Debates over free speech have simmered, and occasionally boiled over, on university campuses for decades. But in recent months, the clash over words and phrases has reached a flashpoint, reaching beyond classrooms and quads as far as the halls of Congress. College and university presidents have faced fierce criticism — chronicled in extensive media coverage — over how they’ve handled protests over the Israel-Gaza conflict and other activities at their schools, including who can or should speak at events and how to foster a sense of community safety.
Looking ahead, what can colleges and universities do to protect the fundamental principles of free speech and academic freedom while simultaneously creating an atmosphere where everyone can learn? When can speech be considered threatening, and who decides where the line is? How can journalists cover a topic so rife with nuance and rhetorical complexity? And as this debate continues, how much influence should alumni, donors, and political leaders have on campuses, private and public?
In this episode, Berkeley Law Dean Erwin Chemerinsky leads a panel discussion about these important questions with three experts who approach the topic from different angles:
- Geeta Anand, dean of the UC Berkeley Graduate School of Journalism and a Pulitzer Prize-winning journalist who wrote for the New York Times, Wall Street Journal, Boston Globe, Rutland Herald, and Cape Cod News during her 27-year career as a journalist. She began teaching at Berkeley in 2018 and became the journalism school’s dean in 2020.
- University of California, Irvine, Chancellor Howard Gilman, an award-winning scholar and teacher with an expertise in the American Constitution and the Supreme Court, with appointments in the School of Law and the departments of Political Science, History, and Criminology, Law, and Society. He also provides administrative oversight to and serves as co-chair of the advisory board of the University of California’s National Center for Free Speech and Civic Engagement.
- Emerson Sykes, a staff attorney with the ACLU Speech, Privacy, and Technology Project. Sykes focuses on First Amendment free speech protections. From 2019-2020, he was also host of “At Liberty,” the ACLU’s weekly podcast. Before joining the ACLU in 2018, he was a legal advisor for Africa at the International Center for Not-for-Profit Law, and assistant general counsel to the New York City Council, where he contributed to the council’s friend-of-the-court brief against the NYPD’s “stop and frisk” program.
About:
“More Just” from Berkeley Law is a podcast about how law schools can and must play a role in solving society’s most difficult problems.
The rule of law — and the role of the law — has never been more important. In these difficult times, law schools can, and must, play an active role in finding solutions. But how? Each episode of More Just starts with a problem, then explores potential solutions, featuring Dean Erwin Chemerinsky as well as other deans, professors, students, and advocates, about how they’re making law schools matter.
Have a question about teaching or studying law, or a topic you’d like Dean Chemerinsky to explore? Email us at morejust@berkeley.edu and tell us what’s on your mind.
Production by Yellow Armadillo Studios.
Episode Transcript
ERWIN CHEMERINSKY: Good afternoon. My name is Erwin Chemerinsky. I have the tremendous pleasure of being the dean of Berkeley Law. Issues of free speech on campus have been there as long as there have been colleges and universities. There’s no doubt that since October 7 universities across the country, including here at Berkeley, face enormously difficult issues with regard to freedom of speech.
More generally, the issue of free speech on campus has attracted so much attention in just the last few months. Two presidents of major universities resigned over controversies with regard to free speech. And so we thought it’s important to bring together some thoughtful people to take a great deal of time on these issues to talk about them. And I cannot imagine three more thoughtful individuals, people who have thought more about this than those whom I’m going to be having the discussion with this afternoon.
I’ll do really quick introductions because I don’t want to take away time from the substantive discussion for that. And I apologize to each of them for not telling more about their credentials. Geeta Anand is the dean of the UC Berkeley School of Journalism. She’s a Pulitzer Prize-winning journalist who had worked for the New York Times, The Wall Street Journal, and The Boston Globe.
Howard Gillman is chancellor and professor of law and political science at the University of California Irvine. He’s also coauthor of a book titled, Free Speech on Campus. And Emerson Sykes is a senior staff attorney at the ACLU. He works in the area of speech, privacy, and technology. And he’s an adjunct professor at NYU Law School.
So let me start with a question to each of you and I’ll begin with Geeta and then go to Howard and then Emerson. What’s your sense of free speech on campus now? Geeta, you can speak to this in terms of your role as dean and what you see, Howard as a chancellor, Emerson as a professor and as an advocate. Geeta?
GEETA ANAND: It’s a true pleasure to be here with all of you discussing this enormously important topic. I see free speech under siege on campuses. I see particularly at this moment but over the past few years, but at this moment with the war on in the Middle East, I see students and members of our community feeling so enormously in pain over the war and just striving for some relief from the pain and some outlet for it, and attacking the speech of people who disagree with them as a way of seeking relief from the pain and as a way of trying to, in some way, participate in this awful battle going on so many thousands of miles away.
So I just think it’s a really important, interesting, and dangerous chapter in the history of the free speech movement.
ERWIN CHEMERINSKY: I’d ask you as a follow-up and ask each of the other panelists this as well, is this different from free speech issues we’ve seen before, or is it just the continuation of what we’ve seen with regard to free speech conflicts on campus albeit in the context of current events?
GEETA ANAND: That’s such a good question. I see it as a continuum but just with different groups in different places. As we have different groups with different amounts of privilege in different places in this battle, it’s playing out differently. And we’ll talk about this more I’m sure in our conversation.
