Nadine Strossen: “Free Expression: An Endangered Species on Campus?” Transcript

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November 5, 2015, 3:53 pm

2015 Richard S. Salant Lecture on Freedom of the Press

This transcript has been lightly edited for clarity. Watch the video and listen to audio.

Mr. Patterson:  Good evening. I’m Tom Patterson.  I’m the acting director of the Shorenstein Center on Media, Politics and Public Policy, and in a few minutes, you’re going to hear from Nadine Strossen, former president of the American Civil Liberties Union, currently, the John Marshall Harlan II Professor at New York Law School.

But, let me tell you a little bit first about the two individuals behind tonight’s lecture.  This is the eighth annual Richard Salant Lecture on Freedom of the Press.

In his era, Dick Salant was known as the best of the news division presidents.  When he took over the helm at CBS News, there was no “60 Minutes.”  There was no full-time election unit.  There was no “CBS Morning News.”  He introduced all of it.  He also expanded the CBS nightly newscast to 30 minutes, making CBS the first network to do so.

I’m old enough to remember when TV news was a radio-like headline service.  Dick Salant pioneered the video-based narrative newscast that we know today.  Among the bevy of correspondents that Dick Salant mentored was Marvin Kalb, the first director of the Shorenstein Center.

Now, in his efforts, Dick had the full backing of CBS’s overall president, Dr. Frank Stanton.  Frank was a staunch supporter of the Shorenstein Center and the Kennedy School, retiring here in Boston after he left New York.  In his will, Frank left the bequest that through the Stanton Foundation allowed us to establish the Salant Lecture.  Frank Stanton insisted that this lecture be named not for himself, but for his friend and protégé, Richard Salant.

Now, Frank Stanton was not a newsman.  He never covered a story.  But, he gradually came to think like a journalist.  In his early years as head of CBS, he required journalists to sign a loyalty oath as a means of keeping Senator McCarthy at bay.  Stanton stood by Edward R. Murrow when he attacked McCarthy two years later on his program, “See It Now.” But, the two men were not buddies.

Stanton saw Murrow as an attention seeker.  Murrow saw Stanton as an overly interested person in the commercial entertainment side of CBS.  So, whatever doubt there might have been about Stanton’s commitment to the news division, it was dispelled in his closing years as CBS President.

A final act was to refuse a Congressional subpoena that directed him to turn over the outtakes of CBS’s controversial documentary, “The Selling of the Pentagon,” which told of how the Pentagon was using public money to promote its brand of militarism.  Risking the threat of jail, Stanton said that honoring the subpoena would have a chilling effect on journalism.

Congress was infuriated, but eventually backed down.  Frank received the Peabody Award for his steadfast defense of the First Amendment.

And now, on to this year’s Salant Lecturer, Nadine Strossen.  Her New Jersey family, I’m sure, is the reason she spent her career defending people’s rights.  Her father was a Holocaust survivor.

In 1988, after nine years of practicing law, Nadine was appointed a professor of law at New York Law School.  Three years later, she was chosen as president of the American Civil Liberties Union, the first woman to hold the post.  She was at the helm for nearly 18 years, the period when the ACLU pressed forward on a broad range of civil liberties issues, including fighting the government over its effort to suppress expression on the Internet.  In 1997, the Supreme Court came down 9 to 0 on the side of the ACLU.

Under her leadership, the ACLU also led the fight after 9/11 to put limits on the government’s surveillance and detention policies.

Nadine is fearless.  It takes a bit of courage to risk attack from adversaries.  It takes a whole lot of courage to take on issues that might anger those who would otherwise be on your side. You have to be daring to write a book titled Defending Pornography and to argue for the decriminalization of all drugs, not just marijuana.

Nadine is on familiar turf this evening, she was a Harvard undergrad.  After graduating Phi Beta Kappa, she stayed on to attend Harvard Law School where she was an editor of the Law Review.

Nadine Strossen, welcome back.

Ms. Strossen:  Thank you for that kind introduction, Tom.  And thanks to the rest of you for that warm welcome.

I’m really delighted to address this important forum named for and endowed by two free speech champions, Richard Salant and Frank Stanton.  In their honor, I feel impelled to briefly note the ongoing repression of free speech on their medium, broadcast TV, thanks to some very old, very flawed Supreme Court decisions, which the Court has repeatedly refused to reconsider.  Most recently, it refused to do so in a 2012 decision arising from the notorious wardrobe malfunction at the 2004 Super Bowl which one commenter called “a tempest in a B cup.”

