War & Speech E4: Campus Speech, Double Standards, and Discrimination

Jameel Jaffer returns to the issue of free speech on campus with Will Creeley, legal director at the Foundation for Individual Rights and Expression (FIRE). They talk about “cancellations” before and after October 7, the difference between free speech law and free speech culture, and the free speech implications of Title VI, the law that requires universities to take action against discriminatory harassment. 

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Transcript

Jameel Jaffer (00:00):
I'm Jameel Jaffer and this is War and Speech, an exploration of the Free Speech fallout of the War in Israel and Gaza. In this episode, we'll be returning to the topic of free speech on campus. This is a rich topic and there's a lot to discuss here. Over the past six months, universities have suspended student groups, canceled film screenings and events, and imposed new restrictions on protests and demonstrations on campus. Students, alumni, and donors have demanded that universities fire faculty deemed to have justified and celebrated the October 7th attacks. Students have torn down posters and shouted down speakers, and advocacy groups sponsored truck-mounted billboards to dox and denounce students who had signed letters placing the blame for the October 7th attacks on the Israeli occupation. Another advocacy group called for pro-Palestinian student groups to be prosecuted for supporting terrorism. A congressional committee laid into university presidents for their failure to suppress what legislators described as calls for genocide, and just a few days ago, Columbia's president called in the NYPD to clear a student encampment on campus and to arrest students who were protesting peacefully. I could go on and on.

Jameel Jaffer (01:15):
University campuses have been one of the principal arenas for speech about the war and for censorship and suppression as well. My guest for this episode is Will Creeley, legal director at FIRE, the Foundation for Individual Rights and Expression. Fire has been focused on free speech on campus for a quarter of a century, but the organization has played an especially prominent role over the past few months. I need to note before we begin that this conversation was recorded before the congressional hearing at which Columbia's leadership testified, and before the decision by Columbia to ask the NYPD to arrest student protesters. All of the questions Will and I discussed are of course even more salient and pressing today. Will, thanks so much for being here.

Will Creeley (02:04):
It's a pleasure, Jimmy, although I wish we were talking about something happier.

Jameel Jaffer (02:07):
Yeah, well maybe we'll get the chance.

Will Creeley (02:09):
Yeah, let's hope so. When you lay out that litany of what's happened in these past six months, it makes me feel very tired.

Jameel Jaffer (02:15):
Yeah. Yeah.

Will Creeley (02:15):
It's scary.

Jameel Jaffer (02:16):
Yeah. Well, I worry that this is just the beginning.

Will Creeley (02:19):
Yes.

Jameel Jaffer (02:19):
Before we get into that, Will, I want to ask you, can you tell me just a little bit about FIRE's origins and its mandate, and about the work you do on universities' campuses?

Will Creeley (02:30):
Sure. It'd be a pleasure, and again, thanks so much for having me. Fire, as you say, has been around for 25 years this year. We were founded by a professor at the University of Pennsylvania, Alan Charles Coors, who is a conservative, and longtime criminal defense attorney and civil libertarian Harvey Silverglate, who leans more liberal left libertarian. They came together to author a book called the Shadow University about the abuses of procedural fairness and freedom of expression that they were being inundated with both at Penn in Alan's case and in his practice in Harvey's case, and the publication of the book led to more requests for their assistance, and they founded FIRE in 1999 as the Foundation for Individual Rights in Education.

Will Creeley (03:18):
I joined fire in 2004 as a legal intern, and then full-time after graduating from law school in 2006. And as you say, our focus has been on campus for the majority of FIRE's existence. Two years ago, we expanded off campus, and as soon as we did that, Jameel, campus exploded all over again. So it reminds us that if we don't protect freedom of expression on campus, our concern has always been that the understanding of and dedication to expressive rights off campus will suffer accordingly. If free speech isn't free in our nation's institutions of higher education, we really risk losing it as a societal value. Folks will graduate and enter public life without an understanding of the vitality of freedom of expression, what it looks like, and why it's worth preserving. So, yeah, that's been the mission, and we have been very busy.

Jameel Jaffer (04:14):
Will, you mentioned that your founders were in one case a conservative and in the other case somebody you thought of as a libertarian. I think it's fair to say that some progressives now think of FIRE as a conservative organization.

