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UCI Chancellor Howard Gillman and UCI Law Dean Erwin Chemerinsky on Free Speech on Campus

Recorded February 2017 at UCI Law event

UCI Law Dean Erwin Chemerinsky and UCI Chancellor Howard Gillman recently spoke to law students about their upcoming book Free Speech on Campus (Yale University Press), in which they explore the tension between the psychological harms of hateful speech and bullying, and the social harms of censorship or the punishment of dissent.

Chancellor Gillman and Dean Chemerinsky also wrote about the lessons of free speech at The Conversation

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Featuring:

• 

  Erwin Chemerinsky

  Dean, Distinguished Professor of Law
  Raymond Pryke Professor of First Amendment Law

• 

  Howard Gillman

  UC Irvine Chancellor, Professor of Political Science and Law
  Visiting Professor

Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine, School of Law. Join the conversation on Twitter @UCILaw, #UCILawTalks.

[Erwin Chemerinsky] Thank you so much for coming this afternoon. It's my great pleasure to introduce to you the chancellor of our campus, Howard Gillman. Howard and I have known each other for about thirty years now. We were both on the faculty at the University of Southern California. Howard is a political scientist who specializes in constitutional law, and the law school was thrilled to have him as a member of the faculty, and I was very pleased to get to teach in the political science department, including when you were the chair of the political science department. And then, Howard, after being chair of the political science department, was a vice provost. He was the dean of the Dornsife College of Arts and Sciences. He came to this campus to be our executive vice chancellor and provost, and after a year doing that, he became the chancellor, and this is your third year already as chancellor.

[Howard Gillman] Man.

[EC] I have the enormous pleasure of getting to teach an undergraduate class with Howard each year. Last year, for the first time, we taught as a freshman seminar on free speech on campus, and we were quite surprised by the reactions of our students to the issue of, "How is the University to balance the desire to protect speech with the desire to create a learning environment that's protective of all students and supportive of all students?"

And we then decided to write some articles describing our experience in teaching the class, and then that led to a book that we've written that Yale University Press is going to be publishing this summer, titled "Free Speech On Campus," and were thrilled when Liz and the SPA asked us to do a presentation with regard to the book. So thank you for coming to the law school.

[HG] Pleasure.

[EC] I mentioned that we teach an undergraduate class. This year it meets from 1:00-2:50 in Aldrich Hall, so we're going to be needing to finish by about a quarter to one, ten to one at the latest in order to be at our class on time.

In terms of thinking of why we ended up teaching this class, why we're writing this book, almost every week, sometimes seems almost every day, brings publicity of new incidents that raise this tension of how to balance the desire to protect with the desire to create an inclusive learning environment for all students.

I'm sure you all heard of the incident that occurred last Wednesday at the University of California, Berkeley. College republicans invited a controversial speaker, Milo Yiannopoulos. A hundred and fifty masked individuals, apparently not students or faculty, went and committed acts of violence, throwing Molotov cocktails, causing about $100,000 in property damage. The university, believing it couldn't ensure public safety, canceled the event. Some, including the president of the United States, perceived this as an impermissible restriction on freedom of speech. Others believed it was the campus fulfilling its duty to protect the safety of all students and faculty.

You might've read of an incident that occurred at the University of Oregon earlier in the academic year. A professor at the University of Oregon Law School held a Halloween party at her house. There were about twenty five faculty, students, alums. She came in blackface, saying that she was making a statement with regard to especially the absence of African Americans in higher education and particularly in the medical school field. She was suspended from teaching. A report commissioned by the University of Oregon concluded that she had created a ... Interfered with the learning environment for students on campus.

If you go back into the last few years, there seem almost endless examples raising this tension between freedom of speech and the desire to create an inclusive learning environment. There was an example of Laura Kipness, professor at Northwestern University, who wrote an article in the Chronicle of Higher Education in which she objected to the campus having a policy that prohibited sexual relations between faculty and students. She said that the students in asking for this protection were really undermining their own identity and inconsistent with feminism. Two graduate students filed a complaint against her, that by writing this article in the Chronicle of Higher Education, she had created a hostile learning environment for them, and there was a lengthy civil rights investigation of her.

