Free speech, explained by Greg Lukianoff

Right at the end of 2013, 2014, we started seeing students coming in, demanding deplatforming of speakers they didn't like, demanding new speech codes, whether they're microaggression policies or trigger warnings, and this was something we weren't used to. I wasn't used to being on the other side of students. This was kind of shocking and disappointing for all of us. So we're hoping that campuses will actually realize that they have a free speech problem now, and be willing to reform it.

Today on Big Think, we are talking to Greg Lukianoff, President and CEO of FIRE, the Foundation for Individual Rights and Expression, and co-author of the new book, "Canceling of the American Mind," which he co-wrote with Rikki Schlott. Greg, thanks so much for coming on Big Think today.

Thanks for having me.

First, why don't you explain what FIRE does, for our audience who might not be aware.

The Foundation for Individual Rights and Expression is 25 years old this year. And we were founded back in '99, specifically to protect freedom of speech on college campuses. Now, why was that necessary? Well, it was partially because only 20 years after the beginning of the Free Speech Movement, campuses started passing speech codes in the mid '80s, to restrict speech that while nominally pointed at preventing racist or sexist speech, allowed for the censorship of unpopular opinions on campus. So we fought for free speech on college campuses, defended a lot of faculty, a lot of students all over the political spectrum; to be very clear, we're unusually nonpartisan, right down to even the people who work for FIRE. We rebranded as the Foundation for Individual Rights and Expression, because we started getting so worried about the situation for the First Amendment, and for free speech culture off-campus, that we decided that we couldn't just focus on higher ed anymore and we had to defend the free speech rights of everybody.

Help me sort of understand a little bit about the First Amendment as it relates to free speech: What exactly does the First Amendment protect, and how does FIRE's role in protecting free speech really work alongside the First Amendment rights of Americans?

So whenever I speak in Europe, for example, they think we're loopy or crazy for having our First Amendment over here, and that seems really radical to them. But I'm the rude American who goes over there and explains, actually, we're right on this one, and explains that the primary difference between European ideas of freedom of speech and ours is that we have something called the Bedrock Principle, in the United States: You can't ban something simply because it's deemed subjectively offensive. This actually, by the way, comes out of a 1989 case called Texas v. Johnson, about whether or not you're allowed to burn an American flag, to give you an idea of the various kinds of expression that can be considered offensive. And I think, this is the right call for a multicultural society. My dad's Russian, my mother's British, I grew up in an environment with a lot of kids from all different backgrounds, from all different parts of the world. And we all had very different ideas about what politeness meant, what offensiveness meant, for example. So for a genuinely diverse society, I think the Bedrock Principle makes a great deal of sense. Also, when I go over and explain that, they don't seem aware of the fact that threats aren't protected in the United States. Discriminatory harassment's not protected in the United States. Incitement to imminent lawless action is not protected. So a lot of the exceptions that we have in the First Amendment, have been hammered out over about 100-year process of how do you have freedom of speech in the real world?

And so that's an interesting place to dive into a little bit, exceptions to the First Amendment, and detailing those explicitly because you know, I feel, when a lot of people, when talking about free speech, they'll say things like, "I'm a free speech absolutist," so they'll be talking to free speech absolutists. But what does it mean necessarily, in terms of the law, for there to be an exception to free speech and to the First Amendment?