Will Creeley (04:27):
Sure.

Jameel Jaffer (04:28):
Do you think of it that way?

Will Creeley (04:29):
No, I don't. Personally, I was a campus green party activist in my undergraduate days. I always joked that I moved to the right of my parents when I joined the Democratic Party following the invasion of Iraq and the second Gulf War. I have worked at this job now long enough to be fairly inured to those kinds of criticisms. I always tell folks to check our record. I will put it against any organization. The challenge here, and particularly I guess illustrated the past six months, is to remain in the same space no matter what the speech at issue is, and I think we've passed that challenge. We defend speech without regard to its ideological valence, and yeah, very, very proud to have done so.

Jameel Jaffer (05:16):
Will, tell me what you're seeing on university campuses now, and how different is it from what you were seeing before October 7th?

Will Creeley (05:23):
Well, that's a great question, Jameel. I've always identified the question of Israel and Palestine as the, perhaps, most charged of all the various issues that cause free speech controversies on campus. It's hotter than abortion or electoral politics or labor rights, etc. It's always been, I think, the most volatile and most intensely felt grounds for disagreements and censorship. And boy, the past six months have made that very, very clear all over again. We have seen students punished for expression in support of Palestine or Palestinian rights, faculty likewise. We've seen students get into very ugly physical confrontations at protests. I guess perhaps the biggest development in some ways is the entrance of Congress into the debate in a way that I think has been deeply troubling for what it demonstrates about free speech generally, in campus free speech in particular. The university presidents who are asked if the codes of conduct at their respective institutions would allow for the punishment of calls for "genocide," well, two of those presidents are no longer there.

Will Creeley (06:38):
The third is, I think, under fire, and as an attorney, as an attorney who works in free speech, I think their answers were, if inartfully articulated, certainly substantively correct. They said in essence it depends on context, and that is of course true, but the way that war eliminates space for nuance and reflection and consideration in an ad hoc way of the facts at any given controversy, I mean, boy, those presidents paid for it, and they're out, and representatives who formerly would've stole the virtues of free expression on campus is saying that either when it comes to the speech, either it's black or white, and it just doesn't work like that.

Jameel Jaffer (07:19):
I was talking to a friend of mine who's a law professor, he's conservative, and he said to me, what's happening now to pro-Palestinian voices on campus is what has been happening for a long time to conservative voices on campus. And I wondered what your reaction to that might be.

Will Creeley (07:35):
I think that it overstates the case in some ways. I don't recall the governor of a blue state issuing a proclamation, an executive order identifying by name, say, the Federal Society or the Christian Legal Society as particularly suspect in the way that Governor Greg Abbott of Texas just did with regard to Students for Justice in Palestine. I don't think that that level of official pressure has targeted conservative speakers or students on campus in quite that way. That being said, I have more instances than I can count of speakers being targeted for censorship or otherwise punished for their expression because they and their conservative views don't align with either the views of administrators on a given campus or the student faculty body as a whole. So I understand the sentiment. I do want to recognize the extraordinary threat to some speakers at the moment and where it's coming from because I think that's important.

Jameel Jaffer (08:36):
But I want to ask you, well, changing topics lightly here. One of the really striking things, at least to me about what's going on now is that so much of what might be called censorship or suppression is being undertaken by private actors, including private universities, but also private employers and cultural institutions and social media companies. As you know very well, the constitution protects the right of those organizations to decide for themselves what speech to publish and what speakers to platform. That's what the First Amendment is all about. But as you also know, it matters a great deal to democratic culture how private actors exercise that right. So I'm wondering how you think about the responsibility of private actors in this particular context.

Will Creeley (09:26):
This is a question that I think does require some attention to what kind of work the private organization is committed to. If it is a private organization that's committed to telling folks of a particular belief system things that they want to hear, well, they've got the right to make sure that those are views that are expressed on their platforms, and I don't want to override that associational right to join with others of like mind to advance a particular viewpoint. That is likewise protected by the First Amendment, and I think rightfully protects private organizations to make those kinds of decisions.

