#WTH Free speech is under assault

And our political leaders don't under the First Amendment

The battle over free speech in America has been raging for some time now, with revelations about tech companies’ suppression of criticisms of Covid dogma, and more recently, on the question of antisemitic speech on campus. Unsurprisingly, Veep contender Tim Walz added fuel to the fire at his recent debate with J.D. Vance:

VANCE: You yourself have said there’s no First Amendment right to misinformation. Kamala Harris wants to use…

WALZ: Or threatening. Or hate speech.

VANCE: …the power of the government to use Big Tech to silence people from speaking their minds. That is a threat to democracy that will long outlive this political moment… Let’s persuade one another. Let’s argue about ideas and come together afterwards.

WALZ: You can’t yell “Fire!” in a crowded theater. That’s the test. That’s the Supreme Court test!

Mr. Walz seems to think that “there’s no First Amendment right to misinformation.” Or “hate speech,” he helpfully added at his car crash of a debate. Because, apparently the man who aspires to the second highest office in the land doesn’t understand the United States Constitution. Actually, there is a First Amendment right to misinformation, Gov. Walz. And you can yell “fire” in a crowded theater. More on that later.

In the aftermath of the debate, Hillary Clinton, as is her wont, made things worse by going public and suggesting that:

We should be, in my view, repealing something called Section 230, which gave, you know, platforms on the internet immunity because they were thought to be just pass-throughs. That they shouldn’t be judged for the content that is posted.

But we now know that that was an overly simple view. That if the platforms, whether it’s Facebook, or Twitter, X, or Instagram, or TikTok, whatever they are, if they don’t moderate and monitor the content we lose total control….

We need to remove the immunity from liability and we need to have guardrails. We need regulation

Ahem, kimosabe, who is this “we?” Then, because he can never keep his thoughts to himself, erstwhile presidential contender and eternal-friend-to-Iran John Kerry added fuel to the fire:

The dislike of and anguish over social media is just growing and growing. It is part of our problem, particularly in democracies, in terms of building consensus around any issue. It’s really hard to govern today. You can’t — the referees we used to have to determine what is a fact and what isn’t a fact have kind of been eviscerated, to a certain degree. And people go and self select where they go for their news, for their information. And then you get into a vicious cycle.

Dude. Madam Dude. What the hell are you talking about, and who are the “we,” the “our,” and the “referees” of which you speak? If you suspect, as I do, that “we,” “our,” and the “referees” of which our esteemed former Secretaries of State speak are a group comprising the editorial page of the New York Times, the Mayor of San Francisco, and the attendee list of the Met Gala, well, yes. And if these two statements give you a creepy authoritarian feel, join the club. But who worries you more, the dangerous has-beens, or the ignorant wannabe vice president? So, back to Tim Walz.

Greg Lukianoff, who recently joined us on the pod to talk about free speech, sums it up in his indispensable Substack, The Eternally Radical Idea (subscribe!):

“Let’s get the easy bit out of the way. The First Amendment does not protect ‘true threats,’ which were defined by the Supreme Court in the 2003 case Virginia v. Black as ‘those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’”

“Assuming Walz’s idea of ‘threatening’ comports with this definition, he’s correct there. Unfortunately, he’s very wrong on the rest.”

Sigh, no, you can’t say, “I hate Jews” and be nailed for hate speech. That’s called free speech. Ditto, you can’t say, “Donald Trump is a Russian asset,” and be nailed for misinformation. That’s called free speech. And no, you may be a liar, and you may be a scumbag, but you can’t be nailed for disseminating disinformation like, “Hunter’s laptop is a Russian plant.” That’s called free speech.

PS 🔥 Greg notes that yes, indeed you can yell “fire” in a crowded theater. Per Justice Holmes: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” (Italics added)

But back to the campus speech question that brought us back to Greg for the pod. The organization he helms, FIRE, The Foundation for Individual Rights and Expression does an annual ranking of free speech on campus. We can summarize in saying that the University of Virginia got the best grade, a 73.4, and the worst, Harvard, got a -20 (that’s not a dash, that a minus sign). Columbia was second to last. How did that happen? Lots of factors, but here’s Greg:

“FIRE is genuinely the nonpartisan defender of freedom of speech. So after October 7th, if people were getting in trouble for pro-Palestinian advocacy, we would absolutely defend them as well. But one thing that does end, and there have been a lot of those cases, but one that hasn't gotten enough coverage and I think really needs to have much more coverage, I think it's contrary to the current narrative, is that 100% of the shout downs relating to Israel-Palestine, have been by pro-Palestinian activists, 100% of them. And as I said, this is going to be the worst year for shout downs ever recorded.”