And in the different ways it’s playing out, it’s illuminating challenges that we didn’t perceive were there before, and perhaps inconsistencies in how we addressed issues before as we strove rightfully as campuses and campus leaders to try to create a more equitable campus and world.
ERWIN CHEMERINSKY: Howard?
HOWARD GILLMAN: Thank you, Erwin. And by the way, thank you for the opportunity to be here, especially alongside Emerson and Geeta. It is, I think, an increasingly challenging environment because the threats to free speech are coming now from so many different directions and quarters. Since 2014, ’15, there has been a movement on campuses to try to protect the well-being, especially of historically marginalized people from hateful speech or speech they considered dangerous or marginalizing.
That really led to a lot of the conversations that we’ve been having, leading up to the 2016 election, the Milo Yiannopoulos issues, and the like where the recent debates about this had been forged. And those are still there. There are still people who strongly believe that people who have points of view that they disagree with should be censored or punished or silenced through disruption. So that’s still part of our ecosystem. We haven’t moved beyond that.
Then in the last few years, we’ve seen this extraordinary assault on campus free speech and academic freedom coming largely from a select group of Republican legislators, really led by Florida, and Emerson knows more about this than almost everyone, but also out of Texas. These are efforts to impose educational gag orders on universities directly, prevent the discussion of certain ideas.
And from my point of view, that really represents the most systematic and sweeping challenge to campus free speech and academic freedom since the McCarthy era. And so we have really left progressives on the campus that have put certain issues on the table and pushed back against free speech norms. We see the right now deciding that they are going to make sure that certain campuses are not going to be allowed to say things that they find politically controversial.
And then we now have these current debates where there are extraordinary pressures to silence speech on both sides of this debate, but we’re seeing, especially national concerns about speech that some groups consider to be anti-Semitic and calls for that speech to be decried. During the Congressional testimony, the spark that lit the fuse that eventually led to some of these presidential resignations was really about the question of whether if you said certain things on campus that some people viewed as hateful or dangerous or abhorrent, whether campuses would normally and just automatically restrict or punish that speech.
And so I think now we have assaults on free speech from so many different directions that managing in this context, standing up for those basic principles against many people from different directions, demanding more of a censorship regime than First Amendment principles might consider appropriate. So yeah. No, it’s increasingly challenging and difficult environment for free speech advocates to operate in.
ERWIN CHEMERINSKY: Emerson, if I could ask you the same question that I asked Geeta and Howard?
EMERSON SYKES: Sure. When you asked what are we seeing on campus– first, I thank you also for the invitation. It’s an honor, especially to be on this esteemed panel with such leaders. But what we’re not seeing– I remember there was a time when people complained about apathy among students and how they just don’t care, they’re not paying attention, they’re not involved in the civic debates, they don’t have civics classes and we’re not seeing apathy.
So I think that we can be all happy and inspired by the energy that young folks are bringing to these issues. But of course, what we are seeing in hypertension. And people feeling on edge, they’re feeling like there’s no right way to speak or act or they’re not sure what to do or who will react in what ways to whatever they say. And the only thing I would say is that I’m the only one of you who’s not based on a campus, but I would say that this is something that is not unique to campuses.
This is something that’s being experienced I think throughout our culture. People have talked a lot about heightened tensions in our political rhetoric more broadly. What’s special about campuses as you all know better than me is that these type of tensions are more immediate and in often more heightened because the way people interact, the way ideas interact on campus can be more immediate and more heightened.
It’s a place where people live, work, study, play, [LAUGHS] fall in love, all in the same two buildings. And so everything is heightened and in a microcosm in a way that we don’t see in broader society. But these are not different I don’t think than any of the debates we’re seeing more broadly, except that the focus is on how our 18, 19, 20-year-olds are going to navigate these issues.
And so what I have spent a lot of time working on is trying to figure out how to help these young folks who are passionate, who want to see the world become a better place, who want to speak out, who want to have an influence, how to help them navigate these really treacherous issues around free speech, how do we respond to speech that we don’t want to see while also protecting these larger principles.
So with the generous support of the UC National Center on Free Speech and Civic Engagement, which Howard and Erwin have been instrumental, a few years ago, we came up with a curriculum for trainings for students and we’ve done this in various different ways.
But the idea is to get in touch with student activists when tensions are not high and give them the tools to understand why free speech is important, what are some of the different techniques they can use when things arise so that ideally, when these issues do arise and they inevitably do, obviously, we’re in the middle of a particularly hot situation, obviously, primarily in Gaza, but even on campuses here, but these things inevitably come up every year to one degree or another.
And so we’ve been trying to prepare students to navigate those things. And what I’m happy to say is that a few years down the line after having done these a few times, we have had students reach out and say, hey, listen, something’s come up on campus. We’re not really sure what to do. Should we put out a statement? What should we say? What kinds of demands should we make?
And I as an attorney can’t tell them what they should or shouldn’t put in their demand letters. But I try to just let them know, OK, this is the response you should expect on this one and this is the response you should expect on this other one. And so I think we have seen students really trying hard to grapple with these things.
And I can say even [LAUGHS] in the most recent iteration, a lot of what I’ve been doing is convincing students to exercise their freedom not to speak. And we can talk about when to make statements and when not to make statements, but I think we’ve all seen the great value in occasionally deciding not to make a statement.
