations. And that’s what universities are all about.

But if universities are going to be able to perform that task, they also have to have a great deal of intellectual freedom for those participants in the campus community who are engaged in that process of trying to bring skeptical inquiry to orthodoxies that may be very firmly held locally, on campuses, or in scholarly disciplines. Sometimes those are very esoteric orthodoxies that those outside the particular disputes may not even understand the content of, let alone the alleged importance of them.

But sometimes those orthodoxies are centrally held by society at large. They go to fundamental social and political and religious and moral questions that average people care about a great deal, and part of the scholarly enterprise is to raise questions about those too. Which means that we need to insulate scholars. We need to insulate universities from pressures that would prevent them from raising those questions, from probing those kinds of orthodoxies in order to try to expose those kinds of weaknesses to build up stronger and tougher arguments that can survive going forward.

We’ve tried to do that in the American universities somewhat fitfully over time, and really, only for the last hundred years or so. These are relatively modern innovations that universities have become what they are now, that they’re committed to the kinds of principles that they’re now committed to, that they have a set of practices and protections and rules that they are now committed to. But these are centrally important to the kinds of institutions that we envisioned and tried to build over the course of the last century.

On the one hand, that includes a set of policies and principles concerned with academic freedom, which I think are the very core of the scholarly enterprise. They’re concerned with protecting the kind of research and scholarship faculty and scholars on university campuses are doing, but also the teaching activity they’re doing and the educational process the faculty are engaged in with students on those university campuses and having the freedom to be able to explore difficult and controversial ideas in those kinds of contexts without worrying about retaliation from university officials as a consequence of how you perform those tasks and the controversies that they may raise.

And likewise, universities have come to value free expression more generally. The ability of every member of the campus community to be able to speak in public about matters of general public concern without, again, having to worry about retaliation from university officials because they’ve said something controversial, something that other people object to.

The universities benefit, I think, from having that kind of wide-open space for debate about tough ideas, and we’re going to have disagreements as a consequence of that. Universities perform best when they bring those disagreements inside when we have people with different views and different ideas and different opinions who can engage each other in a serious way and try to understand those ideas best.

But those are going to be contentious and sometimes passionate and sometimes very difficult conversations to engage in. And so, universities, I think, are always struggling as how to make real those practices and how to work through particular moments of controversy. But ultimately, these kinds of robust protections for free speech, which are always under pressure—they’re under particular pressure right now—are really critical to universities being able to perform the social role that we ultimately want them to be able to perform.

Tomiko Brown-Nagin:
Thank you. And now let’s go to Jeannie, my colleague. You come to this discussion as a faculty leader of the Academic Freedom Alliance, whose mission is the pursuit of an atmosphere on campus where ideas can be followed without fear that you’ll be punished, and you lead a similar group here at Harvard called the Council on Academic Freedom, which launched in March of 2023. I wonder if you could tell us why you became involved in these efforts and how you react to the claim that many universities lack credibility when leaders invoke the concept of academic freedom.

Jeannie Suk Gersen:
Thank you so much for that. So, I am a leader of those two organizations. One of them, actually, Keith is also a leader, the Academic Freedom Alliance, which is a national organization of faculty members across the nation who have banded together and created this forum and membership society for fighting against restrictions on academic freedom. And then we have that organization here at Harvard that was created earlier this year.

I think that many of us, myself included, became concerned in the last several years. Probably it started its slow erosion of academic freedom, I would date it to around 10 years ago. But as of a couple years ago, it started to feel unbearable. And I think that for me, it is incredibly common for students to say, in the privacy of just office hours where they’re alone, to say, “I never would speak my mind”—regardless of what their political leanings are.

Whether they are conservative, liberal, left wing. They say, “I would never speak my mind. I would never raise my hand in class to actually express a viewpoint, even if I know some people might agree with me because other people won’t agree with me, and then I might be subject to some kind of shaming campaign or ostracized.” And I think teachers also have told me in droves that they have altered their syllabi, altered what they’re willing to teach—even cut out entire subjects, and those are the ones that I tend to emphasize in my classes, such as topics about gender, sexual assault, racial discrimination.

Those are the topics that many teachers who don’t specialize in them said, “I used to include these topics but now it’s too risky.” Even if they’re not espousing any viewpoint that itself would be considered controversial, because somebody might say something that then other students would react to, and then you’d have a problem on your hands, and then you wouldn’t have a smooth-running classroom experience.

So all of those things—which, I started teaching at Harvard in 2007, and that was just not what I really experienced as a teacher and that’s not what I heard from students—that is why I have been active in the academic freedom leadership space, in the Academic Freedom Alliance, and the Council on Academic Freedom.

I’m happy that several—I see several members of the council here today, including one of the copresidents. So it’s been very important to defend academic freedom, namely, unfortunately, by going after instances in which somebody is experiencing some kind of official discipline by a university, maybe an investigation and a complaint, and really trying to defend that person’s right to say it. Most of the time, I will disclose the speech—I mean, the majority of the time on the Academic Freedom Alliance, I will say, myself, that is speech that I don’t like.

But I will full-throatedly defend it. And I’ll give you an example. Amy Wax. She said Asian Americans might not have the spirit of liberty, and it would be good to have less of them in the country. Do I like that? No. I think it is offensive. However, do I defend her right to say it and don’t think—I don’t think the university should be sanctioning it?

Nadine Strossen:
She didn’t say it in class. I think that’s a really important point, that it was an extramural statement.

Jeannie Suk Gersen:
It was an extramural statement. And perhaps for some people that’s an important distinction, and some people it’s not. Whether it’s you’re in class, whether it’s scholarship, those are distinctions one can make, but I do think that there is a big difference between those kinds of things that we know we—speech that we do know we prohibit, verbal conduct.