Yeah, it's kind of funny. Free speech absolutist is one of those terms, that when I get accused of it, I take it usually, as a kind of compliment, but then immediately say, "No, no, free speech absolutists don't actually exist," or at least, among people in constitutional law. Most of us actually believe that there are and should be some exceptions to the First Amendment. Interesting fact, by the way, the First Amendment in the United States, did not have a lot of force, even though it was passed in 1791, did not have a lot of force of law until 1925. So it was a long process before it actually meant a lot in law. And the extent to which free speech was actually protected in the United States, that was largely due to free speech culture, norms about not censoring people, not actually the law. So it was only in the 1920s really, when you started having a meaningful First Amendment. And the very first exception that was established, to the First Amendment, was incitement. Although people use the hackneyed term, "You can't shout fire in a crowded theater," it's something where basically, First Amendment people kinda roll their eyes at it. The standard is actually, the First Amendment doesn't protect imminent lawless action in an environment where that lawless action is likely to take place. So that means, standing in front of the mayor's office right before it gets burned and say, "Let's go burn down the mayor's office," to a crowd, that could be potentially incitement. It is a tough standard to meet, but it should be because what preceded it was an idea that if your speech could be found to eventually lead to some human evil, it could be banned- this is called the bad tendency test. And of course, the bad tendency test provided almost no protection to freedom of speech at all because you can always argue that someone's opinion, "Well, actually, that's gonna lead to dancing," and then we have "Footloose," and everything goes higgly-piggly. So incitement was the first standard. Defamation is not protected, but that has to be an accusation of fact. Basically, saying someone like, "This person is a pedophile, and I know for a fact they are," that could be defamation. It has to be an accusation of fact, it can't just be, "I think this person is a jerk." That's an opinion, for example. Discriminatory harassment is a severe, persistent, pervasive pattern of behavior that's directed towards an individual or group, that's designed to be discriminatory. And that's something that applies on campus, for example, and other situations that are regulated. It's not a general exception to freedom of speech, it's actually not even considered freedom of speech because it's considered a pattern of behavior, as opposed to a mere expression of ideas, etc. So those are some of the big, some of the primary exceptions there.

You mentioned the free speech culture and free speech norms is what sort of gave us a free speech sort of protection when there wasn't much in sort of the law. What do you mean when you talk about those terms?

It's been weird to have to even argue about the existence of free speech culture at all. Of course, there were free speech cultural norms that led to the passage of the First Amendment in 1791. You had to have first, people who think it's a value important enough to a democracy, to put it in the constitution in the first place. And then to get it ratified. Culture precedes law in that respect, particularly in a common law country, since judges are part of the culture, culture and law work hand-in-hand to a degree, in ebbs and flows. I always try to be clear here: what you want as a society is to have free speech law that's very protective, and free speech culture that is also respectful of freedom of speech. Now, how are they different? One of the ways in which free speech culture is different is one, it's a series of norms. And when something's a norm, it has to be, it's a balancing act. And in "Canceling of the American Mind," which I co-authored with the great Rikki Schlott, we talk about norms of free speech culture as being probably best explained by idioms we heard all the time as kids, and by we, I mean Generation X, the most basic of course, being, "It's a free country." But then of course, "To each their own," everyone's entitled to their opinion. The idea that you should walk a mile in someone's shoes before judging them. All of these ideas that are basically about check yourself, you're just one person. And what's good for you, is not good for everybody else. These are all small D, democratic norms that also reflect a free speech culture. The idea that everyone's entitled to their own opinion seems obvious, but you wouldn't know that in some circles today, both on- and off-campus.

When did you feel that free speech culture may have been at its most robust, and when did it start to sort of erode a bit to where we are now, at a place where free speech culture, I think, you would say, is a bit at risk?