Almost exactly two years ago, there was an incident at the University of Oklahoma. There was members of a fraternity, they were on a bus, it was only the members of the fraternity on that bus. They were dressed in formal wear going to an event. Two of the members led the others on the bus with a very offensive, racist chant that spoke positively of lynching, among other things that were deeply offensive and abhorrent. The president of the University of Oklahoma expelled those two students, and then said that the fraternity could no longer be housed on campus.

So, these are the examples that we discussed with our students. These are the examples that lead us to believe that there's a need to look at this issue of how to strike the right balance, where to draw the line between the need to protect freedom of speech, but the need also to make sure that it's a safe, inclusive learning environment for all students.

[HG] And ... By the way, thank you all so much for being here. And we're going to talk for a bit, and then make sure we have enough time for questions, because there're so many areas to explore. One of the things that we found and we learned last year the most was that the student concern and the concern that's being expressed in a lot of these more recent debates to ensure an inclusive learning environment, a non-discriminatory learning environment, to commit themselves against that acts that are seen as hateful or bullying, is absolutely a legitimate concern. We mention it because a lot of the commentary that is part of the debate sometimes trivializes those interests that students are articulating and those impulses. We think it's one of the best things that is happening in this debate.

But before you have a sense of how to balance those concerns about resisting hate, resisting bullying, creating non-discriminatory learning environments, we do need some sense of why it occurs to some people that protections for free speech might be important. So before we get to the other side of the ledger, a few points about some of the arguments that you're familiar with for why some people might consider the protection of free speech to be fundamentally important to the organization of free societies.

These lessons, these arguments, have been forged over many centuries, mostly by the dissenters and marginalized and vulnerable groups trying to find a place within a community where power holders were using the ability to control the expression of ideas to protect their privilege. Powerful people don't need freedom of expression, and so after many centuries, many victims, three main arguments have evolved that we associate ourselves with, for why, before we begin to think about the balance, we may want to consider the importance of free speech.

The first point is that freedom of speech is essential to freedom of thought, and freedom of thought is foundational for any conception of a free society, just as absolute conformity of thought is foundational for any autocracy or totalitarian society. This means also, by the way, that anyone who would celebrate the idea that within a community there might be diverse people with different backgrounds and perspectives, any commitment to the idea of celebrating diversity in a community, must also, we think, include a commitment to freedom of thought and the free speech that makes that possible.

Secondly, as you know, freedom of speech is foundational to any notion of democratic self-government. Democratic self-government presupposes that the people have an opportunity to get information and opinion about public affairs, and about the behavior of their public officials. Some have even said that freedom of speech is more important and foundational for democratic self-government even than the particular structure of elections.

The third point that we try to emphasize is that the alternative to freedom of speech. Powerful people, the government having the ability to censor and control the flow of ideas is much more harmful and has been proven catastrophic to societies over and over. And we emphasize this point because when we think about speech that harms, and it is certainly the case that speech harms, in assessing how to think through that harm, it's not enough just to imagine a world where that one harm is removed, because you have to alternatively imagine a world where you are empowering powerful people or government officials to create censorship regimes. So the harms of speech must always be imagined in distinction to the censorship regimes that would be the alternative to a commitment to free speech.

We believe that the history of free speech in the United States demonstrates the importance of each of these values. We have spent a long time in this country shedding older practices and developing, after a lot of work, free speech traditions. It is not the case any longer that the country thinks that merely criticizing a government official can get you thrown in jail, as was the case after the passage of the Alien and Sedition Acts in 1798. It's not the case any longer that we think that the postal service should prevent the circulation of certain materials, ideas, that the government finds offensive, as was the case in the 19th Century when it was not possible for anti-slavery advocates to circulate anti-slavery materials using the U.S. postal service. We no longer try to put people in jail for circulating information about contraception, which happened after the passage of the Comstock Act in the late 19th Century.

