Podcast #257: How Universities Should Regulate Contentious Speech
Quillette podcast host Jonathan Kay speaks with prolific Harvard University legal scholar Cass Sunstein about his new book, Campus Free Speech: A Pocket Guide.
[00:00:00] Quillette Host, Jonathan Kay: Welcome to the Quillette podcast. Iām your host, Jonathan Kay, a senior editor at Quillette. Quillette is where free thought lives. We are an independent, grassroots platform for heterodox ideas and fearless commentary. If youād like to support the podcast, you can do so by going to quillette.com and becoming a paid subscriber.
[00:00:21] This subscription will also give you access to all our articles and early access to Quillette social events. And this weekā¦Well, this week I have a cold. Thatās why I sound like this. Not looking for pity, just explaining why my voice sounds different now compared to the conversation youāre about to hear, which was recorded last month.
[00:00:40] That conversation is with Harvard Law School professor Cass Sunstein, an eminent legal mind who was famous even when I was at law school back in the 1990s. Heās also something of a book writing addict. As he will confess in our interview, he canāt even remember how many books heās writtenālike, even in round numbers.
[00:00:59] On Amazon, his catalog of published works runs on for 17 pages, and that doesnāt even count all his many peer-reviewed academic papers and journalistic articles. Last month, he spoke to me for the Quillette podcast about his new book, Campus Free Speech: A Pocket Guide, which, as you might guess, was inspired by his desire to work out some of the thorny questions surrounding free speech that arose from the aggressive anti-Israel rhetoricā¦
Cass R. Sunstein, Adrian Vermeule
[00:01:24] ā¦thatās been on display on his campus, and many others, since the Hamas terrorist attacks of October 7, 2023, and the punishing Israeli military response in Gaza. While many of Sunsteinās books are highly theoretical, this one is more practical. He runs through a long series of campus scenarios involving provocative slogansā¦
[00:01:46] āFrom the river to the sea, āGlobalize the intifadaāāthat sort of thingā¦ and analyzes whether they are protected by the First Amendment to the U. S. Constitution. And while this mode of legal analysis is, by Sunsteinās own admission, parochially America-centric, he presents it as a template for the way universities and other large institutions around the world can make principled decisions about what speech to allow and prohibit.
[00:02:12] The idea here would be that institutions would borrow, by default, their own nationās constitutional speech standard (which, in the U. S., of course, is the First Amendment), and employ that standard as a kind of baseline, perhaps modifying it as needed to fit the particular circumstances of the institution.
[00:02:29] The result, Sunstein tells us, would be a regime of speech regulation that would be at once more liberal and more predictable, sparing institutions such as, say, his own Harvard University, the need to create such standards from scratch. Here is my interview with eminent Harvard Law professorāand, I was pleased to learn, Quillette fanāCass Sunstein.
[00:02:50] You have an expression here from Justice Robert Jackson, you call it the greatest sentence ever written by a member of the United States Supreme Court, āCompulsory unification of opinion achieves only the unanimity of the graveyard.ā Thatās pretty good.
[00:03:05] Cass Sunstein: Yeah, itās really good. So Justice Robert Jackson was the greatest writer our Supreme Court has ever had, even better than Oliver Wendell Holmes.
[00:03:14] And of his beautiful writing, this was the best sentence and the most heartfelt. So letās say it again: Compulsory unification of opinion achieves only the unanimity of the graveyard. Thatās actually true. And there are lots of different kinds of graveyards, of course. There are places where everybodyās dead, but there are places where everybodyās really quiet.
[00:03:37] And thatās a kind of graveyard, too. And free-speech principles are designed to ensure that communities and towns and cities and universities and companies are not graveyards.
[00:03:52] Quillette Host, Jonathan Kay: Yeah, I can think of a few graveyards of the mind that permeate my own society. So your bookā¦ obviously, youāre an expert in U.S. law.
[00:04:00] [And] youāre urging, it sounds like in a modest, humble way, an extrapolation of principles in the First Amendment geographically to other countries, but also an extrapolation in scale. [The First Amendment] is something that binds the U. S. government, and it binds states through the incorporation clause, but it can also be used on a voluntary basis, of course.
[00:04:23] Private colleges, private universitiesāI guess, theoretically, even corporationsācould say, instead of convening 17 different committees about what people are allowed to put on Instagram, [they could say] weāre just going to take this toolkit handily referenced and summarized in Cass Sunsteinās 87th book into our own organization. Is that kind of what you have in mind here?
[00:04:42] Cass Sunstein: Broadly, yes. All right. So let me tell you, if I may, about the origins of this book. So during the [campus] protests of last spring, I started writing notes to self about how to handle various problems. And I found that some of them involved student activity, maybe putting down tents, maybe taking over a building, maybe saying from the river to the seaā¦protesting what they deem to be a genocide by Israel; or students or professors saying Israel should never have been created or whatever.
[00:05:24] Or [other examples involving] professors saying that affirmative action should be abolished, or professors saying men are better than women in math. And then I was writing these notes to self and they started to become longer and longer lists of scenarios. And then it occurred that we need some general principles toā¦
[00:05:45] ā¦come up with how to handle them. And then if you spent a lot of time, as yours truly did on this, youād end up with an understanding of how the constitutional principles would apply to these problems. And that would make life a lot more manageable for institutions that were otherwise struggling with trying to build a houseā¦
[00:06:09] ā¦from the ground up. Then the question is, as youāre asking, well, should this apply to private universities as well? And itās unclear. In various countries, there are different rules, whether constitutional strictures apply to public universities, private universitiesā¦Sometimes even the terminology is different.