Sometimes it is free speech, but sometimes verbal conduct is the substance of an act of harassment or of bullying or discriminatory conduct that violates university rules. And those things are not academic freedom. But the more we expand what we think of and are willing to treat as disciplinable harassment, discrimination, and bullying, the less space there will be for free inquiry and exploration of ideas.

And so, most of the time, if you are an academic freedom advocate, you’re going to find yourself defending speech that you do not like. And that’s just the bargain. And if you are someone who only wants to defend speech that you do like, then that’s not a full commitment to academic freedom. And so, I think that’s what I believe that the people who have been leaders of this movement in the last several years, I think that that is what we all have in common. We are not the same in terms of our political leanings, not in any way. And Keith is laughing because—

Tomiko Brown-Nagin:
Very good, very good.

Nadine Strossen:
I’d love to make a comment, if I could.

Tomiko Brown-Nagin:
Sure, quickly. And as you do—

Nadine Strossen:
I don’t want to interrupt your flow. Sorry.

Tomiko Brown-Nagin:
No, it’s OK. As you do, I want to welcome Professor Chenoweth to the stage, joining us from a faculty meeting.

[APPLAUSE]

Tomiko Brown-Nagin:
Thank you for being here, and a quick follow-up.

Nadine Strossen:
Well, I just wanted to say, as the president of a civil liberties organization that was always on the forefront of the Civil Rights movement that infamously has defended free speech for Nazis, I really believe, Jeannie—this is not just a turn of phrase—that we’re not defending the speech. We’re not defending what Amy Wax said, and we’re not defending what the Nazis said.

I think it’s really important to keep emphasizing that we are defending a principle, a principle that is essential for those who want to oppose what Amy Wax said, who want to oppose what the Nazis say. And some of us use the phrase the Golden Rule of free speech, that we literally are not going to have freedom for the speech that we love unless we also defend it for the speech that we loathe.

Tomiko Brown-Nagin:
Thank you so much for that follow-up. And I want to move us into a conversation about hate speech and, in particular, the kinds of things that we are seeing these days after October 7, the terrorist attack, the humanitarian crisis in Gaza. Some are claiming that protected political speech is really crossing a line into threats, into harassment.

And I’ve spoken to many students, Jewish and Israeli students, Palestinian students, Arab, and they all want to be safe and protected, and many of them are fearful. And I want you to talk a bit more, Nadine, about what constitutes hate speech, and what kinds of things might cross the line, and you can answer me at a level of generality that allows me then to talk about the campus codes that I wanted to cover in some detail.

Nadine Strossen:
OK. So, the same general principles that you kindly invited me to lay out at the beginning, Tomiko, apply specifically to so-called hate speech. And I’m using the scare quotes because it’s not, as you well know, not a legal term of art precisely because the Supreme Court has never recognized a category of speech defined by its hateful content and said, therefore it’s unprotected by the First Amendment. To the contrary: consistent with the viewpoint neutrality principle, you’re completely free to express hateful ideas.

What you may not do is express those ideas in a particular factual context that crosses the line and satisfies the quite specific definitions of categories of speech that satisfy the emergency principle. So let’s take the example of harassment. We tend to use that term relatively loosely in everyday speech, but the Supreme Court has quite narrowly defined two kinds—of relevance here, two kinds of constitutionally unprotected harassment.

Number one is when the speech is directly targeting a particular individual or small group of individuals and subjects them to repeated, pervasive, or sufficiently severe, pervasive offense that it interferes with their privacy, with their freedom of movement. So it has to be individually targeted. And that could be satisfied by some of the videotapes that I’ve seen from this campus and others of students who are not only participating in a general demonstration of voicing slogans that some other students see as discriminatory and hateful. That is protected political speech, regardless of whether one would deem the message to be hateful or not. It’s a general expression to a general audience. But if some of those demonstrators were to follow a particular student and chant those slogans in the presence of the student, that, clearly, I think, could be seen as punishable, targeted harassment.

The same thing about threat—I’ll just give that as another example. Again, in everyday speech we tend to use the word relatively loosely that I feel threatened by the fact that there are so many demonstrators who are calling for the annihilation of the state of Israel. I take those emotional reactions very seriously. But I would not consider it—more importantly, the Supreme Court would not consider it—a punishable true threat. And the court uses the adjective “true” to distinguish it from the loose way we use the word threat.

Tomiko Brown-Nagin:
And why is it not a true threat?

Nadine Strossen:
Because here are the requirements of a true threat. That the speaker has to mean to—that means intend, intentionally or recklessly instill in a targeted person. So not to a general audience. It’s not one-to-many speech. It’s one-to-one or one-to-a-handful-of-audience-members speech, intend to instill a reasonable fear that you personally are going to be subject to attack.

Now, I mentioned that there’s another kind of harassment which kind of overlaps here, and that is: I understand that the department of civil rights—the Office of Civil Rights and the Department of Education—has launched an investigation against Harvard, among other universities, on the allegation of hostile environment harassment, and that gets a little bit closer to what you’re wisely questioning about, Tomiko. And that is if there is such a pervasive climate of intimidation and fear that it deprives somebody of an equal educational opportunity.

I agree with the three presidents who testified in Congress—more importantly the Supreme Court agrees—that these tests, although they’re quite precise, necessarily depend on all of the facts and circumstances and are very fact specific in their application. Reasonable people can disagree, which I understand leads to difficulties on the part of those who are enforcing and administering these laws, especially if you want to adhere—which I’m sure we all do—adhere to due process restraints and not presume that somebody’s guilty without doing an investigation.