We no longer think that if the country is in war and you are advocating that the country should not be at war, that that would be enough to get you thrown in jail for ten years, as was the case during World War I. We no longer think that if you advocate socialism, or suggest to people that they read the works of Marxism/Leninism, that that can get you thrown in jail for decades, as was the case during the Cold War. We no longer think that those who were overseeing Southern apartheid could prevent any organization of free human beings to advocate for their freedom, or to even sue people who criticize them on the grounds that they were being libeled by those civil rights leaders, as was the case throughout most of the 20th Century in the South.

And it shouldn't be the case that government officials can decide whether certain forms of art or counter-cultural expressions of culture should be considered a violation of community norms or somehow a threat to the good order of the community, thus freeing up artistic expression in the 20th Century, such that by the end of the 20th Century, the scope of freedom for people to express their own identity and sensibilities was much broader.

So, the arguments, we think, in favor of free speech are strong, and we also argue that whatever strength it has within any free democratic society for advocating on behalf of free speech, the arguments in favor are even stronger in the context of higher education. Higher education must, if it is anything, be a place, a space in society, for the generation of new knowledge, for reflecting on assumed wisdom. And you cannot be an institution dedicated to reflecting on the crust of conventional thinking, to imagine what the next horizon is in illumination, unless not only do you tolerate but you encourage people to articulate points of view that challenge existing ways of thinking, even when those ways of thinking are considered destabilizing, maybe even uncivil or dangerous.

That's why in the book, while we try to pay the right amount of attention and embrace notions of what you can do to create a non-discriminatory, inclusive learning environment, for higher education there must be one anchoring principle. And for us, that principle is, any idea must be expressible on a campus without fear for censorship or punishment.

With that, it was not the case throughout most of American history that American higher education embraced it. For too many years, if you were a member of the wrong faith, you would be excommunicated from the college or university. If you tried to teach Darwin, you would be fired. If you had the wrong political point of view in the late 19th Century, if you were a Stanford professor who supported labor rights, you could be fired by Mrs. Stanford. Over a long period of time in the 20th Century, a lot of people worked very hard to establish a very simple proposition. That as long as faculty are meeting their professional obligations as scholars and teachers, consistent with the norms and expertise of the discipline, as long as they were doing their jobs as scholars and teachers and professionals, they should be free to express any idea. And we associate ourselves with that view as well.

Note, by the way, that academic freedom, that in a professional realm, scholars have an opportunity to express themselves in professional settings without fear of punishment, does not mean that universities cannot regulate in professional settings how professional scholars and teachers speak. In professional settings, it is the case that the university can regulate what can be discussed in class time, that the content of class discussion be related to the course material. You can establish and expect norms of professionalism in professional environments, like classroom settings or department settings. You can even engage in what some people call content-based discrimination, by, for example, reviewing the quality of someone's work as to whether or not someone should be promoted or not based on those assessments.

In formal academic settings, professional academic freedom has always been linked to norms of professional conduct, but on top of that, as a result of the Berkeley Free Speech Movement, an additional zone of free speech was insisted upon correctly. Outside of the professional environment, the Berkeley Free Speech Movement established the proposition that the public spaces in campus should be free for the expression of even unprofessional, uncivil, profane, and even hateful points of view. That whatever broad protections in the society existed for the protection of free expression, campuses should accommodate that. And I mention it because as we think about what's protected or not, I want you to be mindful that in our judgment there are two zones within university settings. There is a professional zone which is always linked to norms of professional competence and integrity, and there is a broader free speech zone, such that you could say things, for example, in the broader free speech zone that you would never allow someone to say if they were talking to a student in a classroom setting.

The biggest test of these ideas, we think, in the current debate comes with the idea of hate speech, and Erwin's going to talk a bit about that.