ERWIN CHEMERINSKY: Let me just ask a follow-up. Similar to the question I asked Geeta and Howard is whether this situation is just a continuation where there’s things that make it different. I was in college during the Vietnam War and remember participating in those protests. But at least where I went to college overwhelmingly, the students were all on one side.
What struck me this fall that so different was the intensity of the division among students and among faculty. And I don’t recall many instances where the students were so divided as they are on this. Is that a misperception, or has that been just the kinds of things we’ve dealt with all the time?
EMERSON SYKES: Well, I think going back to what Geeta said, what’s unique is that the fault lines here are different. They’re not about necessarily class or about race or even particularly about religion or about political affiliation even. The lines here cut in some very specific ways and often some surprising ways.
So I do think there is something to the idea that conflict around, specifically violence in Israel and Gaza does create a unique set of cleavages among student bodies, among employers, among donors, among all sorts of groups of people. And it’s not that we don’t see this kind of conflict at all other places, but the fault line here is I think a special one.
ERWIN CHEMERINSKY: Well, let me ask this. I want to come back to what you say Emerson in terms of how we can help students navigate this. But let me ask, what campuses should do? Imagine there’s situations where there’s speech on campus that some students find deeply offensive.
And in the context of what’s gone on since October 7, students finding certain things to be anti-Semitic or students finding certain statements to be Islamophobic. How should campuses respond to this? Howard, you’ve thought so much about this and dealt with this as a chancellor, how should campus approach this?
HOWARD GILLMAN: Well, campuses are in the best position if they have spent time over many years trying to create a culture where people have intuitions and instincts about how it might be necessary to tolerate the expression of views with which they disagree, although that’s always been a very, very difficult thing to teach people.
Under normal circumstances, people express views that are maybe widely shared within the community even if the community is divided. It’s very difficult to imagine how you would provide as campus leadership a running commentary on everything that is expressed on the campuses.
The interesting situation that we find ourselves in, especially in the wake of October 7, is that you could in theory take the position as a free speech advocate, that if the thing being complained about is constitutionally protected speech that campuses don’t have any obligation to respond to that, although they may choose to respond to it in certain circumstances if the belief is that would serve the interest of the community.
We’re now seeing out of the Department of Education in the Office of Civil Rights guidance for campuses that if people on the campus are experiencing even constitutionally protected speech that they consider to be hateful or creates an environment that is harassing environment, then campuses are actually obligated to take certain steps.
Those steps might be speaking out against the speech that is objected to. They may be reaching out to the parties that consider themselves marginalized or deeply affected by the speech. It may be reaching out to the parties that are doing the speaking that other people find offensive. But there is increasingly now a sense of obligation on the part of campuses to do something.
Now the one thing that the Department of Education thankfully has not said campuses must do or should do is actually censor or punish speech that’s constitutionally protected even if some people object to it. But I think we’re going to be in a new era now where we’re going to need to learn from the Office of Civil Rights in the Department of Education what federal legal liabilities might be imposed on campuses for a failure to take significant enough action to mitigate what might be perceived as the creation of a discriminatory educational environment when speech is considered distressing to groups of students.
The challenge, of course, is in the current context that both sides are feeling so much pain that speech on one side and supportive of Israel might be considered deeply distressing to people advocating on behalf of Palestinians and people in Gaza. Pro-Palestinian speech might be considered in some cases very distressing to students who are supportive of Israel or associate themselves with Zionism.
And we’re in a situation where campuses, if both groups find the other group’s speech distressing, hateful, discriminatory, hostile, it does create a challenge for campuses. Are we to decry the speech on both sides because people on one side or the other find the other speakers distressing? Do we have to bring in people who are speaking in ways that others find distressing for what, a conversation, to tell them not to express themselves in that way?
It seems very difficult right now to imagine that one thing that campuses would want to do is tell people to stop speaking when they feel such a moral, psychological, emotional imperative to express their views on something that is touching them so deeply. But we all have to try to figure out in the months to come what the Office of Civil Rights actually expects of campuses under these difficult circumstances.
ERWIN CHEMERINSKY: Emerson, I want to follow up what Howard was talking about. And this really seems to me the very hard question of the tension between Title VI, on the one hand, and the First Amendment on the other. Title VI says that recipients of federal funds can’t discriminate on the basis of race that includes prohibition of harassment. Harassment is generally defined as something so severe and pervasive. It’s to materially interfere with educational opportunities.
And the Office of Civil Rights has indicated great concern that anti-Semitic speech on campus is creating a hostile environment that violates Title VI. On the other hand, if the response to it is to punish speech, Title VI can’t take precedence over the First Amendment. So how do campuses avoid being deliberately indifferent, which is the standard to avoid Title VI liability, without then running afoul and punishing speech that violates the First Amendment?
And I think that’s what Howard was getting at and he’s talking about what the Department of Education is doing. Really interested in your thoughts as somebody who works in this area.
EMERSON SYKES: Yeah. I mean, universities act with great difficulty and that’s why I don’t envy you Erwin or Howard or Geeta for being in the position to have to make these choices. But I think what you point to is something that another former fellow at the UC Center has written about Brian Szewczyk which is sort of the collapsing of the space between the harassment standard and when a university can act and when a university must act.
