At the tail end of 2013, I published a very short essay in the Florida International University Law Review entitled Academic Freedom versus Academic Legitimacy. The goal of the essay was to disentangle two oft-conflated concepts, both of which are intuitively important and both of which express exceptionally important academic values.
The first of these is "academic freedom": the right of persons within the academic community to forward any idea -- no matter how outlandish, offensive, or controversial -- without facing formal sanction or punishment. The second is "academic legitimacy": the belief that ideas presented in academic concepts should generally be good, interesting, well-reasoned, or thought-provoking, and that correspondingly where the academic community forwards poorly-reasoned or outlandish ideas, something has malfunctioned. "Academic legitimacy" does not entail agreement; there are many ideas which are perfectly "legitimate" -- in the sense of being thoughts that usefully forward an intellectual discussion -- that many people disagree with.
If, for example, a geology professor brought in a flat-earther to speak, we would presumably think that they had failed in an important scholarly aspect by acting as if flat-earthism was even "in-bounds" as something worth presenting in an academic context. This isn't (just) because we think flat-earthism is "wrong", it's because it is not a useful contributor to a reasonable conversation about geology. And this belief would hold even as academic freedom constrained the remedy -- we could not fire or otherwise discipline the professor. Holding this distinction is critical on both sides of the equation: Saying something is academically illegitimate (even if correct) does not justify abridging their academic freedom, but alleging that something is academically illegitimate does not constitute a violation of academic freedom (even if incorrect).
In my article, I note that what is and isn't "academically legitimate" will be contested, and offer several examples of potential speakers whom we might debate over. These ranged from BDS activists and the Black Panthers to David Horowitz and Gilad Atzmon. On this blog, I've applied this idea to two recent controversies: the hiring and unhiring of Steven Salaita by the University of Illinois, and the hosting of a talk at NYU law school by anti-vaccination activist Robert Kennedy Jr..
In Professor Salaita's case, I argued that while academic freedom principles may demand that we object to his "unhiring", this in no way should entail sanctioning some of the horrific anti-Semitic comments he made on Twitter. Too many people were combining these cases, saying that he should be reinstated and that his comments were perfectly innocuous, and grouping both under the mantle of "academic freedom". But only the former part is -- the question about whether his comments were benign "criticism of Israel" or repulsive anti-Semitism is an academic legitimacy question -- it has no bearing on the academic freedom issue. Likewise, with NYU "academic freedom" means that whichever member(s) of the NYU community invited Kennedy ought not be punished or disciplined, and should not have been prospectively barred from issuing the invitation. Nonetheless, I think most of us feel that something went wrong when the invitation was extended. A member of a university the caliber of NYU should not think that anti-vaccination conspiracies are a legitimate topic of debate. Put simply, NYU community members should do better than that in picking their speakers.
All of this leads up to a recent editorial in the Daily Tarheel, the University of North Carolina's student newspaper, which has been getting far more negative attention than I think it deserves, primarily based on the same conflation I observed in my article. The editorial takes note of two recent speeches given at UNC and Duke by David Horowitz and Mitt Romney, respectively, who were invited by the local College Republican chapters. The editorial makes it absolutely clear that it does not support a ban on their speeches. Rather, it suggests that both speakers had "little intellectual heft to back up their cultural prominence," and did little "to promote serious discussions about controversial issues." In Horowitz's case, this was due to their appraisal of Horowitz as basically a racist hatemonger. In Romney's case, the criticism was more specific -- he was speaking on foreign policy, an arena in which he has no special background or expertise, and his talk was allegedly just a litany of partisan talking points rather than anything of significant substance. The editors suggested that the host of the event, Duke Professor and former Bush administration national security official Peter Feaver, would have actually provided an interesting and intellectually sophisticated (and, I'd add given his background, conservative) foreign policy address.
Since the editorial explicitly did not call for any ban, oversight, disciplinary action, or any other restriction on the groups which invited Horowitz and Romney (and in fact affirmed their right to speak on campus), theirs was an academic legitimacy critique, not an academic freedom one. Like the criticisms of NYU following the anti-vaccination presentation, the editorial urges that College Republicans do a better job picking speakers that will significantly advance scholarly debate. I'll tip my hand here and say that I agree with them in the case of Horowitz and disagree with respect to Romney, and I'll go into more detail on that in a moment (specifically, on why the case of a prominent politician's political speeches is in fact a debatable case).
But there were many, many people -- my friend Yair Rosenberg, Popehat, a Texas Supreme Court Justice, among others -- who contended that the editorial pressed for a "ban" on conservative speakers, or "pre-approval", or was an "Orwellian" attack on free speech. And they're wrong. And they're badly misreading the argument. The column does not endorse, and in fact specifically rejects, any abridgment of anybody's free speech rights in the course of its critique of the speaker-selection.