I would say free speech culture seemed to be in good shape up until maybe 20 years ago. When I first started working on campuses in 2001, one, I was shocked at how easy it was to get in trouble for your opinion, even back then. But one of the things that was very clear at the same time, was that the students were very good on freedom of speech, that they actually got freedom of speech. They got it better than professors, amazingly enough, and certainly, better than administrators. I don't have to agree with my professor, but they still have the right to their opinions or their ideas. Edgy comedians, edgy artists, that's okay. I don't have a right not to be offended. These were all things that younger people seemed to get, up until fairly recently. The problem in 2001, by the way, was the administrative class at universities. We talk about it a lot in "Canceling of the American Mind," is the first great age of political correctness, basically 1985 to 1995, where there was this sort of fervor for enlightened censorship. The idea that you can improve the world just by shutting more people up. There was a sort of moral fervor to it, but by the mid-'90s, after all of these codes had been defeated in court, and after people off-campus started saying, "No, that just seems stupid. Like, how is that going to advance anything if we can't actually, you know, talk?" It fell out of favor. Political correctness became a joke, both on the left and the right, and everybody went, "Whew, thank goodness that's over!" But unfortunately, the administrative class, even though professors got disenchanted with the idea of enlightened censorship and the student population changed to one that was much more pro-free speech, the administrators kept the bad dream alive. So things were bad on campus already, but primarily due to the administrative class. What changed dramatically though, was right at the end of 2013, 2014, when we started seeing students coming in, demanding deplatforming of speakers they didn't like, demanding new speech codes, whether they're microaggression policies or trigger warnings, and this was something we weren't used to. I wasn't used to being on the other side of students. This was kind of shocking and disappointing for all of us. Now, sometimes people think that what we're saying is, "Oh, the problem used to be campus administrators and now, it's students," that's wrong. The problem is that an administrative class, a bureaucratic class at universities, was trying to sort of convince students for most of my career, it's like, "Hey, you know, like, this professor maybe should be punished or this speaker should be deplatformed," and didn't get a lot of buyers. That suddenly met a new population of students who were much more enchanted with the idea of enlightened censorship. And administrators and students started working together to get people punished- and this is how you end up with the disaster that we've seen over the last 10 years. And it's something we really put a lot of data, we put a lot of meat on the bones of how bad it's gotten on campus. And just to give, you know, a quick example, from 2014, to the middle of last year, which is 2022, and to summer of last year, we saw over 1,000 attempts to get professors punished on campus. And this is overwhelmingly, and I mean, overwhelmingly concentrated at the most elite colleges in the country. The top 10 schools in the country have wildly more attempts to get professors canceled than anywhere else. And it's about 80 schools in the top 200 schools that account for more than half of all cancel culture. By cancel culture we mean attempts to get people punished for their opinion, for their freedom of speech. So we see about 1,000 examples of this. And we know that's a wild undercount by the way, because when we polled professors, one in six professors said that they had been either investigated or threatened with investigation for their speech, academic freedom, research, all the things that tenure, academic freedom, and free speech are supposed to protect. So one in six, that would be tens of thousands of professors. Understandably, the less elite colleges you don't hear as much about. We actually polled students by the way, and we found about 9% said the same thing, which is well over a million students, extrapolate outward. But of the 1,000 ones we know about, the more than 1,000 ones that we know about, about two-thirds of those professors get punished in some way. And about 200 of those, as of last summer, get fired. More than 40 of those were tenured professors, something that I used to think, was impossible. Tenure is designed to make it essentially, impossible for someone to be fired for their free speech or academic freedom. And now, it's become a pretty daily occurrence. To put some historical comparison on there, the Sedition Act of 1798, involved about 50 prosecutions, with about 10 actually being found guilty, in the country- that was considered a great sin against the First Amendment. McCarthyism, about 100 professors was the standard estimate that was evaluated at the time. We're talking about twice that right now, actually being fired. And we're at an environment where it is much more politically homogenous than it used to be, with multiple, multiple, multiple mechanisms before firing takes place, to get professors and students to conform. And also to be clear, we point out attacks from the left and the right, and about one-third of the professors who are punished are initially targeted by the right.

So that's interesting to sort of understand sort of the growth that has sort of happened in college campuses, specifically. I wonder, you know, one of the things that comes to mind to me, when you talk about the dates associated with this sort of explosion of these incidents, is just the invention of social media-

Yes. And the internet and ability for people to broadcast their opinions publicly. In preparation for this interview, I ended up reading Martin Gurri's "The Revolt of the Public-"

Yes.

And one of the things that struck me, in that book, was just the amount of information that humans now create. I think, it was in 2001, we created more information that year, than in previous years of human history, and then we doubled that amount of information in 2002, so you can imagine what we're doing nowadays. How do you think about just like, the amount of speech that is existing because of an invention like social media, in relation to the phenomenon that you are talking about, in terms of people wanting to censor opinions that they might disagree with?

