// essays //
Winter 2006
Hatemongers Welcome? The Trouble with Bollinger's Free Speech Standard
David Feith
On Wednesday, September 20, newspaper headlines announced that Columbia University had invited Iranian President Mahmoud Ahmadinejad to speak on campus. Immediately, controversy ensued. The next day, University spokesman Robert Hornsby announced that Ahmadinejad would not be speaking. Security could not be arranged in time, he said, so the speech was a logistical impossibility and would not happen.
Some weeks later, University President Lee Bollinger offered new information. Not mentioning security concerns, Bollinger said that he had turned away Ahmadinejad because he could not be certain that the controversial Iranian President would agree to a question-and-answer session. Bollinger said this meant that the speech could not work "in an academic setting," and therefore was unacceptable for the University.
When the Ahmadinejad invitation first became public, much of campus debate dealt with "free speech." When Bollinger later announced that he had judged Ahmadinejad's speech unfit for campus, though, there was relatively little debate. This could have been a product of the news cycle, for the story was off the front pages by the time Bollinger made his clarifying announcement. But the relative quiet on campus was surprising. Bollinger is a noted First Amendment scholar famous for advocating free speech as the key ingredient in "the tolerant society"—the title of his influential book— we seek. Doesn't he suppress free speech by creating a litmus test based on "academic contribution?" How can Columbia possibly be separated from the tolerant society that champions free speech and openness?
Quite easily, in fact. There is a basic point to recognize when discussing speech issues: The First Amendment does not apply at Columbia. The freedom of speech ensured by the Constitution only applies to the public sphere. As a strict legal matter, Columbia University is a private institution and can therefore limit speech however it chooses within the private sphere it governs. As the University's own Rules of Conduct state, "...as a private institution [the University] is not subject to the Constitutional provisions on free speech and due process of law." Oft-heard appeals to the First Amendment, then, miss the point if they assume that the university is legally unable to limit speech based on content, and is therefore required to allow any and all speakers on campus.
As a private institution, Columbia is responsible for making decisions for itself about free speech on campus with regard to speakers, academic guidelines, or anything else. If a private school imposes speech codes limiting expression—which it is legally allowed to do—it is responsible for the results. And, if it chooses to set no rules about what ideas can be expressed on its campus, it is likewise responsible for the results. Not so for our government. As the Courts have ruled, the government must allow the KKK or Nazis to march in public, and the government is not responsible for the spread of hateful messages because it has no choice but to allow it. But private institutions like Columbia do have a choice, and because the burden lies with the school to make these decisions, it is responsible for the results.
Given that Columbia is responsible for the speech on its campus, it is reasonable to ask what principles, standards, or rules it should set for itself with regard to free expression.
Columbia's commitment to free expression on campus is comparable to the constitutionally-mandated level of the American public sphere. As the University Rules of Conduct state, Columbia seeks "to provide as a matter of University policy the maximum freedom of expression consistent with the rights of others." Despite the caveat at the end, this policy has contributed to a feeling on campus that speech is superlatively free. As one student member of the University Senate said, "This is a private school ... [but] at the same time it usually is a given that a university tries its best to aspire to fall in line with what the Constitution strives to uphold."
Recent events, though, tell us that this is not the case. As Bollinger made clear by putting forward a standard for limiting speech, the University has considerations other than superlative freedom. Though similar to other private entities in its legal freedom to control speech as it pleases, Columbia is unlike a simple homeowner, for example, who commits to following only his own desires with regard to whom he invites into his home. Columbia has interests both in "academic faith" and in "the central principle to which we are institutionally dedicated, namely to respect the rights of others to express their views," as Bollinger wrote this past October. While these two ideas go hand-in-hand in many cases, the dedication to academics brings us to the standard that Bollinger articulated to explain the Ahmadinejad case: could the speech in question "work in an academic setting?"
This is a telling standard. While some on campus criticized the prospect of Ahmadinejad's speech on the grounds that he openly persecutes women and gays and that he advocates the destruction of Israel, it seems that the University deems any speech acceptable as long as it contributes to the community's academic goals.
Such a refusal to limit speech based on content and only to limit speech based on academic relevance has support among students who reasonably fear speech limitations based on content as the beginning of a slippery slope towards oppressive speech control. The Student Affairs Caucus passed a unanimous resolution in October declaring that it "stands behind the principles of free speech on campus, and demands that the Columbia University Community stand firm in our commitment to allow all views to be heard." Given the difficulty of drawing lines regarding acceptable and unacceptable ideas, many people prefer to err on the side of allowing all ideas rather than empowering the University administration with veto authority over expression.