As I said, I focus primarily on student activists in my work, but to the extent that I talk to administrators or advise them on how to navigate these situations when these issues occur, whether it’s anti-Semitic speech or other types of offensive speech, my first piece of advice is to deal with it as a community problem first. I mean, the constitutional issues are thorny. I understand, especially folks who aren’t necessarily constitutional lawyers trying to figure out how do I respond while also being very careful not to immediately put my foot in my mouth or get the University in trouble for all sorts of things that I don’t even fully understand.
And I totally understand that and have a lot of sympathy for folks in those positions. And when these things happen what people mostly want is someone to listen to them. And they may be asking you to censor or do this or expel or kick somebody out. And I think it’s obviously understandable why you would feel like the way to support this person is to do some or all the things that they’re asking you to do.
But I think the real creativity and the real challenge is figuring out how to be present and responsive to the person in front of you so that they feel heard and as a valued member of the community while also being able to not– to be able to sort through what you can do, what you can’t do, not get caught up. I think people get caught up so much. And the demands are totally unconstitutional. I can’t do that. I’ll get sued immediately.
Of course, activists come up with all sorts of demands that are unconstitutional and it’s up to the University to sort through them. And there usually is a nugget of something at the heart if not one of the actions that can be taken, at least at conveying of a sentiment, of a feeling of discomfort.
In my experience, working on a variety of different campuses whenever something comes up, whether it’s around Israel or somewhere else, people are always talking about it. What happened last semester? What happened last year? What happened 10 years ago? We never trusted this guy. This dean doesn’t– you know what I mean. It’s old stuff.
By contrast, when you have a community that feels secure, that feels welcome, that feels [LAUGHS] like they really belong, they’re much more capable of letting some random speaker come on campus and leave without a fuss. One professor said something if you otherwise feel comfortable, you’re willing to let that pass. It’s a lot of the work has to do with these underlying issues. That’s not a solution in the immediate term, but it’s just to say that the groundwork has to be laid because when the– it’s not a joke, but when the noose is hanging from the doorknob it’s a bad time for a constitutional lesson.
ERWIN CHEMERINSKY: Yes. Geeta, I wanted to ask you from the perspective of a dean when there is– and hopefully never will be in your school, speech that students find offensive or that they find anti-Semitic or Islamophobic or racist. What is your response as a dean? And I think it’s especially important because you’re a dean of a school of journalism where there’s obviously an underlying commitment to the values of speech.
GEETA ANAND: Especially in these times and especially with this war where people are feeling so hurt by words and arguing that words or phrases mean you’re anti-Semitic or Islamophobic, it’s really challenging. I’m telling you what you all know. And the temptation when people are so hurt and in so much pain is to run from it. But in fact, I think we should do the exact opposite.
To your point Emerson that maybe when the noose is hanging from the door it’s not the time for a course in constitutional law. I agree with that. But, in fact, at times, those are the moments where people will actually want to learn [LAUGHS] and need to learn and listen. So I think we should charge toward the conversations in these hard times precisely because there are opportunities to learn so much.
As Emerson was just saying when people make this demand or that demand, they’re often expressing just a need to be heard and a need to be able to feel like they have a voice in what’s happening and, in fact, to have a voice in what’s happening.
At the journalism school when COVID struck a few years ago, our response was in one week– and I’m not suggesting we do this across campuses, but in one week we dropped classes and instead turned our school into a newsroom covering COVID in California for The New York Times and publications across California and half our student body were published in The New York Times. So we decided that this was a time where students could best learn by actually covering the largest public health story of our lifetime.
So the parallel here is that with the Middle East, often because it’s so hard to have these conversations and because it takes so much time to have them responsibly curating who you invite supporting the community strongly enough so that people can hear one another and maybe doing the community work that you didn’t do as well before, the community and belonging work that you didn’t do as well before, because of that, we often shy away from having those conversations.
But I think that we need to make space for them, perhaps even considering reducing the course load or having certain days as teachings. I just think that these are the most valuable learning moments for a community. And in fact, to reduce the harm, we need to do more of it and make space for it.
ERWIN CHEMERINSKY: Let me follow up on Geeta’s question. I’ll ask you this, Howard. You were pointing to the tension between Title VI and the First Amendment and you rightly pointed out that the obligation of the school under Title VI is to not be deliberately indifferent and one of the things that a school can do is for administrators to speak out. But then the question becomes when should administrators find it necessary or appropriate to make statements, when is it better for them to be silent?
I think people are now very familiar with the Kalven Report that took the position that administrators and universities should always be silent. Administrators who tried that in the fall got criticized for their silence. But of course, those who said almost anything got criticized for that, too. So how do you as chancellor decide when you’re going to speak out and how do you decide when it’s better to stay silent?
HOWARD GILLMAN: How do I decide it? It’s imperfect. But at least I’ve done a lot of thinking about it. I’ve been part of a lot of conversations among chancellors and presidents around the country who over the years have struggled to figure out what their philosophy is, what they think the community needs, and the like. I will say that about a year, year and a half ago, I thought I owed my– many people were asking me to make statements about many things that I was not making statements about.
And it seemed just to say I’m not going to make a statement about that didn’t seem fair to the community. So I guess typical of my personality, I created a statement on statements. So if you want to go on the chancellor.uci.edu website and on communications, I have a statement on statements, where I tried in advance to just tell people how I reflect on it, what the different considerations are, and the like.
