Opinion: What free speech is and isn’t — getting back to the basics of the First Amendment

Amid campus protests and the Trump years, free speech debates are charged. Jane Coaston explores the implications with the president of the Foundation for Individual Rights and Expression.

At colleges and universities across the country, from Cal Poly-Humboldt to Columbia, students have been protesting against the war in Gaza. Some of those protesters have demanded that their universities divest from companies that may directly or indirectly support Israeli military operations, others have called for a cease-fire, while others have far wider demands.

The protests have generated another round of discussion (and endless takes on the internet) about free speech on college campuses. Which forms of speech are permissible (and legal)? What about universities that purportedly champion free speech suddenly deciding that maybe there’s such a thing as too much freedom of speech? And, personally, I want to know why we pay so much attention to Ivy League schools most of us didn’t go to.

I spoke with Greg Lukianoff, the president and C.E.O. of the Foundation for Individual Rights and Expression (FIRE). His most recent book, written with Rikki Schlott, is “The Canceling of the American Mind: Cancel Culture Undermines Trust and Threatens Us All — But There Is a Solution.” We discussed what free speech is and isn’t, what conservatives are getting wrong about college campuses, and how Oct. 7 changed how he views free speech.

This interview has been edited for length and clarity and is part of an Opinion Q. and A. series exploring modern conservatism today, its influence in society and politics and how and why it differs (and doesn’t) from the conservative movement that most Americans thought they knew. And, for disclosure, I spoke to FIRE’s Student Network Conference in 2021.

Jane Coaston: What do college campuses mean to you?

Greg Lukianoff: Done right, their single most important contribution is edging toward truth, not by getting there directly, but by chipping away at falsity. Professors getting in trouble for their opinions is much more dangerous than people understand. Because when people see that, it rightfully undermines their belief that experts are actually being objective. Even if there’s just social pressure to come to certain conclusions, that’s bad enough for the search for truth. Nearly one-third of professors report that administrators are telling them to steer clear of “controversial research.”

[Mr. Lukianoff was citing FIRE’s own research.]

Coaston: Why do you think we fixate on very specific types of college campuses? Your book features lengthy discussions of both Harvard and Yale. Most people don’t go to the Ivies; most people don’t go to college, period. What is the impact of activities at Ivy League campuses on people who went to Auburn or Michigan, or Eastern Michigan or Northern Michigan?

Lukianoff: Yeah, I would love it if Harvard and Yale and Princeton and Stanford didn’t matter as much to the country as they do, but they do unfortunately. When you look at the fact that nearly every single member of our Supreme Court at one point attended either Harvard or Yale, it’s pretty galling. When you look at a lot of the leadership of both parties, a lot of them are Yale and Harvard people.

If our society didn’t so handsomely reward the small number of schools, and if those schools were not the gateway to things like Goldman Sachs and in some cases to the White House, then we’d be a healthier country. But we’re kidding ourselves if we pretend as currently structured that we don’t wildly over-favor people who attended the sample of schools.

Coaston: Why do you think that student protests that limit the speech of others get more attention than universities that limit speech? Which concerns you more?

Lukianoff: They both concern me. Last year was the worst year for de-platforming that we’ve seen, and we include in that shout-downs and physically blocking people from getting through a speech, chasing someone off campus like they did actually at Berkeley this year. Those are de-platformings. This year is set to blow that out of the water. What universities need to own is that if they have students who think it’s not just OK, but it’s actually profoundly moral to chase off speakers they don’t like, rather than protest outside or ask tough questions, for example, that they’ve done a real disservice to those students. They failed to explain what higher education is supposed to be.

[Mr. Lukianoff’s organization considers efforts, for example, to get speakers disinvited from campus or cancel screenings of films as de-platforming.]

To be fair, some administrators are very good on free speech and academic freedom, but a lot of the administrators we battle in some cases are ideologues and they believe that this speech needs to be shut down because it’s somehow toxic or whatever. In other cases, they’re doing what Dean Wormer would’ve done, which is simply shutting down speech because they don’t like it or because it’s inconvenient or because they want peace and quiet on their watch.

[Dean Wormer is the administrator in the film National Lampoon’s Animal House.”]