Will Creeley (09:59):
That being said, on the other hand, there are some private organizations like, I would say, Harvard University and the University of Pennsylvania which commit to free expression. Those kinds of institutions, I think we'd benefit from a societal expectation that we will be exposed to views unlike ours, that we will not live in a hermetically sealed encapsulation that only rockets our own political views back to us, the classic echo chamber.

Will Creeley (10:23):
I think that when there are private organizations that are dedicated to exploring the larger world of ideas that they should commit to that, whether that is a private university or a performing arts center or even a newspaper's editorial page. I think that having that kind of exposure to different views makes us smarter and stronger. And if you don't like it when your views are censored, then likewise you should be attuned to other views being censored as well, and hope for, instead of saying, "Well, equal censorship for all," [inaudible 00:10:49], "Equal protection for all." That's the way to go. So I think a little bit of that notion in the private sense is important too, but it's a very tricky question. I do think it depends on the organization at issue.

Jameel Jaffer (10:59):
I want to ask you a more specific question. So when you see an advocacy group, say, sponsoring truck-mounted billboards to denounce pro-Palestinian student activists, should our response be, "Well, that's just counter-speech. That's the marketplace of ideas in action," or should we be concerned about the chilling effect that that kind of activity might have on student speech?

Will Creeley (11:24):
I think we can be both. I think we can answer that counter speech with our own counter speech. But I think if you sign something publicly and are then criticized in what may be pretty aggressive ways for it, that's protected. But I will say that so too should we have the ability to criticize that response. And FIRE has criticized the... I think Accuracy in Media is the name of the group that paid for those billboards. We think that that's going to result in folks biting their tongue, right? Chilling speech, and perhaps it's intended to. In fact, I would argue that it very obviously is intended to. We had the same reaction to, a few years ago, conservative student group, Turning Point USA put out what they called a professor watch list or something like that, and we thought, boy, this really harkens back to the ugliest kind of McCarthyite impulses of naming folks for their beliefs and putting them on some kind of targeted list in hopes of generating official action. So we called those out, engaging in our own counter-speech, and would continue to do so.

Jameel Jaffer (12:25):
Does power and inequality come into your calculus here at all? So in some of these instances, the relatively powerful university donors or alumni who are putting pressure on the universities to, for example, disclose the names of students who were part of particular student groups, when you think about these questions of free speech ethics, does it matter to you? Should it matter to us that you have students on one side and relatively powerful donors on the other? Or do you think the rules here, ethical lines, are the same no matter who's calling for whose names to be disclosed?

Will Creeley (13:03):
It's a good question. We have some variants of this question in the federal anti-discrimination harassment law, where FIRE was critical of interpretations of university's legal obligations under statutes like Title IX or Title VI that asked university administrators to take into consideration the relative power of the two students involved in a particular instance of alleged discrimination. So in other words, the basketball star on campus, his or her words would be assumed to have more power and thus be more coercive in relation to their peers. And I have to say, Jameel, that makes me quite nervous because that assessment of power is fluid in itself could be used to subvert what I think ostensibly should be equal rights for both parties to talk to each other as adults. I don't want to say that there should be some lesser line for rich folks who've got a million followers on Twitter as opposed to student organizations.

Will Creeley (13:59):
I wouldn't want to bake that into the legal analysis. What I would rather do is bake that into the common sense cultural analysis. I think that the folks with the billboards shouting out individual students, the person walking down the street sees those and thinks, "Boy, what the hell's going on here? That's a student's face. That feels, intuitively, something is not right here." I think that undermines the quality of the message, right? I think the donors, if they are punching down, to use the popular phrase, I think that folks are smart enough to see that and take it into analysis. I wouldn't want the formal ethical understanding to be different.

Jameel Jaffer (14:31):
You raised Title VI, and I wanted to ask you about that. Can you just explain what Title VI is and how it intersects with the First Amendment?