Tomiko Brown-Nagin:
Right. Well, I understand that there is a distinction between speaking about one’s vision for a university and a moral voice and answering questions at a congressional hearing. I have testified before Congress. It’s always very political, very performative—and that, I think, is a part of the problem. Let’s go to a conversation about how bringing in Title VI and campus conduct policies might change the analysis.

And I have to say that in preparation for this event, I studied our policy, and I read the policies of many universities. And I want to quote some of the language that I found. These policies promise to protect students’ safety and well-being, promise freedom of movement, stipulate respectful treatment of all students, ban harassment, threats, and bullying, ban physical or verbal abuse that threatens or inhibits free expression or significantly interferes with a person’s education, and one can go on and on.

These codes tend to be very long. There’s a lot of language in there. And I wonder, Jeannie and also Erica, if you can speak about how to reconcile our commitment to protecting political speech and our commitment to a campus that promises to our students all of these things, some of whom are as young as 18 years old, maybe younger. Many of whom may come from backgrounds where they’ve experienced trauma.

They’re experiencing trauma, intergenerational trauma. And so it matters whose perspective one is taking, right? And it even matters who the decision maker is. But I may be answering my own question. So why don’t you go ahead, Jeannie, and then Erica?

Jeannie Suk Gersen:
Yes. So glad you brought that up. If you do go to those policies, they are very long. However, there is always—the lawyer will zero in on the key lines. And those key lines are where the offense that is punishable is defined. And so, if you look at bullying, harassment, discrimination, you can see the whole document.

But really what you need to know for the purpose of discipline and investigation and actual expulsion or suspension or all kinds of sanctions, there are some key lines, and those do not provide that if you make someone feel disrespected or if you make someone feel like their dignity is harmed that they will be—then that person will be disciplined. That is just not how we do things around here or anywhere. Basically, what we—or they shouldn’t. What they do is, for example, if you look at harassment, it has to be unwelcome conduct that is so severe or pervasive and objectively offensive. Not just, “I feel offended.” It’s got to be objectively offensive.

Tomiko Brown-Nagin:
What does that mean, Jeannie?

Jeannie Suk Gersen:
Well, in the law we have this debate about what are subjective standards and what are objective standards. And essentially subjective is just how do you feel, and objective is essentially what a reasonable person would feel. And then there’s a whole lot of debate about what a reasonable person would feel. It’s not like it’s an easy line to draw, but that’s reams of paper have been expended on what a reasonable person is.

But at the end of the day, it’s the idea that it’s not just anyone and what they subjectively feel, but if we think a reasonable member of the community would take this to be offensive. And then, even more, it has to be that it actually makes it so that the person who is experiencing this is not able to have an equal education. That it denies that person equal educational opportunity.

So that’s a lot that you have to jump over in order to actually end up with a disciplinary result. And so essentially, the length of these policies—the university is communicating a mood. They are communicating vibes. They’re communicating their aspirations and their values and principles, and that’s great.

The university can express those things and say, hey, we would really like you all to behave with these goals in mind. Just like, Tomiko, you emphasize compassion and understanding. Which is not to say that that means then you go and throw someone in jail. So essentially, that’s why these policies are really long, but the key lines about what is disciplinable, they’re very, very narrow definitions.

Whether it’s bullying, harassment, discrimination, whether it’s Title IX related or whether it’s Title VI related, we have very tight policies. And of course, the problem is that many people feel like, oh, we have these policies, but there’s room for interpretation. And you tend to put people in discipline if they say things that are conservative and you offend people who are liberal, but you won’t do the same thing if it’s a liberal who offends people.

And so, I think that’s the allegation of hypocrisy and of double standards that we are seeing on campus and in Congress. But that’s, ultimately, if we stick by our policies. I would like to level up when it comes to academic freedom and not letting these definitions balloon rather than leveling down and say, oh, we haven’t punished anti-Semitism in the past, so now let’s have a really expansive definition of what discrimination is so that we can do that.

Tomiko Brown-Nagin:
Well, I want to draw—make sure the audience appreciates the distinction that’s being drawn between punishable offenses and offering guidance. Right? So, everything that you can say you need not say. Right? Out of respect for your peers. And I will pause there because I want to have—I want Erica to speak.

Erica Chenoweth:
Yeah.

Tomiko Brown-Nagin:
And speak about how you chaired the bullying, all of that process. What was involved? What kinds of policies resulted? And if you could answer this question about reconciling protected speech with our commitments.

Erica Chenoweth:
Yeah. Well, maybe I’ll start with that piece, which is one of the key principles, or maybe the key principle that animated our work on the anti-bullying working group was academic freedom and how do you make sure that the policies that we do recommend and that are ultimately accepted and then implemented don’t chill speech because of fear that people will become zealous in their use of these policies to try to silence people with whom they disagree.

So it was a guiding principle all along. But I’ll say that I came around to the view in my consultations among the working group and with people all across our community at Harvard that, in fact, the policy was—its best intention is to provide academic freedom for everyone. The whole point of these policies is to make sure that everybody in our community has access to the educational opportunities here.

And there are, unfortunately, some egregious instances in which people have been bullied out of the institution, in which people have actually experienced targeted discriminatory harassment. And they are few, but they’re not zero. And so there needs to be sort of a minimal standard of conduct so that everyone has access to the opportunities that academic freedom promises.

So I actually think that makes sense and is how I view the policies and why it is, as Jeannie said, that we wrote them so narrowly. To make sure that there was a minimum standard. Now, on the other hand, as you say, the policies don’t speak to the culture of mutual respect that I think we all seek. And so, there’s other work now happening at the university level.