Coaston: How did Oct. 7 and Israel’s war in Gaza and the activism that followed changed people’s views on the First Amendment and how people think about it?

Lukianoff: Last fall was a time where — I don’t want to say just conservatives, because I think there were a lot of people from different points in the spectrum who were kind of horrified in some cases, for example, by the students who I believe actually on Oct. 7, or at least on Oct. 8, were holding Israel entirely responsible for these attacks. That was something that people who would think of themselves even on the left found pretty galling, but it did lead to a lot of cancel culture. It did lead to a lot of attempts to get people out of jobs. And it led to people who normally were very critical of cancel culture in some cases, to sort of make an exception for people who were very pro-Palestine.

Cancel culture comes from both the right and the left. For some people, post-Oct. 7 made them fans of cancel culture when it worked to their advantage. It was a sort of clarifying moment for the people who support free speech even in the situations where in some cases you might consider the speech highly unsympathetic.

Coaston: How should we be thinking about offensive speech? In your book, you discussed the difference between free-speech laws and free-speech culture, and that ties into the idea of hate speech or offensive speech because you can say that there’s no rule against hate speech in the Constitution, but if you are a college administrator, someone screaming, “Kill all the Jews,” it’s probably something that you are going to want to curtail even though it is technically legal. So how do you think about the difference between what is legal and what should be culturally permissible?

Lukianoff: That there’s a value to know what people really think, not even if it’s horrifying or ugly or gross, but especially if it is. One way of looking at it is: When there’s an environment where people are not being authentic because they’re afraid of being offensive, it can actually sometimes give greater suspicion among people.

But there’s value to knowing what people really think even when it’s wrong. I always give the example of lizard people who live under the Denver airport do not actually in fact control the world, but knowing that your girlfriend or your uncle or someone in your family — or your teacher, for that matter — believes that they do, is really important information to know.

An awful lot of the value of information is not knowing the objective nature of reality, but rather knowing what people really think. When it comes to things like “Zionists must die,” depending on the circumstances that absolutely can be potentially a threat, that can be intimidation, and if it’s part of a pattern of behavior, it can potentially be discriminatory harassment on campus. But when figuring out whether or not speech is or is not protected, context really does matter.

Coaston: What do you think conservatives get wrong about campuses right now?

Lukianoff: Conservatives focus a lot on the professoriate. Even though we are happy to defend their student chapters when they get in trouble for their speech, I take great issue with Charlie Kirk and Turning Point USA and their professor watch list, which is something that I very much object to, particularly when they add, ‘here is how you can contact this administration.’ We count that as a cancellation attempt.

Now, Turning Point USA thankfully has not actually been successful in getting professors canceled, but they certainly do report that they got a lot of hate mail and nasty calls.

Coaston: What do you think conservatives get right about campuses right now?

Lukianoff: I came to FIRE in 2001, somewhat hard to convince that the problem of viewpoint diversity was all that big of a deal. Like, “So what? Professors lean somewhat more to the left.” I thought the numbers were something like two to one or maybe even three to one in terms of left-leaning professors versus conservative. As I started to learn more about the actual data, I got a lot more concerned about it because when you have an environment that doesn’t have people who really fundamentally disagree with each other and you have an environment that practically excludes from certain departments people who represent maybe half of the voting population of the United States, you shouldn’t be surprised that group polarization effects take over.

If you were to take your 12 best friends and then go off, split them in half according to politics, and then go off with your six most right- or left-leaning to talk about hot-button issues, you’re probably going to come back more radicalized in the direction of the group. That’s what group polarization means. I think that I underestimated how much the lack of viewpoint diversity creates an environment that tends to go further and further to the left. I don’t know a really easy way to fix that problem. One solution, and it’s something that Dartmouth has talked about, is to have a lot more classes that are co-taught by people who actually disagree with each other. People have mentioned the model of Robert P. George and Cornel West at Princeton.

But if you have an environment with too low of viewpoint diversity, it becomes a lot easier to think in terms of there’s an us — the clever, moral, smart people — and then there’s the they, the stupid and evil. That is a problem that I underappreciated earlier in my career and I now take a lot more seriously.

Coaston: In the book you write about the perils of common-good conservatism. What worried you about that movement on the right?