Will Creeley (14:39):
Yeah, sure. Title VI is federal anti-discrimination law that bars programs receiving federal funding educational programs, receiving federal funding, which is the vast majority of institutions both public and private, from discriminating on the basis of race, color, and national origin. And in determinations dating back to the second Bush administration and subsequently followed by Obama, Trump, now Biden, those have been interpreted to also include perceived ethnic origin or shared religious ancestry or characteristics. So even though Title VI does not bar discrimination on the basis of religion explicitly, it's been interpreted to effectively do so in practice. And what it means is that if I am either a University of Massachusetts for a public institution or Harvard University for a private institution, I have to take action as an administrator at that institution against allegations of discriminatory harassment, on the basis of these protected class characteristics. I have to have policies prohibiting such harassment and I have to take action when I receive a notice of an allegation of such harassment.

Will Creeley (15:45):
And the definition of harassment, the one that FIRE has pushed for and we have seen in court decisions in both the Title VI context and the Title IX context, Title IX bars discrimination on the basis of sex, is the behavior in question is to be so severe, pervasive, and objectively offensive that it denies or limits a person's ability to obtain an educational opportunity to benefit. The question is, when does the university have the obligation to take action against anti-Semitic acts or anti-Palestinian speech? When does that cross the line from protected expression under the First Amendment or starts to constitute discriminatory harassment?

Jameel Jaffer (16:22):
And this has been teed up in part by civil lawsuits filed by Jewish students or Jewish alumni of some universities, and also by Department of Education investigations of universities, both for alleged insufficient responses to anti-Semitism, but also for insufficient responses to anti-Muslim speech. Can you talk a little bit about why or how concerned you are, how concerned should we be about the free speech implications of those?

Will Creeley (16:51):
Yeah, it's a great question. I think we should be quite concerned, for two reasons. First of all, the crux of some of these complaints, if you go and look at the allegations of the speech that these folks argue has given rise either to the Federal Department of Education's office for civil rights, which is the enforcement agency for Title VI and Title IX or these private lawsuits, quite often, much of the speech at issue taken in the discrete instance would be protected by the First Amendment. There's a very blurry line between anti-Semitic speech or speech that's critical of Israel, or a speech that's critical of Israel's actions following October 7th, and that line can be seen in these allegations, that is, one person's statement of "Free Palestine now" may feel to a Jewish student on campus as an instance of anti-Semitic harassment. So that's kind of the first concern is that a lot of what we're talking here in the individual instances is protected expression.

Will Creeley (17:52):
The second concern is that lawsuits and federal investigations from the Department of Education, those are a big cudgel, and the worry here is that the PR from a lawsuit or a federal investigation will prompt an institution to reflexively start to censor first and ask questions later. So if you are a pro-Palestinian student group, you are Students for Justice in Palestine, you'll be under a microscope, and there will be an incentive on the part of university decision makers to silence you proactively or preemptively, and that makes me very nervous.

Will Creeley (18:25):
We've had a lot of discussions with folks about what administrators can reasonably do to assuage the concerns of Jewish students who I think in many instances are understandably freaked out and feeling stressed out and feeling as though they are besieged minorities on campus without punishing speech, and it's a real challenge. So then the question becomes how to support that Jewish student to make sure that they feel as though they've got access to these educational opportunities without silencing folks who they feel very challenged and offended by.

Jameel Jaffer (18:58):
That question has come up before, at least versions of it have come up before. Other minorities have felt that speech on campus is making them feel unwelcome or even worse, making them feel like they don't have a right to be there, that they're not entitled to be there. This is something that's come up before. Are there ways of recognizing the legitimacy of that feeling, but also, preserving free speech? Or do you think that once you open the door to restricting speech on the basis of somebody's feelings about somebody else's speech, we've sort of given the whole game away?

Will Creeley (19:36):
Yeah, I tend to think that allowing for students to call for and receive censorship on the basis of subjectively offensive speech, I think the whole edifice tumbles fairly quickly after that, and we lose the dynamic, robust exchange of views that is a hallmark of our democracy. And again, I think if we lose it on campus that we lose it either 5, 10, 15 years later everywhere else. So just as you say, the answer to Jewish students I think needs to be the same as the answer to trans students or black students or conservative students or whomever feels as though they are the unwelcome minority.

Will Creeley (20:12):
The administrative response has to be the same, that yes, you will hear things that you don't like, but the answer to that is to respond with more speech, to ignore, to debate, to argue, and there will be administrative support for students who are feeling like that. That's absolutely fine, and I think in many cases necessary that the administration should have an obligation, morally, if not legally, and I think there's an argument for it legally as well to be supportive of those students who feel under siege.