Although that whole incident lasted a mere one half of one second, its impact is still enduring every second of every day, even now, more than a decade later.  It triggered a harsh new federal statute, and FCC actions that severely punish so-called indecent expression, which is Constitutionally protected in all other media.  But on broadcast TV, it is subject to huge fines, thus prompting self-censorship, even of news with serious value, even beyond direct FCC censorship, which is still also ongoing.

So, in honor of Messrs. Salant and Stanton, I’d like to cite just one example involving their own CBS.  In 2006, reasonably fearing an FCC enforcement action, many CBS affiliates refused to air an award-winning documentary film about the 9/11 attacks.  Why?  Because it featured audio recordings of emergency responders, fire fighters and police officers, whose spontaneous exclamations included some profane words.  Hardly shocking under the circumstances, and yet, censored.

The Shorenstein Center’s web page about this lecture says, “Frank Stanton worked to ensure that broadcast journalism receive First Amendment protection equal to that received by the print press.”  So, he would be sorry to learn that this goal still hasn’t been achieved, but I assure you, would be glad that the ACLU and others are working toward it.

So, with that nod to the namesake of the endower of the lecture, for the remainder of my talk, I’ve chosen to focus on another ongoing free speech challenge, which is even closer to home for all of us here, namely, I’m going to discuss one of the many rampant free speech problems we’ve been facing on campuses all over the U.S., including right here at Harvard.  I’m grateful to many members of the Harvard community who have stood up for free speech here and beyond.  Now, I’d like to salute just one such free speech champion who is with us tonight, one of my guests, Harvey Silverglate who is a Harvard Law School alum, who co-founded a very important organization, FIRE, the Foundation for Individual Rights in Education, and is also a long time ACLU leader.

Earlier this year, University of Chicago adopted a powerful re-commitment to campus free speech, precisely to push back against the prevailing suppression.  The statement was drafted by UC’s acting Law School dean, Geoff Stone, who has been a free speech scholar and advocate for almost half a century.  Yet, Geoff recently said, “the level of intolerance for controversial views on college campuses today is much greater than at any time in my memory.”  And I concur with that.

Of the many current free speech problems, the one I’ve chosen to address in my brief time is one that Harvey Silverglate complained about specifically at Harvard Law School, way back in 1996 in a Wall Street Journal op-ed.  And it’s a general problem that I wrote about even earlier, in my 1995 book, Defending Pornography.

Sadly though, this problem has become even worse since then.  Specifically, I’m referring to the overbroad, unjustified concept of illegal sexual harassment as extending to speech with any sexual content that anyone finds offensive.  This distorted concept has recently become entrenched on campus due to pressure from the Department of Education’s Office of Civil Rights, the OCR.  By threatening to pull federal funds, the OCR has forced schools, even well-endowed schools such as Harvard, to adopt sexual misconduct policies that violate many civil liberties, as denounced by an admirable, remarkable open letter that 28 members of the Harvard Law School faculty published last fall, with the signers including distinguished female professors who are lifelong feminist scholars and women’s rights advocates.

Tonight, I’m going to be zeroing in on just one of these problematic sexual misconduct policies, namely, as I said, the sexual harassment concept, because its subversion of free speech is germane to the theme of this lecture series.

Of course, combating gender discrimination, violence and sexual assault is of the utmost urgency.  I hope that goes without saying, but I will underscore it: of the utmost urgency.

But, OCR’s distorted concept of sexual harassment actually does more harm than good to gender justice, not to mention to free speech.  More than 20 years ago, my book, Defending Pornography, made this point in the context of opposing laws that some feminists were then advocating, laws that would ban sexual expression that they viewed as demeaning to women.  In fact, there was a vigorous campaign for one such law right here in Cambridge, which was defeated, thanks in large part, to other anti-censorship feminists, including the Boston Women’s Health Collective, the publishers of the classic, Our Bodies Ourselves.

Well, alas, all these years later, decades later, my book’s message is still relevant in response to the still ongoing efforts to suppress sexual expression for the purported sake of women’s equality and safety, now through the vehicle of campus sexual harassment policies.

