Campus Free Speech, 2024

For free speech on campus, Brandeis and Holmes should guide colleges and universities.

I did not expect to write a book on free speech on campus. If you had asked me in 2020, 2021, 2022, or 2023, whether I might ever produce such a book, I would have said, "Are you kidding? Definitely not!"

But as they say, life is full of surprises. The on-campus disputes of 2024, spurred by protests connected with events in Israel and Palestine, led me to write a kind of extended "note to self," on my travel laptop—and here we are.

There's an issue that did not make it into the book, but that has haunted me for the last months. In thinking about freedom of speech on campus, we could use a lodestar. Two of the canonical First Amendment opinions—perhaps the most canonical, and perhaps the greatest—come from Justices Louis Brandeis and Oliver Wendell Holmes. Though they're grouped together, they're very different.

Brandeis' opinion is more elevated and soaring. It is almost a poem.

In Whitney v. California (1927), he wrote, "Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary." He added (and this is where he soared),

They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.

Let's pause over that passage. Law review editors would have a field day with it; Brandeis offered no citations for his claims, and it would not be so easy to demonstrate that Brandeis was really speaking for the founders. Still, it is reasonable to connect the protection of free speech with the civic republican tradition that the founders embraced (at least to some extent). For Brandeis, "an inert people" is the "greatest menace to freedom," and citizens are duty-bound to engage in political discussion.

Brandeis is prizing freedom from government, to be sure, with his emphasis on the importance of "counterspeech." Discussion, rather than censorship, is "ordinarily adequate protection against dissemination of noxious doctrine." (University censors, on both the right and the left—in New York, Florida, California, or Washington DC—please take note?) But Brandeis is also prizing participation in public affairs, and seeing it as a duty.

That's civic republicanism. It is also a kind of free speech libertarianism. But its libertarianism is derivative of its republicanism.

Holmes' defining opinion was his dissent in Abrams v. United States (1919). It is much darker than Brandeis, and more cynical, and it soars at a lower altitude and in a different way. It shows the influence of American pragmatism (William James, Charles Pierce, and John Dewey), not civic republicanism. Its libertarianism is derivative of its pragmatism.

Unlike Brandeis, Holmes nods, with some appreciation, at the impulse toward censorship: "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition."

He adds, in a way that speaks directly to our era (again, left and right, please take note), that if you allow opposition by speech, you might seem to show "that you do not care wholeheartedly for the result."

In response, Holmes argues for epistemic humility.  "But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out." In Holmes' view, "That, at any rate, is the theory of our Constitution."

Thus Holmes' somewhat shocking conclusion:  "I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

That's staggeringly eloquent, even if here again, law review editors would have a field day. ("That, at any rate, is the theory of our Constitution." Citation?)

Note, if you would, that while both Brandeis and Holmes are fiercely protective of free speech, the foundations of their commitment could not be more different. Brandeis, unlike Holmes, focuses on democratic self-government and public participation. Holmes, unlike Brandeis, emphasizes the limits of existing knowledge ("time has upset many fighting faiths") and "the competition of the market."

Also note, if you would, that neither Brandeis nor Holmes is an originalist. Neither of them claims that his approach is a product of the original public meaning of the First Amendment. Neither of them investigates history. They are seeking to understand free speech as a broad and general commitment, not limited to specific understandings of the late eighteenth century.

How does all this bear on free speech on campus? As they say, general propositions do not decide concrete cases.

Still, those inspired by Brandeis would begin with a kind of presumptive celebration of student engagement, seeing it as something to be welcomed and applauded rather than to be deplored. After all, the greatest menace to freedom is an inert people. And if some of what has been and is being said is noxious doctrine (and it sure is), it is nonetheless part of a process that is "indispensable to the discovery and spread of political truth."

Those inspired by Holmes would go in a different direction. They would urge that "the ultimate good desired is better reached by free trade in ideas." They would broaden the viewscreen and insist (and this is the kicker, as relevant now as in 1919) that "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death."

I admire Holmes' opinion, but I don't love it. It's great, but it isn't lovable, not really. (It's brilliant, but it's kind of harsh.) I admire Brandeis' opinion, and I also love it. It's great, and it's really lovable. (It's brilliant, and it's kind of sweet.)

