First Amendment Lawyer Greg Lukianoff Defends Freedom of Speech in Higher Education

Head of Foundation for Individual Rights in Education Discusses New Book

New York, March 19, 2013 — Polarization, fear of causing offense, and outright censorship are threatening freedom of expression on campuses across the nation and diminishing society’s exchange of ideas, warned Greg Lukianoff, a First Amendment lawyer and head of the Foundation for Individual Rights in Education (FIRE).  Lukianoff came to Columbia Law School for a discussion of his new book, Unlearning Liberty: Campus Censorship and the End of American Debate, with Visiting Professor of Law Frederick Schauer

Lukianoff said he first became interested in campus speech issues as a law student at Stanford where he encountered numerous cases of disciplinary action against undergraduate students who exercised their right to free expression. He was struck by the nonchalant acceptance of restrictions on speech—once a key issue for campus activists across the ideological spectrum— by many students, faculty, and administrators.
“Younger generations have learned the rules,” Lukianoff said at the March 13 event, pointing to research suggesting that today’s students tend to talk less in class than their predecessors. “Students can actually get in trouble for having the wrong opinion in front of the wrong professor or the wrong student.”
A 1973 Supreme Court case, Papish vs. Board of Curators, set the legal standard for free speech on campus, finding that colleges and universities have a special role in an open dialogue, Lukianoff explained. The ruling specifically applied to state schools, however, and private institutions have more latitude to restrict speech. Lukianoff’s organization, FIRE, advocates for and provides support to students fighting censorship at both public and private schools.
In many cases, Lukianoff said, supporters rationalize speech codes as responsible and polite, without broader consideration for the role of free expression in a pluralistic society.
“I’m afraid of it becoming commonplace for censors to be given the moral high ground,” Lukianoff said. “The First Amendment is about protecting the oddballs and the numerical minority. We need them. Sometimes they’re wrong but help us get closer to the truth, and sometimes they’re right.”
Lukianoff highlighted a case at Valdosta State University in Georgia, where in 2007 a student was expelled for a supposed threat against the university’s president in a collage protesting plans to build new parking garages on campus. In another recent case, a student employed at Indiana University-Purdue University Indianapolis was found guilty of racial harassment for reading in public because his book—which celebrated a notable defeat of the Ku Klux Klan—pictured a Klan rally on the cover. In both instances, Lukianoff said, FIRE was able to help pressure administrators to reverse their decisions.
Concerns about formal reprisal and social sanction intimidate students and community members from airing ideas that may be controversial or run counter to perspectives perceived as dominant, Lukianoff said. In turn, communities miss the opportunity to grow by grappling with the broad diversity of viewpoints that come with free speech and open dialogue.
“Higher education should cultivate talking about disagreements as a duty,” Lukianoff said.
Schauer, a distinguished scholar of constitutional law who is currently a visiting professor at Columbia Law School, noted in his remarks that Americans tend to be more alarmed about limitations on speech than citizens of other nations.
“The U.S. is an international outlier on free speech; there are many countries that consider themselves liberal democracies with more restricted speech than we have,” Schauer said. “The First Amendment has broken out of law in the strict sense to become a cultural icon.”
Schauer argued that censorship and limitations on expression must be understood both in the context of and as something distinct from academia’s intellectual imperative to choose which ideas are most valuable and worthy of dissemination to the next generation.
“Universities are in the business of content regulation—all education is,” he said. “It’s important to distinguish the idea of content regulation, which is an inevitable and desirable component of education and academic inquiry, from problems that come from over-bureaucratization and too many administrators. Most of the complaints about campus censorship can be traced to bureaucratic over-aggressiveness, but not to the way in which faculty can and must engage in what some might call censorship in the classroom, in the journals they edit, and in much else.”
Alexander Imel ’15 helped organize the discussion, which was sponsored by the Federalist Society.
“Campus censorship affects all students regardless of political or religious affiliation,” Imel said. “This is an issue that is not widely known about here in part because we do not experience it at Columbia Law School. Mr. Lukianoff's talk was excellent and highlighted some of the key campus censorship issues currently plaguing the nation.  Professor Schauer also provided great commentary by forcing us to question the merits of absolute free speech in general.”