When the debate moves away from abstract concepts like "free speech" and "academic community" to specific cases, though, some people question a policy that promotes any and all ideas on campus. As one student noted at a meeting of the University Senate, "Is everybody allowed to come here? Are we going to be cool if the KKK is stomping through campus?"
It seems, according to the Bollinger standard, that a KKK speech would be acceptable if it "worked in an academic setting." What it means to "work in an academic setting" is not immediately clear. Bollinger hinted at the standard's meaning by saying that Ahmadinejad was rejected on the grounds that he would not agree to questions and answers. Thus, Bollinger implies he would have been satisfied with Ahmadinejad's academic contribution had the Iranian President consented to take questions. Does the same then go for a speech by David Duke, as long as the white supremacist takes questions about why he doesn't think we should all just get along?
Bollinger's standard is a weak one.
As a prestigious, high-profile university, Columbia and its podiums have the potential to affect the public debate for good or for ill. It is our responsibility to think about what messages we want to inject into the debate from our podiums. Looking to history to see what past messages have been injected in the name of academic contribution is instructive.
In the October 26 issue of The Spectator, Dr. Rafael Medoff, the Director of the David S. Wyman Institute for Holocaust Studies, wrote about Ivy League speeches by high-ranking Nazi officials in the 1930's. Harvard hosted German ambassador Hans Luther, Hitler's foreign press chief, and Germany's Boston consul-general; Columbia also hosted Hans Luther. These speeches occurred after Hitler's publication of Mein Kampf, after his rise to power, and when the Nazis had already begun enacting anti-Jewish legislation that culminated with the Nuremburg Laws and the Final Solution. The speeches also probably included questions and answers—but so what?
Hitler's men were undoubtedly seasoned politicians who could handle questions easily, without shedding much light. After all, it was their job. Today, Ahmadinejad, whether with Mike Wallace or in front of the Council on Foreign Relations, is an ace at this job. That an evil man is cued by a question does not lessen the danger of the words in his response. Moreover, one need not donate podiums to dangerous leaders and their causes in order to learn about them. One can find academic value in reading speeches or watching them on television, means that do not further the evil causes in question. It's hard to believe that Harvard and Columbia are proud today that they enabled the spread of Hitler's message by giving podiums to high officials of his regime.
These cases, and Ahmadinejad's in our day, may imply a boundary for campus speech: advocacy of murder. Because campus decisions are made case-by-case, as a common law system, we do not need precise guidelines for all future contingencies. But we do need standards that will guide future decisionmakers. Bollinger has proposed an academic contribution standard as the jumping-off point for future decisions. A better jumping-off point would be an examination of whether the speech in question advocates murder, regardless of the perceived academic contribution.
It's a sickening game to divide the racists and purveyors of hatred around the world into categories of 'acceptable' and 'unacceptable,' but there are degrees of evil that separate even the despicable. Given Ahmadinejad's stated desire to see Israel obliterated and his position of power that may allow him to attempt that very feat, Columbia is responsible for asking itself what enabling role a podium at our university could play in his plans. Though inviting speakers to campus is not necessarily tantamount to condoning their messages, it gives some prestige and respectability to the speaker. Does Columbia want to grant that to Ahmadinejad? Despite his denial of the Nazis' success, Ahmadinejad's goals seem similar to theirs. How does one weigh the academic value of the speech against the political benefit Columbia might be bestowing on the Iranian regime?
The values of free expression and academic openness are hard to overstate. But free speech is not the only principle we hold. Free speech is not free if we voluntarily pay for it by strengthening a cause that is gravely dangerous. What is gravely dangerous? Advocacy of murder may be a good starting point for answering that question. Those who advocate and aspire to murder should not be invited to our campus.
Unfortunately, not even this threshold gives precise guidance for future free speech decisions. At what point does a Columbia podium enable murder? The answer seems to depend on the agency of the speaker in question. Examining speakers' degrees of agency is difficult. Do we equate the agency of all Iranian officials to that of Ahmadinejad, the Head of State? If Ahmadinejad is objectionable, is the Iranian United Nations Ambassador equally so? What of an American professor who speaks in support of the Iranian regime? What of a professor at Tehran University, a school over which the Iranian regime holds power, who favors Ahmadinejad's policies? It is difficult to weigh precisely the value of the speech to the University against the value the University is contributing to the cause of the speaker. It is an exercise in parsing shades of gray. But this does not mean that everyone should be allowed to spread his or her messages on our campus. Some speakers, like Ahmadinejad, do not fall in gray areas, but red zones.
