Earlier this year, President Donald Trump signed an executive order requiring colleges and universities that receive federal funds to do what they’re already required by law to do: extend free-speech protections to men and women on campus.
The executive order was a transparent exercise in politics. Its intent was to validate the collective antipathy that many Trump boosters feel toward institutions of higher learning. Its major impact, though, has been to shed light on how serious the purported censorship crisis on campus really is—or, rather, is not.
I have served for more than two decades as a university president, the past 17 years leading Columbia University. I am also a lifelong First Amendment scholar and have written books and essays to try to understand and explain why our laws and norms have evolved as they have. In both these capacities, I can attest that attitudes about the First Amendment are evolving—but not in the way President Trump thinks.
The president’s claim that the campus free-speech order was needed to defend “American values that have been under siege” ignored two essential facts. First, universities are, today, more hospitable venues for open debate than the nation as a whole. Second, not only have fierce arguments over where to draw the line on acceptable speech been a familiar occurrence in the United States for the past century, but such dialogue has also been indispensable to building a society that embraces the First Amendment. From flag burning to Holocaust denial, Americans of all ages have been grappling with basic questions about offensive speech for decades and will continue to do so for as long as the country strives for this ideal of openness and freedom of expression. Exchanges over the boundaries of campus speech should therefore be welcomed rather than reviled when they take place.
According to a 2016 Knight Foundation survey, 78 percent of college students reported they favor an open learning environment that includes offensive views. President Trump may be surprised to learn that the U.S. adult population as a whole lags well behind, with only 66 percent of adults favoring uninhibited discourse.
At Columbia and at thousands of other schools across the United States, controversial ideas are routinely expressed by speakers on both the left and the right, and have been for decades. In fact, Columbia University is something of a magnet for provocative speakers. During the 2017–18 academic year, the conservative radio talk-show host and author Dennis Prager spoke at Columbia. The Fox News legal commentator Alan Dershowitz, the 2016 Republican Party presidential candidate Herman Cain, and the immigration activist Mark Krikorian spoke too—all without incident. The conservative political commentator, author, and filmmaker Dinesh D’Souza, after his talk, remarked on the civility of the discussion he encountered in his visit to Morningside Heights. The conservative commentators Ann Coulter and Mike Cernovich also spoke freely at Columbia, as did Israeli Ambassador Danny Danon. These speakers encountered varying degrees of student protest, an essential feature of a true free-speech environment that not only welcomes but relishes contentious debate.
It’s true that, in recent years, there have been more than a few sensational reports—at places such as Middlebury, William & Mary, and UC Berkeley—of misguided demands for censorship on campus, providing a ready, if false, narrative about liberal colleges and universities retreating from the open debate they claim to champion.
Still, the surest evidence of censorship or the suppression of ideas on college campuses is the disinvitation of controversial speakers. There are more than 4,500 colleges and universities in the United States, and each year they host thousands of speakers of all political stripes. According to FIRE, a watchdog group that focuses on civil liberties in academia, only 11 speakers were disinvited from addressing college audiences in 2018. This is a minuscule fraction of the universe of speakers who express their views annually on American campuses.
Because I am of the view that one such disinvitation is one too many, I have said that I will personally introduce controversial figures who were rejected elsewhere. Nevertheless, I understand when members of our university community raise alarms that certain individuals, based on their track record, cross the line from merely controversial to offensive.
When students express concern and discomfort about speech that is hateful, racist, or noxious in other ways, they are doing nothing unreasonable or historically unprecedented. A number of other democracies take a less absolute view on this topic—yet remain democracies. Moreover, the prevailing American conception of free speech and press rights is a relatively recent development when located in the sweep of time and the history of our nation. The challenge of resolving the tensions inherent in a tolerant society is still very much with us and is likely to remain so.
While the words of the First Amendment are enduring—“Congress shall make no law … abridging the freedom of speech, or of the press”— their interpretation has been far from immutable. These rights have repeatedly been given new meaning during moments in our nation’s history characterized by intolerance, fearmongering, and censorship, when freedom of speech and the press came under attack.
The period following World War I provided the first of these moments, and it did not go well for freedom of expression. The Supreme Court, in its inaugural First Amendment ruling, exactly 100 years ago, upheld the imprisonment of the Socialist Party presidential candidate Eugene Debs for the crime of publicly expressing his support of draft resisters. Yet the Debs case, along with the companion Schenck and Frohwerk decisions, succeeded in ushering in the constitutional right of freedom of speech and the press as we currently know it.
It would then take almost a half century for the nation’s highest court to enshrine these core rights within a sustainable and resilient framework. Until the New York Times Co. v. Sullivan ruling in 1964, journalists who cast a critical light on the activities of the nation’s most powerful individuals did so at their peril. Reporters were routinely intimidated by the implied or actual threat that powerful actors would retaliate by filing libel suits. That changed when the Court established the “actual malice” standard, which holds that for press reports about public officials to be considered libel, a journalist or publisher must have made knowingly false statements or acted in reckless disregard of the truth.
Americans should not confuse a First Amendment that is codified with a First Amendment that is calcified. In landmark case after case, the First Amendment has continued to evolve as new threats to the exercise of free expression have emerged.
Today, digital communications and social media pose an array of critical challenges to free expression. Their effects on public thought and discussion and the vulnerability of these modes of communication to manipulation by actors (foreign as well as domestic) are a source of deep concern. Repeated declarations by the president that journalists are the “enemies of the people,” and the purveyors of “Fake News,” can make us feel that we are on the verge of falling into a First Amendment abyss. Pessimists variously insist that the First Amendment is “obsolete,” “dying,” or “dead.”
But such despair misreads our history and misunderstands America’s constitutional system and its proven resilience. Over the past century, periods of great insecurity and repression—from the Red Scare following World War I to the McCarthy era and beyond—ultimately gave way to the restoration of a belief in the power of reasoned debate.
These episodes are now looked back upon as provocations for redefining the contours of the First Amendment and strengthening it through the invention of new doctrines suitable for the times. We should expect the dynamic to continue, even if the process will be difficult and erratic. The final word on First Amendment disputes in America, after all, isn’t rendered on campus—or in individual newsrooms, for that matter—but within a robust legal and constitutional framework. We leave the ultimate decisions to judges who look to precedent for guidance and render new decisions about emerging topics, thus creating new precedent.
In light of the long evolution of free expression in the United States, we should be careful drawing conclusions based on a handful of sensationalist incidents on campus—incidents sometimes manufactured for their propaganda value. They shed no light on the current reality of university culture.
I sometimes agree and sometimes disagree with contemporary students’ conception of free speech and the First Amendment. Always, though, I embrace the fact that these questions are being discussed. Fifty years ago, I was on campus when students demanded access to “shocking” works of literature their parents and other adults had condemned. Fifty years later, students sensitive to expression that marginalizes and threatens may condemn those same books—albeit for entirely different reasons.
Only through such debates can the First Amendment remain vital. Struggling to decide how strong its protections should be, when speech is so offensive as to become intolerable, where to draw these lines, how to think about free speech in the context of modern communications, and how to apply First Amendment norms in our era is exactly what needs to be done—and exactly what has been done by every preceding generation for the past century.
This article is part of “The Speech Wars,” a project supported by the Charles Koch Foundation, the Reporters Committee for the Freedom of the Press, and the Fetzer Institute.
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