Greg also explains the incredibly basic, and often false understanding of what “freedom of speech” means by administrators and students alike:

Regarding “freedom of speech, there is a fundamental lack of understanding some the most basic principles. And one of them is you can't ban something simply because it's offensive. That's called the bedrock principle in First Amendment law. And this is something that conservatives should be particularly aware of too, because that's been used against conservatives for most of my career. There's a distinction between speech and actions. A lot of the things the students were trying to get away with on campus actually did equal antisemitic harassment in some cases, and certainly responding to speech with violence, you'll find students who actually believe they have a First Amendment right to shout down a speaker, and it's like, no, you're a mob sensor. You are the bad guys in this scenario.”

You can’t threaten to kill, physically harm, push out of the way, or otherwise interfere with another person; that’s not free speech. You can’t shout someone down, and claim they’re engaging in “hate speech” because you don’t like what they’re saying; that’s not you exercising a right of free speech. And you should not be able to ax a professor because they talk about things that either precious snowflake students or the woke DEI administrator doesn’t like; at least not if you’re trying to pretend they’re violating some precept of the First Amendment. Finally, surprise, surprise, the correlation between the number of university administrators and speech suppression/deplatforming of both students and professors is sky-high.

In short, everything that you thought was happening is happening, but it’s much worse. And if you think it’s a crisis now, check out some of AEI’s important work on civic education. Listen to the whole discussion with Greg, or check out the highlights and shownotes below. PS If you’re thinking about voting for Harris and Walz, or you are a Hillary Clinton pal (not listing Kerry, he has no friends or supporters), perhaps sign them up for a free civics course. The more you know!

HIGHLIGHTS

How will this year compare to last year for free speech on our college campuses?

GL: One of the things that I was screaming to high Heaven back even before October 7th when my book, Canceling of the American Mind, came out actually, which only came out on October 17th, terrible timing, was that it already was a pretty rotten situation for free speech going back at least most of the last decade, but particularly the last six years. And things really got worse since October 7th as well. But even without, just to give you a sense of proportion, even without the post October 7th, shout downs and deplatforming, 2023 would've been the worst year for deplatforming I think in our history or not in our history, in history that we know of. And deplatforming includes when people show up to a speaker and won't let them talk or physically prevent people from getting in or as happened at Berkeley involving an Israeli Defense Force speaker, they swarmed the site, break windows and chase off the speaker, which absolutely should be... Anybody engaged in violence in response to speech, in my opinion, should be expelled from a campus as a threat to freedom of speech.

Why do you list Harvard as dead last in your campus free speech rankings>

GL: Out of 251, it is dead last, followed closely by Columbia, NYU, Barnard and Penn, which all of which really overachieved to get those really low rankings. Now of course, this happens also every year, for the second year in a row, Harvard's been dead last, and for the second year in a row, Harvard makes a very Harvardy argument that, "Well, your methodology is completely flawed and you should have Harvard people looking at your methodology." And it's kind of like, actually, a Harvard person helped us create our methodology, thank you very much. And so they're trying to kind of claim that this is invalid again. Now I just have to point out, it is based on the largest survey of student attitudes and perceptions of free speech ever conducted. It combines also all the data that we have from our professor cancellation database from attempts to get professors fired or get them fired for academic freedom, for speech, for teaching, for example.

The largest database of student cancellations ever put together, the largest deplatforming database ever assembled by far, and the largest database of campus speech codes ever put together. And we combine all of these with different weightings. We have different scores. For example, all the bottom five schools did terribly on whether or not students thought the campus had their back if they were to get in trouble for freedom of speech, that's one thing they all had in common. A lot of them allowed for a lot of deplatforming and generally just they didn't handle their free speech situations well. Whereas University of Virginia, which scored in first place and people are like, "Well, they did this thing wrong, they did this thing wrong." It's like, "Yes, they did." That's one of the reasons why the highest scored schools in our survey, we only call them good schools because we haven't gotten to the top level of the score where we would say someone was outstanding.

