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Professor Donald Downs (Free speech essay)
Donald Downs

As co-editors of The Value and Limits of Academic Speech, Chris and I decided that our main task in writing the introductory essay was to preview the volume by emphasizing a set of common themes within an overarching narrative of historical development and conflict. This was no easy task given the many different dimensions of the campus free speech and academic freedom conflict, several of which are represented by our authors. No doubt we could have emphasized other themes and aspects, and contributors to this online discussion forum sponsored by the Institute for Humane Studies as well as reviewers of the volume are encouraged to chime in. As should be evident by both the volume and its introduction, we are in the midst of an ongoing debate, any resolution of which lies over the horizon. I am sure that Chris agrees with me that reading the various contributions in this volume has broadened our understanding of the issues at hand, as well as deepened our appreciation of what is at stake.

Now it is time for Chris and me to give some voice to our own views and perspectives. Chris’s portrayal in his “précis” of his own recent experience illustrates the worst aspects of the challenge to honest and legitimate discourse that we confront in higher education today. Our volume features some very probing and necessary discussions about the proper scope of academic speech and free speech; but I doubt that any of our contributors would consider the attacks on Chris to be paragons of academic virtue.

Chris writes about recently dealing with persons who were disgruntled with the position he took in a Facebook post in which he supported due process and proportionality of response in responding to sexual misconduct accusation cases. Though due process and proportionality constitute two long-established fundamental principles in the jurisprudence of punishment, his critics resorted to ugly vilification online, going so far as to contact his department chair and dean in an effort to discredit or even punish him.

Luckily for Chris, his department chair and dean supported him without qualification. This protection raises an issue that I have written extensively about in other domains, but which did not receive a lot of attention in The Value and Limits of Academic Speech: the importance of people with influence on campus supporting legitimate academic freedom and free speech claims in the face of pressure. As the Framers of the U.S. Constitution recognized, the freedom for which the Constitution stands is not manna from heaven. It must be actively supported by the people, and backed with power if necessary. “If angels were to govern men, no government would be necessary,” Madison famously wrote in Federalist #51.

On campus, the requisite power can come from principled administrators, or from sufficiently mobilized faculty groups who possess enough respect to influence events. Such groups can supply needed checks and balances when administrators lack the will or ability to protect rights, or when other individuals who know better are too reluctant or afraid to stand up and be counted, thereby restricting the public presence of pro-freedom voices. In an insightful 1995 book, Timur Kuran portrays how a few ostensibly lonely voices can precipitate unexpected change by speaking up, so long as sufficient underlying suppressed opinion supports them. (See Private Truths: Public Lies: The Social Consequences of Preference Falsification. I apply Kuran’s thesis to higher education in Restoring Free Speech and Liberty on Campus, 2005.) Kuran highlights major historical events, such as the fall of the Soviet Union, but he claims his analysis applies as well to more local and less prominent cases. Speaking out can provide “cover” for the previously silenced voices, creating a “bandwagon” effect in the right circumstances. One wonders how the academic freedom debate today might have been different had more voices inside the campus spoken up during the 1990s, when the questionable nationwide “speech code” movement initiated the debate over campus free speech with which we continue to struggle. The “path dependency” laid back then has led us to the struggles we confront today over the newer campus policies discussed by our contributors.

The most troubling cases arise when neither the administration nor the institution’s faculty members answer the call. This situation can happen when a university falls prey to overt politicization or monolithic worldviews (e.g., Evergreen State) that make dissent seem unfathomable, thereby not enjoying the auspicious underlying conditions that Kuran depicts. See, for example, some of the essays in our volume about intellectual conformity, and the critique of intellectual intolerance and campus “echo chambers” by former Stanford provost John Etchemendy in the Chronicle of Higher Education last August: “The Threat From Within: Intellectual intolerance poses an existential danger to the university.” The only remedy in such scenarios is public exposure and outside relief that can achieve justice for free thought, but also run the risk of opening the door to unjustified intervention by political forces if not done with due care.

A related question that emerges from our volume regarding threats to academic and intellectual freedom is the extent of the problem that such observers as Etchemendy expose. Many authors and commentators have presented numerous anecdotal examples of affronts to academic freedom extending back to the works of Nat Henfoff, Alan Kors, and Harvey Silverglate in the 1990s, to name just a few. But this is ultimately an empirical question that is difficult to pin down given the vast scope and complexity of higher education. In a recent column in the Washington Post, UCLA survey researcher John Villasenor offers a sensible conclusion that comports with my own experience and research. Referring to anecdotal and new systematic survey research of student attitudes towards free speech—including his own—Villasenor concludes, “In light of the data and the growing list of examples in which on-campus audiences were denied the opportunity to hear from invited speakers, it is certainly reasonable to debate the extent of the problem, but I don’t believe it is reasonable to deny the existence of the problem.”

So let’s get it right because much is at stake. As Jonathan Haidt observed in a recent speech at the Manhattan Institute, the fates of liberal education and liberal democracy are intimately intertwined. Both require due tolerance of different viewpoints and truths underpinned by respect for the rule of law. This is a difficult balancing act because such tolerance goes against the grain of human being’s profound tribal inclinations and penchants for moral absolutism—what Holmes called “fighting faiths” in his famous dissent in Abrams v. U.S. (1919), and Aeschylus called the moral “furies” in The Oresteia. America and the world are now sliding into democratic decline and renewed tribal polarization, as portrayed in Freedom House’s recent report, Freedom in the World: Democracy in Crisis. We need universities to light our way, not contribute to the darkness.