Free Speech on Campus

SUPPLEMENTARY RESOURCES

Chicago Principles

Kalven Report

A transcript of the full episode is available below. Please excuse typos due to inaudible passages or transcription errors.

David Levi: Hello I'm David Levi, president of The American Law Institute, and this is Reasonably Speaking, a podcast of the ALI. I am so fortunate today to be in conversation with one of our most distinguished members, Professor Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. He was previously provost to the university and dean of the law school.

We will be talking about the difficult topic of free speech on campus, and there is no one better to discuss this topic with than Professor Stone. He has written numerous books and articles on free speech. He was chair of the Freedom of Expression Committee of the University of Chicago, appointed in 2014 by the president of the university to draft a statement articulating the university’s overarching commitment to free, robust, and uninhibited debate and deliberation among all members of the university’s community. The report, variously known as the Chicago Statement or the Chicago Principles, has had significant influence, not just at Chicago but in many other universities and colleges. This topic has been a pressing one for the past few years and now, once again, is front and center. Geof, welcome to Reasonably Speaking.

Geoffrey Stone: Thank you.

Levi: It’s such a pleasure to have you.

Stone: I’m delighted to be here. As you know, of course I have the Edward H. Levi Distinguished Professorship, which is your dad.

Levi: Yes, indeed.

Stone: That’s something I’m very proud of.

Levi: Yes. Well, I was able to pronounce the last name correctly. We think it’s correct. Did you overlap? Were you the Edward Levi Professor while he was still alive?

Stone: No.

Levi: Okay. Well, he would’ve been very proud because he had a lot of respect and affection for you.

Stone: Yes. Well, likewise. He was wonderful. Amazing man.

Levi: Yes, he was. I’ve hinted at the University of Chicago’s unique history in defending First Amendment principles on campus. I really think the university is a standout among other universities for the job it’s done on this. And you’ve been an important part of that history, as have several others. Can you talk about that history for us and how you got up to the Chicago Principles and then where we are today, at least in Chicago?

Stone: Well, from its very founding, the University of Chicago has been committed to free, open discourse and to academic freedom. That was quite clear by statements from early presidents, including William Rainey Harper, who declared that the university is dedicated to the protection of free speech and ideas that are to be combated and discussed and debated. And that’s fundamental. Now, what’s important to understand is that was not the norm in the first half of the 19th century and even into the middle and late 19th century because at most universities, the idea was that our job is to teach you what is right. And that was very much the norm of university and college culture. And it was really only Darwin and the evolution issue that began to call that into question. But Chicago, from its very founding, made very clear that it’s dedicated to that, is a central commitment of the university. And it’s been true to that ever since.

One story that I like that illustrates this is in the 1930s when communism was becoming increasingly debated as a negative thing and not allowed, almost all universities prohibited any speaker who would advocate communism or any student organization that would advocate communism. But Chicago at that time had a student organization that advocated and believed in communism, and they invited to the campus William Foster, who was the leader of the American Communist Party. And this led to a widespread protest around the city, around the state, and even around the country. And the president of the university allowed him to come. And he did come and gave a speech. And thereafter, the state of Illinois legislature summoned him to come down—this is Robert Maynard Hutchins—to come down to testify before a hearing about how he could possibly have done that. And some 3,000 students from Chicago came down to Springfield and marched in support of Hutchins. And that just exemplifies the kind of commitment that the university has had from the very beginning.

The Kalven Report, as you mentioned, was adopted in 1967. Harry Kalven was one of the nation’s leading First Amendment scholars. He was actually the person who taught me the First Amendment when I was a student, and he was a colleague of mine for a short time. And he was asked to draft a report in 1967 that addressed the question of whether the university should take positions on public issues. This was, again, during the Vietnam War and there was a lot of pressure being put on universities to condemn the war, particularly by students.

And the report basically says that the University of Chicago does not take positions as an institution. Its goal is to create an environment in which faculty, students, and others can debate and discuss issues and not tell them what the right answer is. And that has been, again, a central element of the university’s culture at Chicago ever since then. Now, the university has not taken positions on public issues and basically said, “This is not for us to say because if we say this, then that’s going to silence faculty and students who disagree.” The idea is to encourage that disagreement and have free and open debate.