Ultimately, it seems impossible to draw abstract definitions of responsible speech that apply in all cases. It is good, then, that we do not have to. The current common law approach to campus speech questions is sufficient, if guided by appropriate standards. A proper approach can lead to decisions that fall between the potentially irresponsible stance of allowing all speakers, no matter how harmful, and the overreaching stance of imposing speech codes, which give veto power to any offended individual. Caveats such as those in Columbia's Rules of Conduct allow for such common law judgments to be made.
We should be prepared to deal with extreme cases which force us to test our principles, but, thankfully, cases like Ahmadinejad's are unusual. Most figures whose voices may be heard on campus are not as extreme as Ahmadinejad. In these instances, those who extended the invitation—whether the University or an official student group—have the right to hear the speaker speak without being bullied by protestors. Protestors do, though, have a right to criticize and condemn those who take on the responsibility of inviting controversial speakers. It is an exercise in free speech, not an attack on it, to denounce invitations—as long as the denouncers are not acting as thugs. Bollinger's Statement on Freedom of Speech is a valuable guide here: "In a society committed to free speech," he wrote, "there will inevitably be times when speakers use words that anger, provoke and even cause pain. Then, more than ever, we are called on to maintain our courage to confront bad words with better words." In a properly functioning marketplace of ideas, Bollinger implies, the better words will win in the end.
We should bear in mind, though, that this is not a sure thing. Justice Oliver Wendell Holmes wrote in 1919 that the "competition of the market" is an "experiment." He added that "every day we have to wager our salvation upon some prophecy based upon imperfect knowledge." Holmes demonstrates that the American belief in the marketplace of ideas requires faith that this experiment will have positive results in the long term. In the context of a university, perhaps we can call this "Academic Faith." As a responsible entity, Columbia should consider the ideas it promotes in the open market, for reasonable steps must be taken to prevent near-term market failures. As Justice William Rehnquist wrote in 1980, "there is no reason for believing that the marketplace of ideas is free from market imperfections any more than there is to believe that the invisible hand will always lead to optimum economic decisions in the commercial market." It is therefore irresponsible to promote ideas in the marketplace that would, if they gained even momentary ascendancy, destroy the freedom and openness that allowed them to appear in the first place. We have seen that President Bollinger's academic standard seems to wager a lot just for the sake of questions and answers.
Still, Holmes warned that the government should be "eternally vigilant" before curbing expression. Though the Columbia administration does not function as the U.S. government does, it is part of a society made great by its passion for liberties, and Holmes' appeal for caution applies here too. Vigilant responsibility: a virtuous equation for campus speech policy.
Some weeks later, University President Lee Bollinger offered new information. Not mentioning security concerns, Bollinger said that he had turned away Ahmadinejad because he could not be certain that the controversial Iranian President would agree to a question-and-answer session. Bollinger said this meant that the speech could not work "in an academic setting," and therefore was unacceptable for the University.
When the Ahmadinejad invitation first became public, much of campus debate dealt with "free speech." When Bollinger later announced that he had judged Ahmadinejad's speech unfit for campus, though, there was relatively little debate. This could have been a product of the news cycle, for the story was off the front pages by the time Bollinger made his clarifying announcement. But the relative quiet on campus was surprising. Bollinger is a noted First Amendment scholar famous for advocating free speech as the key ingredient in "the tolerant society"—the title of his influential book— we seek. Doesn't he suppress free speech by creating a litmus test based on "academic contribution?" How can Columbia possibly be separated from the tolerant society that champions free speech and openness?
Quite easily, in fact. There is a basic point to recognize when discussing speech issues: The First Amendment does not apply at Columbia. The freedom of speech ensured by the Constitution only applies to the public sphere. As a strict legal matter, Columbia University is a private institution and can therefore limit speech however it chooses within the private sphere it governs. As the University's own Rules of Conduct state, "...as a private institution [the University] is not subject to the Constitutional provisions on free speech and due process of law." Oft-heard appeals to the First Amendment, then, miss the point if they assume that the university is legally unable to limit speech based on content, and is therefore required to allow any and all speakers on campus.
As a private institution, Columbia is responsible for making decisions for itself about free speech on campus with regard to speakers, academic guidelines, or anything else. If a private school imposes speech codes limiting expression—which it is legally allowed to do—it is responsible for the results. And, if it chooses to set no rules about what ideas can be expressed on its campus, it is likewise responsible for the results. Not so for our government. As the Courts have ruled, the government must allow the KKK or Nazis to march in public, and the government is not responsible for the spread of hateful messages because it has no choice but to allow it. But private institutions like Columbia do have a choice, and because the burden lies with the school to make these decisions, it is responsible for the results.