And I did admit in the last paragraph that it does require an exercise of judgment and a personal sensibility and that many people are going to disagree. But I remain open to people. And if they think I’m laying out these issues incorrectly, they should let me know. Having said that, that doesn’t immunize yourself when you actually take a course of action that some people find distressing.
Nobody should feel bad about chancellors and presidents. But the one thing that we’ve heard, especially in the wake of October 7 is how many people have really considered this a no-win situation in terms of what choice they were going to make. I think even The Chronicle of Higher Education had an article where the title was more or less– the headline was more or less, Presidents in no-win situations about statements.
People that as you mentioned, Erwin, people that decided we’re really going to stick with the Kalven Report that’s most consistent with protecting broad speech on campus. It means that we’re the sponsor of critics but the campus isn’t the critic itself. People that attempted to stay silent under those circumstances found it absolutely impossible for them not to weigh in and often had to backtrack and say something.
If you said something where you put really the extraordinary massacre of October 7 in a broader context, then it was viewed as outrageous from the vantage point of folks who believe that October 7 was an event that required specific attention to what had been experienced on October 7. When you talked about October 7 as an event and tried to draw attention to what you might consider to be its uniqueness, you got criticized by people who said, why are you not telling the full story?
So I made my choice but I made my choice with the understanding that that choice was going to be criticized by some members of the community, of my academic community. And it just turns out if you know that no matter what you do someone is going to think that you really exercise your judgment very poorly, you could at least then dig deep and think about what you think would be the right thing to do under those circumstances.
But there is now an ongoing debate about whether in the wake of this campus issue is should we commit themselves to the Kalven Report? My own view is that the notion that university leaders will stay silent under virtually every circumstance, in current circumstances. And even in recent years, it’s just really an impossible standard for people to meet.
It would have been impossible for me in the wake of the videotaped murder of George Floyd to stay silent. The campus needed to know that the leadership of the campus understood how painful and illuminating, unfortunately, that moment was and how it really was and required a reckoning.
I’ll tell you when candidate Donald Trump in December of 2015 said that if were he elected he would make sure that we would not allow Muslims to enter the country from certain countries, it felt so outrageous to our Muslim community that I felt that they needed to know that the University leadership would denounce such a notion and that our community was there to support them.
So there are just times now where you need to make a statement. But it does pose tremendous risks. If I thought I could get away with never saying anything and always simply just saying the campus is a sponsor of critics and is not itself politically engaged, I might be relatively happy allowing the campus to have its say and for them not to care what I say.
It just turns out whether it’s me or deans, by the way, or CEOs of companies that everyone now has to plant a flag on every issue. I try to do it as infrequently as possible, but sometimes I think you just can’t avoid it, even if you know that it is going to be controversial no matter what you say.
ERWIN CHEMERINSKY: Geeta, if I could ask you the same question from the perspective of a dean, when if at all do you choose to speak out on issues of national significance or what’s going on campus?
GEETA ANAND: It’s been a learning experience. So I arrived as dean right after George Floyd’s murder. And it was very clear to me when George Floyd was murdered that I needed to speak out and our school needed to speak out in order to make our community feel held and understood and seen. And I think that that’s the perspective that I look at it from, look at the question of when you should speak out.
I feel like we need to speak out when our community needs to be held and protected and seen. Over the next few months and years, I found it increasingly difficult to know when those moments were and found that there were so many times and so many issues and so many things that came up that different members of our community might feel the need to be heard and seen and protected on.
And so then I realized how important– I had to make judgment calls on which were the moments to speak, because there are so many other things we have to do in these roles that we can’t be spending all of our time crafting statements. I agree with Howard that you can’t be silent as a leader of a university or a school. And I find it really difficult when pressed by community members who are feeling harmed by a particular thing someone said or someone didn’t say to know how to respond.
I don’t think we should make political statements, but I think we need to make statements in support of our community and even if they’re going to put us in jeopardy by making such a statement. Because people are using anything we say as ammunition to attack the universities, which are under attack right now by the ultra right wing in this country, in this world.
ERWIN CHEMERINSKY: I very much agree with you and Howard. I think for me it’s where would my silence be a message that I don’t want to convey, that is my silence is the wrong message. I feel there’s a need to speak out, whether it was after the death of George Floyd or after January 6 or other incidents we can think within our campus or nationally where we feel the need to say something because if we don’t people are going to interpret that as a message and it’s the wrong message.
Emerson, if I could take something you posed earlier and put it in the context of what we’ve just been talking about, how do we help campuses navigate this? You posed the question of how do we help students navigate it and I want to come to that next. But I think what Howard and Geeta are both talking about is what can we do to help prepare campus and campus officials to navigate these situations?
EMERSON SYKES: Well, given the kind of work that I do you can imagine that people were very eager to share with me all the different statements, not only from universities but as Howard said from Mastercard and whoever else was putting out statements. And they said, “Oh, this is a good one. This is a bad one. This one strikes just the right tone.” And my response is just please also send me the three retractions that they will also send [LAUGHS] no matter what the statement is.
And there was an organization, a progressive Jewish organization that sent out a statement– my wife’s family is Jewish, the three members of her family had three completely different reactions to the initial statement and then there were two more retractions afterwards. So just to illustrate what you all know quite well, which is that you absolutely cannot win. There’s a question of when to say something and when not to say something, and then there’s the question of what you say, when you say it, and establishing that in this situation literally, no way to please everyone.