But in 2024, colleges and universities need both. And if they are looking for a single lodestar, right here and right now, there is a good argument that Holmes is their man.

Comments

[apedad]

Epistemic humility you say!

“Epistemic humility is an intellectual virtue. It is grounded in the realization that our knowledge is always provisional and incomplete—and that it might require revision in light of new evidence.”

https://behavioralscientist.org/epistemic-humility-coronavirus-knowing-your-limits-in-a-pandemic/

I think we can agree that EH actively avoids the VC.

[Purple Martin]

At the risk of falling into wonkery here, but that’s never stopped me before! So, assuming treatment of epistemic humility as a virtuous intellectual principle, its implementing mechanism is Bayes Analysis.

Bayesian probability theory models how the human mind reasons about the world. It assumes people have prior beliefs about the probability of both a given hypothesis being true, and the probability that the hypothesis, if true, would generate the evidence they see. Taken together, these beliefs determine how, in light of new evidence, people update their confidence in a hypothesis.

Bayes analysis is always based on shifting probabilities, and being adaptive and fluid to a constantly changing environment—yes, not a method of reasoning that seems in danger of overuse here.

[Krayt]

This is a good discussion of why free speech is useful, as opposed to, say, freedom to build a house as you see fit. But by the time you seek to justify it, you’ve already lost the philosophy game. Indeed, the actual in-practice game.

Tyrant kings, which is pretty much the only kind, kleptocrats, censored because they could shut up criticism of themselves, aiding in their power maintenance.
Fun fact! Did you know there is no need to get on bended knee and plead, sir, for our freedom, justifying it?

You simply shut down the historical practice of censrorship. Any discussion of the benefits of free speech is, at best, redundant if interesting. At worst, it is a risky as every generation or two some tyrant wannabee comes along and suggests that, if’n we only censored this bad thing, your life would be better. I promise! So vote for me so I can have power.

This is why I point out the benefit to the First Amendment is not that there’s value in every last spittle-laden expectoration from random yokels. It’s in denying the power coveteous perhaps their greatest club in their golf bag of tyrant tools.

We must never sleep and allow charismatics, using their stock in trade superpower, to seduce people into giving them the power of censorship.

A couple of years ago, there was stimulation to revisit “the marketplace of ideas”. Cross-media, this seemed odd. I hypothesized this was not an attempt to buttress speech as a concept, but to suggest some speech was bad, and so could be censored.

Two weeks later, Radiolab hosted a debate, where that was exactly the conclusion of one side. That “harrassment” was so bad, it should be censored, which was the rage at the time.

[Malika]

Yes, the best argument against government censorship is: are you going to let the people who you find regularly in charge decide what can be said?

[Krayt]

By the way, the purpose of speech is to change the behavior of others. You can see why people want to censor it.

[Bddogs]

https://www.cnn.com/2024/09/03/politics/jimmy-mccain-decries-trump-arlington-appearance/index.html

This family was always full of RINOs.

[Krayt]

It’s a reasonable rule. That the families don’t object is beside the point. I do not fault them.

That the other side hyperbolizes it is also not unexpected. Can you imagine your outrage if Kamala Harris did this?

Did I miss kicking anyone in the nuts? No? Good.

Peace ooooot!

[Social Justice is neither]

So the actual actions and motivations of the loved ones don’t matter to you but some preening dynasty bitch is paramount? Fuck that noise.

And be honest, Kamala and Joe both pointedly ignored the families of the soldiers they abandoned to die.

[Sarcastr0]

The *place* is sacred. We have a law to keep it from being sullied with politics.

This is not hard to understand.

The right’s showing their ass again.

[JesusHadBlondeHairBlueEyes]

I wonder why the Left is jumping on this sacred land to sully it with politics then?

So weird.

[TwelveInchPianist]

“The *place* is sacred. We have a law to keep it from being sullied with politics.”

That’s an awful religious claim. I don’t know if you’ve even identified a legitimate state interest.

And I haven’t heard you object when incumbents sully the place with politics.

