Tag Archives: free speech

The Many Faces of Academic Freedom*

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As readers of this blog know, I have had a long-term interest in higher education, especially in the nature of the Christian college. Today I want to focus on the theme of academic freedom. I just finished reading Daniel Gordon, What is Academic Freedom? A Century of Debate–1915 to the Present (Routledge, 2023.).** Gordon is professor of history at the University of Massachusetts at Amherst. It’s not possible in one short essay to do justice to this excellent study. My goal is to present a very compressed summary of the book and draw your attention to some things I learned from reading it.

It pains me not to recount all the stories, authors, and related issues in this book—the case of Angela Davis ([1969/70] Can the Regents of the University of California fire you for being a communist?), Steven Salaita (Can your offer of employment be rescinded because of your anti-Israeli statements?). What about the work of Stanley Fish on academic freedom or the thought of Alexander Meiklejohn on the absolute nature of freedom of speech or Edward Said on academic freedom and the politicization of the study of literature? And so much else!

Lessons Learned

The current controversies about the presence of Marxism, Critical Race Theory, gender theory, and other forms of “radical indoctrination” in American colleges and universities were initiated in 2003 by David Horowitz. Horowitz began a campaign to get state legislatures to ban (mainly) Marxist indoctrination from university classrooms by adopting the Academic Bill of Rights (ABOR) into state law. Horowitz received support from dozens of state legislators and huge pushback from university faculty members. The debate continues today and promises to intensify as the 2024 campaign season progresses. Should academic freedom extend to a professor’s political activism and advocacy in the classroom? Horowitz’s campaign focuses on the academic freedom of students not to be coerced or intimidated into accepting a professor’s political viewpoint. On the other side, defenders of “radical” professors and the politicized classroom claim the academic freedom to teach their views even if unpopular. Both sides appeal to academic freedom.

The genius of Gordon’s book is its historical explanation of how the concept of academic freedom came to be understood in such dramatically different ways. I will focus on Gordon’s documentation of three historical changes that profoundly affect contemporary discussions of academic freedom.

The American Association of University Professors

In 1915, Arthur Lovejoy and others founded the American Association of University Professors. In view of the continuing push toward the professionalization of the American professorate and the desire to forestall governmental interference and censorship of teaching and publication, Lovejoy wrote the 1915 AAUP General Declaration of Principles on Academic Freedom and Academic Tenure. The Declaration claims the right of professors to explore issues within their disciplinary expertise with great latitude in view of their noble calling. However, it warns against using the classroom to “indoctrinate” (Lovejoy’s word) young students with the opinions of the professor, especially with partisan political views on issues of current social concern. Additionally, the original 1915 Declaration urges professors to be cautious in their speech in non-academic settings: “In their extramural utterances, it is obvious that academic teachers are under a peculiar obligation to avoid hasty or unverified or exaggerated statements, and to refrain from intemperate or sensational modes of expression.”

However, by 2006 the AAUP had changed its opposition to politicizing the classroom under the presidency (2006-2012) of Cary Nelson. Nelson was the chief opponent of the Horowitz project. Long before the AAUP got on board, the American University had already shifted its understanding of academic freedom. The shift began in the 1960s with the founding of programs in Black Studies, Cultural Studies, Women’s Studies, and other analogous groups. These programs were from the very beginning unapologetic advocacy groups. By the 1990s postmodernism (Michel Foucault) had convinced many academics that all speech is political. According to postmodernism, those who claim scientific neutrality or objectivity merely hide the power structures that favor their class. Today, two visions of academic freedom compete for dominance, the postmodern activist and the anti-political professional view.

Freedom of Speech

The second historical transformation I had not fully understood before I read Gordon’s book is the change in the jurisprudence of free speech. The First Amendment to the United States Constitution addresses the right of speech: “Congress shall make no law … abridging the freedom of speech….” Originally, this restriction applied to the federal government only. States were free to enact their own bills of rights and laws concerning, among other things, speech. After the Civil War, the United States ratified the Fourteenth Amendment to the US Constitution (1868). It begins, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…. The bolded lines are taken today as applying to the states all the rights of the citizen listed in the Amendments to the Federal Constitution. What I did not know was that it took the federal courts, including the Supreme Court, until well into the twentieth century to apply “freedom of speech” to the states.