[EC] As Howard said, our thesis is that all ideas and views should be able to be expressed on college campuses no matter how offensive they are. But what, then, about hate speech? There's no doubt that hate speech can create great harms and cause psychological injuries and cause physical injuries. Just yesterday, my daughter saw in New York where it was written, and I'm quoting what she sent me that was written, "Jews belong in the oven," with a swastika. And how upset she was to see that, sad. In addition to the physical and psychological harms, it's an affront to dignity of individuals when there's hate speech. To use epithets and direct them at a person is really like an assault. There's no doubt that hate speech can interfere with the educational attainment and learning environment for students. That's why people who we respect greatly, people like Charles Lorenz, and Maria Matsuda, and Jeremy Waldron, have said that there should be prohibitions of hate speech on campus.

In the early 1980s, over 350 colleges and universities tried to adopt so-called hate speech codes. There's no doubt they were motivated by the very best intentions for wanting to protect the learning of all students. But every court to consider such a hate-speech code declared it unconstitutional. There's no doubt that hate speech is protected by the First Amendment. The Supreme Court older cases suggested it might not be. The Supreme Court earlier had suggested that perhaps group libel as a category of speech unprotected, but the courts backed away from that. The court has explicitly held things like cross-burning, deeply offensive form of hate speech, is protected. And ultimately, we, too, conclude that campuses cannot prohibit hate speech, even acknowledging all the harms it creates.

Part of the problem is trying to define what is hate speech. No campus has been able to come up with a definition that withstand the challenge for vagueness and over-breadth. The University of Michigan, after a number of just horrible incidents, tried to write hate speech code, and to summarize it, it basically prohibited speech that would stigmatize on the basis of race or gender or religion or sexual orientation. But then graduate students came forward and said, "Our research, say, in social biology, is trying to see whether or not there are inherent differences between man and women. Might it be seen as speech that stigmatizes?" The federal district court in Michigan declared the University of Michigan hate speech code unconstitutional on vagueness and over-breadth grounds. The same thing happened when the University of Wisconsin, or even Stanford, a private university that doesn't have to meet the first amendment, did that.

It's also striking that hate speech codes and hate speech laws are often used against the very people that they're trying to protect. The University of Michigan, virtually every complaint under the hate speech code was directed at somebody who was of a minority group. In most of the rest of the world that doesn't have the commitment to free speech of the United States, hate speech is not protected. There are laws that prohibit it, for example, in most of the countries in Europe. Yet, if you look at how those laws have been used, time and again they're used against minorities, maybe even against civil rights protestors.

There's also the great concern that when hate speech codes are enforced, they make martyrs of those who are being censored or punished, and are counterproductive for that reason. But I think most of all the reason we would oppose hate speech regulation, hate speech codes, is to censor words is to censor ideas. Justice Harlan said that in a case called Cohen vs. California. So we can't cleanse the English language to please the most squeamish among us. To censor words is to censor ideas. Hate speech has all the harms that I alluded to and more, but it still conveys an idea, and our premise is that all ideas, even offensive ones, can be expressed on college campuses.

So, we then turn to what I really regard as the most important chapter of the book, to try and identify, what can and can't college campuses do? And we tried to make this as specific and as prescriptive as possible. And so let us quickly summarize. Do you want to begin, or do you want me to?

[HG] Yeah. So, it's not enough for us to say, "Oh, the concerns are legitimate, but there's nothing you can do about it." And the way we organize one of the penultimate chapters is through this paired set of statements. "Campuses can do this but they can't do that." So let me give you a little flavor of what that is like.

So, for example, we say at the beginning, a campus can't censor or punish speech merely because a person or group considers it offensive or hateful. However, a campus can censor or punish speech that meets the legal criteria for harassment, true threats, or other speech acts unprotected by the First Amendment. That gives us an opportunity to separate out the mere expression of an idea considered offensive and hateful from other categories that have been widely seen as speech acts that can actually be censored or punished. When you have a statement like that, interesting and important questions arise.