Great question, and Rikki and I do incorporate some of Martin Gurri's analysis into "Canceling of the American Mind," because "Revolt of the Public" is a very important book to read. Now, I go back to my earlier training and my earlier studies about the invention of the printing press, something I studied, back in law school. And I study it during Henry VIII's England because Henry VIII was actually the first one to start the process of licensing the printing press. Only people affiliated with the Crown were allowed to own and operate printing presses, as a way of controlling what actually got printed and said in England, and why? I think, the overall thinking on the printing press was first, we thought it actually might be pretty good. It might actually be a tool for progress. By 1520, they start going, "Oh wow, this infernal device led to a lot of civil and religious strife." It really was the original disruptive technology. So Henry VIII, and all of the Tudors wanted to put the genie back in the bottle. They wanted to rein in this disruptive technology. And now, of course, we know that yes, it was disruptive. It probably doomed Europe to maybe 200 years of strife. But it was worth it. What it actually led to was the scientific revolution, people getting to communicate across lines of difference, the passing down of knowledge. But probably even more importantly, the ability of millions and millions of additional people being able to look at ideas and say, "That's a dumb idea." To look at a book and be kind of like, "That's a terrible idea and I'm gonna write in response. I'm gonna go out and print out my own thing refuting you." That's called disconfirmation. And disconfirmation is one of the greatest tools ever devised for the pursuit of truth. Now, what does this have to do with social media? Well, sounds a lot like social media and the internet. Certainly, when I was younger, there was a lot of optimism about the internet. There is even a lot of optimism in the early days of social media, that essentially, people get to, you know, put their weird on and actually be themselves. But that was followed by a period of what we call, "cancel culture." Where essentially, instead of using it as you know, check out how weird and interesting and individual people are, it created an opportunity to get people together to shut down, go after, otherwise cancel, people that would say things that they didn't like. So a million different additional eyes on the problem, back during the time of the printing press, had the power to tear down any institution, any idea, or any person. And that's exactly the same thing that happened with social media. Cancel culture on social media created a mechanism by which people, who used to write angry letters to their local newspaper, that just got stuck in a drawer, could create the appearance of there being thousands of people angry about what that one reporter said, and therefore, get that person fired. So social media, at this stage, can tear down any idea, any person, or any institution. Now, I wanna be clear here, that's not an entirely bad thing because some people need to be torn down, some ideas need to be torn down, and some institutions need to be torn down. But what social media hasn't been able to do yet is build anything. And this relates to Martin Gurri's idea of negation. Essentially, the way we argue today seems to be nihilistic because we want you torn down, we want this idea, this institution to go away, and we don't really seem to have a battle plan for what it's supposed to build. And at this point, social media isn't great at building. I still have a little bit of tech optimist in me though, I believe it's possible to develop social media to help with the search for truth, but we haven't gotten there yet.

That's interesting, in this environment that we're in right now, and talking about the ability to protest, and what does it look like when protest reinforces free speech norms, the types of things that you think would be good for a free speech culture? I'm curious how you sort of think about that in relation to this environment that has allowed people to voice their protests in a variety of ways.

Yeah, when it comes to protest, FIRE exists, and we defend protestors all the time. But we do not defend them, nor should we defend them when they shout down speakers, when they block people's ability to actually get to speeches, or particularly, when they engage in violence against people who want to attend, or even sometimes against the speakers themselves. That is not freedom of speech, that is mob censorship. It's as old as time, and even First Amendment norms require the government to actually protect speakers from the mob. Free speech culture norms, of course, you know, value the idea of "I get to hear what this person has to say, and you don't get to stop me from this. Just 'cause you don't like the speaker doesn't mean I don't get to listen to them." That is imposing your will on me just as much as the Victorian censors would've done. So free speech norms and the law, you know, come on strongly on the idea of, you know, speakers are allowed to speak. You don't have the right to shout them down and prevent other people from hearing them. So it's been unfortunate that in the last year, in 2022, we saw a big uptick in shout downs on college campuses. Whether this is San Francisco State University, or Stanford or Yale, we've seen a lot of efforts to basically, chase speakers off campus, which is just not, it's not good for free speech, it's not good for free speech culture, and it's utterly antithetical to what the point of higher education is supposed to be. So when it comes to protest, you have the right to protest, but you don't have the right to decide for other people what they can consume, what they can listen to, what speeches they can attend- and I really worry that there's a younger generation that simply doesn't know that distinction.