Additionally, I did not understand the federal Judiciary’s evolving theory of what constitutes a legitimate limit on speech. Until the early twentieth century, the courts agreed that speech that tended to create unrest or might reasonably be thought to do so was not protected by the First Amendment. In the 1919 case Schenck v. United States, Oliver Wendell Holmes, Associate Justice of the Supreme Court, articulated the “clear and present danger” test for when the government may limit the exercise of speech. However in the 1969 Brandenburg v. Ohio case, the Supreme Court replaced the “clear and present danger” test with the “imminent lawless action” test. As is clear, the conditions under which speech may be limited by a government entity became more and more restrictive as the century unfolded. Correspondingly, the scope of free speech was expanded exponentially.

The Fusion of Academic Freedom and Freedom of Speech

Before the 1960s, academic freedom was distinguished from the constitutional right to freedom of speech. Academic freedom was considered a special freedom to teach based on the unique calling and qualifications of the professor, the nature of academia, and the special role of the university in society. One can see this distinction clearly in the 1915 AAUP General Principles of Academic Freedom and Academic Tenure. In public spaces, controversies over speech rights were focused on the political and commercial spheres, and in the 1915 statement those activities were excluded from the classroom as inappropriate to the profession. Moreover, as we saw in the previous section on the history of free speech, until the 1960s government at all levels could restrict speech for a number of reasons. Hence before that time, appealing to the right of free speech in an academic setting would not have helped one’s case. Moreover, appealing to the First Amendment to protect academic speech would in effect surrender the special status of teaching as a profession and place it on the same level as a political rant or an advertisement for soap.

But within the last 50 years, the courts, the professorate, and the public have come to identify academic freedom with freedom of speech. And since the courts now protect even the most outrageous and radical forms of speech, activist professors that wish to use such speech in the classroom increasingly appeal to the First Amendment to protect their right to say whatever they wish in the classroom–political rants, recruitment drives, and vitriolic, personal attacks on religious and political leaders.

Academic Freedom in Christian Colleges

Though Gordon’s book deals with state educational institutions only, I believe it can be helpful in grappling with the issue of academic freedom in Christian colleges. I want to expand on this at a later date, but let me tell you briefly what I mean. (1) Gordon explodes the idea that there is only one definition of academic freedom that must be implemented in every institution that claims to be true to the nature of the academic vocation. Christian colleges, then, should be free to define academic freedom in a way that fits their mission. (2) Debunking the idea that academic freedom must be subsumed under the more general concept of freedom of speech will help Christian colleges resist encroachments by the state, accrediting bodies, and professors that work against the Christian mission of the college.

*See also my essay of January 24, 2022, “Academic Freedom in Context.”

**As of this writing, the Kindle version of this book is free! And instantly available!

Freedom of Speech II

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My Agenda

Perhaps I should tell you why I am discussing freedom of speech in such general terms and outside the bounds of my expertise. I am working my way toward addressing this question: Is a Christian school possible in the United States of America? Can an institution possess both the qualities that are expected of K-12, college, or university education and be thoroughly Christian? Or have government law and regulation, the courts, lack of qualified faculty, accrediting bodies, and progressive culture made it impossible?

Defining Freedom of Speech

What is freedom of speech? Clearly, this First-Amendment right does not merely point out that we have the power to speak, to say something in front of others. This mistaken view lies in the background of such statements as this: “Well, you have freedom of speech, but you have to take the consequences.” No, in the context of the First Amendment, “freedom of speech” means first that you have a right to speak without fearing consequences emanating from the Federal Government. The Federal Government will not suppress speech within its sphere of authority. Second, the government will not allow any private person or entity to forbid or punish speech within public spaces. The Fourteenth Amendment (1868) applied all the rights mentioned in the Bill of Rights to the states. Hence the right to freedom of speech applies to all spaces regulated by governmental authorities, federal, state, and local.