Levi: The Chicago Principles, is that an elaboration of the Kalven Report? Or how does it differ?

Stone: The Chicago Principles were slightly different issues. In 2014, University of Chicago President Robert Zimmer, appointed a committee that I chaired and asked us to draft a proposal report that was adopted that talks about the university’s commitment to free speech, not so much university itself speaking, but the university allowing and encouraging free speech on campus by students and faculty and others. And that had always been a tradition, but we didn’t have a formal statement that articulated that. And as I said, I chaired that committee, and we wrote a relatively short report that essentially said that free speech on campus by students, by faculty, by guest speakers, by others is essential to the goals and values of the university and that they should be free to do this in almost all circumstances. And that although there can be some regulations obviously, that fundamentally the goal is to allow students in particular to invite speakers and to speak themselves and to debate issues, however controversial and provocative they may be.

And it did recognize that there are some circumstances where speech can be restricted—time, place and manner rules and so on like that. But basically, it adopted a very strong First Amendment oriented approach to free speech on campus. And it’s since been adopted by about 100 other colleges and universities, which is amazing. That was not our goal. We wrote it explicitly just for us. And indeed, the first half of it talked about the history of university free speech, and then other universities figured out they could lop off the first half of the report and then simply adopt the second half. And it basically takes a very strong position on the rights of faculty and students to say what they want, and also says there are circumstances where speech can be limited, but they’re very narrow. And this is essential to the university.

Levi: That’s so interesting. With the two reports—the Kalven Report and then the Chicago Principles—you cover most of the landscape of what comes up or what has been so controversial. But my sense from what you just said is that maybe the Chicago Principles have been more influential than the Kalven Report because, at least I get the impression that, universities are taking positions, or at least their presidents are, on a multitude of, I would say, topical matters, from political topics to earthquakes to all sorts of things. They’re constantly expressing what they would say are the values of the university in relation to this event.

Stone: Right. And again, that clearly would violate the Kalven Report insofar as they’re speaking for the university as opposed for themself as an individual. And yes, the Kalven Report has not been adopted nearly as widely as the free speech principles, and part of the reason for that is that it basically says that universities can’t take positions; and universities want to take positions. But the problem with that, which the Kalven Report fully addresses, is that it has a very powerful chilling effect on the willingness of students and faculty and others to take a different position. And that’s not consistent with the goals and values of the university.

Levi: Yes, that’s interesting. Well, okay, that’s a little warmup, a little Chicago warmup, but why don’t we just leap right into it, what’s on everybody’s mind. We’ve seen in the past month or so three prominent, very prominent, university presidents from Penn, Harvard, and MIT were called to testify before Congress. This was on December 8, 2023. And Congresswoman Stefanik asked if calling for the genocide of Jews would violate their university’s code of conduct or rules regarding bullying and harassment.

And although their answers were somewhat different, the presidents said, in sum, that calling for the genocide of Jews might violate the university’s code of conduct but depended on the context. And by context, it appears that the presidents meant whether the statement was targeted at an individual, whether the speech was so pervasive and severe as to amount to harassment, and whether the speech in some sense became conduct by crossing into intimidation, bullying or harassment or perhaps threat, a threat of violence. And it seems that the presidents were trying to summarize what they took to be the First Amendment law regarding speech on campus or maybe speech in other public forums. Putting aside whether treating the question is one that called for a First Amendment answer, did they get the First Amendment right? Was that a fair statement of what First Amendment law is in this context?

Stone: Well, I think a right answer to that question would be to say that a university or any other government entity created under the First Amendment, prohibits harassment or threats. But that basically means one-on-one situations; it doesn't mean public discourse. And therefore, if somebody goes to another person and says, “If you don’t support my organization, I’m going to punch you,” that would obviously be a threat that would be punishable, even consistent with the First Amendment and the Chicago Principles. And harassment would be basically continuing to follow someone around and arguing with them and telling them they’re wrong over and over and over again. And that also could be restricted as inappropriate behavior.

They’re right to say that there are certain types of threats and harassment and bullying that could be restricted, consistent with the First Amendment, but the question is what does that mean in this context? And the clear answer to that is it does not include public discourse, and therefore they should have been more definitive about saying that what people are upset about, for the most part, are these public statements and protests. And those are not harassment or bullying or even threats to any particular individual. They’re right to say that threats and harassment can be restricted, but they’ve left a little ambiguity there in terms of what exactly that meant by a threat and harassment.