Will Creeley (20:40):
The Title VI obligation, the Title IX obligations for the university to take some steps to end that harassment, well, if the harassment is protected by the First Amendment, it's not harassment. So then the university obligation shifts not towards silencing the speaker, but to supporting the listener. And I think that's completely commensurate with the First Amendment. I don't have any issue with that. In fact, I quite often tell administrators that's what they can and should do, is to focus on the students who need the administrative support. That's a big difference from punishing students for protected speech.

Jameel Jaffer (21:09):
I want to ask you specifically about the International Holocaust Remembrance Alliance definition of anti-Semitism, which the Department of Education has considered adopting, and I think FIRE has been very clear that the government has a legitimate interest in ensuring that universities respond appropriately to discrimination on campus, and I think you just reiterated that just now, but you have also expressed concerns about the government using this particular definition to assess universities non-compliance with anti-discrimination law. Can you explain those concerns?

Will Creeley (21:47):
Yeah, I sure can. I'm glad for the opportunity to do so. Jameel, I was just about to reference Ken Stern, the author of that definition in thinking about how schools can respond to this moment. The definition, now the IHRA definition, we first were critical of it, I want to say 2015 when there were beginning to be calls for this definition to be used in assessing anti-Semitism and for calibrating university responses to allegedly anti-Semitic speech. I'm going to paraphrase this, but the definition doesn't read like it was written to be put to these purposes. I think that's right, and Ken Stern himself has said that later. It's a certain perception of Jews that may be harmful, something like that. There's that phrase, a certain perception of Jews, which of course-

Jameel Jaffer (22:30):
Yeah, I think it's a certain perception of Jews, which may be expressed as hatred toward Jews, and then it includes a bunch of examples.

Will Creeley (22:37):
Then includes these examples. Right, and the examples include things like holding Israel to a double standard, comparing Israel to Nazi Germany and so forth. And as FIRE has pointed out for, boy, damn near 10 years now, those examples in particular are classic instances of protected political speech. I can compare the United States to Nazi Germany, I can compare to Israel to Nazi, Germany, Ukraine, Russia, whomever. That is core protected speech. Likewise, there's no first Amendment requirement that one not be a hypocrite, right? I can hold the United States to double standards, I could hold Israel to double standards, I can do any of that. That's all protected political speech. So when institutions or the Department of Education or administrations executive branch agencies at all start to use that definition and it's accompanying examples as yardsticks to assess whether or not speech is anti-Semitic and thus might give rise to responsibilities or claims that are Title VI, we get very nervous because that is sweeping in a great swath of protected political expression.

Will Creeley (23:39):
The other concern we have here is just as you alluded to, other groups have felt this way too, surely there would be some appetite to say, "Well, let's define Islamophobic speech in this way, or transphobic speech, or homophobic speech, et cetera, or everybody or anti-black racist speech," right? Let's give you a list of examples so that when you see these examples, you know to take action. Now, very quickly the problem becomes apparent, those are all political choices about what examples are and are not appropriate. Who makes those choices? How do we assess those choices devoid of context? How do we lay those examples down on a page and say, "Here and after, any use of this word shall be considered X."? You lose the possibility for language to be as slippery and empowering and as interesting as it is, and our law just does not worked that way. Allowing that kind of pre-determined example list raises a host of First Amendment questions.

Will Creeley (24:27):
But unfortunately, we've been on kind of the losing end of this debate for the past nine years, and the definition has continued to accumulate speed and steam, again, to the horror of its original author, Ken Stern, who has said this was meant to help, I think he put it, bean counters in Brussels, people to track anti-Semitic incidents internationally, not to impose speech codes on university campuses of the United States, and it's a matter of time until somebody preemptively is punished for a speech that is protected and there will be lawsuits, and I think the First Amendment will dictate the result here.

Jameel Jaffer (25:03):
Well, I want to ask you a question about the concept of cancellation, which is as a concept that has dominated recent debate about free speech in the United States for better or worse.

Will Creeley (25:13):
Contested concept, to be sure, right?