By the way, this book was my first non-academic publication.  And I hadn’t realized how few free speech rights first-time authors have in their contracts with major publishers.  So, I didn’t have much to say over the book’s title or cover, which the publisher clearly designed to be in your face, provocative.  You see that subtitle, Free Speech, Sex, and the Fight for Women’s Rights.  And then, that neon, flaming, big word, “pornography” right in the middle.  Well, that prompted this comment from one of my academic friends, who had written scholarly works on the general subject with the typical long, dull academic titles, you know, with a semicolon in the middle, and dripping with sarcasm, and maybe a little envy, she said, “Gee, Nadine, couldn’t they work in the word orgasm, too?”

OCR’s flawed sexual harassment concept reflects sexist stereotypes that are equally insulting to women and men.  For women, it embodies the archaic and infantilizing notion that we are inherently demeaned by any expression with sexual content.

And that same problem plagued the anti-pornography laws that I mentioned.  In fact, the ACLU’s lawsuits against those anti-pornography laws argued that they violated both free speech and gender equality.

I’d like to quote a brief that the ACLU Women’s Rights Project filed more than 30 years ago, which sadly is fully apt today.  “A law that equates women with children and men with satyrs is hardly a step toward gender equality.”

Shortly after Ruth Bader Ginsberg became the founding Director of the ACLU Women’s Rights Project in 1972, a reporter who was interviewing her used a somewhat belittling term from that era, describing her work as “women’s lib,” to which Ginsberg sternly retorted, “No.  We’re working to liberate men and women.”

And here I want to draw another important lesson from that classic liberal concept of gender justice, as even the detractors recognized through that flip term lib, the key goal was liberation, liberty.  In contrast, when I read what is self-proclaimed as feminism on campus today, too often the new watch word has become something diametrically different, namely safety.

Let me quote my favorite rebuttal to this fearful approach.  It comes from one of the greatest Supreme Court opinions ever, happens to be a First Amendment opinion, very fitting for this occasion.  And I’m referring to Justice Brandeis’s 1927 opinion in Whitney v. [California]. He wrote, “Those who want our independence believed that the final end of the state was to make us free.  They believed liberty to be the secret of happiness and courage to be the secret of liberty.”

There’s yet a further problem with the current campus exultation of safety, namely, it’s very different from the dictionary definition. Rather, the current clamor for campus safety seeks protection from exposure to ideas that make one uncomfortable.

For instance, last fall, Brown University set up a safe space for students who felt endangered by the mere fact that a debate was taking place on campus on the topic of how should colleges handle sexual assault.

Let me quote The New York Times article on point.  “The room was equipped with cookies, coloring books, bubbles, play dough, calming music, pillows, blankets and a video of frolicking puppies, as well as students and staff members trained to deal with trauma.  Emma Hall, a junior, went to the debate.  But, she said that after a while, she had to go to the safe space, because ‘I was feeling bombarded by a lot of viewpoints that really go against my dearly and closely held beliefs.’”

This focus on safety from disturbing ideas is especially misplaced given the ongoing serious threats to students’ physical safety on campus, including rape and sexual assault, which continue to be alarmingly prevalent, as indicated by a survey that the Association of American Universities released just a couple of weeks ago.  And I saw President Faust’s follow on letter to the Harvard community about that.

And also, in the wake of the latest mass gun murders on campus just last Thursday, less than a week ago, we have to contrast government’s pressure to shield students from ideas with its failure to shield them from guns.  To the contrary, some laws are even moving in the opposite direction.  For example, Texas has enacted a so-called campus concealed carry law which actually allows gun owners to bring their hidden weapons into the classroom.  Think what that’s going to do for open debate in a classroom.

In short, when it comes to safety, our students are being doubly disserved.  Too often, denied safety from physical violence, which is critical for their education, but too often granted safety from ideas, which is antithetical to their education.

To say that we should be protected from any idea is the exact opposite of what the Supreme Court has held as the bedrock of our free speech system.  Namely that speech may never be suppressed because anyone had any negative reaction to its ideas – even the most vehemently negative reaction by even the vast majority of our fellow citizens.  To be sure, speech may be suppressed if, but only if, it poses an imminent danger of concrete injury, for example, an intentional incitement of imminent violence.

However, short of such an extraordinary situation, Justice Brandeis eloquently explains why we must brave the discomforts and other potential downsides that are posed by speech whose ideas we consider evil and even incendiary.

As he said, “Fear of serious injury cannot alone justify suppression of free speech.  Men feared witches and burned women.  The fitting remedy for evil counsels is good ones.”