Levi: The Congresswoman said, “It’s a yes or no. I want a yes or no.” And you could say, “Yes, but,” or you could say, “No, but,” or “Yes. May I explain?”, or “No. May I explain?”. But it sounds like your thought would be “no,” not in that context, although that was not the answer the congresswoman was looking for.

Well, with that in mind, let’s say one of those presidents had come to you and said, “Look, you’re the First Amendment expert, and you’ve also been a provost and dean of a law school, and I’m anticipating an ambush on the First Amendment. And I’d like to keep my job. What advice can you give me? How should I handle this, what I am expecting to be a very provocative question?”

Stone: Well, the advice I would give in terms of fulfilling the values of a university would be to say that public discourse of this sort may be disturbing, it may be upsetting to many people, but that’s part of free speech. And the Civil Rights Movement was like that, the anti-war movement was like that during Vietnam. There’s lots of speech that is controversial and provocative. The anti and pro-abortion movements were like that; they have upset people. You can’t prohibit that speech just because it upsets people. And what you need to do as a university is inculcate in your students and faculty the values of free speech and academic freedom. Why it is that we allow ideas to be expressed that you may hate, that you may be offended by, because if we don’t do that, then ideas you have can later be suppressed. And therefore, I think the important part here is to make students and faculty understand, first of all, that that kind of openness is essential to the values and aspirations of university, and second, that it’ll come back and haunt them later. It’s a two-way street.

Levi: I think somehow, we need to do a better job of this. I think people need to understand that just because somebody is speaking at a university that they don’t carry the imprimatur. The university is not vouching for the substance of their speech. We need to do a better job of that. I don’t know whether that would be a physical response like the university should say, “Okay, well we have a Hyde Park corner here where kind of anything goes and it’s not special. Everybody can have access, they just have to sign up.” But I’m also concerned about the public. It just seems like reflecting on that hearing that it’s a difficult... The person that undertakes to defend the First Amendment from withering attack has a difficult brief to carry. Do you have thoughts on that?

Stone: Well, I think that’s true, it is challenging, and particularly with somebody who’s questioning you who will cut you off if she doesn’t like what you’re saying so you can't even give a full explanation. But I do think that it’s fundamentally important for universities to make clear that they do not, and should not, prohibit speech because it is offensive to others. That’s a core principle of the First Amendment. Now, of course the universities involved here were private universities, so they’re not governed by the First Amendment, but they should follow the same principle in this respect and say that the fact that this upsets people and angers people... The Civil Rights Movement infuriated people in the south, and anti-abortion protests or pro-abortion protests infuriate people; you don't suppress speech for that reason. And that’s critical in the university.

Levi: Bullying and harassment can be discrimination under Title VI and Title IX. And so we have the First Amendment. Private universities aren’t governed by it, although some private universities are governed by state laws that apply the First Amendment to them. That’s true in California, the Leonard Act. But you’ve got this tension, I think, between bullying and harassment and free speech. Can you explain this framework?

Stone: Well, the basic assumption is that bullying and harassment are not protected by the First Amendment or by university speech policies, but they’re defined relatively narrowly. And public discourse does not constitute either of those. And therefore, I think the reality is that, again, if somebody goes to another person and says, “If you don't do what I want you to do, I’m going shoot you,” then that’s a threat, and it’s harassment, and it's bullying, and so on. And that could be restricted. But public discourse is not understood and should not be understood as bullying or harassment within the meaning of either the First Amendment or the federal laws.

Levi: There’s going to be some gray areas there. There are many times where people may sense a threat or they may sense that they’re being discriminated against or bullied even though they’re in a public forum or around a lot of people, and it is what you would call public discourse, but they perceive it as personal to them.

Stone: Well, the problem with that is if you allow suppression of speech because someone says, “I perceive that speech as threatening to me or as harassment,” then that simply invites people to say, “That speech that I don’t like, I perceived as threatening or I perceived as harassment.” And that would give potentially very little protection to free speech of that sort. And so one of the reasons why these concepts are defined fairly narrowly, particularly from a First Amendment perspective, is that if you define them broadly, they will essentially allow people who don’t like what you’re saying to accuse you of these things. And that’s not what we want to do. That’s not an acceptable thing. Basically, harassments and threats and so on have to be pretty explicit in order to be deemed harassment and threats or bullying. And typically, they are one-on-one, not public speech that is upsetting to people.