Given that Columbia is responsible for the speech on its campus, it is reasonable to ask what principles, standards, or rules it should set for itself with regard to free expression.
Columbia's commitment to free expression on campus is comparable to the constitutionally-mandated level of the American public sphere. As the University Rules of Conduct state, Columbia seeks "to provide as a matter of University policy the maximum freedom of expression consistent with the rights of others." Despite the caveat at the end, this policy has contributed to a feeling on campus that speech is superlatively free. As one student member of the University Senate said, "This is a private school ... [but] at the same time it usually is a given that a university tries its best to aspire to fall in line with what the Constitution strives to uphold."
Recent events, though, tell us that this is not the case. As Bollinger made clear by putting forward a standard for limiting speech, the University has considerations other than superlative freedom. Though similar to other private entities in its legal freedom to control speech as it pleases, Columbia is unlike a simple homeowner, for example, who commits to following only his own desires with regard to whom he invites into his home. Columbia has interests both in "academic faith" and in "the central principle to which we are institutionally dedicated, namely to respect the rights of others to express their views," as Bollinger wrote this past October. While these two ideas go hand-in-hand in many cases, the dedication to academics brings us to the standard that Bollinger articulated to explain the Ahmadinejad case: could the speech in question "work in an academic setting?"
This is a telling standard. While some on campus criticized the prospect of Ahmadinejad's speech on the grounds that he openly persecutes women and gays and that he advocates the destruction of Israel, it seems that the University deems any speech acceptable as long as it contributes to the community's academic goals.
Such a refusal to limit speech based on content and only to limit speech based on academic relevance has support among students who reasonably fear speech limitations based on content as the beginning of a slippery slope towards oppressive speech control. The Student Affairs Caucus passed a unanimous resolution in October declaring that it "stands behind the principles of free speech on campus, and demands that the Columbia University Community stand firm in our commitment to allow all views to be heard." Given the difficulty of drawing lines regarding acceptable and unacceptable ideas, many people prefer to err on the side of allowing all ideas rather than empowering the University administration with veto authority over expression.
When the debate moves away from abstract concepts like "free speech" and "academic community" to specific cases, though, some people question a policy that promotes any and all ideas on campus. As one student noted at a meeting of the University Senate, "Is everybody allowed to come here? Are we going to be cool if the KKK is stomping through campus?"
It seems, according to the Bollinger standard, that a KKK speech would be acceptable if it "worked in an academic setting." What it means to "work in an academic setting" is not immediately clear. Bollinger hinted at the standard's meaning by saying that Ahmadinejad was rejected on the grounds that he would not agree to questions and answers. Thus, Bollinger implies he would have been satisfied with Ahmadinejad's academic contribution had the Iranian President consented to take questions. Does the same then go for a speech by David Duke, as long as the white supremacist takes questions about why he doesn't think we should all just get along?
Bollinger's standard is a weak one.
As a prestigious, high-profile university, Columbia and its podiums have the potential to affect the public debate for good or for ill. It is our responsibility to think about what messages we want to inject into the debate from our podiums. Looking to history to see what past messages have been injected in the name of academic contribution is instructive.
In the October 26 issue of The Spectator, Dr. Rafael Medoff, the Director of the David S. Wyman Institute for Holocaust Studies, wrote about Ivy League speeches by high-ranking Nazi officials in the 1930's. Harvard hosted German ambassador Hans Luther, Hitler's foreign press chief, and Germany's Boston consul-general; Columbia also hosted Hans Luther. These speeches occurred after Hitler's publication of Mein Kampf, after his rise to power, and when the Nazis had already begun enacting anti-Jewish legislation that culminated with the Nuremburg Laws and the Final Solution. The speeches also probably included questions and answers—but so what?
Hitler's men were undoubtedly seasoned politicians who could handle questions easily, without shedding much light. After all, it was their job. Today, Ahmadinejad, whether with Mike Wallace or in front of the Council on Foreign Relations, is an ace at this job. That an evil man is cued by a question does not lessen the danger of the words in his response. Moreover, one need not donate podiums to dangerous leaders and their causes in order to learn about them. One can find academic value in reading speeches or watching them on television, means that do not further the evil causes in question. It's hard to believe that Harvard and Columbia are proud today that they enabled the spread of Hitler's message by giving podiums to high officials of his regime.
These cases, and Ahmadinejad's in our day, may imply a boundary for campus speech: advocacy of murder. Because campus decisions are made case-by-case, as a common law system, we do not need precise guidelines for all future contingencies. But we do need standards that will guide future decisionmakers. Bollinger has proposed an academic contribution standard as the jumping-off point for future decisions. A better jumping-off point would be an examination of whether the speech in question advocates murder, regardless of the perceived academic contribution.