This speech protective philosophy was memorably summed up specifically in the campus context by a revered past university president, Clark Kerr of the University of California.  As he said, “The University is not engaged in making ideas safe for students.  It is engaged in making students safe for ideas.”

Now, when Kerr uttered these bracing words in 1961, it was the students who were fighting for freedom and government officials who sought to stifle freedom in the name of safety.  Alas, this situation has been inverted on too many campuses today with students themselves asking the university, demanding the university to keep them safe from disturbing ideas.

In response, university officials could well quote a point Dick Salant used to make about the broadcast media.  As he said, “Our job is to give people not what they want, but what we decide they ought to have.”

Notably, in 1984, Harvard President, Derek Bok, quoted Clark Kerr’s great line in an eloquent open letter Bok wrote to the Harvard community about various free speech controversies that had recently roiled this campus.  This letter remains fully apt today.  And I was happy to see it’s actually posted on the Harvard website, along with some other policies that are less speech friendly.  Let diversity bloom, I guess.

One of the incidents that Bok described was a flyer that a Harvard fraternity had circulated which, to quote him, “Referred to women in terms that were lewd, insulting and grossly demeaning.”  While he stressed that this speech should not be penalized in any iota at all, he also explained that it should be publicly condemned.  And I’d like to summarize this key distinction by saying that we should not censor offensive speech, but we surely have a responsibility to censure it, and I think Bok sets a marvelous example.

Now, I’ll explain in a bit more detail the free speech and feminist laws with OCR’s sexual harassment concept which Harvard and too many other schools have adopted.  Again, the OCR has forced campuses to punish as sexual harassment “any unwelcome conduct of a sexual nature.”  There is no exception for speech.  To the contrary, the OCR definition expressly extends to “verbal conduct” which is a good example of Orwellian newspeak.  Or I should say, it’s a good example of Orwellian new verbal conduct.

In short, campuses are pressured to punish as harassment any expression with any sexual content that anyone subjectively finds offensive, no matter how unreasonably or irrationally.  And the OCR explicitly rejected an objective reasonable person standard, stating that “expression will be harassing, even if it is not offensive to an objectively reasonable person of the same gender in the same situation.”

As a nice coincidence, one of the first critiques of this censorial concept was written by none other than journalist Michael Barone, the widower of Joan Shorenstein, the remarkable namesake of the Shorenstein Center.  Michael Barone denounced the OCR rule shortly after it had been announced in 2011 in a column he wrote which was referring to a then current political scandal that some of you might remember.  As he wrote, “This sexual harassment concept could get campus speakers into big trouble for saying something considerably milder than the double entendres we were hearing in cable news coverage of the Anthony Weiner scandal.”

Universities have, in fact, been punishing students and faculty members for all manner of sexually themed expression, even when it has an important academic purpose.  The most egregious, most recent example is the prolonged sexual harassment investigation that Northwestern University conducted against film professor Laura Kipnis earlier this year because of an article she published in the Chronicle of Higher Education, in which, ironically, she criticized the exaggerated, distorted concept of sexual harassment that is prevalent on campus.

For months, the university subjected her to Star Chamber type interrogations pursuing the charge that her essay somehow constituted unlawful harassment.

I’d like to cite just a few other examples of campus censorship in the guise of punishing sexual harassment.  The Naval War College placed a professor on administrative leave and demanded he apologize because, during a lecture that critically described Machiavelli’s views about leadership, he paraphrased Machiavelli’s comments about raping the goddess Fortuna.

Another example: The University of Denver suspended a tenured professor and found him guilty of sexual harassment for teaching about sexual topics in a graduate-level course in the course unit entitled “Drugs and Sin in American Life from Masturbation and Prostitution to Alcohol and Drugs.”

Next example: A sociology professor at Appalachian State University was suspended because she showed a documentary film that critically examined the adult film industry.

A sociology professor at the University of Colorado was forced to retire early because of a class in her course on deviance in which volunteer student assistants played roles in a scripted skit about prostitution.

A professor of English and film studies at San Bernardino Valley College was punished for requiring his class to write essays defining pornography.  Yes, that was just defining it, not even defending it.

And just this summer, Louisiana State University fired a tenured professor of early childhood education who has received multiple teaching awards, because she occasionally used vulgar language and humor about sex when she was teaching about sexuality and also to capture her students’ attention. And I could go on. You get the idea.