Levi: At the hearing when I think one of the presidents said something like, “Well, if it’s directed at an individual,” Congresswoman Stefanik said, “Well, it’s directed at Jewish individuals.” And so she said, “Why does it need just to be one person? If it’s many people or several people, wouldn’t it have the same impact on them if you’re calling for their murder?”

Stone: Well, if somebody says, “If you don’t change your laws, we’re going to overthrow the government,” that’s protected speech, even though one could perceive it as a threat. And again, the problem here is finding the right line between allowing free speech, aggressive free speech, and protecting individuals. And what the Court has done over the past century is to realize that you need to give broad protection to free speech in order to enable it to exist in a robust manner. And if you allow it to be restricted by somebody saying, “I feel threatened,” then all sorts of speech could be prohibited. And that’s just not an acceptable way of doing things. Now, if the speaker says, “If any of you Jews don’t do what I want you to do, then we will come and get you,” that would be a complicated question. That would be an explicit threat and it would be a complicated question but insofar as nothing that I saw that was said constituted a threat of that sort.

Levi: And then we have cases on this. We had the cross burning case. It was on a particular family’s lawn. And the Court analyzed it in that way. Well, when you’re on campus, there are certain things that people talk about that don’t necessarily fit into this framework. One is hate speech. What is hate speech? How does that figure in?

Stone: Well, hate speech does not exist as a concept under the First Amendment. The Supreme Court has, without a single exception, unanimously held that something called hate speech, whatever it is, is not unprotected by the First Amendment. And the reason they say that is several fold. First, because there’s not historically been a concept of hate speech, unlike, say, obscenity or libel or commercial advertising, which has been routinely regulated over a long period of time. And second, it’s incredibly ambiguous. And how do you define what hate speech is? And which statements are or not hate speech? Would be unbelievably complicated. And so the Supreme Court, without a single exception whether conservative or liberal, has taken the view that there is no concept of hate speech within the doctrine of the First Amendment. It would simply be too problematic.

And that, to me, seems to be a sensible approach because if you had a doctrine of hate speech, you then have to figure out what is hate speech? In which situation is it hate speech? And if someone says, “I think that Republicans are stupid,” is that hate speech? And so there’s no end to it. And again, the Court’s view on this, I think correctly, is that this is simply not a concept that we want to get into. It’s simply too vague, too ambiguous, and opens itself up to too much abuse by courts and by prosecutors and by universities in defining what it is, but it has no remotely clear definition.

Levi: You hear a lot about it, though, on campus. And a lot of people talk about hateful speech or speech expressing hateful ideas and that sort of thing. What about safe spaces? Students—I don’t know that they do this quite so much as they used to—but they used to talk about their need for safe spaces. How does that figure in? Do you get a safe space on a university campus?

Stone: I think that would be permissible if it were for a group. And so I think that if there’s a group of people who have a sense that they need to be able to talk to one another in confidence and in private, that a university can create a safe space for them not based on the particular viewpoint that they’re expressing, but on some other basis. I don't think that would be deemed unconstitutional because it’s not restricting anyone else's speech.

Levi: Right. What about a classroom? The classroom tends not to be a very safe space, or maybe you don’t agree with that. I don’t know. What do you—

Stone: No, I think that’s true. The basic principles of free speech, the broad and open and free concept of being able to express views, is basically about public speech. And in a classroom, for example, the rules can be different. Even at the University of Chicago, if a student in a classroom insists on talking about Israel in a class on physics, they could be told, “No, this is not what this class is about. Stop talking about that.” And if they refuse to do that, they could be punished for that. Or a professor who does the same thing and insists on talking about something outside the boundaries of the subject of the course could be punished for that. Inside the classroom, there are regulations that are appropriate to deal with the purpose of the classroom.