And in my case at the Kennedy School, we just completed two years of work, basically, on how to promote candid and constructive conversations. Really, that’s the nice acronym of CCC. But what it means is, how can we have real talk about hard things across serious differences? And the answer to that is that you have to really intentionally build not just a culture of mutual trust and respect, but also skills to have these types of conversations to convene them, to facilitate them, and to recover from them.

And you have to have plenty of venues through which those conversations can take place. So, this is a call not just for more—you duke it out on staged debates, but actually more small group discussions where people can actually really express, in small intimate settings, their genuine views, their genuine concerns, and have real disagreements that they can then move forward from. So in our case at the Kennedy School, we’re just now implementing a number of different recommendations out of this work to try to focus on trust building, skill building, and venues for practicing this.

And I’ll mention that we also have a blueprint for this type of activity from the 2018 presidential task force on inclusion and belonging. And our colleague Danielle Allen, who’s one of the cochairs of that, has a wonderful op-ed in WaPo yesterday about the fact that we can have the procedural conversations here, but we also need to have the conversations about the culture of mutual respect and the learning of empathy, the learning of, “OK, I can say this, but ought I? Ought I say it now?”

These are all very good questions for responsible people to be asking themselves. And at its core, the purpose of the university is to basically create new knowledge, to talk about ideas, and to prepare the next generation of leaders to go out and build a better world. I think that that means that we have a responsibility to practice that well here.

In a sense, I think what Danielle and many others and people on this stage have said before, it really resonates with our time that these guiding principles are what are going to carry us through. When we’re having a tough time, this too shall pass.

Nadine Strossen:
May I say something? Just one word about the wonderful WaPo op-ed, which I was also going to mention, because it will resonate with the tough question you asked me, Tomiko. And this is in the spirit of being self-critical and open-minded. She put out, as a hypothesis, that Harvard might consider adopting a rule that even non-targeted expression, that if it were targeted, would be punishable harassment.

That maybe Harvard should also consider maybe not disciplining but at least strongly discouraging students from saying anything, even in a general audience, that might be punishable if it were directly targeted. And I thought it’s an interesting hypothesis that would be worth discussing.

Tomiko Brown-Nagin:
Well, let me go back to the idea—and Jeannie, you mentioned some of this in your earlier remarks—about the consequences of speaking. The consequences of voicing dissident ideas, politically unpopular ideas. And those consequences can be really harsh. Right? And I think those consequences help explain a bit about why some are fearful of speaking.

They can include ostracism, harassment, job loss, proposed blacklisting by people with the power to do so. And I wonder if you can talk about whether there are and whether there should be certain protections for speakers who really are pushing up against the line. What are your thoughts about that? All of you can speak to this.

Jeannie Suk Gersen:
Yes. The culture of academic freedom and its erosion is not only about official sanctions from the university. It does involve some of those other things as well. So to the extent that speaking then leads to the speaker being bullied as defined by the university, or harassed as defined by the university, then we have the answer there that if it actually is bullying or harassment then that’s not allowed. Right?

But most of the time, it’s not going to end up fitting our definition of harassment or bullying, but nonetheless, it can be painful. We have to understand that a consequence of speaking is counterspeech. And there may be a lot of counterspeech, and it may be loud, and it may be really strong counterspeech. That is a desirable consequence in that we want people to speak so that they can engage with disagreement, and we want we need to build a culture in which there is tolerance for that kind of sharp disagreement and continuing conversation.

Not for ostracism, pushing the person out of the community, making it impossible for them to continue in their job or as a member of the student groups. That is a cultural project that we have to engage in. I think the Academic Freedom Alliance and the Council on Academic Freedom at Harvard, while we are most focused on official sanctions, it is also true that these kinds of conversations about how to have a healthy culture in which you don’t freak out and then make it impossible for discourse when someone says something that you consider really offensive.

And part of the problem—I’m going to go back to the theme of part of the problem is it is easy for people to say, “That’s discriminatory. That is harassing. That violates my dignity.” And OK, but that’s—those are not the end of the conversation. They really should be the beginning of a real genuine engagement about why something was either hurtful or wrong. So we can’t punish our way out of this.

Tomiko Brown-Nagin:
Keith and Nadine, do you have thoughts?

Keith Whittington:
Yeah, I just wanted to build on one point briefly, which is I’ve always had a lot of reluctance to participate in conversations about cancel culture as such. I just find it a very frustrating term. Not very helpful in thinking through these kinds of questions. I like part of what Jeannie just said of part of what we want to try to build in a liberal democratic society is a greater spirit of tolerance for disagreements, and a willingness to respect and engage and fundamentally understand that you have to live with people with very different views, and opinions, and religious beliefs, and moral codes than you have.

And so how do we successfully build a heterogeneous society in which we can actually live together and be productive at the end of the day? And that requires a great deal of tolerance for people with views that you think are extraordinarily wrongheaded. In the context of universities, it’s extraordinarily important that we be extremely tolerant to even a very wide range of views, precisely because the very point of this kind of institution is to bring people together to ask maybe what seems like extremely wild-eyed questions from way out in left field and on the margins of what we might think of as acceptable opinions.

Precisely because universities are places where we tolerate that. We want to engage in that because we need people to put on the table things people have not really thought about but ought to think about. Even if they don’t have to think about very long before rejecting it, necessarily. And so I find it particularly disturbing when universities find themselves engaged in a project of shrinking the boundaries of acceptable debate and what’s going to be tolerant.

At the same time, I think it’s also true that one of the complicated things about building this kind of tolerance culture is these are all going to be judgment calls. These are not about rules. It’s always going to be the case that there are some things in some context that you find intolerable. There are people you will not want to invite to dinner anymore. There are people you will not want to associate with anymore because of certain things they’ve said and done.