Now, I’d like to underscore why we should not punish any unwelcome sexual speech as the OCR dictates.  In our wonderfully diverse society, we all have widely divergent views about what sexual expression we find positive or negative.  I’d like to describe a cartoon en pointe.  It shows three people in an art museum looking at a classic nude female torso, a fragment of an ancient sculpture minus the head and minus the limbs.  And each viewer’s reaction is shown in an air bubble. And the first one thinks, art.  And the second one thinks, smut.  And the third one thinks, an insult to amputees.

We individuals even have different perspectives about whether any given expression has any sexual content at all.  That’s captured by the old joke about the man who sees every ink blot his psychiatrist shows him as wildly erotic.  And when the psychiatrist says to him, you’re obsessed with sex, the man answers, what do you mean I’m obsessed?  You’re the one who keeps showing me all these dirty pictures.

In short, we individuals cannot delegate these inherently subjective determinations to any officials.  As with all discretionary decisions, they will be arbitrary at best, discriminatory at worst.

An appropriately limited concept of illegal sexual harassment in the educational context was issued by the Supreme Court in 1999.  And by the way, one of the points that was made in this remarkable open letter by the 28 Harvard Law School faculty members was that of the definition of sexual harassment that this school, among many others, has adopted under pressure of the OCR, departs from and is inconsistent with the Supreme Court’s definition.

And here is how the Supreme Court defines it: Not just anything that anyone considers unwelcome, subjectively as the OCR would have it, but rather, only unwelcomed conduct that is targeted, discriminatory and – I’m going to quote – “so severe, pervasive and objectively offensive, and that so undermines and detracts from the victim’s educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.”

Now that concept respects both free speech and gender equality.  And therefore, it’s been endorsed by advocates of both, including the ACLU Women’s Rights Project and the AAUP, the American Association of University Professors Committee on Women in the Academic Profession.

Indeed, in the teaching context, the AAUP advocates an added prerequisite before any expression may be deemed to be sexual harassment, namely that it is not germane to the subject matter, an additional requirement.  And here’s AAUP’s explanation for that – and it’s specifically their Committee on Women in the Academic Profession: “The academic setting is distinct from the work place in that, wide latitude is required for professional judgment in determining the appropriate content and presentation of academic material.”

Unfortunately, Harvard is just one of the growing number of campuses that has been pressured to adopt the OCR’s dangerously distorted concept of sexual harassment.  And this has had a chilling effect here, according to one of your leading in house critics, somebody I greatly admire, but I’m in broad company, because she’s an internationally renowned feminist scholar and activist, namely Harvard Law School professor Janet Halley.  Let me quote from a trenchant critique that she published in The Crimson last year.  “To the OCR, academic freedom, the very lifeblood of education and research, appears not to register as important at all.  Classroom instruction and academic debate can and will become the basis of complaints and sanctions.  Chill is already happening.  Teachers at Harvard alarmed by the policy’s expansive scope are jettisoning teaching tools that make any reference to human sexuality.”

Well, I’m running out of time.  I would like to close on a positive note, so let me quote on that point, one of my favorite philosophers, Woody Allen.  He was once coming to the end of a speech and he told the audience, “I want to end with something positive, but I can’t think of anything positive to say.  Would you settle for two negatives?”

I can cite many positives.  And first and foremost, the many individuals at Harvard and elsewhere who are courageously standing up for free speech, including by resisting OCR overreach. You are acting in the finest traditions that were set by Dick Salant and Frank Stanton.  Thank you very much.

(Applause)

Mr. Patterson:  So, we do have time for some questions.  Maybe I’ll ask the first. Picking up on where you went toward the end of your talk and about how one might think about differences in terms of free expression and institutions of higher education, versus the workplace, versus the media, versus the soap box in the street – how important are those different kinds of situations or settings as you think about this issue?

Ms. Strossen:  Well, I’m a free speech absolutist.  But, that doesn’t mean that speech is always protected.  Along with every other fundamental right, it may be restricted.  And I’m going to use a lawyer’s term here, if, but only if, you can show that the restriction promotes a countervailing goal of compelling importance that can’t be promoted in any other way.  And that’s a very and appropriately hard burden of proof.  But it might well be easier to satisfy that burden of proof in one factual setting than another factual setting.