In the University of Oregon case involving the law professor who wore blackface, claiming that she was inspired by a book that was identifying the problem, the lack of African Americans within medical school. In that case, that mere act led to an investigation on the part of the university, and the university in December made a finding that the mere use of blackface in her house as part of this party amounted to discriminatory harassment in violation of university policy. Now, we don't agree with that, but to not agree with that requires us to talk a bit about what distinguishes something you consider to be truly hateful from harassment as it's currently defined in the law.

And pair by pair, we try to identify other areas implicating microaggressions and safe spaces and the like, and there's a few other examples.

[EC] Just to elaborate on this, and a little more about this "can" and "can't", as Howard says, the campus can't censor or punish speech that's offensive, but true threats are not protected by the First Amendment. There's no First Amendment right to speech that makes somebody else fear for his or her safety. Harassment is speech that's not protected. There's no right to destroy property.

Perhaps to give specific examples, there's a right to put a noose over a tree in the middle of campus, however horrible it is and however it makes people feel unwelcome. There's not a right to tack a noose onto somebody's door. There was an incident at UCLA where a student posted a very offensive anti-Asian rant on YouTube. She had the right to do that, but she wouldn't have the right to harass Asian students in her dorm. In the context in the University of Oregon, what the professor did was deeply insensitive, deeply offensive, but to discipline her for doing that, in our view, violates the First Amendment as inconsistent with academic freedom.

In terms of other "cans" and "can'ts", we believe that campuses must make available places for speech, that it can't just be a tiny area at a small point in the day, that campuses have to provide areas where students can speak. But campuses can have time, place, and manner restrictions that serve important interests, and leave open adequate alternate places for speech. There's a right to speak in the middle of campus. There's not a right to come into my class while I'm teaching and chant and disrupt it from being able to occur. Obviously, lines have to be drawn.

We presented a draft of the book at a faculty workshop back in August, and Bob, you raised the question of dormitories.

[HG] Yeah.

[EC] And so we developed a whole subsection of this chapter in response to this question about dormitories, how dormitories can't restrict speech based on content, but they can take actions to make sure that students are protected, that there's a place of repose. Howard mentions things that are much in the news now, things like trigger warnings, microaggressions, safe spaces. We say, it's absolutely fine for a professor to give a trigger warning, in other words, warning students the material's going to be offensive. We began our class on January 9 by reading to our students the chant that was said at the University of Oklahoma. Deeply offensive and racist. We warned our students before we did it that what we were going to say was going to be deeply offensive and racist, and there may be times when it's appropriate for professors to warns students about what's to come. But we think it'd be inappropriate and in violation of the First Amendment academic freedom for campuses to require such trigger warnings. Professors have to make the judgment themselves what's best for the students.

Safe space, it all depends on what's meant by that phrase. We believe the classroom should be a safe space for students. We believe campuses should be a safe space. We've campuses to create places where especially minority students, just excluded students, can go to feel safe. Black student unions. Organizations for gay and lesbian students, and the like. But safe spaces cannot be taken to mean, and sometimes it has in the debate, that therefore campuses can censor or punish speech that makes students uncomfortable, or just because the speech may make the student feel unsafe.

Microaggressions, and this has been much in the news, speech that might not be intentionally desiring to cause harm but still can make people feel unwelcome. We think it's completely appropriate for campuses to try to sensitize students and faculty about microaggressions so they're much more careful about in their expression, but the campuses can't prohibit microaggressions. These are some of the things.

To go back to the examples that I started with, I think we agree and have just written a piece that says that with regard to the University of California at Berkeley, the campus, though this wasn't perhaps as widely ... Did everything it could to protect the ability of Milo Yiannopoulos to speak there. They worked with college republicans. They brought in security guards from nine other campuses. They resisted any effort to have his appearance canceled because of the offensive nature of the speech, but when there were 150 people committing acts of violence, and the campus felt the only way it was sure of public safety was to cancel, that at the time, we thought that the campus acted appropriately. It wasn't acting a desire to protect speech.