Limiting Speech

Not being a constitutional lawyer, I do not want to venture too deep into the legitimate limits that the courts have established on speech: libel, sexual harassment, conspiracy, incitement to violence, yelling “fire” in a crowded theater, etc.  The courts do not think the kinds of speech covered by the First Amendment is limitless. However, it seems that for the most part governments at all levels limit speech that is inextricably associated with or used as a means for carrying out acts that are crimes considered apart from speech. The Bill of Rights does not cover such acts. But as the recent controversy over “disinformation” concerning COVID, election fraud, and climate change demonstrates, any attempt to limit speech opens the door to censorship, suppression, or cancelation of speech. Who decides what disinformation is and when it merits criminalization?

Duty to Listen?

Clearly, your right to speak freely does not entail a duty for others to listen or to remain silent while you speak. No one who gives a talk in a public space should expect the government to punish people who refuse to attend or walk out angrily or Boo or in some other way protest. Government must protect the personal safety of the speaker, but it cannot guarantee the respect of the audience. For freedom of expression applies to audiences as much as it does to speakers. The right to speak can be granted, but the right to be taken seriously has to be earned.

Free Speech in Private Spaces?

I want to emphasize strongly that freedom of speech applies only to forums legitimately regulated by government and only to government action. The First Amendment does not guarantee your right to say what you please in wholly private spaces. (It does, however, protect you from acts that cause bodily harm, from robbery, theft, etc., even in “private” spaces.) As the clearest case, consider how things work in your private dwelling. We expect to be able to invite guests into our houses according to our personal preferences and refrain from inviting those with whom we do not wish to associate. We demand freedom to invite only people with whom we agree politically or religiously. If someone we invite into our homes begins to speak in ways that we do not like, we claim the right to ask them to stop or leave our house. In doing this we have not “abridged” their freedom of speech, because this First Amendment right applies only to public spaces and restricts only government action.

I think most people would agree that common spaces—such as courthouse steps, public sidewalks, town hall meetings, public parks, and other publicly owned areas—should provide maximum freedom of speech. In contrast, in wholly private spaces—private dwellings, churches and other spaces owned by private associations—speech may be regulated by the private entity that owns and regulates that space. In these spaces, governments may neither abridge nor protect speech.

The In-between Spaces?

What about all the spaces in between the town hall and your house, the quasi-private, quasi-public spaces? What about businesses, educational institutions, political parties, political action committees (PACs), clubs, guilds, labor unions, churches, religious and non-religious non-profit organizations, and a host of other corporations, institutions, and associations?

I think I am safe in assuming that the right to freedom of speech applies to corporate entities in the same way it does to individuals. After all, in addition to “freedom of speech,” the First Amendment declares that the people have the right “peaceably to assemble, and to petition the Government for a redress of grievances.” A corporate entity may speak freely in its bylaws, policies, constitution, advertisements, code of ethics, declaration of principles, or statements of political and religious or moral advocacy. The government must protect the corporate entity’s speech from violent suppression by the public and refrain from abridging its speech by threatening or enacting punitive government measures.

One huge difference between corporate entities and individuals affects the way the right to freedom of speech applies to them. An association, a club, or an educational institution usually contains many individual members. Do those individuals possess the First-Amendment right to free speech inside the space controlled by the corporate entity? Or, does the school or business or club have the right to control speech within its own space? As examples, does the First Amendment apply to students while on campus, employees in the workplace, or individuals present at club meetings? How far can the government go in regulating the internal affairs of a private association?