Like I said, I think in universities we have a particular responsibility to make sure those margins are as wide as possible, that we’re continuing to overcome that because that’s the nature of our particular institution. But in other spaces in society, that’s going to be somewhat less true.

So we have to simultaneously be thinking about how we build a greater spirit of tolerance in general while at the same time recognizing there are going to be difficult decisions on the margins about how to respond to particular kinds of opinions people might express or particular kinds of ideas they might hold. And those are going to be difficult and controversial decisions that have to be made over time that we ought to be open to revisiting over time as well.

Nadine Strossen:
I think survey after survey consistently indicates that all across the ideological spectrum on campuses all across the country, including Harvard, the single greatest factor that is cited by students and faculty as chilling their expression—not chilling their expression from slinging hateful epithets at each other, but chilling their expression in expressing certain perspectives or even asking certain questions or even addressing certain topics; Jeannie alluded to this—the single greatest factor is not fear of the government. It’s not fear of Harvard University officials. It’s fear of peer pressure, where even one student can be enough to lead people to self-censor in ways that are detrimental to their educational experience. It is a matter of judgment, as all legal standards ultimately are.

But one concept that I find very helpful here—because I do strongly advocate counterspeech: I wrote a whole book advocating that as the appropriate response to speech we disagree with. But counterspeech can go too far. And a core legal concept in our system, and in international human rights law as well, is the concept of proportionality. When the responses are disproportionately harsh, even to an unwittingly offensive remark or a remark that is perceived or misperceived as insensitive: calling down; incredibly shaming, shunning responses, not only on the person who made the remark but also intimidating other people from addressing that topic—that is counterspeech that goes too far. And I controversially have taken the position in writing, so I’ll say it again here, that I think that although employers have a right not to associate with students whose views they abhor, I would never say that they had a legal duty to hire those students.

Although I guess under some state laws they might, in fact, have a legal duty. But putting that aside, I think it is a disproportionately harsh statement to categorically say that any student who was a member of these 34 organizations that issued very unpopular controversial statements that I personally found extremely abhorrent to my views.

Nonetheless, I think it was disproportionately harsh to categorically say we’re never going to hire a single student who was a member of any of those organizations. I think that’s guilt by association, I think it’s denial of due process, and I also think it’s not sufficiently compassionate, especially considering how young these people are, considering the general spirit in our society, which I completely commend, of restorative justice, recommending that we’ve been overly harsh and overly punitive, even toward people who have committed actual acts of violence.

Not to mention that the criminal legal system recognizes that young people have not yet sufficiently developed in their prefrontal cortex and so forth, that they should not be held to the same high standards. So, for all of those reasons, I would urge a kind of tolerance that would give them another chance and treat this as an educational opportunity rather than one for the equivalent of the death penalty.

Tomiko Brown-Nagin:
Thank you. Looks like Jeannie wants to respond. As she does, I want to remind people that you can submit questions for the panel using the Slido app. Jeannie?

Jeannie Suk Gersen:
I have heard some people say, “Oh, that doesn’t happen, that universities would blackball people just because of their views.” Well, let me just tell you: I am an attorney. I do represent people, and I’ve spent much of this fall helping former students who were not even on campus this fall who are in employed at law firms whose jobs were really in danger because they had previously been a member of some of those organizations when they were students here or they had been active in the BDS movement.

And some of those students really were threatened with job loss and were asked to renounce their commitment to a pro-Palestinian perspective in order to assure the clients of those firms who complained that the firm would not have people who had those viewpoints. So, this is actually happening at these firms that you would expect to have a certain commitment to viewpoint diversity and liberal principles of free expression, and it’s important for people to be very vigilant.

One day it may be a movement that you’re in favor of and the law firms then are on that side, but the next day it may be a movement that you’re not in favor of or that you’re the one being looked at skeptically by your employer because of something that you believe or have worked on behalf of.

Tomiko Brown-Nagin:
Thank you. I want to go back to you, Erica, as you are an authority on nonviolent civil protest, in theory and in practice. I wonder if you can comment on how the protest tactics and goals we’re seeing today might compare with ones that you’re familiar with. And also, if you can talk about some keys to effective and ineffective protest actions.

Erica Chenoweth:
Sure. So, I think that it depends a little bit on what the theory of change is and who the target audience is.

Tomiko Brown-Nagin:
Yes.

Erica Chenoweth:
Of course. But generally speaking, I think there are four key elements of successful civil resistance movements. The first is that they get bigger and bigger, so larger in size and usually larger in the diversity of the movement. The second thing they do is they begin to build a wider and wider net of political power and influence, usually by building new alliances or eliciting defections from their opponent’s side onto their side. The third thing that they do is they use a variety of different methods and tactics so that they move beyond symbolic protest and typically start to use tactics that give them more material leverage. And then the fourth thing that they do is that they maintain nonviolent discipline so that they aren’t subject to the critiques that they’re inciting violence, or causing disruption, or intending harm to others. So I think that those four things are typically associated with movements that tend to win more often than they fail.

And so I think that there’s a lot of protest that happens that has a right to happen that doesn’t necessarily meet those four criteria. And they shouldn’t be judged for that. Political protest is a form of political expression, and it is what it is. But when it comes to whether it’s going to work, I think that’s when we can be a bit more analytical about whether they’re meeting those four criteria or not.

Tomiko Brown-Nagin:
Thank you for that. I want to go to some of the audience questions, and there are many. Let’s start with this one. As an academic institution, what should be done in terms of activities, teaching, or specific efforts to stimulate critical thinking and create spaces for a civil debate on campus between people holding opposite views, especially for students?