So, for example, in a workplace where we’ve actually had some cases where women were newly desegregating, gender desegregating traditional bastions of male work, namely firehouses, one of the attempts to intimidate and make the newly anointed women fire fighters lives unpleasant, was to take pinups, pornographic pictures of women, and tape them to the lockers of individual women. I think, in that context, that clearly would constitute sufficiently targeted harassment that sufficiently undermines their equal access to ideas.

So, I guess, I’m answering your question even more broadly, Tom, which is that every analysis has to be fact specific.  And examples of what I think does not in any way, shape or form even begin to satisfy that concept are the examples that I’ve recited from campuses around the country.

Nolan Bowie:  Nadine, you started off with a critique of broadcast regulation.  And I would like to point out that scarcely is the false justification for a broadcast regulation different from other media.  Yet, it is non-existent now, if there ever was scarcity – we now live in an era of super abundance of channel and portal capacity, so there’s no scarcity.

Moreover, in a case, FCC v. Fox, in a concurrent opinion, Justice Clarence Thomas basically spelled out the terms on that broadcast regulation was unconstitutional and invited members of the public to come in and sue the FCC.

In addition to that, broadcast licenses now are run for eight-year terms.  And at the end of that eight-year term, a broadcast licensee only had to submit a postcard-sized renewal application.  Yet, the law requires the FCC to first find that a renewal would be in the public interest.  And there’s no evidentiary basis for coming to such a conclusion.  So, it’s arbitrary and capricious under the Administrative Procedures Act.

My question is, is the ACLU or any other organization or persons willing to come forth, who are currently engaged in a suit against the FCC, regarding broadcast regulations so that, under say Section 303(G) of the Communications Act, they can make the best use of radio, which is special for, say, high speed unlicensed broadband?

Ms. Strossen:  Thank you so much, Professor Bowie.  He’s an expert in this area, as you can tell.  Fabulous to see you again.

It’s very frustrating, because the Fox case was the one that I was referring to, in which the Supreme Court, for the umpteenth time, the second time in that same litigation, declined the opportunity to squarely knock down old precedents that are completely inconsistent with all the intervening precedents that have come along.

So, in the meantime, they have protected “indecent speech” on the Internet and satellite and cable as well as the traditional print media.  And it’s not that they’re substantively defending it.  In fact, not only has Clarence Thomas, but other individual justices across the ideological spectrum have indicated that there is a First Amendment problem here, but they’re refusing to do anything about it. And they did seek comments on new rules, which the ACLU and other free speech organizations submitted, but the FCC has just been sitting on them.

We have the same thing in the campus context, and Harvey and I have talked about that.  You know, many people who are not litigators will be shocked – how can this unconstitutional rule exist in both of these contexts?

There’s no doubt in my mind that if the Supreme Court heard any of these cases on the merits, we would win substantively as a First Amendment matter.  But, the Supreme Court has control over its docket.  And it’s, for some reason, not being activist on this issue. If you have any ideas, we’re all ears.

Harvey Silverglate: Nadine, I’ve been an observer of the college and university scene for nearly half a century.  And so have you, and you have a little advantage, you are a faculty member.

My question is, I have sensed, especially since the mid 1980’s, a gradual decrease in the power and influence of faculties and a consequent increase in the power and numbers, I should add, of administrators.  And in administrators, I include by the way, offices of general counsel who operate on the theory of no liability.  That’s what they’re mainly interested in.  Administrators don’t like bad publicity, lawyers don’t like liability. My question to you is whether you agree with this observation, and if you do, how can this trend by reversed?  How can faculties recapture the moral and actual authority that they once had over the operation of institutions of higher education?

Ms. Strossen:  Wow.  That’s such a great observation.  And I agree with it anecdotally.  I’m sure others have studied it and documented it.

But you’re reminding me that I saw a letter or an op-ed [in The Chronicle of Higher Education] that was co-authored by two Harvard Law School professors on this topic.  One was Charles Fried and I’m blanking out on who the other one was [Robert Mnookin].

And forgive me if my numbers are not quite accurate, some people here may know.  But, they gave this astonishing statistic that, not too long ago, there was one provost at Harvard and now, there are like dozens. It was just exponentially different.

And I personally remember when both Harvard – you mentioned the general counsel office, when Harvard and Columbia and Cornell and other Ivy League colleges – I happened to be a lawyer in private practice, so it was the early ’80s, and I was representing, my law firm was representing Cornell, my good friend, Floyd Abrams, another First Amendment advocate was representing Columbia, and somebody else was representing Harvard.  But I think each of those campuses had one in-house lawyer, at most.  And it was somebody fairly junior who was just kind of like the guardian or the watchdog, the people that we, the outside lawyers reported to. And now, I see Columbia has dozens of lawyers and I’m sure Harvard is the same.  Good job opportunities.