One response I got from some quarters upon making this observation was quite straightforward: the UNC editors are lying. They say they respect the free speech rights of the speakers, but they don't mean it -- if given the chance, they'd support prohibiting them outright. For starters, this is no way to have a discussion -- assuming that one's interlocutor is lying so as to avoid the awful possibility that they actually don't disagree with you. There's also nothing in their argument that suggests an internal inconsistency -- the position they're forwarding, that groups are free to select whatever speakers they want at their discretion but they should in the exercise of that discretion select intellectually serious people, is theoretically perfectly intelligible (even if we disagree over who is or isn't intellectually serious). Finally, the fact that they specifically recommend a different Republican (Feaver) as an example of someone who would be intellectually serious is evidence that their position is not simply a fig-leaf for banning speech they disagree with.
A few people tried to buttress this inference of insincerity by referencing other malign movements on college campuses that do explicitly call for censorship of "hate speech" or "triggering" ideas. But the presence of such forces makes it more imperative that we disaggregate those students who respond to disagreeable speech in the right way -- by arguing that it is bad speech and urging that it be replaced with better speech, while forswearing illegitimate instruments like formal speech restrictions.
Another argument I heard a lot was that even urging a group like the College Republicans to "voluntarily" recalibrate their assessment of what sorts of speakers are worthwhile is a form of censorship. Some people tied this argument to the aforementioned presumption that the "voluntary" part was a fiction, but many seemed to honestly believe that arguing in opposition to the College Republicans appraisals, and asking them appraise differently (better), was in of itself a form of censorship. This argument is nothing short of bizarre. Unless one offers an open-mic night or selects speakers by lot, the decision to invite a particular speaker obviously entails an appraisal of their quality. That's presumably why Mitt Romney the politician was invited instead of Mitt the audiovisual specialist -- the former is the sort of person who would give an interesting, informative, and intellectually stimulating talk. The latter would be unlikely to. The editorial is a claim that the group's appraisal was flawed, and they should try to improve it. Now, maybe that's wrong -- in fact I think it is, at least with respect to Romney -- but it's not a form of censorship.
Indeed, this position might the most dangerous from the standpoint of encouraging people to dissent by disagreeing, rather than by resort to actual censorship. When some folks try to promote censorship and say we should ban the speech we don't like, the common (and correct) response is to tell them that's the wrong remedy. The right remedy is to argue that the speech is wrong and try and persuade their fellows to adopt a different, better position. We might, of course, disagree on which positions are right, but that's the terrain in which the debate should be hashed out. But if people do exactly that and are told it is in fact tantamount to censorship, that's suggestive that the objection actually isn't to formal efforts to "ban" disagreeable speech, but to the speech being challenged at all.
Finally, some folks argued that the real problem was that the editorial was one-sided -- that it viewed only conservative speakers, and even a very mainstream conservative like Mitt Romney, as academically illegitimate. The allegation is that the student editors, in appraising what sorts of speakers say intellectually serious things, are biased. They mistake "conservative" for "unserious". Under this view, we might say that it's not the College Republicans who need to reassess what they consider to be academically legitimate, but the editors of the Daily Tarheel.
Importantly, while this argument may have force, it's not a censorship argument. It is a line-drawing argument. If the invited speaker had been, say, a Klan Wizard, nobody would be saying "they're biased -- they only criticized inviting Klansmen!" That we all agree that it would be perfectly proper to criticize a group that invited a Klansman, and to suggest that (notwithstanding their right to extend such invitations) they should exercise their discretion in a more thoughtful fashion the next time around, is evidence that we don't actually believe in the second objection ("persuasion efforts = censorship") and our problem here is a substantive one -- we think that (at least) Mitt Romney is not the sort of speaker who should be objected to as academically illegitimate, and we think the best explanation for why someone would think he is so objectionable is a mind clouded by political bias.
Now, even though this is not a "censorship" problem, this sort of behavior would still be worrisome. We should worry about ideological self-segregation and biased appraisals of discomforting evidence. Everything we know about motivated cognition suggests this is a real phenomenon. It is a different sort of problem than one centered on "free speech" or "censorship", and so framing the debate in those terms is misleading at best. But that does not mean this hypothesis isn't worth considering, just that even if proven it would not demonstrate any free speech failing on the part of the students (which, of course, is the core of the critique -- political bias is a much more mundane sort of failure than brute censorship justified by an Orwellian invocation of free speech).