Any sort of free speech culture is going to be a bit messy just because, in many ways, it's going to be sort of like a bunch of individuals coalescing around a series of events or statements and things of that nature. I guess, how, just considering the volume of speech, how should we account for the messiness that we're also seeing with it, relates to free speech culture and perhaps, cancel culture and protest culture? Part of me wonders is like, isn't it always going to be messy when you have like, an exponential explosion like we're in right now, in terms of the amount of speech that people are partaking in?

So there are personality types that want order, and there are personality types that love messiness. Now, I wish I was less messy in my house, in my office, but overall, I love the mess of human interaction. I love the mess of freedom, of democratic societies, of people talking across lines of difference, about people being wrong about things and then actually going like, "Huh, you know what, actually, you make a good point there." I think, free societies at their best invite a certain amount of messiness, and of course, that messiness is increased when you have this many additional people in the global conversation. But at the same time, I think the instinct to make things simpler, to make things less messy is a dangerous one. Because particularly, when you're talking about using power to do that, that that's what really keeps me up at night. That's what scares me is that like, somehow people are like, "Oh, we're gonna pass a law, we're gonna fix this whole thing." It's like, "Oh god, no, like, that's not the way we deal with this." The way we dealt with the printing press was by developing norms around how we would actually deal with it as a society. That we would have some skepticism, you know, not just believe everything that we read, we'd wait to hear someone refute it. Those norms of open-mindedness, but also skepticism and checking and rechecking, and what Jonathan Rauch calls, liberal science, those were very much the norms that made the enlightenment successful for development of science and for democratic institutions. So I think, that I'm more afraid of the people trying to cure the problem of the messiness, than I am about the messiness itself. Partially because I think, when you grow up in a major technological shift or even just living in it, people start developing norms to deal with it. So once we might've been like, "I'm gonna join this angry mob to get this person fired!" I think a lot more of us are like, "Well, maybe I should wait to see what comes out about this." I think corporations are adjusting to this by sometimes, when you have a cancel culture mob that comes out of social media, that they're sensibly going, you know what, "We're gonna wait a bit like," basically, we have a two-week cooling off period. This is something I recommend for like, all groups, before we decide to look into it because we found that we make very bad decisions when we're just responding to the 1,000 angry people who think I should fire this or that person. So I think we are adjusting to the absolute avalanche of information, which is just going to be a fact of life for the rest of our existence, barring some calamity that would be far worse than the comparatively minor problems we have today.

I'm curious to get your thoughts on how college campuses have responded to the events of October 7th, and the antisemitism hearings from Congress that followed, and the impacts that both of these things have had on the free speech environments-

Yeah.

both, on college campuses, but also in the culture writ large.