Now, what’s important is those are not based on viewpoint, those are not regulations that prohibit certain points of view rather than others. It just says that in the classroom you have to talk about what the subject of the course is. And the more complicated question comes in about, say, insults in the classroom or the use of offensive words in the classroom. And that would be a question where I think universities probably can regulate that if it’s done as an insult to a particular student. But if they use the word in a context relevant to the course that they’re teaching and the materials they’re teaching, then I think that would be regarded as completely appropriate.

Levi: I think the way that would come up, or has come up, is it’s not so much that a faculty member would use a derogatory term addressing a student but they would mispronounce their name, the student’s name, or they would call one student by another student’s name, something like that, a brain sort of thing. This is very upsetting to some students when this happens, I recall this. And I guess the university just deals with that as a matter of good teaching.

Stone: Yeah, I’m assuming the professor didn’t do that intentionally. The truth is there are lots of students whose names are difficult to pronounce. At Chicago, we get sent a list of the names of our students and the pronunciation, so that helps avoid the problem, although it’s not perfect. And that never used to happen before. That’s a recent phenomenon in order to be respectful. And calling a student by the wrong name, I’ve done that sometimes because I misunderstood where they were sitting in the class. I’ve known their name actually, but I thought they were sitting in seat three rather than seat four, and so I called on a student. But those things are just accidental. And I think you want faculty to be responsible in those regards, but unless it’s being done intentionally or repeatedly, I think you would say that this is something that professors have to try to do right to be effective.

Levi: Justices O’Connor and Ginsburg had these T-shirts, one said, “I’m Ruth, she’s Sandra.” The other one said, “I’m Sandra, she’s Ruth.” The two didn’t look remotely alike, but they were both women. And they were the only women for a time on the Court, and so people would just misspeak. But that does happen in the classroom. What we’re actually talking about is the difference maybe between academic freedom and freedom of speech. And they are somewhat different, aren’t they?

Stone: Well, that depends on whose definition of academic freedom you support. Basically, Chicago’s views on this are very similar to the First Amendment in terms of the basic principles. Academic freedom, I think, should be that. But again, it’s true that in the university setting there are limitations that are appropriate. We grade students’ exams. That’s penalizing them for bad speech, for bad thoughts. We deny people tenure because we think their ideas are not persuasive. Those are obviously arguably, quote, “violations” of freedom of speech. But in the university setting, they’re clearly not.

And so my own view is that academic freedom and the guarantees of the First Amendment in the context of universities should be pretty similar. Now, that’s not to say that the Supreme Court is perfect. And universities can do better when they understand more fully what it is that they are attempting to achieve. A private university doesn’t have to abide by the First Amendment. It’s perfectly free to adopt policies that are completely incompatible with the First Amendment if they think that's the best way to have an educational system. They could say, for example, that no one can argue that abortion is moral. Now, a public university couldn't do that, but a private university can do whatever it pleases, at least in that respect. But the aspiration that private universities, in my view, like Chicago, should be to at least meet the expectations of the First Amendment and, when necessary, to exceed them.

Levi: It seems to be the case that virtually all of at least the major private universities govern themselves by the First Amendment or what they would call First Amendment principles. But probably not all private universities take that view, because you might have a religious college where conformity to certain faith, principles might be important to the community; it's a bit like what you were saying before. I imagine there’s quite a bit of variation, actually, around the country.

Stone: There are institutions that have a reason for being that leads them to think certain perspectives should be presented and not presented. And as long as they’re private, they can do that.

Levi: Suppose as part of its DEI commitments, the university develops a code of conduct that forbids bigotry or racism and says that things that promote bigotry or racism are at odds with the fundamental values of the university. And therefore, what happens to bigoted or racist speech? Does that violate then the university’s code of conduct?

Stone: Well, that depends, of course, on whether it’s a public or private university and it depends on what they adopt as their code of conduct. But if they’re trying to be viewpoint neutral across the board and to say that, “It is not for us to say certain points of view are right or wrong and not for us to punish certain points of view as right or wrong,” or if they’re a public university and subject to the First Amendment, then I think that one has to be careful about how one implements this.

There is a reality on campuses and in society generally, of course, in which minority groups and women have been discriminated against for a long time and can be made to feel especially uncomfortable when certain things are said about them or about their category. And universities should encourage people to be conscious of that and not to be irresponsibly insulting or reckless. Not to punish them for it, but that’s part of the education process. That’s part of the academic freedom point is you want people to be responsible citizens, even if you won’t punish them for having done these things.