Lukianoff: Where to begin with that? In a lot of ways, it seems to be an idea based on a kind of universal understanding of morality — which right there, that kind of scares me because I’ve been an atheist since seventh grade and I’ve always sort of balked at the idea of there being any idea of universal morality. That’s one of the things that we First Amendment people always love. We love the weirdos, we love the odd ones, we love the people who are out of step and don’t fit in within their same neighborhood or group. It sounds very much like a formula for authoritarianism.

Coaston: You’ve been doing this for a while. I want to ask you how you think a few major events or inventions have changed First Amendment concerns and how people perceive the First Amendment. How do you think the Trump presidency changed First Amendment concerns and how people perceive the First Amendment?

Lukianoff: Well, Trump sped up a lot of pre-existing trends, just like social media did, that essentially a lot of the concerns on the left about the right went into overdrive. Trump has a tendency to not really care about bringing people together. He’s perfectly fine having enemies that he targets. It led to a sort of even nastier form of the already fairly nasty politics that we’ve had, and 2017 through 2021 through the end of the Trump presidency was a pretty crazy time. And I think that, partially because there are some on the right who aren’t consistent about free speech and wrap themselves in the idea of being free-speech defenders, it makes it very easy for people who want to be cynical about those of us who do it for a living to sort of throw us in with people like that.

Coaston: How did Jan. 6 and the events of Jan. 6 change First Amendment concerns and how people think about it?

Lukianoff: I would say the biggest debate over Jan. 6 was whether or not it constituted Brandenburg incitement. That may sound kind of unsexy, but it matters because Brandenburg was kind of the resolution of cases that came out of World War I that originally fell upon the idea that speech can be stopped only if it’s a clear and present danger. Brandenburg got you to a stage where it has to be imminent lawless action that is also likely to happen, that you help happen — essentially standing in front of the mayor’s office saying, “Let’s go burn down the mayor’s office,” when a lot of people have torches in their hands, that would be incitement.

When it comes to what happened on Jan. 6 in First Amendment circles, there’s a lot of disagreement about whether that’s actually counted as incitement. I definitely understand people like my friend David French, who make the argument that if this doesn’t count as incitement, then maybe our definition of incitement is wrong. I have some sympathy for that point of view, even though I am with the majority of First Amendment people who still think the Brandenburg standard is overall the right standard.

[Mr. French said that he still agrees the Brandenburg standard is the right one, but believes that Mr. Trump’s actions meet that standard.]

Coaston: And then this past year, we talked a bit about this already, but you had a book about free speech come out 10 days after Oct. 7. How did the aftermath of Oct. 7 change how people view the First Amendment? Did it change your views?

Lukianoff: I think it was a reminder to get back to basics and explain more. Because most people, when they hear certain lines, they’re like, “So you’re telling me that sincerely trying to kill an entire group of people is protected?” Usually when people say that, they add “sincerely and seriously” then you have to take a step back and explain, “Listen, the two things at issue here more than anything else are ‘From the river to the sea, Palestine should be free,’ and ‘intifada.’” Once you get people back there, you can be like, “And don’t you think those phrases by themselves are protected?” And generally you can get people, if they’re being reasonable to any degree, to go: “Well, yeah. Well, those are protected.” Now, if you’re saying that in certain contexts, again, it can be intimidation, it can be threats, it can potentially be discriminatory harassment, but there’s got to be more than just the phrases themselves.

So it was a good reminder sometimes to get back to some of the first principles of it, and to remind people of simple ideas like what we call the bedrock principles. In our society, under the First Amendment, one of our bedrock principles, according to Texas v. Johnson, a 1989 case, is that you can’t ban speech simply because it’s offensive. That is a wonderful, sensible rule for a genuinely multicultural and diverse society, because people in different economic classes, people from different regions, people from different groups, people from different states, people from different countries, all have very different ideas of what is offensive. You would necessarily have to privilege what is deemed offensive by some group or some person or some group of people or some individuals of what is offensive. And that cuts against the kind of pluralism that you’re trying to protect.

Jane Coaston is a contributing Opinion writer for The New York Times. Previously, she was the host of Opinion’s podcast “The Argument”; she was also the senior politics reporter at Vox, with a focus on conservatism and the G.O.P. This article originally appeared in The New York Times.