Oh man, where to begin with post-October 7th, on campus. I mean, it's just been absolutely crazy. The book had the misfortune of coming out right in the middle of the first stages of the response to the attacks by Hamas. And it took people, you know, at least a minute to understand how relevant our book, and FIRE's work was to the campus response to the October 7th attacks. Campuses really kind of mishandled the initial stages of what happened after October 7th. One thing that happened a lot was schools being hesitant to issue the same kind of statements that they'd actually produced about every other local or international incident that had happened. Now, I actually don't believe that universities should ever have been commenting on this in the first place, but they were understandably, called out by critics, including Larry Summers and Sam Abrams, who are both on our advisory council, for being willing to condemn other social evils and other calamities that had happened, but not willing to condemn the attacks of October 7th. I think, that if the ultimate result is that more schools are deciding, "You know what, we shouldn't really be commenting on all of these things." It establishes an orthodoxy, it gives the idea that from the top up there are orthodoxies on this campus, and that is a problem. So that's one good thing that might actually come out of the October 7th attacks. Then of course, very predictably, a lot more people start getting in trouble for pro-Palestinian opinions, which eventually led to, well, no, no, part of what led to, and it's very important to say this, to the antisemitism hearings, what were real incidents of Jewish students getting assaulted, which we actually saw video of, including at Harvard. At Cornell, there was a student arrested, and rightfully so for death threats issued against Jewish students. You start seeing actual harassment, actual threats, all those things we talked about is not actually being protected speech, and nor should they be. But in addition to that, there were students being targeted for what have been characterized as calls to genocide, and the two primary forms are shouting "intifada," or the chant, "From the river to the sea," and that's important context to understand the antisemitism hearings. Because a lot of them, when they got in front of the questions, didn't very persuasively explain why shouting "intifada," or "From the river to the sea," should be protected. But most importantly, they couldn't convince the audience that they were good on free speech because why? Harvard and University of Pennsylvania, finished dead last on our massive, data-rich study of what schools were worth for free speech in the country. Nobody believed them because for far less offensive things, by most people's standard, University of Pennsylvania and Harvard had been completely inconsistent. So there was a certain amount of reaping what they'd sown, on these two elite campuses. That they had not been great on free speech, everything relied on them being taken seriously as being great in free speech, and they didn't convince anybody. This was interesting for us at FIRE because our worry was that people would take the wrong message from the antisemitism hearing. The fear was that a lot of people would take this as, "No, we actually just have to clamp down on speech in general." We are seeing an uptick in students getting in trouble for pro-Palestinian speech on campus, and we're defending them just like we always do. We do make the point that in terms of professors getting in trouble, and students getting in trouble, we're still not at a stage that's as bad as we saw in 2020 and 2021, which is something that everybody needs to grapple with. Because there's a whole sort of contingent that suddenly became aware of like, "Oh my god, you can get in trouble for your opinion on campuses now." It's like, where have you been? It's been this way for years, just you weren't paying attention when it was happening earlier. So we're hoping that campuses will actually realize that they have a free speech problem now, and be willing to reform it. But in the meantime, something that we need, if only to battle the hyper-bureaucratization of universities, how low their viewpoint diversity is, their terrible record on free speech, and how expensive it has actually become, are new, fresh-thinking, smaller experiments that let people show how smart, hardworking, how well-read they are without having to go deeply into debt in order to attend some of these schools, which in some cases, look a little bit more like cushy resorts than citadels of education.

Yeah, I would like to give you a chance to talk about that a little bit more because I do think, one of the things that is interesting is just thinking about how much space colleges, but particularly elite institutions, take up in sort of like, the collective discourse that we have, relative to just like, the variety of ways in which like, people can learn things nowadays, people can prove that they know things. And it just, I'm curious about like, the reforms that would allow for sort of this breaking of this grip that these institutions seem to have on the imagination of the media and the public writ large, and what those reforms would look like.

I'm not really sure when it happened, and maybe it was just, you know, moving from a different economic class, you know, in my life being, you know, very working class as a kid, and then going to a place like Stanford for law school. Maybe the society didn't change, but I think it did, because when I was a kid, you know, someone bragging about Yale or Harvard would've gotten a serious eye roll. And somehow, in the late '90s, I think partially, because so many of the people in the tech boom had their names attached to fancy schools, that there was suddenly this like, real kind of premium on what I derisively called the fancies, you know? The Stanfords, the Princetons, the Harvards, the Yales, and it's continued amazingly enough, these multi-billion dollar mega corporations are given way more credit than they should be, for producing our, you know, quote, unquote, "best and brightest." And this applies to not just, you know, entrepreneurs, but also people in our politics. We allow this small, select number of schools to have way more power and influence over American life than they ever should have had. And so if what's going on at the moment is this reevaluation of like, "Should we really have been giving people from Harvard this much credit?" No, you shouldn't have been, but now, if that's one of the takeaways, then I'll take it. I think that's actually good and healthy and hopefully, that's one of the lessons that we can take away. I get excited about littler projects, whether it's University of Austin or Minerva University, an experiment going on in San Francisco, to some of the things that Sal Khan is doing, by creating a high-quality, college-level content that you can actually, you know, prove you've consumed. I think that that's where a lot of our thinking should be. Then one of the reasons why this matters for free speech is I'm genuinely scared that a lot of- if we rely too much on the fancy schools to decide who our ruling class is- they're going to bring with them, into their future lives as American leaders, some of the really negative attitudes about freedom of speech that has unfortunately, become all too common at the most elite colleges, and that will be bad for everyone's freedom of speech.

Greg, thanks so much for coming on Big Think to talk about free speech, the First Amendment, and how these things are playing out in the broader culture.

Thanks for having me.

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