What is the best school for free speech?

GL: I think UVA got a 71, which is better than any other school in the country to be clear. And if you're looking for a comparatively good school.

Who is engaging in these shutdowns and de-platformings?

GL: FIRE is genuinely the nonpartisan defender of freedom of speech. So after October 7th, if people were getting in trouble for pro-Palestinian advocacy, we would absolutely defend them as well. But one thing that does end, and there have been a lot of those cases, but one that hasn't gotten enough coverage and I think really needs to have much more coverage, I think it's contrary to the current narrative, is that 100% of the shout downs relating to Israel-Palestine, have been by pro-Palestinian activists, 100% of them. And as I said, this is going to be the worst year for shout downs ever recorded.

How did your rankings react to the university responses to the encampments last year?

GL: So sometimes students got angry at their universities for shutting down the encampments, but this is why that should be held against them because that means that school did not one, teach them that you don't have a right at pretty much any school in the country, to have an unlimited camp out and protest, to freeze up entire parts of the campus. And they didn't teach students that, and then they also didn't enforce it. They tended to enforce it against causes they didn't like and not enforce it when they liked the cause.

So really, universities have created this problem that they're now trying to say, it's the student's fault. And it's like, well, there was an old drug ad from the 1980s when basically a parent discovers that his kid is smoking pot and the parent asks, "Where did you learn this?" And the son responds, "I learned it by watching you dad." And that's kind of exactly what's happening on some of these campuses.

What can students and parents do with the information in your rankings?

GL: To me, the best thing that students can do with a lot of this information for one is don't give a ridiculous sum of money to an elite college that already has a hedge fund attached to it and really consider favoring some of these other schools.

And I do actually like to give a shout-out, for example, to other schools that clearly seem to be trying. Dartmouth didn't do very well, I think it was in the 230s, but I know that their new leadership there is trying very hard to create an environment where people feel free to disagree with each other in a constructive way. They've been doing some programming, one of the reasons why you didn't see as much of an Israeli-Palestinian sort of blow up at Dartmouth was because what they did there was they had a co-taught class on Israel-Palestine by like, a pro-Palestinian and a pro-Israel professor teaching the class together, which is a great idea to actually try to make this constructive.

And I know that my alma mater Stanford is also at least appearing to make some real efforts. But you don't get an A for effort on this. The proof is in the pudding that essentially things will be better when students actually start reporting that they feel that they can disagree with their professors, that the administration has their backs. And of course, when schools stop supporting either through action or inaction, deplatforming.

How should advocates for free speech react to the antisemitic and anti-American protest movement?

GL: That's one of the things that I always try to point out to people. What if we were to magically stop all these people who actually support Hamas and think that terrorism is okay? What if we were to magically silence them if people kind of got their wish in some cases that these people just shut up. That would only give us a false sense of safety. It wouldn't make us any safer from what people actually think. And when you get to see people's true colors, and frankly when you get to see their ignorance on different topics, that's incredibly valuable information to have. And it was like Bill Maher said this when I did a show back in December, it's probably the only bright side of post October 7th on campus is that nobody thinks there isn't a problem anymore, because it's just so clear that the ideology has gotten so rigid and so strange.

But when it comes to understanding freedom of speech, there is a fundamental lack of understanding some the most basic principles. And one of them is you can't ban something simply because it's offensive. That's called the bedrock principle in First Amendment law. And this is something that conservatives should be particularly aware of too, because that's been used against conservatives for most of my career. There's a distinction between speech and actions. A lot of the things the students were trying to get away with on campus actually did equal anti-Semitic harassment in some cases, and certainly responding to speech with violence, you'll find students who actually believe they have a First Amendment right to shout down a speaker, and it's like, no, you're a mob sensor. You are the bad guys in this scenario. You are trying to decide for everybody else in this room who they should be allowed to listen to.

Is censorship becoming more and more acceptable in our society? How did that happen?