The place that I come down to is that the best advice I can give is to stay in your lane and to be a little bit creative. So if you’re primary– this is, I mean, I give the same advice to student leaders but I think it applies to university leaders which is, what is your role, what are you trying to accomplish, and what are all the creative ways you can try to accomplish that goal and whether a public statement is or is not necessary to accomplish that goal?
Sometimes it feels like everybody just has to hear from you. And what I kept telling these folks was like, sometimes they don’t. It may feel like everyone really needs your hot take but usually they don’t. They do need to feel their suffering is acknowledged by the people around them. They do need to feel comfortable and safe and all those things in their community, but they don’t really need your hot take on every single thing.
And so I think to the extent that you’re sort of saying– and again, you can’t please everybody. What pleased me was the statements that said, we see you, we see that you’re hurting, and take the time you need and let us know if there’s anything we can do. I don’t care who your employer is. You probably don’t care what they have to say about Israel and Gaza. What you care about is that they’re going to support you.
And so my best advice is as much as possible skew in that direction towards whatever kind of community support that you feel like you need to create. And sometimes a public statement is necessary in that, but the risks are high. And when it’s not necessary, it should by all means be avoided, I think.
ERWIN CHEMERINSKY: Let me take something, Emerson. You said earlier and broaden it that and that’s how do we help students and how do we help faculty navigate the situation. And, Howard, you’re a chancellor, you have a large number of students and faculty, do you have thoughts about what we can do to benefit them in dealing with this difficult situation?
HOWARD GILLMAN: Well, it’s students and faculty, but increasingly, it’s also staff. Think about what our student affairs professionals are going through now as they’re experiencing all of this pain on behalf of our students. Think about what our diversity, equity, and inclusion professionals are going through now knowing that there is such a national assault on their sense of their mission.
And so for students, we want to be there. We want to reach out. We want them to know that they’re supported, but we also want them to know that we’re going to protect their right to have their own voice even against pressure to silence them. And that shouldn’t be underestimated.
It’s not completely solving their problem or mitigating their pain, but there are tremendous political pressures now to prevent certain people from expressing themselves on campuses. And it’s very likely some campuses are attempting to take some steps to silence certain viewpoints or student organizations.
So you do need a commitment I think to get us back to basic free speech principles to the notion that even at a time like this when words are wounding, you are going to allow people to have their say. And in the long run, it’s going to be better for the community that we hear each other even in moments of pain so that we can understand how we are orienting ourselves and coping with life’s experiences.
For faculty, faculty need to know what is permissible and not permissible in terms of their behavior. And my hope is that we can get to a point where faculty feel as though they can do their core function of trying to more broadly educate the community about issues and move beyond the expression of people’s pain and people’s demands.
My own sense right now is that we’re not there. When I consult with student leaders and others, people aren’t ready yet to sit down and they don’t need a lesson where they are expected to listen across the aisle. At some point, though, you hope that we can create that space.
The University of California Office of the President announced at the latest regents meeting that they are going to allocate resources, $7 million to the campuses to get started on initially short-run things that must be done to help us cope with this situation, and then longer-run matters. And the short run matters are matters that administrators think a lot about and maybe people in general don’t.
But our Title VI offices and our investigators and the people that work on compliance, they are absolutely swamped now with complaints about bias and hateful speech. Hundreds and hundreds and hundreds of people complaining about what someone might have said on both sides of this debate. And under these new Title VI guidelines, they need to now respond, memorialize, audit every single one of those things, verify exactly what they’re doing. They’re swamped and they need some resources.
Our student affairs professionals want to know better. How can they protect free speech rights on campus while also supporting students? And our vice-chancellors of diversity, equity, and inclusion and other people on the campuses working on this issue, they know that they are under assault, not just in Florida and Texas and a handful of red states. Their mission is being called into question much more systematically.
And of course, we even have lawsuits against the University of California on some campuses requiring DEI statements as a condition of faculty applications for positions. And so everyone is looking for guidance about how to manage in this situation.
And one of the things that the UC National Center for Free Speech and Civic Engagement has committed to is to do the kind of work that Emerson and others have done, but to do it also on behalf of the University of California is to reach out to our student affairs professionals, our DEI communities, our Title VI compliance officers, and everyone who is so deeply affected by this moment and wants to know best practices to talk to each other, to learn the basics, and to share ideas with each other.
So there is a lot of effort and focus that is going to take place in the weeks and months to come as we’re trying to make sure that we can manage this in a way that allows our campuses to hang together and fulfill their missions.
ERWIN CHEMERINSKY: Geeta, can I ask you the same question from the perspective as a dean? How do we help our students and faculty, and how it’s quite right to include this, our staff, navigate this situation?
GEETA ANAND: The challenges are particularly interesting and the opportunity is great at the school of journalism because it’s in this moment that we can really look at just how journalism is being practiced covering the war in the Middle East and learn from it. So what I think we really need to do is critique how poorly journalism has covered this war.
I mean, we’ve covered it well in terms of understanding what hospital has been bombed, how many people are refugees, the specifics. But often and particularly when we look at the three college presidents who testified before Congress and the coverage of that, we’ve so often missed the context or not fully explained the context in which some of those university presidents in which all of them spoke and for which all of them have been criticized.