Nadine Strossen:
Well, this is very simple technique that I’ve always used in all of my law school classes just as a way of instilling habits of critical inquiry and exposure to and understanding of the principles involved in any case or any issue that we’re studying. And I’m sure it’s familiar to the other law professors, at least on my panel, if not other professors.

And that is that my students are required—and they could all recite this as a mantra—to be able to understand, articulate, and advocate all plausible perspectives on all issues. And plausible means defensible in terms of either the source of law or sources of interpretation, not conclusory arguments, certainly not ad hominem arguments.

And that’s really important not only for honing their understanding of different perspectives, but also, I discovered—it wasn’t why I instituted it, because these weren’t problems long ago when I started teaching—but one benefit is that the student is not asked to express his or her own perspective. They’re being angel’s advocates or devil’s advocates, and I think that would be a good way to teach starting at the lowest grades.

Tomiko Brown-Nagin:
Great. Thank you. Any other thoughts about that?

Jeannie Suk Gersen:
Oh, yeah. So I think that it is important for people to be able to articulate the points that they most disagree with. I feel very, very strongly about that: that students should be required in class to articulate the most strong, the most convincing, the most persuasive arguments for the side that they most disagree with. And I think that that is a teaching principle that works very well in the law school classroom but also in all of the humanities and social sciences where you have these debatable issues that are on the table.

So I think that can be a principle that can be carried through not only in the classroom but also in student debates extracurricularly or other kinds of public fora. And I think that would be great if every time there was a debate, a public debate, you would have some opportunity for each person to actually have the opportunity to articulate the other side in the strongest possible and most persuasive form. And students have reported that that has been incredibly helpful.

And for law students, of course, you have to do that because that’s the way you’re going to find the best arguments against that position if you’re going to be actually arguing in a court of law. So I think that that’s—but also it builds more empathy too, and we should not harden our hearts to arguments that we disagree with because it actually might be the case, as some students have reported to me, that law school has changed their mind about some things and that they have moved their position.

That may not happen. It doesn’t have to. But that is actually intellectual growth as well. And I think one thing to keep in mind is diversity. It somehow turns out that in this moment diversity is under attack. And that may be because of the Supreme Court’s decision in June to say affirmative action is not OK when it comes to race, and that may have opened the floodgates to attack diversity and diversity, equity, and inclusion type of.

But at the end of the day, what is diversity for? Why do we care about it? It’s because of the premise that it brings people with utterly different perspectives. Maybe fundamentally different perspectives that are irreconcilable, really. And that is part of what we are trying to do when we’re achieving diversity. And so, if we care about diversity, we have to care about that intellectual spectrum and the disagreements that are going to happen and the clashes and the conflicts and the pain. All of that has to be part of our commitment to true diversity.

Tomiko Brown-Nagin:
Thank you, Jeannie. I have another question that I would like to ask one or many of you to speak to. Can you talk about microaggressions and their relationship, if any, to hate speech?

Nadine Strossen:
Well, I’m an expert on hate speech, but microaggressions, as I understand, have been defined in many university policies—I’m not sure whether it exists in the Harvard policy or not—are subjectively defined, so in that sense different from the objective standard that we’re aiming for here under the law, that would not rise to the level of something that would be legally punishable but that is deemed to be offensive or insensitive.

And the examples—I’m going to have to give you a trigger warning. Please, I hope that this will not constitute a microaggression, but I’m going to quote some examples that are listed as being microaggressions. Asking somebody who has an Asian surname, “Where are you from? Where are you really from?” Questions like that that show cultural insensitivity and discourtesy, but intent isn’t a necessary element.

So I certainly understand, with all of the things that we’re talking about, all of the measures, I understand the goal and I support the goal, which is to create a truly diverse and welcoming environment on campus for everybody. That everybody feels fully included and empowered and empowered to participate vigorously in the conversation. And so I think it’s important to alert people to the fact that they might unwittingly say something that is making somebody else feel less than included.

But using this legalistic bullying term microaggression and suggesting that there might be some adverse disciplinary consequences—I don’t think is a constructive approach. Not surprisingly, I would advocate more of a positive educational approach and not one that is rigid, that says you may not ever ask these certain questions or use these certain terms.

Tomiko Brown-Nagin:
A cultural approach, one might say. And just to add another question: the question, “What are you?” to someone who is racially ambiguous might also be an example that I’ve heard a lot.

So let me ask this question, which is a question from the audience but also a question that is one of mine. And that is: should universities refrain from issuing comments on current events? I wouldn’t ask it that way, but that is the gist of it. Right? So are there academic freedom implications to the practice of administrators, in particular, issuing comments about pressing issues that a lot of people are interested in. Question mark.

Keith Whittington:
Yeah, so let me jump in on this, because I’ve been writing quite a bit about this lately and I’m editing, coediting, a book with a series of divergent perspectives on this issue that hopefully will be coming out before too terribly long. It’s a question a lot of universities, I think, are rethinking in our present moment, have increasingly been thinking about over the last couple of years as well.

And I do tend to think that it’s quite important that universities adopt a stance of institutional neutrality relative to contested and controversial issues, which has implications not only for things like how should university leaders speak in public about those issues themselves—what kind of statements should they issue—but also thinking in terms of resolutions that the institutions might adopt or express more generally. I think there are different potential downsides to it depending, in part, on who does the speaking.

But one clear concern I think that arises from institutions engaging in that kind of speech activity is that there are real political repercussions that flow from it. It does institutional damage with some stakeholders and constituencies for universities to be taking sides on issues that are contested within the public now. Public universities certainly very much feel that.

