Nadine Strossen, an author, law professor and civil liberties advocate, will be the Information School’s guest for the Ed Mignon Distinguished Lecture on April 2.
From 1991 through 2008, Strossen served as President of the American Civil Liberties Union, the first woman to head the nation’s largest and oldest civil liberties organization. She was with the ACLU as it re-examined its position on “hate speech” throughout the 1980s and ’90s and concluded that censoring such speech would do more harm than good. She is now the John Marshall Harlan II Professor of Law at New York Law School.
In her forthcoming book, “Hate: Why We Should Resist It with Free Speech, Not Censorship,” Strossen argues against censoring “hate speech” unless it directly causes imminent, serious harm. She writes that it’s counterproductive to punish such speech solely because its message is disturbing or feared to possibly contribute to future harm, and that counterspeech and activism are more effective responses. The book will be released May 1.
A conversational, Q&A-style format is planned for Strossen’s appearance at the UW, which will take place Monday, April 2, at 4:30 p.m. in the HUB South Ballroom. To warm up for the event, we asked Strossen a few questions about her views on attempts to prevent “hate speech” on college campuses. Some responses have been edited for length.
Q: What would you say to students who object to campuses bringing in speakers like Richard Spencer or Milo Yiannopoulos and are worried about the safety aspects of doing so?
A: First of all, every student clearly has a right to be safe from physical attacks or violence or threats, so physical safety should be guaranteed by government, including public universities, to all of its citizens. But the words “safety” and “threat” have been used on college campuses much more broadly to say, “I should be safe from ideas that I find upsetting, or hateful, or that make me uncomfortable, or that I find unwelcome.” That is not a concept of safety that is appropriate. To the contrary, that is a concept that is squarely at odds with the concept of education.
I like to quote Ruth Simmons, who was the first African-American president of any Ivy League university and the first female president of Brown University. Many years ago, before it became as common as it is now for students to say, “I should be protected from ideas that make me uncomfortable,” she said, “Education at its best is the antithesis of comfort.” I couldn’t agree with that more.
Our law is very wise. The more I study it, the more I appreciate it, because it really does draw an appropriate distinction. Speech may not be censored just because we may hate its ideas or consider its ideas hateful – that is never a justification for suppressing speech. But what is a justification is if the speech, in a particular context, directly causes specific, imminent, serious harm. Certain hateful expression, along with expression of other messages, in particular contexts, does satisfy that standard, which is called the emergency standard. Emergency because government, including the university, has to exhaust all other possible ways of protecting against the threatened harm, including law enforcement. But if all else fails and the speech does present an emergency, then government is justified in punishing it.
Q: History is full of attempts to regulate speech that people feel is threatening at the time, like the Sedition Acts and the Red Scare.
A: Exactly, and before the Supreme Court adopted the emergency standard, it did use a much looser standard, which lawyers refer to as speech that had a bad tendency, that it might potentially indirectly at some indefinite future time lead to harm. Well, that is basically giving the government a license to censor any speech it disapproves of, which certainly includes any speech that criticizes government policy. So under that “bad tendency” test, we had the arrest and prosecutions and convictions of people who opposed various wars throughout our history, and critics of various government policies, including all advocates for racial justice throughout our history.
Every crusader for racial justice throughout our history has also been a very strong free speech champion – Frederick Douglass, W.E.B. Du Bois, Martin Luther King – and one of the reasons was that in their time, in the places where they were advocating, their speech was attacked as hateful and dangerous and threatening social stability and the very ongoing survival of the nation itself. Even many people in the North who opposed slavery supported censoring abolitionist speech because they felt it would lead to slave rebellions and great violence.
Q: Universities, by their nature, attract these controversies over speech. What should they do about security costs?
A: I think that is a very difficult question. One thing the university may not do, along with other governments, is to impose either higher costs for certain speakers or certain inviters because that violates what the Supreme Court has called the bedrock principle of our free speech jurisprudence, of viewpoint neutrality or content neutrality – that government can’t suppress speech selectively because of disapproval, even loathing of its idea, its message, its viewpoint. And to say, “Well this speech because it’s so controversial it’s likely to engender more violence,” is a way of selecting and discriminating on the basis of viewpoint. The Supreme Court has said you can’t do that. On the other hand, I understand that [universities and] municipalities have other demands on their budgets and not everybody can afford the hundreds of thousands of dollars that Berkeley has had to put out for some of the controversial speakers, so I think that is a very serious issue.
One thing that might reduce the cost is for universities and other authorities to enforce laws and rules that are violated when you have disruptive protests as a way of discouraging others from engaging in them, but to the best of my knowledge many of the disrupters on campuses have gotten off scot-free. I don’t think that’s appropriate. You’re not exercising free speech when you engage in disruptive protest.
Q: Why did you write your book now? Are we at a particularly precarious time for free speech?
A: A few years ago, the Ferguson incident, if I remember the history, is what kicked off a wave of student activism that has continued since then, very strongly against racial injustice and for justice for immigrants and against sexual assault and sexual harassment. As a veteran of the campus activism of the late ’60s and early ’70s, I was absolutely thrilled at this resurgence of student activism for social justice. We hadn’t seen that in decades. But you started also to see a pattern of student hostility toward free speech, and it seemed that the students who were advocating civil rights saw civil liberties, including free speech, as an impediment to their social justice goals. And I believe very strongly that it’s the other way around and you can’t have social justice without civil liberties including free speech, and I took the responsibility of trying to persuade a new generation. Clearly everything that I said in the past, that I wrote in the past, had not worked!
I thought I didn’t have anything new to say, but maybe I could say it more persuasively. In fact, I did learn a lot in the process of writing the book. I have new arguments that are based on the intervening decades of evidence that has amassed. I was surprised. I had no idea there was so much opposition in countries that have hate speech laws, and in the international and regional agencies, human rights advocates and experts and lawyers are opposing their hate speech laws and saying we should move more in the direction of the United States. That was pleasantly surprising to me. Another really big change is the rise of effective counterspeech in this country, including – and this is the most heartening – by the minority students themselves, by people who are members of groups that are being disparaged.
Q: It sounds like there’s reason to be hopeful.
A: There definitely is. It goes from the macro to the micro. I love reading stories, which abound, about individual members of hate groups and white supremacist groups who are weaned away and then devote their careers or at least part of their time to organizations that do the same. People can be educated about this.
After Charlottesville, apparently the most widely retweeted tweet of all time was Barack Obama himself quoting Nelson Mandela, who said, “No one is born hating another person because of the color of his skin or his background or his religion.” If you can be taught to hate, then you can be taught to not hate. It sounds amazingly simple, but it actually works.
This concept of hate – I wish we didn’t use such a strong word, but it does abound. I think we need to break down those barriers not only on the basis of characteristics such as race and religion and gender, who you are, but we also have to break them down in terms of what you believe. We have so much hatred and fear based on ideology and partisanship, and so much good can be done in the very simple way of just getting to talk to and know somebody else, to dispel the stereotypes and start seeing everybody as individuals.