So I see the best way of navigating and the most useful way of navigating the horror of the situation is just using it to critique [LAUGHS] our own profession and learn from it and also learn from the great work done. For example, Michelle Goldberg, who’s a graduate of our school and The New York Times columnist was one of the very few who explained the context for the University presidents’ remarks, just the full context of the quotes just that a trap was set.
The way the questions leading up to the one in which the Harvard president made that comment, the full scope of it. And that’s the only way you should have actually understood what happened there. So I see it as a chance for our students, our faculty, our staff to direct the angst they’re experiencing, which is real, and must be held, but to provide an outlet, a voice, and opportunity for learning so that what’s happening here feels and is actually meaningful to everyone.
ERWIN CHEMERINSKY: Thank you. Emerson, I want to come to you with the same question because you actually started us by talking about how do we help students to navigate this. And I’m interested in terms of students, staff, faculty, what can we do to help prepare them and help them deal with what I think is going to be a very difficult year with regard to free speech between the war that continues in the Middle East and a campaign for president unlike we’ve ever seen in American history.
EMERSON SKYKES: Yeah. Thanks, Erwin. I’ve talked a little bit about students and we talked about university officials. I think highlighting staff is extremely important in this area. I think one thing that can be done is doing exactly what Howard has done and maybe we can do through our budgets as well to show how valuable those student affairs folks are.
I know because they often are not tenured or anything like that they are not as prized within the academic setting. But I’ve talked to folks on UC campuses. I’m thinking specifically– I won’t name her or the campus, but a woman of color in a senior student affairs position who had students who had been spewing bigoted racist views all over campus sitting on the floor of her office crying because of the abuse he was receiving online. And this is the life of a student affairs director.
You have these students who come to you as children, essentially, on the cusp of adulthood, who have all kinds of ideas you may or may not agree with and it’s your job to take care of them and to shepherd them into full adults. And so I think that that is an incredibly difficult job and all of the support that they can get is worthwhile and is a good use of university resources.
Focusing in on the other piece that I haven’t talked about but Howard mentioned, which is faculty and specifically the tensions around academic freedom because Howard mentioned it. But it’s another big area of my work where we are currently litigating in Florida and thankfully, we’ve enjoined the Stop WOKE Act, which set out specific ideas that are not allowed to be taught in Florida public colleges and universities.
Very specific ideas about DEI work, about affirmative action, about implicit bias were forbidden from being taught in Florida public colleges and universities. This is by Ron DeSantis, obviously. So we raised free speech an academic freedom argument successfully on behalf of critical race theory professors, including the dean at the Florida A&M University Law School.
And so we were– and this was not just CRT as a weaponized version of CRT. That’s not actually CRT, this is actual critical race theory that’s being taught in actual universities being faced with liability. So thankfully that has been enjoined. But what we’re seeing at the same time as these crackdowns on academic freedom on the left, as Howard mentioned, there’s an almost mirror image lawsuit talking about requiring DEI statements in California.
And I think if I’m looking into my crystal ball, those two cases are going to make their way up in parallel, and we’re going to have a situation where it’s going to be very hard for a lot of people to decide which kind of academic freedom they’re actually going to really try to support. And as the ACLU, we are often arguing with our friends and our enemies about what should be and what shouldn’t be protected. And I foresee that 2024 will bring [LAUGHS] at least as much of this.
But between the DEI and the anti-CRT and also the anti-Semitic or sometimes very virulently anti-Semitic statements, sometimes purportedly anti-Semitic statements that probably aren’t really anti-Semitic statements and same with Islamophobic statements. I mean, that’s part of– you’re talking about what’s different, what’s unique about this context. And what I keep coming back to is the need to protect academic freedom but also what’s so special is that so much of what’s going on is so terrible and so much is being made of tiny things at the same time.
At the same time as thousands of people are dying in the streets, at the same time as people are calling for genocide, at the same time as people are saying all sorts of hateful things online, people are also being punished for saying absolutely nothing or being pilloried for making a totally innocuous statement about human suffering. So trying to thread the line between what’s a real problem and what’s not a real problem is more difficult than this current context than I’ve found almost anywhere else.
HOWARD GILLMAN: And, Erwin, I don’t know if it’s– I mean, I’d like to ask Emerson. I don’t know if he agrees with this, but one of the points that we made in the 2015, ’16, ’17 period is when campus progressives are often legitimately upset at what some speakers are saying about marginalized communities and the like and want to shut them down on the basis that that speech should be considered hateful or dangerous.
One of the things that we warned those students about is what it means to censor people isn’t just the people you don’t like, won’t speak but you’ll speak. The issue is what powers are you going to give to the government. And if you give to the government the power to silence viewpoints that the government thinks are hateful or dangerous, it’s very likely that the people, the government will think are hateful and dangerous are you, not the people that you want to target.
And I think that what Emerson has so brilliantly litigated with his colleagues is an example in Florida but also Texas, where from the vantage point of the political right, the people ruining the country, the people spewing hate are people who are advocating on behalf of critical race studies or just general diversity, equity, and inclusion, or just general analysis of the role of race and gender in American history, the contemporary conceptions of gender identity and the like, that’s what they think is hateful and dangerous.
