Free Expression and Self-Censorship on Campus

This is a challenging an perilous time for leaders of American universities. But along with the challenges come opportunities, and wise decisions made at this juncture can build and solidify reputations.

Here, for example, is David Lat writing in his newsletter in March 2023, months before the current crisis:

In the world of campus free-speech issues, certain pronouncements have acquired canonical status. There’s the Kalven Report (1967). The Woodward Report (1974). The Chicago Principles (2014).

And now we have a new addition to their august ranks: the Martinez Memo (2023). This is what leadership looks like.

Jenny Martinez was Dean of Stanford Law when she issued the ten-page memo referenced by David. She has since been appointed provost of the University, and in collaboration with Stanford’s new president Richard Saller, has issued a statement that makes a clear and concise case for institutional neutrality.¹

Neutrality (in the context of higher education) refers to the principle that universities should “generally refrain from taking institutional positions on complex political or global matters that extend beyond… the operations of the university itself.” This was the central message of the Kalven Report, which the Saller-Martinez statement (implicitly) endorses, and on which it builds.

The Kalven Report is admirably brief, and its core claims are contained in the following extract (emphasis added):²

The mission of the university is the discovery, improvement, and dissemination of knowledge. Its domain of inquiry and scrutiny includes all aspects and all values of society. A university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions. By design and by effect, it is the institution which creates discontent with the existing social arrangements and proposes new ones. In brief, a good university, like Socrates, will be upsetting.

The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic… if it is to be true to its faith in intellectual inquiry, [it] must embrace, be hospitable to, and encourage the widest diversity of views within its own community… [it] cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness…

The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest. It finds its complement, too, in the obligation of the university to provide a forum for the most searching and candid discussion of public issues.

The Saller-Martinez statement adds an interesting twist to the Kalven reasoning, and this relates to the interpretation of silence (emphasis added):

In recent years, many universities have gotten into the habit of issuing frequent statements about news events. This creates a number of difficulties. The decision to take a position about one event or issue yields implications for silence with regard to other issues; given that different subsets of a campus community may be more or less affected by particular issues, this inconsistency is felt acutely. It can enmesh universities in politics and create a sense of institutional orthodoxy that chills academic freedom. In addition, crafting each message is challenging, from gathering facts and context on complex issues at the speed of online media and the news cycle while also walking a line between platitudes and overly political positions.

Over the past couple of months this challenge of crafting messages has led to repeated updates and clarifications, with each new declaration igniting more fires than it extinguishes.

While the Kalven report addresses institutional neutrality, the Chicago Principles are concerned with the freedom to take public positions on controversial issues without fear of official sanction (emphasis added):³

Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn… it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.

The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University. In addition, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University. But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the University’s commitment to a completely free and open discussion of ideas.

In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission.

As a corollary to the University’s commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression. Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.

This last quoted paragraph addresses the so-called heckler’s veto, which is the central concern in the Martinez memo. Recall that Jenny Martinez was the Dean of Stanford Law at the time, and the language and focus of the document reflects this:

Law is a mediating device for difference. It therefore reflects all the heat of controversy, all the pain and suffering, and all the deeply felt moral urgency of our differences in position, power, and cherished principles. Knowing all of this, I believe we cannot function as a law school from the premise… that speakers, texts, or ideas believed by some to be harmful inflict a new impermissible harm justifying a heckler’s veto simply because they are present on this campus, raised in legally protected speech, and made an object of inquiry. Naming perceived harm, exploring it, and debating solutions with people who disagree about the nature and fact of the harm or the correct solutions are the very essence of legal work. Lively, candid, civil, and evidence-based discourse in disagreement is not just positive for our community, constituted as it is in difference, it is a professional duty.

Many institutions (including my own) are now contemplating wholesale adoption of the Kalven Report and the Chicago Principles. Some critics allege that doing so at this precise moment—when every public statement seems to be creating and compounding problems—is an opportunistic attempt to avoid trouble. Even if that is the case, however, I feel that this criticism is wrong-headed. A public commitment to institutional neutrality is not easily reversed, even if the temptation arises in the future.

That said, adoption of the Kalven Report and the Chicago Principles will do little to promote the thriving and fearless intellectual discourse that these documents sought to engender. A much deeper and more intractable problem is that of self-censorship, which is only tangentially related to university neutrality and a commitment to free expression.

Self-censorship arises because one is concerned with one’s reputation. A key factor giving rise to it is what Glenn Loury called the ad hominem inference in a paper published three decades ago.⁴ When making any public statement, we convey more than its literal meaning. We also communicate something about our values and commitments. And the inferences people make about our character depend, in part, on the values and commitments of others making similar statements. If all those making anti-Zionist statements are thought to be anti-Semitic, while those making pro-Zionist statements are thought to be anti-Arab racists, then these beliefs will become self-fulfilling prophecies. Only those who are comfortable being viewed in this way will continue to speak; the rest will remain silent. Nuanced discussion of pressing public policy issues will evaporate, and we will be left with little more than slogans and ad hominem attacks.

There is little that university neutrality and commitments to free expression can do to interrupt this dynamic. Something more is required. For a start, it is necessary to get some understanding of the range of unexpressed opinion. This can only be done through mechanisms that are credibly anonymous. If it is found that the gulf between expressed opinion and held opinion is large, institutions have to find a way of narrowing it. And if it is small, reflecting an absence of viewpoint diversity, the problem is even more daunting.

Our great universities have come under withering criticism recently, but they remain the envy of the world, and have survived serious challenges before. They will adapt. But it won’t happen overnight, and it will require much more than an adoption of principles and a declaration of commitments.

1. It would not surprise me in the least if Jenny Martinez were named the next president of Penn, if she has any interest at all in the position.

2. It is worth noting that the Kalven committee of seven included the eminent historian John Hope Franklin, a graduate of Fisk and a professor at Howard before being recruited by Chicago in 1964. Like the mathematician David Blackwell, whose influence on economics has been profound and enduring, he entered academia at a time when few faculty positions outside of HBCUs were open to African Americans. Blackwell and Franklin overlapped at Howard for many years, though I don’t know whether they interacted with any frequency.

3. Among the authors of the Chicago Principles is the economist Marianne Bertrand, perhaps best known to those outside her discipline as an author of the pioneering resume study. One of my earliest posts (long before Substack existed) discussed a working paper version of that paper.

4. Glenn and I discussed this paper at length on an episode of his podcast back in 2014, in the wake of a previous war between Israel and Hamas. Notice how much technology has changed in less than a decade—we had to record audio and video in separate files which were later merged, and Glenn is holding the receiver of a landline phone.