But, in all seriousness, coming back to why – and faculty members are being dis-empowered in other ways as well.  Tenure, I think, is going – and I’m sure Harvard is different in this respect – but when I speak in the hinterlands and land grant universities that are subject to political pressure of the most immediate concrete kind, it’s the state legislature that funds them or, as it’s gotten a lot of publicity lately, Wisconsin defunds them.  That kind of pressure is absolutely palpable and has been through the decades that I have been in campus trenches – moving toward a system of more and more adjunct faculty members who can barely keep up with their teaching requirements, and don’t even have time to think about scholarship, let alone have a role in governance. Who is going to stick his or her neck out, if he or she doesn’t have tenure or even a prospect of tenure?

And there are all kinds of economic factors that are at play here.  But I think there is an existential threat to the university across a whole lot of issues because of that great important factor you put your finger on Harvey.

Audience Member:  I wanted to ask about the phenomenon of undergraduates particularly seeming to want to be comfortable at all times, to the extent that it’s almost starting to seem like assigning Shakespeare, professors are harassing their students – all that sex and violence in there, you know. And I’m thinking about these terms that I’ve been reading in the Times, particularly of trigger warnings and microaggressions.  And where you can establish a hunk of vocabulary and make a beachhead, there’s a term for these things.  It implies that there’s a reality underneath that term. Do you have a comment about these new phenomena of trigger warnings and microaggressions?

Ms. Strossen:  You can guess what my position would be – clearly inconsistent with the First Amendment and academic freedom.

But, before I address that point, which I hope is fairly obvious, I want to call your attention – to those of you who haven’t yet seen it –and to me, an even more interesting critique, which was a cover story in the September Atlantic magazine, co-authored by Greg Lukianoff, who is the president and CEO of FIRE, co-authored with Jonathan Haidt, a sociologist, social psychologist at NYU.  And they said, look, each of us could write this whole story about why, examples that Greg is talking about, and that I talked about, would violate academic freedom and the First Amendment.  But, we also want to point out how they’re actually adverse to the mental and emotional and psychological wellbeing of students.

So, the very countervailing value that is being – going back to that analysis – is it necessary to promote a countervailing value? And their answer is no.  It’s actually doing more harm than good to students’ wellbeing.

And it’s so interesting, because they take a specific type of psychology, and example after example of the policies, including trigger warnings and microaggressions, they show how it violates some major tenet of behavioral cognitive therapy.

So, on the free speech point, to give a trigger warning – even assuming it is only a warning and does not mean, therefore, you may not teach anything that somebody thinks is going to trigger some negative reaction – it’s like putting a scarlet letter on something.  So, even the label is somehow negative, conveying a negative judgment about whatever it is that’s being taught.

Beyond that, many students are saying you should not teach anything that is triggering with or without a label.  And my sense is that this movement, this demand has been so heavily critiqued, that I think it is on the wane.  I’m a little bit superstitious.  Actually, interestingly enough, it originated – you say it’s been around for relatively recently – it originated maybe 20 or so years ago, I believe, in the feminist blogosphere, specifically for sexual assault survivors who it was thought would feel comfortable talking and communicating in those confines.

So, ironically, it was used to encourage people to open up who might not otherwise have done so.  So, now, it’s been not only inverted to chill speech, but it’s also spread, and apparently very unscientifically, because from what I can gather from the expert literature, you can’t predict at all what is going to trigger a post-traumatic stress disorder. So, it’s a lot of inaccurate bad science, junk science as well as antithetical to free speech.

Now, sort of going back to your first question, Tom, you know, what I think is certainly really important for those of us in academia, and I know in the media as well, it’s just because we have a free speech right to say something, does not at all mean we say it.  We have responsibility, right?

And not all self-censorship is a bad thing.  What is a responsible way, a professional way to communicate with our audience, to communicate with our students? So, we have maybe special freedom.  But, I think, we also have special responsibilities.

Audience Member:  I would like to ask you your feeling about the ACLU policing of campus speech in another area.  I have in mind specifically the so-called water buffalo event, where an undergraduate at midnight studying for a final yelled out of his dorm window to a bunch of rowdy students below, “Go back to your homes, you water buffalos.” It happened to be the people making the noise was a black female fraternity.  And they brought a racial harassment suit, which the university took up against the young man.  I forgot whether the ACLU got into it.