And it puts the left in a very difficult position to insist on silencing voices of people that they consider hateful or dangerous. Then suddenly when they are the ones that are trying to be silenced, when government is trying to silence them, where do they stand under those circumstances? What is the argument that they want to make? And so this is also a teaching opportunity to show that free speech principles are also there to protect your voice and censoring your way out of a problem is almost never going to be an effective solution.
ERWIN CHEMERINSKY: That’s a perfect transition for our last five minutes because we just have five minutes left together. And I’d like you to take a couple of minutes and I’ll have to cut you off a couple of minutes so we can finish by 2 o’clock. Let’s go back to where we started, the state of what’s going on campuses. Howard was just saying always the impulse that people have tried to stop the speech that they don’t like.
And so I’ve heard from Jewish students that they find “From the river to the sea, Palestinians will be free,” “We don’t want no two state, we want 48,” to be offensive and anti-Semitic. And I’ve heard from my students who are Bostons for Justice in Palestine that calling their speech anti-Semitic is silencing them and killing them and is deeply offensive to them.
And I hear from students of all different viewpoints that they feel unsafe, that the way in which they articulate being offended or upset is they feel unsafe. And at the same time, I see a real waning commitment to freedom of speech. Last week there was a meeting of the Law School Deans Steering Committee whether to adopt a dean’s statement of free speech and a significant number said, oh no, free speech is too controversial in our school, we can’t do that.
So my question to each of you, and I’ll start with you Emerson and then to Geeta and then to Howard, is in light of what I’ve just described if you accept that as the current reality, what should we do as educational administrators, as lawyers?
EMERSON SYKES: Well, Erwin thank you. I’ll be quick. I think what I want to close with is what I’ve learned over the last several years of doing free expression work is a few do’s and don’ts. And think they apply to university officials, I think they apply to faculty, I think they apply to students, I think they apply to everybody. But these are the ways, some rules of the road for how we talk about these issues as to limit the alienation.
So three do’s and three don’ts. The first don’t, don’t ever talk about the wisdom and inherent sanctity of the Founding Fathers. You’ve already lost half the audience when you start with that. Number two, I think references to the marketplace of ideas. I know it comes up a lot in Supreme Court arguments or Supreme Court cases. Probably you can find it in some of my briefs, but I don’t use that type of terminology generally because I don’t think it’s super helpful, especially for people who are inherently skeptical of the wisdom of the marketplace.
And the third thing I avoid is some kids these days type of argument. That things used to be better and that now there’s some crisis that didn’t exist before because the youth are somehow unprepared for the moment. And I think that again, it’s a terrible place to start, but it permeates so much of the pro free speech on campus work.
So now on the positive side, the do’s. One, I always start with the inherent rights that we all share. This comes from my background in international human rights. If we start from a place of human equality then we can start talking about why each of us has the right to our own ideas whatever those ideas might be. And then we can get into the harder conversations about when those ideas bump up against each other.
The second thing I always do and this goes back to what Howard said is, tap into the anti-authoritarianism in all of the student activists and everybody. Fight the power This is about limiting the authority of the person in charge to dictate what’s allowed to be said and what is not. And if we keep our eyes on that, [LAUGHS] then it thumps down folks who are from the radical left saying, government, please step in and do something here.
And the last thing I would say is relying on restorative justice principles. If you’re a prison abolitionist, if you believe in a non-carceral system, if you believe that children should be talked through their mistakes rather than sent to their room, then clearly, if we believe redemption is possible for people who have committed horrible crimes, then we should also be able to hold in our minds the fact that people can change their minds.
And even if you disagree with someone that doesn’t mean that you have to agree with them or excuse their views, but we just have to remember that people are capable of changing their minds and they are not just the worst thing that they’ve ever said. Bryan Stevenson talks about how his clients on death row are more than the worst thing they ever did. And we can also accept that our colleagues and our friends and other students are more than the worst thing they ever said.
ERWIN CHEMERINSKY: Thank you. Geeta, final thought?
GEETA ANAND: Lean into the conflict. Don’t censor speech [LAUGHS] but you can express support for the people who’ve been hurt by that speech and you should reach out to the people in your community who have felt harmed by the speech.
So don’t use– anyway, I’m just saying that when people ask for censorship, [LAUGHS] they are really expressing hurt. And you don’t have to respond with censorship nor should you, but you should respond with listening, outreach, dialogue, and running toward the conflict rather than away from it.
ERWIN CHEMERINSKY: Howard?
HOWARD GILLMAN: Maybe 20 seconds. I think what Emerson and Geeta said were absolutely perfect. I’ll add one quick thing. There’s a language that when you hear something that you don’t like– you feel unsafe. And campuses are obligated to protect people’s physical safety. But it’s very hard to be an institution of higher education where you’re also promising that people will not be distressed when they are exposed to viewpoints they don’t like.
The concept of safety does need a bit of a limit because our job is to create a space where people are empowered to confront and address ideas, even if those ideas are distressing.
ERWIN CHEMERINSKY: All too soon. This hour has come to a conclusion. Geeta, Howard, Emerson, you are all terrific. Thank you so much. I learned so much from listening to you. I’m sure everybody else did. Really grateful to you for taking the time for this.
HOWARD GILLMAN: Thank you, Erwin.
EMERSON SYKES: Thank you, Erwin. Thank you, everybody.