The Ever-Expanding Government

Since the end of the American Civil War (1865), the federal government has steadily expanded its reach into daily life and hither to private corporate spaces. The pace of expansion quickened in the twentieth century and reached warp speed after WWII. The civil rights laws passed in the 1950s and 60s dealt primarily with race, but they have been steadily expanding so that today the list of protected groups, according to the Equal Employment Opportunity Commission (EEOC), includes, “race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability and genetic information (including family medical history).” Federal, state, and local governments have grown quite creative in finding ways to bring ostensibly private associations under its anti-discrimination, free speech, anti-harassment, and other regulations. It seems that almost any interaction an association has with a government entity or the space it regulates provides an excuse to regulate that association. Of course, it is impossible to exist in the world as an association or even as an individual without interacting with government-regulated spaces!

If it were not for the First Amendment no space would be off limits to government regulation. Let’s read it again:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Applying the Bill of Rights to Associations

As I argued above, these rights apply to corporate entities as well as to individuals. The corporate application is obvious in the establishment and free exercise clauses. But it is also clear in the references to freedom of the press and of assembly and of the right to petition the government. Except for freedom of speech, these protected activities are most naturally exercised by associations—churches, publishers, trade unions, and corporate entities of many kinds. The tension between individual rights and corporate rights is deeply embedded in the history of moral and political thought. And much of that history has been taken up with seeking the proper balance between the two.* It seems to me that since WWII the American public, politicians, legislators, and the courts have tilted the balance toward individual rights to the point of almost destroying the rights of private associations, businesses, clubs, and educational institutions to create and maintain their distinct identities and pursue their unique missions.** Indeed, most people are so focused on individual rights that it would never occur to them that the Bill of Rights applies to associations as well as to individuals.

As I stated above, my concern in this series is with the question, “Is a Christian school possible in the United States of America?” The American government’s war against private associations’ discrimination toward individuals on the basis of the characteristics listed above—race, color, religion, sex, pregnancy, sexual orientation, gender identity, national origin, age, disability, and genetic information—has had the effect of disempowering Christian schools and other Christian non-profit organizations of the ability to craft a distinctive Christian identity, govern their internal affairs, and pursue their mission energetically. At some point, those students and faculty that are no longer committed to the Christian identity and mission of the school insist that their individual rights take priority over the institution’s rights to maintain its Christian identity and mission even if their insistence destroys the institution. And the government, the public, and the courts always take their side in this struggle. It is almost as if destroying Christian institutions is the goal. Perhaps it is.

*I am now reading an excellent history of moral and political philosophy that details this story from around 1610 (Grotius) to 1800 (Kant): J.B. Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (Cambridge, 1998).

**Some readers may object that we live in an age of group rights in opposition to individual rights. I do not believe this is the whole truth. Indeed, individuals are often treated as members of a protected group when being considered for admission to a college or for employment. This factor sometimes outweighs scholastic achievement, experience, or other merit-based considerations. Still, members of protected groups are treated as individuals who possess certain traits on the basis of which schools and employers must not discriminate and to which they may even give preference for the sake of equity.  They are not treated as associations, clubs, corporate entities. Hence my point stands: in contemporary society individual rights trump corporate rights.

To be continued…

Freedom of Speech for Me but Not for Thee

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There is great ferment in contemporary American society over the idea and practice of freedom of speech. The history of the United States of America from 1788 to today could almost be derived from the history of interpretation and application of the First Amendment to the United States Constitution. It reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Perhaps reading that history would reveal that from its institution until today, the right to freedom of speech has been prized most by groups with the least political and cultural power. The dominant culture has been less enthusiastic, because freedom of speech grants unearned power to those who do not have it and exposes those with power to criticism and threat of losing power. However, history demonstrates that once the formerly powerless groups gain power and themselves become the dominant political and cultural force, they become critics of freedom of speech. I know it sounds cynical, but I think most appeals to lofty ideals in defense of free speech turn out to be little more than clever rhetorical ploys.