In terms of DEI, my sense is to the extent it is used to punish students or faculty for saying things that upset minority students or faculty or women students or faculty or whatever, I think that’s not consistent with the First Amendment or with the ultimate values of the university, but educating people about this is. And that, I think, is the appropriate way of addressing this question. Now, that’s not to say that there aren’t examples of DEI behavior that aren’t about speech that can be restricted, but in terms of speech, I think the reality is that universities should not be punishing such speech unless it’s a threat literally. But basically, I think this is a matter of free speech. But again, you want to educate people for what’s an effective and appropriate way to do things.

Levi: Let’s suppose that one student made an antisemitic remark to another student who was Jewish. That’s my hypothetical. And the recipient of this comment believes that it violates the university’s code of conduct and DEI principles. That’s one part of the hypothetical. Let’s suppose we were in a courtroom and one lawyer in the heat of battle made an antisemitic comment to opposing counsel. I could imagine a judge sanctioning that lawyer right there on the spot because it violates the standards of civility that we maintain in our courts. You might end up paying a fine or you might be told to sit down, any number of things, but it would be dealt with.

Stone: That’s simply inappropriate behavior in the classroom by the employee of the university in a professional context, especially if it’s not directly relevant to the material that’s being taught, so I think that would be appropriate. But in terms of outside the classroom interactions, basically I think that’s where free speech applies. And calling someone by a nasty name may be inappropriate, but once you open the door to that, you then have to ask, “Well, what names fall within this?” And do you have to call face-to-face to a person or just say it out loud or say it to a group of people? And we all agree that using those kinds of words is insulting, but it’s also, by the way, a way of being, I hate to say this, but effective. It’s a way of expressing one’s views if that’s what you really feel in a way that is in fact powerful. And you don’t want to take that away from people.

Levi: I think what it would be more likely to be would be a statement that “you people do X,” or “you people are characterized by this trait, this negative trait, no matter who you're talking to.” Or, you might make a comment, actually, that “only on reflection do you realize that it was stereotyping in some way and had a stereotype at its space or an assumption.” What about that?

Stone: I think the proper response is to disagree and to explain why you disagree and why you think that person is wrong and is being unfair and being sexist or racist or whatever, but not to punish the person for making the statement, which is a statement that is a potential belief.

Levi: Yep. Okay, let’s take some real examples. Some of these probably aren’t too hard for you. But stuff’s been happening around the country. I’m a Stanford Law graduate, and I’m very aware that a United States Court of Appeals judge was invited by the local student chapter of the Federalist Society to come and speak on a particular topic. The topic was the way in which cases during the COVID period had been going from the Court of Appeals up to the Supreme Court and back again. But he was viewed—as a judge and as a lawyer before he became a judge—as someone who was hostile to the rights of LGBTQ people and to others, and therefore their students showed up in the classroom where he was speaking and heckled him so much that he had to stop speaking. That’s a pretty classic kind of interaction that happens unfortunately from time to time. How do you analyze that?

Stone: Well, as the Chicago Principles say, “Students or faculty are not permitted or can be punished for impairing the ability of individuals to have a discussion that is dedicated to a particular issue,” and therefore you can protest what you think this person, the speaker, has done, but not in a way that interferes with the speaking event itself. And again, this is a content-neutral rule. It applies regardless of what side of the debate you’re on and what position you have relative to the other person. It simply says that students in this instance may not heckle or interrupt an event as it takes place in a way that prevents the event to work as it’s intended to do. They can protest it as long as they don’t do so in a way that undermines the ability of those who want to have this talk to have it.

Levi: That’s the controversial speaker. Now let’s take up the student demonstration on campus. Students are carrying signs with slogans that call for the abolition of the state of Israel. And I understand from news reports, they may not be entirely accurate, but this is what I understood, but treat it as quasi hypothetical. At Harvard, a demonstration of this sort occurs in the main reading room of Widener Library, the main library on campus, but it occurs quietly. People have signs on their laptops and they put a banner up on the wall to this effect. And Jewish students say that they feel threatened, they feel unsafe or unwanted going into the reading room and using it in the normal way.