GL: When it comes to freedom of speech, though, some of it is kind of like exactly what you predict would happen when a place gets too politically homogenous and the people who thought they were in opposition are suddenly in charge, suddenly, if we're going to be the censors, then censorship as well. But there also was a very intentional, by at least some activists, including people like Richard Delgado, people like Herbert Marcuse, people like the founders of Critical Race Theory, they were explicitly against Small L liberalism.

And the very first project they all gathered together to do was to suggest hate speech codes for campuses going back to the '80s. So this has been in the works for a really long time, and it's all about double standards. And one of the reasons why I think we're all noticing the October 7th double standard so severely is one, they're shocking, but also because it's sort of an inter-left fight. Whereas if this was more clearly like a left versus right fight, then those fights happen all the time. And we've just kind of gotten used to it. And one of the points that we really want to stress in Canceling the American Mind, is that when you look at the number of professors who have lost their jobs over the last 10 years for their research, for their teaching, for their speech, there's no parallel to it.

We always point out, we say cancel culture began around 2014, which because it's technology reliant phenomena and you need to have a certain critical mass of people adept and canceling each other using social media. And what happened, we know of at least 1,000 professors who have been targeted, about two thirds of them punished in some way, about 200 of them fired, which is, and to give perspective, during 11 years of McCarthyism, you're talking about 62 communist professors were reported being fired, about 100 overall being fired during the research at that time. We're talking about twice that in nine and a half years. And further, when we did a giant survey of faculty, what we found was one in six professors say they've either been threatened with punishment or actually punished for their speech or research. There is no parallel for that in history.

Should conservatives be sending their kids to these elite schools that have such terrible free-speech environments?

GL: Neutral principles are things that certainly conservatives should stick by, but I don't think they have to accept the situation as it currently is. But I think in some cases that God forbid, you should not apply to Harvard or not apply to Columbia. Yeah, that is what I'm saying to a degree. You should vote with your feet and say like, "Listen, this environment is rigid ideologically. It is filled with group think. There's lots of violations of students free speech rights. There is a lot of harassment and we want nothing to do with it." And that's something that really has to be made loud and clear, and it can't just be something that happens. I might do this, I might apply somewhere else if this keeps up. It's like no, time has come.

School costs so much money now and some of the most expensive colleges perform the worst in your rankings. How can these schools reverse both trends?

GL: The cost issue is really linked to the liberalism problem because so many of the problems that we see are made 1,000 times worse by the DEI departments and also the massive number of administrators that you have. And I think we've created a system system that's going to keep on jacking up the cost of colleges in order to support this ever-growing army of administrators who are a threat to academic freedom and free speech. They're actually making the problem worse. So one solution I talk a lot about is like, listen, if we wanted to have some kind of rule saying, yeah, well you can get student aid, but we're not going to pay for a place that has a completely out of whack ratio between full-time professors and full-time staff or administrators. And that's just one of the things I think we need to do.

And I honestly think this is how bad I think it is. I've devoted my career to it. And the very first thing I say when we write about solutions and canceling the American mind is, well, first of all, a lot more jobs should not require a BA in the first place. That essentially, I think that students should be going to school later. I think that if someone wanted to pass a law saying you have to respect gap years, and students started going more when they're 20, I think that that would be an improvement. I even think probably like my most ambitious and controversial idea, but I think it's just necessary, and this is probably one of the darkest things I've said, but on issues with political valence, things that actually have a right answer in the culture war, on the culture war left, it's difficult to see how you can really trust academia to be objective about this.

Do Americans trust experts, scholars, and academics to tell them the truth?

GL: I think that the expert class doesn't quite realize why they've lost credibility in the eyes of average Americans. But I always give the example of Carol Hooven. Carol Hooven at Harvard. She wrote a book called, Testosterone. She came out and when promoting the book, said that we shouldn't pretend biological sex isn't a real category and isn't real, and immediately faced a cancel campaign at Harvard, that ultimately ended in her leaving Harvard.

And I always make the point that this was incredibly sad and painful for Carol, and that makes me very sad because she's a lovely person. But it was also utterly destructive of anyone's faith in the expert class, not just on this topic, but really on any, because it's kind of like, if you can lose your job at Harvard or at least start to be forced out of your job at Harvard, and nobody at Harvard comes up with a grand statement saying, "No, we allow people to disagree at this school and we're not going to take any action against Carol," that they're just not going to trust you in the future, even if that just happens once. But I can point to 1,000 examples of this from professors and even more of students. So I think that having some new institutions, basically their whole job is to try to figure out if the kind of research that's coming out of this is valid or not, would be money well spent.