It's a sickening game to divide the racists and purveyors of hatred around the world into categories of 'acceptable' and 'unacceptable,' but there are degrees of evil that separate even the despicable. Given Ahmadinejad's stated desire to see Israel obliterated and his position of power that may allow him to attempt that very feat, Columbia is responsible for asking itself what enabling role a podium at our university could play in his plans. Though inviting speakers to campus is not necessarily tantamount to condoning their messages, it gives some prestige and respectability to the speaker. Does Columbia want to grant that to Ahmadinejad? Despite his denial of the Nazis' success, Ahmadinejad's goals seem similar to theirs. How does one weigh the academic value of the speech against the political benefit Columbia might be bestowing on the Iranian regime?
The values of free expression and academic openness are hard to overstate. But free speech is not the only principle we hold. Free speech is not free if we voluntarily pay for it by strengthening a cause that is gravely dangerous. What is gravely dangerous? Advocacy of murder may be a good starting point for answering that question. Those who advocate and aspire to murder should not be invited to our campus.
Unfortunately, not even this threshold gives precise guidance for future free speech decisions. At what point does a Columbia podium enable murder? The answer seems to depend on the agency of the speaker in question. Examining speakers' degrees of agency is difficult. Do we equate the agency of all Iranian officials to that of Ahmadinejad, the Head of State? If Ahmadinejad is objectionable, is the Iranian United Nations Ambassador equally so? What of an American professor who speaks in support of the Iranian regime? What of a professor at Tehran University, a school over which the Iranian regime holds power, who favors Ahmadinejad's policies? It is difficult to weigh precisely the value of the speech to the University against the value the University is contributing to the cause of the speaker. It is an exercise in parsing shades of gray. But this does not mean that everyone should be allowed to spread his or her messages on our campus. Some speakers, like Ahmadinejad, do not fall in gray areas, but red zones.
Ultimately, it seems impossible to draw abstract definitions of responsible speech that apply in all cases. It is good, then, that we do not have to. The current common law approach to campus speech questions is sufficient, if guided by appropriate standards. A proper approach can lead to decisions that fall between the potentially irresponsible stance of allowing all speakers, no matter how harmful, and the overreaching stance of imposing speech codes, which give veto power to any offended individual. Caveats such as those in Columbia's Rules of Conduct allow for such common law judgments to be made.
We should be prepared to deal with extreme cases which force us to test our principles, but, thankfully, cases like Ahmadinejad's are unusual. Most figures whose voices may be heard on campus are not as extreme as Ahmadinejad. In these instances, those who extended the invitation—whether the University or an official student group—have the right to hear the speaker speak without being bullied by protestors. Protestors do, though, have a right to criticize and condemn those who take on the responsibility of inviting controversial speakers. It is an exercise in free speech, not an attack on it, to denounce invitations—as long as the denouncers are not acting as thugs. Bollinger's Statement on Freedom of Speech is a valuable guide here: "In a society committed to free speech," he wrote, "there will inevitably be times when speakers use words that anger, provoke and even cause pain. Then, more than ever, we are called on to maintain our courage to confront bad words with better words." In a properly functioning marketplace of ideas, Bollinger implies, the better words will win in the end.
We should bear in mind, though, that this is not a sure thing. Justice Oliver Wendell Holmes wrote in 1919 that the "competition of the market" is an "experiment." He added that "every day we have to wager our salvation upon some prophecy based upon imperfect knowledge." Holmes demonstrates that the American belief in the marketplace of ideas requires faith that this experiment will have positive results in the long term. In the context of a university, perhaps we can call this "Academic Faith." As a responsible entity, Columbia should consider the ideas it promotes in the open market, for reasonable steps must be taken to prevent near-term market failures. As Justice William Rehnquist wrote in 1980, "there is no reason for believing that the marketplace of ideas is free from market imperfections any more than there is to believe that the invisible hand will always lead to optimum economic decisions in the commercial market." It is therefore irresponsible to promote ideas in the marketplace that would, if they gained even momentary ascendancy, destroy the freedom and openness that allowed them to appear in the first place. We have seen that President Bollinger's academic standard seems to wager a lot just for the sake of questions and answers.
Still, Holmes warned that the government should be "eternally vigilant" before curbing expression. Though the Columbia administration does not function as the U.S. government does, it is part of a society made great by its passion for liberties, and Holmes' appeal for caution applies here too. Vigilant responsibility: a virtuous equation for campus speech policy.