But private universities, I think, are affected by that as well. We do ourselves no favors as institutions within a diverse society to be seen as institutions, active as institutions, that are taking sides on those disputes. We ought to be places that are homes for people who have very divergent opinions, and we are places where debates can take place, but the institution itself shouldn’t be seen as staking out those debates. And that I think goes to also the second kind of concern, which is ultimately the academic freedom one.

And again, I think it matters a little bit on which institution or which leader we might be thinking of doing the talking. I think there are real concerns of, for example, departments in universities or academic units in universities taking positions on contested issues when then they have junior faculty, prospective faculty who are then trying to get jobs there and are thinking, am I on the wrong side of this political issue that my colleagues have now committed themselves to? And moreover, are my personal political opinions now professionally relevant to my colleagues?

That they may say, as a department, we have a certain set of political commitments. And if we bring you in, you may oppose those political amendments and even sway the department in the other direction, and as a consequence, you shouldn’t be included in our department. That’s not a road I think we want to go down, and I think it raises real difficulties for the spirit of free inquiry that we want to support in universities. And so, I think universities really need to step back from taking those approaches and try to be as neutral as possible as institutions on those issues.

Tomiko Brown-Nagin:
Right. So let me push on this a little bit. What if the statement concerns issues that are right in the wheelhouse of the university? Such as admitting students, the kinds of students that the university would like to attract. Question mark.

Keith Whittington:
Yeah. No. That’s all right. I think it’s certainly true that the university has to make policy decisions about how it runs its admission office, for example, and other kinds of things that have potentially political implications, and the university will have to make judgments and sometimes take stances on policy questions that are going to immediately affect them as an institution.

Likewise, there are things that are so central to the very institutional mission of a university that they have to speak out on. For example, I think universities should be speaking out on the importance of academic freedom and trying to protect it. Otherwise, you’re giving away the institution itself. But there’s a really pretty small set of things, I think, where universities are in a position where they really can’t avoid speaking out while still conducting their core mission.

Jeannie Suk Gersen:
Yeah. So to address that, let me just say there is a distinction in terms of what Keith is saying between, for example, a statement where you tell the world and the community what the university’s policies are about admissions. Right? And certainly, to me, it would be unreasonable to criticize, say, Larry Bacow for supporting affirmative action in the University’s own admissions system.

Because one could say, oh, affirmative action is a contested issue, so how could the University have taken—this is about our own policy about how we admit students—It is entirely different to say the University supports the Black Lives Matter movement. Right? That is a political statement. That is an alignment of the University as a whole with a political movement.

And part of why I think we got in a bit of hot water is because people observed that the University had spoken on behalf of Black Lives Matter, but then was the University going to similarly speak on this moral issue of Israel and Hamas and Hamas atrocities, and was it going to condemn the phrase “from the river to the sea”? All of those things. And of course, these things affect academic freedom. There may be people at the University who do not support the Black Lives Matter movement.

There may be people at this University who do not think that “from the river to the sea” ought to be condemned as always genocidal. And does it freeze? Does it shrink the space for people to wonder, “Oh, I actually—I think that the University is signaling that certain perspectives on this Israel matter may be less than welcome, and so maybe I will trim the sails a bit and try to keep my head down on those issues.” That affects academic—

Tomiko Brown-Nagin:
Yeah. So let me jump in to say my understanding is that the university sent a message condemning—in response to the verdicts around George Floyd, which is not the same thing as endorsing the Black Lives Matter movement, although I can understand why people might couple those as expressions.

Nadine Strossen:
I strongly endorse what is often called the Kalven principles because they were famously set out in 1967 at the University of Chicago in a report called the Kalven Report chaired by Harry Kalven, a giant of First Amendment law. And I just want to underscore the academic freedom concerns here—because ultimately the expression of views about these really important social issues, including the George Floyd situation, are intended to be encouraged and stimulated by institutional neutrality to empower the individual voices of the constituent members of the university.

And I think we’ve gotten so far away from that on so many campuses that I understand that students and faculty members would say, oh, the university must not care about that issue. It’s not issuing a statement. So I’d like to read just one sentence from the Kalven Report. Every time I read it, I find it just consistently persuasive.

“The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest.”

And some universities now have taken a turn, and I know some eminent professors at Harvard have advocated that Harvard asked the faculty to consider taking a turn and making it clear that, for the reasons that have been stated, henceforth, where the institution is not going to make statements but please don’t take that as implying any particular view on the part of the institution on any issue that henceforward we’re not commenting on.

Tomiko Brown-Nagin:
I just want to point out that one of the signatories to this document was John Hope Franklin, who is a giant in African American history and who, as an individual, was very active as a public intellectual, which I believe makes a point that we’re trying to make on this panel. Yes, Erica?

Erica Chenoweth:
Can I just say a couple things? I actually broadly agree with everything that’s been said, but I still have very mixed feelings about it only because if you think about the Floyd protests and what was going on at that point, we’re in the middle of a global pandemic. That summer of 2020 was actually the largest and broadest mass movement in the history of the United States. It was a totally important, pivotal, unprecedented—as yet still unprecedented—moment in the country’s history.

And the promise of academic freedom and the promise of free expression that’s held up by this University and by the First Amendment had not actually been equally applied to everyone. Right? And so, I think, if we actually mean it, we really have to mean it. We really have to give everyone access to the promise of academic freedom.

And for many of the students who have come here and are in our care, when things are going on in the world like that, they need to hear that they are welcome here, they belong here. We see what’s happening, and it is totally unprecedented, and we’ve got you. Right? And you can learn and ask the questions about these issues, because they have been excluded. This institution has excluded people. Right?