Ms. Strossen:  Absolutely.

Audience Member: And how does that type of speech compare with sexually offensive speech?

Ms. Strossen:   It’s a very astute question, because it involves exactly the same First Amendment principles – what we lawyers call viewpoint neutrality or content neutrality – that government may never suppress speech because the audience disagrees with or is offended by the content.

And the term that’s often used to describe all of this kind of speech, in addition to harassment, is hate speech.  Speech that conveys hateful ideas, ideas that are hated, that’s got kind of a nice double meaning there.  That is no justification for censoring it.

And I believe that that was one of the incidents that gave rise to, the birth of FIRE.  The ACLU, I’m proud to say – there was a spate in the late 1980s, early 1990s, a spate of campus hate speech codes that included any kind of offensive expression.  And the ACLU brought and won the first couple of lawsuits.  The first one was at the University of Michigan, the second one at the University of Wisconsin.

And we won, it was a no brainer under the First Amendment.  By the way, the most notorious or celebrated, depending on your perspective, ACLU case ever was defending the free speech rights for Nazis in Skokie, a community that had a large population, not only of Jews, but Holocaust survivors.  And that was an extremely unpopular case in the public and in the media, and even in the ACLU.  We lost about 15 percent of our members.

But, it was a slam dunk victory in the court system, because the basic – again, as I said in my opening remarks – the Supreme Court has called this the cornerstone, the bedrock of our free speech system.

Yes.  We can go and counter-demonstrate.  We should go and counter-demonstrate.  We should shame them.  Or we should ignore them, that’s another thing to do, not magnify their voice by drawing attention to them.  But we should not suppress them.

And by the way, I wrote a whole book about that as well, which takes the same perspective that my book, Defending Pornography, does, which is, I am absolutely convinced that we should not feel that we have to choose between free speech and equality.  I believe they are absolutely mutually reinforcing values in this context and others.  And it does far more harm than good to the well-intentioned and urgent goal of countering racial discrimination on campus, at least as much as elsewhere.

But, I am absolutely convinced, based on experience, that censoring hate speech will do more harm than good. And I’ve written a whole book that explains that conclusion.  But, I won’t belabor that point anymore now.

Audience Member: What do you think is the better battlefront for creating a sea-change against decrying sexually explicit speech?  Because it seems, a lot of that is rooted in the view which you have rightfully and correctly demolished in Defending Pornography, that women are meek and cannot be sexual beings. Do you think that it is better to go into the marketplace with counter speech, or do you think perhaps state courts might be a venue for that?  Case in point, in New York, we have a long line of decisions protecting that issue, like People against PJ Video.

Ms. Strossen:  Your question ties into Nolan’s question, because you’re both asking about what is the most effective strategy to bring about reforms and end these problems.  And as is clear from Nolan’s question and my answer, and, you know, the problems with trying to bring a lawsuit against OCR, not every problem can be solved through litigation.  I also think that changing the culture is absolutely critical.  No matter how many – even assuming hypothetically that we could win legal victories, they’re not going to be enduring unless we get people to cherish and come to the ramparts for freedom of speech.

I’m thinking of a number of wonderful statements about this.  But, Learned Hand in his great speech about the spirit of liberty, a wonderful former judge in New York appellate court said: “Liberty lives in the hearts of men and women; when it dies there, no Constitution, no law, no court can save it.”

Another great quote is a Harvard quote from Zechariah Chafee, who, in the first half of the 20th century was a free speech scholar at Harvard Law School and an active member of the ACLU National Board of Directors.  And he said, in the long run, people will have just as much freedom of speech as they want, because then we’ll elect government officials that will respect the speech.  They’ll appoint judges that will respect the freedom.

So, we do have to change the culture.  And it’s one of the things that really worries me. As much as I revere the Harvard Law School faculty members, Harvey, and others I’ve mentioned who have been fighting for free speech we’re not the youngest of the generations that are populating this Earth.  And I really wish I would see more student leadership.  One of the great things that FIRE is doing is nurturing a student leadership network.  I know the John Adams Society here is defending free speech.  I mean, it’s really in your hands.  You will have as much freedom of speech as you demand.

Mr. Patterson:  Nadine, thank you very much for a wonderful evening.  Thank you.

(Applause)