Before we go running off with this sweeping conclusion of unchecked political bias, though, it's worth taking stock of the evidence. The opinion piece cites a grand total of three cases. One of them (Horowitz) I think some of the column's critics (e.g., Yair) agree could be validly indicted as academically illegitimate. Moreover, we know that the newspaper does not actually object to having any conservative speak -- it specifically said it believed that Professor Feaver would have been excellent. Basically, what we know is that the editors found two conservative speakers unserious, one (potential) conservative speaker serious, and zero liberal speakers either serious or unserious. I'm not exactly a crack social scientist, but even I know better than to draw a robust conclusion from an n of 3. Given such a small sample size, breaking down what it would mean to demonstrate a lack of bias only illuminates the absurdity. Instead of a 1-0 scoreboard, would writing a single column critiquing two liberal speakers (thus tying the game at 1-1) count? One tweeter claimed that the alleged failure of the paper to condemn Bill Bradley's 2000 commencement address was evidence of the double-standard. A compelling argument ... except that the current editors of the Tarheel were all of 5 years old when that happened.
By far the most compelling argument supporting the "political bias" position is that their critique incorporated Mitt Romney -- not a David Duke, not even a David Horowitz, not an extremist or fringe figure of any sort, but a perfectly mainstream member of the Republican Party. As I mentioned, this is the point where I get off the Tarheel's train, but even here I don't think their position is transparently ludicrous nor solely attributable to ideological blinders. To explain why, indulge me in one more story.
When I was an undergraduate, I almost never attended talks delivered by politicians. This was not because I was politically incurious (I started this blog even before I entered Carleton). And it wasn't because I was averse to hearing competing viewpoints -- the first publication I wrote for was Carleton's conservative outlet (the Carleton Observer), and for quite some time I was a co-panelist on KRLX's political debate talkshow (a 2v2 conservative versus liberal format). Rather, I didn't attend because I found such talks to be breathtakingly boring. The claims and arguments presented were not intellectually rigorous, they were sophists, purveyors of partisan drivel designed to rev up a crowd or score cheap points. I never felt like I was learning anything useful from them about the best policies on the topic d'jour. They were, in short, intellectually unserious. And so I thought it was a waste of time to listen to them. I'd have rather we brought in real thinkers -- conservative or liberal. And whether they showed up or not, I certainly read them on my own time (my senior thesis was predominantly inspired by a major conservative legal theorist, Michael McConnell).
Now some of this is tempermental to me -- there is a reason why, despite my keen interest in political issues, I chose an academic route while elected office has never held the slightest appeal. I never joined and had no affiliation with the Carleton Democrats for precisely this reason -- party speech, organization, and activism was to me a paradigmatic example of doing political debate poorly, and I wanted no part of it. I know I'm not the only person who thinks like this -- whose first instinct upon seeing that a politician (of whichever party) is speaking is to roll their eyes. This is often true for people I nominally agree with as well as those I don't.
The Daily Tarheel did not argue that Mitt Romney was inherently incredible or that someone with his politics is obviously unserious. Its argument was twofold: first, that Romney has no particular foreign policy expertise, and two, that the speech he actually gave was pure political pageantry that contributed nothing to any serious foreign policy understanding. The latter part, no doubt, is not unique to Mr. Romney or persons of his party -- most politicians speak like that most of the time. It's their job. But in academic environments maybe we should expect more of ourselves, and look to people who can provide more than a grandstand.
The counterargument to this -- and what I ultimately find persuasive -- is that someone with Mr. Romney's background is "interesting" no matter what substantive views he presents, simply because it is useful to know what major politicians or world leaders think (even if, depressingly, the answer is "they think in terms of cute soundbites and platitudes"). Mitt Romney is meaningfully distinct from other persons who talk in terms of cute soundbites and platitudes, because he's Mitt Romney -- former presidential candidate and influential Republican. That, for me, is sufficient to render his talk academically legitimate -- it is a useful part of an interesting intellectual discussion simply because there are important intellectual discussions to be had about what major world leaders and politicians are saying about important issues. But the opposing position outlined above is one that I would have had a lot of sympathy for as an undergraduate, and not for any partisan reason. I don't think we do ourselves a favor when we pretend that political talking points packaged for a 30 second TV clip represent the best we can do in terms of policy reasoning.
I phrased this last issue as a motivated cognition story, and I should add that I think that's still very likely to be in play here. For example, motivated cognition may make liberals more likely to think that a Romney speech is pure useless talking point, while a Obama speech is perhaps a mix of interesting information and partisan drivel. That's obviously worth watching out for, and it's important. It reflects a serious problem across all of public deliberation that extends way beyond the editorial staff of one college newspaper.
But this debate has been framed in terms of censorship, in terms of free speech, in terms of banning thoughts that we don't like. And that is a misreading of the editorial and grossly unfair to its authors. These persons were quite clear that they had no quarrel with the academic freedom rights of the College Republicans or the persons they chose to invite. They criticized their intellectual contributions and suggested that other speakers would be more beneficial participants in the debate. They may be wrong on the merits. But they framed the debate along the right dimensions, and conflating a substantive line-drawing disagreement with the fight against censorship is a dangerous mistake to make.