Brokers of academic freedom are stomping on free speech

Much has been made of the spate of episodes on university campuses as some students and faculty have sought to block graduation speakers with whom they vehemently disagree. In the name of tolerance, transparency and “conversation,” too often the intolerant, a numerical minority, have prevailed. In the catechism of freedom of expression, where does the “right” to silence speakers derive? I have taught constitutional law and written a book on freedom of expression, and I know of no such court decisions. Preventing others from speaking may have symbolic meaning, but it is not itself protected speech. Is the problem a misunderstanding of constitutional freedoms? My students often began with a misreading of the First Amendment, not realizing that freedom from government censorship is what is at the core. But I fear the problem runs deeper.

When I was president of the University of California, I spoke out against racist, ethnicity-disparaging, anti-Semitic and homophobic speech that individuals had inflicted on their campuses. I chastised a student group for inviting the incendiary Rev. Louis Farrakhan to speak, though I made no effort to stop him from doing so. My condemnation of speech denigrating groups largely went unchallenged, with some unfortunate exceptions. When I criticized anti-Semitic speech, I invariably was criticized for overlooking discrimination against other groups.

Along the way I also denounced a number of attempts to silence speakers. One involved an organized and unsuccessful effort to prevent the Israeli ambassador from speaking on a campus. Another involved an uncivilized attempt to shout down an Israeli soldier giving a talk. I later met with student leaders from a number of campuses, and they took me to task. My perceived misadventures were based on my failure to grasp that constitutional rights were for marginalized groups, not for the “privileged.” The language of privilege and marginalization reminded me of the 19th-century anarchist Mikhail Bakunin. He memorably asserted that “purely formal liberty conceded, measured out and regulated by the State, [is] an eternal lie which in reality represents nothing more than the privilege of some founded on the slavery of the rest.”

These students took it upon themselves to define privilege, and they made it clear that Jews were among the privileged. Not poor, not marginalized, not the object of empathy. No need to protect the free speech of Jews. Every reason to silence them, particularly Zionists. University officials, politicians and others with whom they disagree also were deemed unworthy of constitutional protection. The line between intolerance and definable privilege apparently is a blurred one.

The exuberance of youth may be part of the problem. If you think you are right on gun control or affirmative action or foreign policy or whatever, if you are passionate about making a better world, why should you tolerate the speech of the misguided troglodytes who oppose your point of view? At Haverford College, those opposing former Chancellor Robert Birgeneau as a graduation speaker even sought to re-educate him and to seek a mea culpa from him — without affording him the opportunity to express his own point of view. This all smacks of a totalitarian mindset, reminiscent of the worst of dictatorships. One can only express the hope that maturity will cause these students to embrace democratic values as ends in themselves.

The discourse of anarchy is not limited to invited campus speakers. I conducted a lively correspondence with an number of self-proclaimed guardians of academic freedom asserting that any position I took on a controversial subject was itself an infringement of their “academic freedom.” For example, I lambasted a campus conference on the Middle East that included only anti-Israel speakers. The response in some quarters was breathtaking. I was not just wrong; I was engaged in intimidation and a systematic violation of the academic freedom of others. In this view, academic freedom for some means denying speech rights to others. I wrote back saying that the last I checked, I too had speech rights. To no avail. The content of my speech was too dangerous to the new order.

This evolution toward constitutional anarchism is pernicious. Campuses are not islands apart from democratic norms. But it is not enough that those on campus may engage in protected activities such as peaceful demonstrations and oratory. They also should be open to genuinely diverse points of view. A monologue is not a dialogue. A soliloquy is not a conversation. An engineered consent of the governed is no consent at all. Societies that lose the capacity for people to converse openly with one another, without fear or favor, in the end are doomed to an undemocratic future. As Supreme Court Justice Oliver Wendell Holmes wisely noted, the remedy for bad speech is good speech, more talk, not less. Indeed, even when outrageous expression is legally protected, as it usually is, university presidents and graduation speakers, among others, have a moral obligation to condemn advocacy of bigotry and discrimination. We are not lambs to be silenced.

Mark Yudof was president of the University of California from 2008 to 2013, and teaches law at U.C. Berkeley. A version of this essay appeared in the Jewish Daily Forward.