Stone: Well, universities, a reading room is not a public space in the sense that main quadrangles would be, and therefore, just as with government action where the government can say, “You can’t engage in various types of speech,” as long as it’s content neutral in all sorts of places. And here, I think it would be perfectly reasonable for the university to say that students may not engage in expressive activity in the reading room that would interfere with the ability of students to do their work regardless of the message being communicated. It doesn’t matter whether it’s pro-Israel, anti-Israel, whatever. That, I think, would be perfectly appropriate. If they generally allowed students to do these things, to protest in the reading group, which is unlikely, and they only picked out this one, then I think, again, it would be a viewpoint-based rule and should not be permissible. But there’s a better way to solve the problem, which is just to say you can’t have these kinds of demonstrations in a library or reading room or whatever, regardless of what the message is.

Levi: It’s probably the case that you don’t want people engaging in distracting conduct in a library reading room. You’re not supposed to talk. At least in the old days, you didn’t talk in a reading room, you left if you had to have a conversation.

Stone: Once you go down that road, again, the problem is that you have to decide which speech, which messages are okay and which ones are not okay. And the possibilities are endless. You could have, again, anti-abortion, pro-abortion, anti-affirmative action, pro-affirmative action, racist speech, sexist speech, speech attacks whites or attacks Blacks. You don't want to be in that business. And therefore, I think neutral rules are fine, but you don’t want to draw distinctions based upon the message being communicated.

Levi: Of course. Okay, now let’s take the case of interactions within a school or a classroom. And I picked these up, again, from newspaper accounts, so they may not be perfectly accurate. A student tells her dean, who is Jewish, that what would make her feel safe in the school would be to, quote, “Get rid of the Zionists.” And a professor at a university tweets in celebration of the Hamas attack, “It’s been an extraordinary day,” and that Israel is a, quote, “Murderous, genocidal settler state.”

Stone: They’re free speech rights. I think they can say those things because, again, if you say they can’t, you’ve got to start asking what other points of view could they be punished for? And that’s an endless inquiry. Once you say that the professor can be punished for tweeting a certain thing because it’s offensive to people, then there’s, again, an endless array of tweets that people could say offend me. And that becomes an impossible thing to administer in any kind of appropriate way. Now, you could say, “No professor can tweet,” but that probably would be a terrible idea and unconstitutional. But to pick and choose which messages are punishable opens the door to endless discrimination against certain viewpoints rather than other viewpoints. And that’s not what universities should be doing and it’s not what our government should be doing. And there are lots of viewpoints that people find offensive.

50 years ago, 60 years ago, the idea of same-sex marriage would’ve been regarded as horrendous. And if someone advocated for it, it would’ve been terribly disturbing to people. Or in the civil rights era, someone in the south who advocated for equal rights for Blacks would’ve been offending people terribly. And the question is: could he be punished, consistent with the First Amendment, if he advocated for civil rights for Black people? And the examples go on and on and on, but the reality is you don’t want to go there. And that’s partly what the Supreme Court has learned over time. The Supreme Court in the beginning was not very thoughtful about this, and it allowed the suppression of particular points of view if they had potentially negative consequences. But over time, they realized that creates insanity. And any point of view virtually can be regarded as that. And who’s going to decide? Do you really want the university deciding this point of view is permissible, this point of view is not permissible? Do you want the government deciding that? Basically, the answer is no.

Levi: Let’s move outside the bubble around the universities and look at some of the responses to what’s going on on campus. Many of the top law firms in this country signed on to a statement expressing alarm at antisemitic activities on campus and asked law deans to take what they called an “unequivocal stand against these activities,” and second, “to ensure that students understand that this kind of activity and advocacy is not tolerated in the law firm workplace.” Some firms have gone so far as to withdraw offers of employment from students who made or endorsed statements that the firm considered were antisemitic and presumably would be upsetting to firm clients or to other members of the firm. What are your thoughts on this? This is a new thing. Well, it’s not entirely new because there’s a historical context, but maybe we haven’t seen it quite so much in the past 20 years or so.

Stone: Well, law firms have their own First Amendment rights. And they are perfectly free to say whatever they want to say, including that we will not hire people who hold certain viewpoints unless that’s prohibited by the federal law or state law. But this is not saying we won’t hire a Jew or won’t hire Palestinian, they’re saying, “We won’t to hire someone who advocates a particular viewpoint.” They have the right to do that, but they should be responsible, and they should understand that doing that is not healthy for our society, for academia or for their law firms. And they should, therefore, be much more open-minded about these issues.