As an example, consider the change that has occurred on American college campuses since the Berkeley Free Speech Movement that exploded onto public consciousness in 1964-65. At that time, left-leaning students demanded freedom of political speech on campus. The enemy was the old conservative establishment on campus and in the country as a whole. On college campuses today—and in many other centers of power–the political/cultural left is overwhelmingly dominant. Not surprisingly, the new leftist orthodoxy is as great a suppressor of dissent as the conservative establishment ever was, perhaps even greater. Speech defending conservative morality and politics and even speech advocating free speech is condemned as “hate speech” or “racism” or some other form of despicable speech. The list of ways to misspeak grows longer every day. It seems that hardly anyone really believes in free speech. They pretend to support it only when it is to their advantage.

I do not deny that there have been some true believers in free speech. Sincere free speech advocates past and present appeal to the value of truth. The appeal assumes that everyone can (or should) subordinate their private interests, beliefs, preconceived notions, and desires for wealth, power, and honor to the communal quest for truth and goodness. Allowing everyone to participate in public deliberations, whether we agree or disagree with them, serves the goal of getting a clearer picture of the actual state of affairs and of what is possible. And that makes us all better off in the long run. Or, so the argument goes.

These days, defenses of free speech come only from conservative circles with perhaps a few leftover liberals mixed in. Political leftists and postmodernists do not believe in truth, and they label all appeals to truth and fact as ideological defenses of the racist, sexist, homophobic, white, colonialist establishment. What matters to the political/cultural left is consolidation of its power. Free speech for conservatives would only hinder that consolidation.

Next Time: Consider the essay above an introduction.  In future essays we will examine the idea of free speech in detail. What does it mean? Where does it apply? How do churches, Christian schools, and other religious non-profit institutions deal with demands for more freedom of speech within their spheres or for more restrictions on speech?

Is it Okay for Good People to Hate Really Bad People?

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I’ve known preachers to preach the same sermon twice within a short period, short enough that the rerun sounded very familiar. When asked why they preached the sermon again, the preacher may well reply, “You’ve not yet repented of the sin I preached against last time.” Well, that is what I am doing in this post. Since January 20th, 2017 (Let the reader understand.), I’ve heard brothers and sisters who in other settings seemed to be peacemaking and loving disciples of Jesus erupt in anger, use abusive speech, and melt in despair over what they describe as the dawning of a new Dark Age. This new era is characterized, they say, by hatred of the poor, weak, and wounded. So, these good people are angry.

I am not writing to dispute those who believe we’ve regressed to an age of barbarism. For argument’s sake I grant it. And I’m not addressing those who don’t claim to be disciples of Jesus. They don’t know better. My argument is with those Christian people who act and speak as though they believe this new situation requires that they “fight fire with fire.” I want to remind us that Jesus fought the world-dominating powers with suffering and death on a cross. Is it right then for his would-be disciples to react to unrighteous anger in what they think is righteous anger, to reply to unjust hatred with just hatred. Righteous anger? Just hatred? What absurd notions! Can there be such a thing as twisted straightness or peaceful violence or unhappy joy? Those are the thoughts of Saul of Tarsus as he persecuted the church and of Torquemada as he tortured the Jews of Spain. Saul didn’t realize that those who persecute “blasphemers” thereby become blasphemers, and it never entered Torquemada’s mind that those who torture “heretics” thereby make themselves into heretics. In exactly the same way, if we hate those we think hate the poor, weak, and wounded, we transform ourselves into haters.

So, I want to reblog a post from last year (“The Logic of Hate”) to encourage us…

to bless when cursed

to overcome evil with good

and

to believe in the power of a cross-shaped life.

 

“The Logic of Hate

Hate, hate, and more hate! Hate crimes! Hate speech! Hate looks! Hate thoughts! Television commentators, college administrators, columnists, political pundits, and political officials have a lot to say these days about hatred. However, as far as I can discern very little of it is grounded in any serious moral philosophy, much less in a thoughtful application of the original and most radical prohibition against hatred and hate speech, that is, Jesus’ teaching in the Sermon on the Mount. So, as we continue our thoughts about the Christian way of life let’s think carefully about hatred.