Jameel Jaffer (25:15):
Well, so a few months ago, we, the Knight Institute, published an essay by Gera LaMarche, which is based on a lecture that he'd given at City College called the Stanley Feingold Lecture on American Politics, and one of the arguments that Gera makes in the essay is that our collective preoccupation with cancellation is myopic, because it glosses over the fact that for most of our history, some voices were excluded from the conversation entirely. He says those voices were pre-cancelled. They weren't allowed into the conversation in the first place. I actually think he's quoting, he says he's quoting from Sarah Jones. I'm curious what you think about that argument and what it might mean for protecting free speech on campus.

Will Creeley (25:57):
I will look forward to reading the whole essay, but I think there's a real point there. I think that that's absolutely true. When you think of the homogeneity of, say, university campus just for that particular locus in the '50s, '60s, and so forth, who got to attend those schools and what voices were heard, what voices were allowed in the conversation, that's an absolutely correct point. So if pre-cancelled means, as I take it from that excerpt, the kind of de facto, in some cases, state mandated segregation of spaces like public universities, that's an excellent point. I just had an interesting opportunity to take my kids, I've got a six-year-old and nine-year-olds who are learning about American symbols, and I've just had an interesting opportunity as a parent to explain to them, on this trip to Washington, the various ways in which the American commitment has continued to expand, and the true nature of those ideals.

Will Creeley (26:46):
I would push again here on that point that the existence of pre-cancelled folks prior, and the censorship as a matter of course, even an unexamined, reflexive, "It's always been this way and we're not even going to think about it" censorship, that has to be acknowledged, but also cannot be marshaled now as a reason for their cancellation, if that makes sense. We often get requests from students who say, "Well, these folks are," say, "chalking on campus, and we've never been allowed to do so." Our argument for those folks is, "Well, let's make sure you're also allowed to do so," rather than to make sure that nobody can do so. Something like that, right? You want to open the stage as broadly as possible. I think that's the true hope of free speech advocates rather than close it selectively or allow it to be closed. I don't take this, the LaMarche essay, to be suggesting otherwise. I think it's useful, historical context. It's very true and important. It's never been a golden age, I guess, is what I like to [inaudible 00:27:41].

Jameel Jaffer (27:42):
What I imagine what Gera would say is I think it's important that we call out cancellations and de platforming where it shouldn't be occurring, but it is, but free speech advocates should spend less time worrying about cancellation and more time worrying about whether these conversations are diverse and equitable and inclusive. I think that's probably the argument he'd make.

Will Creeley (28:07):
I take that point too. I'm cognizant now of the need to do work at FIRE that every resident of the United States can see themselves in at some point. My goal, Jameel, is to have an organization where you may not like 90% of our cases, but there's one case that we've taken and say, "I see myself in that person. That feels true to me," and we've got a ways to go, but we've got a good start. So I take that point. You could spend all day, and surely on some cable news networks, you do spend all day talking about Bill Ackman, the donor at Harvard, et cetera, those kinds of things. Those are maybe useful for illustrating principles, but I think the more interesting point of the folks who don't think that their first-born rights would be protected and thus don't say anything as a result, right? Making clear that those people have rights no matter who you are, where you are, and fighting to defend those rights. That's where more of the action is, I think.

Jameel Jaffer (28:59):
Will, it's been so good to talk with you. Thanks so much for making time.

Will Creeley (29:03):
Thank you so much, Jameel. If I may, thefire.org is our website. You can read about all this stuff from there. I feel contractually obligated to say that, so thanks very much, Jameel.

Jameel Jaffer (29:11):
No, we'll put it on our website too.

Will Creeley (29:13):
Thanks very much.

Jameel Jaffer (29:15):
In our next episode of War and Speech, we'll be joined by Jeannie Suk Gersen, professor of law at Harvard University, and we'll be talking about the meaning and limits of academic freedom. Views on First is produced by Candice White, with production assistance and editing by Isabelle Adler, research and fact checking provided by Hannah Vester. The Art for our show was designed by Astrid de Silva. Views on First is available on Apple, Spotify, and wherever you get your podcasts. Please subscribe and leave a review. We'd love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org, and follow us on social media. I'm Jameel Jaffer. Thanks for listening.