As Howard suggested, we think the University of Oregon acted inappropriately in suspending the law professor for wearing blackface. Now, there's much that the campus could do, in this and in all instances. The campus can always engage in more speech. The president of the University of Oregon, himself a law professor from the law school, the dean of the law school, could certainly speak and condemn this. But punishing the teacher, inappropriate.

We think that the University of Oklahoma, had it been sued, for violating the first amendment rights of those fraternity members, would have lost, and should have lost. What they said was deeply offensive, but it wasn't a true threat, it wasn't harassment. It wouldn't meet the standard for speech unprotected by the first amendment.

We're very concerned about instances like Laura Kipness, where the expression of an idea, here the expression of an idea in a very respected journal, the journal of Chronicle of Education, could trigger a civil rights investigation. We urge the department of education to be much more careful in terms of when is speech protected, even offensive, and when can it be punished.

[HG] So, you get a sense of how we are trying to maneuver in this space. We are eager to hear some of your questions. The last thing that we would say is that it is the case that even if you take off, as we recommend, off the table, a notion that merely for the expression of an idea considered hateful that a campus should be able to punish or censor someone, even if we agree that you can't be an institution of higher education if there is any authority within the institution to punish or censor people who are saying things that offend the sensibilities of others, it doesn't mean that campuses can't do many, many things.

And we do try to end with an agenda of proactive activity setting up structures to ensure that acts of discrimination are identified. Organizing programs sensitizing people to the harms of hateful speech, educating a community about what is behind the hate speech that some people insist now need to come to campus, to illuminate the issue rather than to suppress the issue. And most importantly, campuses, even if they find themselves protecting speech that is inconsistent with their values doesn't mean that campuses cannot find their voice on those values. Because while there is a prohibition against censoring and punishing ideas, just the expression of ideas, there is nothing that stops a campus, its leadership, its faculty and students, from using an opportunity of bad, dark, evil speech, to find our voice. And our view is that in the history of the world it is when people find their voice and come together on behalf of good values that progress is made, not when people try to silence and put under cover speakers that they don't like.

So with that, we would love to hear your more specific questions.

[Audience Member] I love the idea of free speech, just as you iterated it. In your book and research, have you looked at maybe the economic underpinnings, that might be driving hate speech, and how to reconcile that for student bodies where they want their student fees or dues to pay someone hundreds of thousands or in some speaking engagement in a way that makes a lot of people feel extremely uncomfortable, how do you normalize, okay, the need for free speech with someone actually feeling that they sponsored or paid for it?

[HG] So, generally, the way campuses operate is that in a content-neutral way, you give members of the community, the student body community, for example, opportunities to organize themselves. As campus democrats, campus republicans, other groups. In fact, if campuses did not allow that to happen, that would certainly violate the associational rights of those students to come together. And then once students and faculty organize themselves, there are content-neutral mechanisms by which they qualify or not, let's say, for student fees for support of certain kinds of activities.

And so what is not possible, in our judgment, is that within a situation like that, if one student or organization – If the college republicans choose, as an authorized campus group, to invite someone to campus, even if they are getting some support from an office of student affairs, it's not possible, first of all, certainly, for a public university. And we would say not to be recommended for any university to say to them that we are going to monitor all of the ideas expressed on campus. That it's better to allow people to have that view expressed even if you think it is a view that is deeply disturbing. Probably more important if it's a view that is deeply disturbing to have that view expressed rather than hidden in society, to allow people to engage it and rebut it.

Because there are two reasons why campuses protect the expression of all ideas. The first reason is that when people find good ideas, new, illuminating ideas, new ways of thinking about whether light is a wave or a particle, on any range of inquiry, you want to create a space where iconoclastic thinkers who are challenging conventional wisdom can bring good new ideas. But that's not the only reason campuses protect the expression of ideas. It is perhaps just as important for ideas that are dangerous, that might circulate otherwise in society without being engaged, for those ideas to come out into the light so that they can be engaged.