Now, one of the problems is the pressure this puts on universities, of course, because universities are dependent upon outside funding. And the question is, if donors, whether it be law firms or individuals, say, “If you do not do what I want you to do, I’m going to stop giving you money.” And the question is to what extent they should accept that and change their policies to satisfy those donors. And that’s a legitimate problem for a university president or a law school dean who doesn’t want to lose that money. But on the other hand, you don’t want those people dictating to you what it is you can teach or what it is you can say and what it is your students can say, and therefore, it’s important to stand up for that.

This began, really, at the end of the 19th, early 20th, century when universities began looking for outside funding to a much greater degree than ever before. And outside funders began saying, “I’ll only give you money if you agree not to teach this or not to allow students to say these things.” And that became very problematic. And in part it led to the AAUP, American Association of University Professors, report in 1915 that strongly, for the first time, advocated for free expression by professors on campuses.

And so this is not the first time this has happened, as you said, but the problem is universities have to do their best to stand up to it because if they don’t, then they lose the fundamentally core goals and values of their institutions. And part of it, again, is educating people. You want people to understand law firms, for example, or wealthy donors, if you can pull this off, then other people can pull it off in other ways.

Levi: On the donor part, I think it would be easier to go to a donor and say, “You don't want to try to exert this kind of pressure on a university because the university houses many points of view.” I think that would be important to a donor. But I fear, Geof, that this wouldn’t apply necessarily to Chicago, but I think a lot of donors think that universities have adopted a kind of uniform progressive ideology. Now, that may be a bit unfair, but it may not be entirely unfair. We just may be in a period where, for whatever reason, universities are more monochromatic in their points of view on politics and policy and that... At least the elite universities. And that may put a conservative donor in kind of a pickle because they don’t want to support that ideology. I wonder whether that’s part of the problem here.

Stone: Obviously the donors are free to decide whether or not to give money to a particular institution if they feel that it is in fact worth investing in, in terms of whatever values they’re trying to promote, whether it’s simply academic excellence or it’s particular point of view. They’re free to do that. I think, again, part of the necessity here is education. It’s explaining to donors, to alumni, to friends, to students the importance of allowing free and open discourse in universities. And this includes, to the extent there is a cancel culture, basically resisting it and saying, “No, that’s not who we are. That’s not what we do.” You don’t want to create an environment in a university in which there are institutional biases against certain positions based upon something other than the merits of the positions. And that’s something you’ve got to talk about. That’s something that universities need to talk about. And that’s, again, one of the things that Chicago is very good at. We spend a significant amount of our time both with prospective students, with incoming students, with incoming faculty, making clear to them who we are and what our values are and why we think this is the right place to come if you are willing to be completely open-minded and to listen to all different points of view.

Levi: We’ve been very nice about the University of Chicago, and I think justly so, but I should also put in a plug for The American Law Institute here because one of the things that we’ve been most proud of is that our debates have continued to be civil even though they touch on matters of great controversy. You look at the Model Penal Code and our project on sexual assault, on campus, policing, these are … even liability insurance, these are not uncontroversial areas, and yet we’ve been able to maintain lively, interesting debate that’s been very, I think, respectful and effective and has had significant positive consequences for the society. And if any donors out there want to consider The American Law Institute, that would be welcome.

Stone: It would be a good investment.

Levi: It would be a good investment. Geof, I can’t thank you enough. Your thoughtful comments and your allegiance to First Amendment principles, I think is very noteworthy. And you’ve been just consistent over time, neutral. You haven’t imposed your own preferences on it. Just as you say, that takes you down a road that’s just impossible. And these are difficult topics, and they’re complicated and hard to think about. We’re so fortunate to have you as a thinker and administrator and a scholar. Maybe you’ll help lead us to the better place that we need to get to. Thank you.

Stone: Thank you so much for having me, David. This was terrific.

Levi: Thank you. This is David Levi. You’ve been listening to Reasonably Speaking. My guest has been Geoffrey Stone, the Edward H. Levi Distinguished Professor of Law. This is a podcast of The American Law Institute. Thank you very much.