[00:06:28] So the thought was that for, letās say, Columbia University or Stanford or Harvard, my own institution, or the University of Chicago, which used to be my institution, the use of First-Amendment principles is a massive step forward because these are institutions that should be teeming withā¦
[00:06:52] ā¦diverse ideas that should be welcoming of different judgments of fact and different opinions. Thatās what a university needs. And the First Amendment is a really good way of getting there. Now you might think that to adopt free-speech principles of the standard [type] in a university setting is not a great idea.
[00:07:14] Now, why might you think that? If youāre a religious university, there are some things that just arenāt allowed there. Maybe thatās right. Thatās a fair thing to discuss. Or you might think that a university needs to create safety for students. So that certain kinds of things, letās say, blasphemous things or unpatriotic things or racist or sexist things arenāt allowed there.
Whatās needed at a university is safety for ideas, not safety for feelings.
[00:07:40] Now, on my view, as a first approximation, thatās all wrong. Whatās needed at a university is safety for ideas, not safety for feelings. Whether a private corporation should be bound by the First Amendment by its voluntary choice, [on the other hand], is a very different question. So you could imagine Apple saying, weāre going to apply First Amendment principles here, and thatās going to organize how we all work.
[00:08:09] Thatās actually a really interesting possibility, but it might be that Apple or some other company would say, itās really not suited to us, because we need a kind of communal solidarity at our company. And if people are saying various things, itās kind of incompatible with being an employee here. And some version of that is reasonably believed by many companies.
[00:08:34] Certainly, loyalty to your company is something companies not unreasonably want and free speech principles do not mandate loyalty. They allow disloyalty. So [whether] this is well-suited to the private-sector corporate world is not so clear.
[00:08:51] Quillette Host, Jonathan Kay: You say a lot of so-called free-speech controversies could and often should be handledā¦
[00:08:56] ā¦basically with casual conversations. You give a an example in passing of [when] you were teaching a large class and somebody was dropping F-bombs and you took them aside and said, āLook, you have a First Amendment right to drop F-bombs, but please donāt. Itās just, itās not necessary to make your point in classā¦
[00:09:14] That was an example. I donāt think itās contained in your book, but thereās a ripped-from-the-headlines example at Harvard where you had, I think, it was a fairly prominent dean who wrote an op-ed in Harvardās main student publication saying, āThere are all these professors who are bringing Harvard into ill repute by criticizing us in a toxic wayā¦
[00:09:55] And kind of airing Harvardās dirty laundry outside the quad.ā I thought it was a creepy op-ed because itās sort of vaguely suggested that there might be professional ramifications. But I also thought, you know what? He has a right to free speech, also. And if he wants to say creepy things in the school newspaper, he has a right.
[00:10:15] And not everything has to be a first amendment issue.
[00:10:18] Cass Sunstein: So letās start with the F-word. I did have a student who in a large class who used the F-word. And Iām not sure if I handled it ideally, but I reacted in a way that suggested that it was surprising that he used that word. So I wasnāt stern with him or anything.
[00:10:35] I acted amused at the unusual nature of the F-word being used in a very large class. And I liked the student and I may have said something like, Iāve heard that word before, but not quite in the setting. It was a little bit of an effort to enforce a norm. Though, there was no suggestion on my partā¦it never occurred to me that the student be punished.
[00:11:00] Itās just that thereās a norm of, you know, talking a certain way. And I think thatās very important in universities to have enforcement of, letās say, civility and considerateness and respect through norms rather than through law. And if people are at times not respectful or not considerate, thatās [usually] okay, too.
[00:11:21] I agree with what you said about the substance of the op-ed or whatever it was. It wasā¦Iām going to speak strongly hereā¦it was kind of Stalinist. So to say that at a university, those who speak negatively about the university and its practices or its administrators might reasonably face some sort of sanctionā¦
[00:11:49] ā¦Thatās not ideal. And I applaud you for not naming him because all of us are entitled to make a mistake and Iām sure I have myself.
[00:12:10] Quillette Host, Jonathan Kay: He was angry because heās proud of his university and he sees people airing dirty laundry and he has an emotional response, which he put into this op ed.
[00:12:18] Cass Sunstein: I really love my country. And, you know, Iām very honored and lucky to be an American. But if people say terrible things about America they shouldnāt be punished for that reason, and Harvard can easily handle its faculty saying negative things about its people and politics.
[00:12:36] Thatās okay. So I hope the author regrets it. The idea that heās entitled to free speech, too, is, is clearly correct. But if the head of, letās say, Princeton or McGill said something about the [need for people] at Princeton or McGill [to exhibit] loyalty to Princeton or McGill and that we donāt expect you to say anything negative about us, or if you do so, keep it inside, donāt tell anyone elseā¦
[00:13:05] That wouldnāt be a very good moment for Princeton or McGill. Universities benefit from and need even publicly aired challenges to how things are going.