I don't think the country was done a service by this last year suddenly most people not knowing a phrase like "alt-right." Not knowing what we know now about white nationalism and some of these ideas that are clearly circulating in a more robust way than we expected. It would've been much better for us to live in a society where that gets expressed, so that we could then identify the issue and engage and rebut it.

[EC] Let me answer the question in a slightly different way, though I agree with everything that Howard just said. My tax dollars go, say, to the police that protect the right of the Nazi party to speak. The most intense argument I ever had with my father was over whether the Nazis had the right to march in Skokie, Illinois. My father never went to law school or college. He was just convinced you have to stop that expression. And nothing I'd do could persuade him. But you can't, under the First Amendment. Because once the government can say that message is abhorrent, tomorrow they can say my message is abhorrent. And with regard to campuses, the Supreme Court in a case called Regions of the Board of Wisconsin vs. Southworth said that student activity fees could be distributed so long as it's done on a viewpoint-neutral basis.

[Audience Member] Even though there's a debate within colleges on and around freedom of speech, there seems to be a greater chasm between colleges and their local communities and the national communities regarding issues of free speech, including safe spaces, trigger warnings, and the like. In your opinions, do you see free speech on college campuses being threatened by these external national forces that are at play?

[HG] One of the things that we learned last year spending couple of months with some of the most wonderful students that we've had a chance to interact with was-

[EC] And so are these here. Let's be clear.

[HG] Present company excluded.

[EC] Included.

[HG] Included.

Was that on the one had, the impulse for the kind of environment, the kind of community they wanted to construct, was tremendously admirable. But we did also learn that ideas about free speech were very abstract to them and that they had no emotional connection to this sort of historical legacy of why some people consider it one of the greatest accomplishments in modern history that we established these principles. For example, when we were growing up, we associated free speech with a kind of challenge of conventional wisdom, that all speech wasn't nice and quiet and civil, that you were creating spaces for people to shake things up. And we associated free speech with actually the protection of otherwise vulnerable and marginal people.

Our students didn't live through the Vietnam protests or the Civil War protests. They certainly don't know who Lenny Bruce is. Maybe they know a little bit who George Carlin was. And so the notion that you have to sometimes dig deep to create spaces for the expression of unpopular ideas, and if you do that, that will be a force for human progress and enlightenment, that idea which we lived through is not something that they lived through. From their point of view, as they were growing up, especially the last handful of years, they associated free speech with the internet, and with trolling on the internet. And we sometimes joke that if we grew up in an era where you thought free expression looked like that, we wouldn't know that we would have a connection to free speech, either.

And so we do think, and one of the reasons why we wrote the book is that there is a need to acknowledge the impulses for creating a certain kind of inclusive community of mutual respect on the one hand, but there's also a need to educate a generation that doesn't have a sense of the history in order for the argument to be more fairly balanced. And so from our point of view the need to introduce them to that, to begin to suggest, perhaps, something that's not part of their experience, which is that free speech is always on the side of the powerless and the vulnerable, and has been an engine of progress, and now let's talk about how you work through these issues. We thought that educational component was important.

[EC] This, like so much of society, seems to be a place where there's things being polarized into two camps. On one camp, there's those who say that not only that any restriction of speech, but any criticism of speech is inappropriate political correctness. And that can't be right. We're taught from a young age what's appropriate and inappropriate to say in various places, and campuses need to teach that as well, even if we're not talking about censorship. And then there are on the other hand those who believe that any speech that makes people uncomfortable should be censored because we need to create a comfortable place for people. Neither of those polar opposites can be the right answer. And I think the reason we decided to write this book is try to say, we have to create an inclusive environment, but it has to be done in a way that's also protective of speech.

[Audience Member] I know you just said that free speech is always on the side of the powerless, but what I'm struggling with as a black female student on this campus is that I don't necessarily feel that the hate speech that feels very directed at me is somehow on my side.