So I think it’s really important—not necessarily that the university president says that, but the university still has to—we have to take care of the people in our care when they’re here to learn. We have to extend academic freedom to everyone equally, and we have to acknowledge when things are happening in the world for them that are changing their lives in ways that none of us have ever experienced or can imagine. So we do have to care for the people in our care. That doesn’t mean making statements, but it means doing other things to make sure that they know that we see them and we care for them.

Tomiko Brown-Nagin:
Very important comment, Erica. Thank you.

[APPLAUSE]

Tomiko Brown-Nagin:
Let’s see. One more question here. I have to be very discriminating. There is a question, a number of questions about doxing, including trucks that project names and pictures. Would the doxing of students and others qualify as an emergency or true threat under the First Amendment, or as targeted bullying and harassment, or incitement to violence? Why or why not?

Nadine Strossen:
I think that actual doxing would not be constitutionally protected. But let me make very clear, that term refers to the revealing, publicly revealing private identifying information, including contact information, addresses, family information. If what is shown are only names and pictures, which I understand that are already in the public domain,—which I understand has been the case on some of these trucks—that would be constitutionally protected.

But again—to repeat a point that Erica most recently has made, that a number of us have made repeatedly—the fact that you have a right to do it legally doesn’t mean that it is right to do it. And just as I would say that employers have a right not to hire somebody as freedom of association, I don’t think that they should exercise that freedom to punish somebody for a statement that they disagree with. So I think that even if it’s legally protected, it should probably be discouraged.

Tomiko Brown-Nagin:
Any other thoughts about that question or closing comments about how, during this very challenging time, we can all steward our communities, whether as administrators, as faculty members, as peers? You have the floor.

Keith Whittington:
I would just add, I guess—something I was thinking about relative to one of the earlier questions as well, and I think it makes sense in this context also—is that one crucial thing I think we all should be doing as scholars and faculty members is trying to be role models and exemplars of these kinds of standards of civil discourse and rational inquiry that we think is so critically important, as well as tolerance for alternative views.

Part of why I was attracted into academia in the first place was precisely because I found it to be a place where people took ideas very seriously. People were willing to talk across differences. Most of the crucial mentors I had in my own life were people who disagreed with me dramatically on almost everything. Most of the students I’ve worked with most closely are people who disagree with me dramatically about various things. But the wonderful thing about universities is precisely because they’re places of serious intellectual exchange, even in those contexts.

And I try to get that across to students on a routine basis, that part of what we’re doing in classes and part of what we’re doing in life is exploring ideas. We’re not always committed to it, and sometimes we make mistakes in doing that. But that we should be tolerant of those kind of mistakes and we should be willing to engage in that kind of exploration. And it’s really hard, I think, to convince students in our current environment that they ought to be willing to do that, that they ought to think other people are doing that.

And so I think it’s crucial that we have events like this, but also in our own professional lives, to try to reinforce for students and for others that these things are possible. They are a good model for how society ought to operate. They’re certainly a good model for how universities ought to operate, and we’re going to try to build the kind of culture that we want for a democratic society. We have to go into a part with, as you characterized at the very beginning, generous listening to others.

Tomiko Brown-Nagin:
Thank you. Jeannie?

Jeannie Suk Gersen:
Yes. So, on this question of taking care of our students, it’s very important to understand that taking care of our students does not automatically mean we then discipline the people who are making you feel like you’re not safe. It’s a very important distinction, because for lots of students what it means to be taken care of is that the other people have to be treated in a certain way. And so I think the key idea is that we’re taking care of students equally.

And so if you are committed to that, that means that even the people who are on the other side are also going to be taken care of. And I think culturally we need to move to a place where people accept that equality and that they do not think that what it means to be taken care of is official repercussions, including discipline, for other people. And that if they don’t discipline people who’ve said things, then you’re not being taken care of, because that’s a very easy move to make. And so that’s going to take some work, but we’ve got to be really precise about these kinds of distinctions.

Tomiko Brown-Nagin:
Thank you.

Nadine Strossen:
I would also say that taking care of students, which I care about profoundly, does not mean shielding them from offensive ideas. In the long run, that is going to disable them from being the change agents and the activists for human rights and social justice that they want to be and we want them to be.

Tomiko Brown-Nagin:
Wonderful. Thank you. You have the last word, Nadine. We’re out of time. I want to thank Nadine, Keith, Jeannie, and Erica for your participation this afternoon. It was a terrific conversation. Thank you to everyone who joined us. Thank you, again, and have a good evening.

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Ivelisse Estrada:
Well, that's a wrap. That's the final episode of our first season of Radcliffe's BornCurious.

Heather Min:
Thank you to each of you who joined us, our generous guests, and our curious listeners.

Ivelisse Estrada:
We've covered a great deal of ground this first season and hope that this wide ranging and interdisciplinary approach has opened your mind to new ideas and perspectives. It's been a pleasure serving as your cohosts.

Heather Min:
Our website, where you can listen to all our episodes, is radcliffe.harvard.edu/borncurious.

Ivelisse Estrada:
We're already well into production for our second season, and it's shaping up beautifully. We'll have discussions about recent Supreme Court decisions that affect access to higher education, addressing climate inequities, gendered views of autism, and more. We hope you’ll join us. In the meantime, if you like what you've heard, please rate us and subscribe on your preferred podcast platform.

Heather Min:
And if you have feedback, e-mail us at info@radcliffe.harvard.edu.

Ivelisse Estrada:
You can follow Harvard Radcliffe Institute on Facebook, Instagram, LinkedIn, and X.

Heather Min:
And as always, you can find BornCurious wherever you listen to podcasts.

Ivelisse Estrada:
BornCurious is a production of Harvard Radcliffe Institute.

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