Keep in mind Jesus’ words from Matthew, Chapter 5, as we think about hate and hate speech:

 

You have heard that it was said to the people long ago, ‘You shall not murder, and anyone who murders will be subject to judgment.’  But I tell you that anyone who is angry with a brother or sister will be subject to judgment. Again, anyone who says to a brother or sister, ‘Raca,’ is answerable to the court. And anyone who says, ‘You fool!’ will be in danger of the fire of hell…“You have heard that it was said, ‘Love your neighbor and hate your enemy.’ But I tell you, love your enemies and pray for those who persecute you, that you may be children of your Father in heaven. He causes his sun to rise on the evil and the good, and sends rain on the righteous and the unrighteous. If you love those who love you, what reward will you get? Are not even the tax collectors doing that? And if you greet only your own people, what are you doing more than others? Do not even pagans do that? Be perfect, therefore, as your heavenly Father is perfect (Matthew 5:21-22; 43-48).

 

Who is My Enemy?

In verses 21-22, Jesus deals with what our culture calls hate, hate crimes, and hate speech. Most murderers are motivated by hatred, and Jesus addresses the motive as well as the act. But he makes a surprising move. Rather than saying “Don’t hate your brother or sister” he says “Don’t be angry” with them. We might make a plausible denial of hatred but we can hardly deny that we get angry with others. Jesus severely condemns even mild insults like “raca,” which means something like “idiot!”  And he warns that calling someone a “fool” places one in danger of divine judgment.

In verses 43-48, Jesus speaks about hate and love. It is human nature to think we can love some people and hate others. But Jesus teaches that it is never permissible to hate. Who is your enemy? The enemy is here defined relatively. Your enemy is anyone you think wishes you harm or refuses to give what you think you are due. Of course, the person you think wishes you harm or will not give you what you think you deserve may not actually wish you harm or intentionally withhold what you are due. But that makes no difference. Whatever the truth of the matter, Jesus commands that we love our enemies.

 

What is Hate?

What is hate? Let’s begin where Jesus began, with anger. Anger is an emotional response to insult.  In anger we desire revenge for the disrespect others show us. Anger feels a lot like fear, and sometimes it accompanies it. But they are not the same emotion. Fear precedes and anger follows a damaging act. We fear something that threatens to harm us. When we suddenly feel that we might fall from a great height or when a huge dog charges us, teeth bared, we become afraid. But when a human being moves to harm us the threat is accompanied by a sense of outrage. Human beings know they ought to respect our dignity.

If we think we have been insulted repeatedly by a person or if we can’t get a past insult out of our minds, anger becomes habitual. In a moment of anger we desire revenge, but hatred, as constant desire for revenge, becomes obsessed with imagining and plotting ways to get even. Hatred is anger that has taken root and come to dominate other motives. In its poisonous imagination it magnifies, distorts, and deepens the insult to the point that taking revenge becomes a sacred duty to oneself…and sometimes a duty to God. For the person consumed by hatred, taking revenge feels like the only way to find release from self-destructive emotions.

 

Jesus and Your Enemy

But Jesus says to love your enemy. And your enemy is anyone you think wishes you ill. And to wish someone ill is to hate them. Your enemy is the one you think hates you. Now don’t miss this: the “enemy” Jesus says to love is precisely the person you think hates you, that is, the hater. Jesus warns us not to insult anyone, not even the one who hates. But in contemporary culture it has become acceptable to target people who “hate” us and others as long as we think their hatred arises from irrational prejudices. Such “haters” deserve anger and insult from “good” people, that is, the non-haters. Labeling “haters” with insulting and damning names and pronouncing severe judgments on them is a duty, rational, holy, and good. The logic of hatred is subtle indeed! For it was precisely this logic that Jesus exposed when he rejected the rule “Love your neighbor but hate your enemy.”  The enemies you are duty bound to love are the irrational haters. There is no other kind! And if we rage in anger and hurl insults at those people, we have become “irrational haters” ourselves. The logic of hatred is this: You are like what you hate! Jesus’ answer is this: “Love your enemies.”

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