[HG] Mm-hmm (affirmative).

[Audience Member] So my question is, how important do you think counter-messaging on the part of the university to at least reinsure students who do feel marginalized by this speech that we are welcome here and that the university isn't promoting those values by not speaking out against them.

[HG] It's absolutely vital. And one of, we ... This penultimate chapter, where we're saying what to do and what not to do, the culminating point is that campuses have to find their voice. And that the prohibition against censoring on the basis of viewpoint is not a prohibition against articulating your viewpoint. And so there's always tactical decisions about whether this campus leader or another campus leader should speak out with respect to this statement or that statement. And given the demands on me to speak out on a range of issues, I know that I'm not always going to get that right.

But the campus itself does need to articulate its values when people on the campus feel as though they need to know that we are in solidarity with them. And it's also the case that no one should depend just on a chancellor or a vice-chancellor in order to say what our values are. I would certainly fail the community if I didn't speak out as appropriate or to make sure that the campus as an institution was speaking out as appropriate, but even more fundamental, all of us need to come together and speak out when we think it's necessary, and to create that space for doing it.

And my guess is that it doesn't always work in a way that everyone finds satisfactory, but campuses can't avoid the articulation of their values. And so when we had Milo on the campus twice, right? The nice thing is that by the second time, it got a little old and I think he was deeply disappointed that no one cared and no one paid attention. But we made sure that the second time when he came, I don't know if you saw what Thomas Parham wrote in advance of the meeting when he explained that we had to be content-neutral when it came to questions of whether to censor or punish, but not when it comes to articulating our values. And I think he created a very powerful statement for us. So this is not a way of evading the need to articulate a vision of the community that is inclusive and puts us in solidarity with all people of goodwill. And we wouldn't want anyone to assume that, by saying that you can't censor in certain ways, doesn't mean that can evade the responsibilities of finding your voice.

[Audience Member] I was wondering, since it was a little more successful, like, the school wasn't burning down here when Milo came, what we can do to combat organizations like Antifa and others that kind of want to hijack people speaking out against that in a peaceful manner. But then they're going to bring this violence that then everyone kind of gets roped into that, and you get blamed for it. I mean, one thing that was nice is the president of college republicans at Berkeley came out and defended the school and said that-

[HG] Yeah.

[Audience Member] But from our side, what are we ... What can be done in that regard?

[HG] Well, one of the points we do make in the book is that there are a number of ways that you can assault free speech rights. Part of it can come because officials at the university decide that they're going to censor or punish certain views or cancel certain speakers. But the other way that you undermine a culture of free speech on a campus is to also allow other members of the campus community to prevent people on the campus community from exercising their own rights. So we do think that a belief that campuses must be places where all ideas are expressible imposes an obligation on the community to find their voice and resist, as appropriate, speakers that they disagree with, but that doesn't include the right to disrupt the activity any more than it includes the right to disrupt an event like this or our class at 1:00.

It's a very difficult circumstance that Berkeley is facing. It's a rare thing to have 150 extremely well-organized people from outside the campus who want to take advantage of what otherwise was an extraordinary following of people to express their views. It was a beautiful thing to watch until things started burning down and things started getting smashed. And we have, and need to have a commitment on the part of all of the universities in the University of California, not to assume that the way that police are going to manage that is with a heavy hand. But to create the kind of space for inquiry, discovery, and deliberation and debate that you need, you do need to find effective ways to allow everyone to exercise their rights, and it people disagree with what some people are saying, to give them every fair chance to make sure that the entire community knows what their views are as well.

[EC] And there's so much more to say on this topic. So much more for all of us to talk about, and we will. Unfortunately, it can't be right now, since we need to get to go teach our class at 1:00. But, thank you.

[HG] Thanks for taking the time to be here. Thanks so much.

[Narrator] Thank you for joining us for UCI Law Talks, produced by the University of California, Irvine School of Law.