Have the stalwarts against illiberalism taken over the Academy?

GL: I do think that there's also been a very intentional kind of like, yeah, let's take over the Academy. I mean, it is really funny going back and reading Herbert Marcuse's, Repressive Tolerance, and I kind of forgot how clear he is about, you know what, if we want our truly equal society, then we have to give vast power to suppress the right, and the fact that he doesn't even try to mince words and it's like, we should go after conservatives, we should go the so-called right wing. And it's like, yeah, essentially the enlightened censorship idea is something that has, unfortunately, we've got a whole generation of people who are educated in this environment, and that's a long-term threat to all of our free speech that I'm pretty scared about, that when you have, my alma mater at Stanford, when you have a fifth of a class show up to shout down a circuit court judge and tell them that two protesters said, I hope your daughters get raped, because he's a conservative circuit court judge who's a Trump appointee.

That's not the way we used to think about some of these things. It's like if you dislike the judge, then you show up and maybe ask some hard questions or maybe, God forbid, try to figure out if maybe you're misjudging and you could possibly leave saying, "No, I was totally right. This person is an even bigger jerk than I thought." But the idea of shout downs being legit, and that is one of the scariest facts that comes out of the campus free speech ranking, is how many students think that violence in response to free speech, that blocking speakers or shout downs is okay, has been going up over the years.

What caused this turn toward illiberalism?

GL: Now I'm actually dealing with the same kind of people that I thought had basically completely self-marginalized themselves, who actually do have an affection for left authoritarianism. I definitely noticed some of it when I got to a fancier school like Stanford, it was more than an enlightened, elitist, sort of, my people should be in control of everything, which scared me. And it just seemed to get progressively worse, but with a real acceleration around 2014. It got noticeably so much worse around 2014 with this moralistic kind of tinge to speech that I find abhorrent is a form of violence, so therefore we can respond with violence. So a lot of the things that created this environment were building up slowly over a long time, but they just blew up in the last 10 years. And I think social media to a degree is one of the things that sped up a lot of pre-existing phenomena to a crazy making degree.

Read the transcript here.

SHOWNOTES

2025 College Free Speech Rankings (FIRE, September 5, 2024)

Free Speech Survey Signals Distrust and Disconnection (Inside Higher Ed, September 9, 2024)

2025 College Free Speech Rankings expose threats to First Amendment rights on campus (FIRE, September 5, 2024)

Anticipating Fall Protests, Colleges Adopt a Range of Approaches (Inside Higher Ed, August 16, 2024)

Columbia Failed to Stop Hate, Violence Against Jews on Campus, New Report Says (Wall Street Journal, August 30, 2024)

UCLA must protect Jewish students' access to campus, judge rules (Reuters, August 14, 2024)

Confidence in colleges and universities hits new lows, per FIRE polls (FIRE, June 11, 2024)

Getting Back to Basics on Free Speech (Jane Coaston, New York Times, May 6, 2024)

US universities denied free speech for years — no wonder chaos reigns (Greg Lukainoff, The Times, May 5, 2024)

Universities Use DEI Statements To Enforce Groupthink (Greg Lukianoff and Rikki Schlott, Reason, February 2024)

Why I Am Resigning as a Brown Trustee (Joseph Edelman, Wall Street Journal, September 8, 2024)

Taxpayers Shouldn’t Be Paying for Professors to Proselytize (Frederick M. Hess and Jay P. Greene, Washington Examiner, August 26, 2024)

Harvard Takes a Step in the Right Direction (Beth Akers and Joe Pitts, AEIdeas, May 31, 2024)

FIRE’s 10 common-sense reforms for colleges and universities (FIRE, December 2023)

‘The Indispensable Right’ Review: Why We Need Free Speech (Tunku Varadarajan, Wall Street Journal, June 14, 2024)

‘The Canceling of the American Mind’ Review: Shut Up, They Said (Meghan Cox Gurdon, Wall Street Journal, October 8, 2023)