[Sarcastr0]

Religious like Memorial Day is religious. Is there a legitimate state purpose to Memorial Day?

“But, in a larger sense, we cannot dedicate, we cannot consecrate—we cannot hallow—this ground. The brave men, living and dead, who struggled here, have consecrated it far above our poor power to add or detract.”

Lincoln was not invoking Jesus.

You’ll just throw everything under your foot to support Trump these days, eh?

[TwelveInchPianist]

Memorial Day is neither sacred nor religious.

A law suppressing political speech to prevent Memorial Day from being “sullied by politics” would be unconstitutional, un-American, and would lack a legitimate state interest.

There’s no principle you won’t abandon in your hatred to Trump, eh?

And did the irony of invoking the Gettysburg Address to illustrate your point about not sullying sacred ground with politics seriously not occur to you?

[TwelveInchPianist]

I mean, how dare Lincoln sully sacred ground with politics, amirite?

[Brett Bellmore]

Biden taking photo of Obama at Arlington

Biden using photo of himself at Arlington in campaign ad

Apparently it’s more of a guideline than a rule…

[Bddogs]

He probably mistook Obama for a teenage girl.

[Jmaie]

Gotta say, I’m usually on your side when certain folks decide to go-a-dunking but in this case was the picture by Biden of the Obama’s used in an add? As depicted it seems more like memorialization.

[Malika]

And yours has at least one dumbass in it.

[Kazinski]

“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.”

Thus the UK now, as was the US in early 1900’s facing anarchism, socialism, and resistance to WW1, and then later during the Post WW2 anticommunism. I am glad we got past that and mostly returned to libertarian free speech.

But many, including the Robert Reich’s and Tim Walz’s want to go back to those eras.

[apedad]

How does it feel to be on the losing side?

[Kazinski]

Well it is not losses across the board, here you’ve got a represive middle eastern state trying to set a good example for Kier Starmer, but I doubt he is enlightened enough to follow it:

“The president of the United Arab Emirates (UAE) has pardoned 57 Bangladeshis who were sentenced to long prison terms for staging protests in the Gulf state against their own government.”

“Protests are effectively illegal in the UAE” as in the UK.

But as Martinned would point out, they were breaking the law.

https://www.bbc.com/news/articles/cx2l127dr9jo

[ObviouslyNotSpam]

Nonsense. Protests are not “effectively illegal” in the UK.

[Malika]

Unlike that free speech warrior Trump (take away the licenses of networks that criticize him, tighten up the defamation laws, jail journalists, etc.,)? You’re beclowning yourself.

[SMP0328]

If any President (Biden, Trump, Harris, etc.) tries to restrict freedom of speech, that President needs to be resisted. The party affiliation of the President is irrelevant in that situation.

[Malika]

Glad you agree with me that anyone like Kaz who points to just one side is being a hack rather than principled.

[Kazinski]

I am not happy with some of Trump’s pronouncements, but can you point to any concrete action that Trump has taken to actually do any of those stupid things.

I would also point out, Trump’s Supreme Court picks are a fairly strong on free speech, not full Murtha v MO strong, but his own picks would shut him down in an instant if he tried any crap like that, and he knows it.

[Malika]

“an you point to any concrete action that Trump has taken to actually do any of those stupid things.”

What concrete actions has Walz engaged in?

[Kazinski]

Well I can’t point to anything specific about Walz, other than his national guard shooting paintballs at people on their porches during the GF riot and pandemic.

But the Biden-Harris regime was specifying individual social media posts to take down and threatening antitrust actions if compliance was not forthcoming. Not to mention FTC actions against Twitter.

[ObviouslyNotSpam]

Absurd hyperbole. The infamous Hunter Biden pre-election Xitter social media posts were targeted by the Biden-Harris campaign, precisely because they violated Xitter’s own published moderation policies. This was pointed out, and Xitter took action itself–with no involvement of the government or the courts whatsoever.

How could a non-government actor “censor” anything on another non-government actor’s social media platform? It would have been legally and logically impossible.

[JesusHadBlondeHairBlueEyes]

The Democrat FBI is visiting people’s homes over social media posts.

Dude. Get some self-awareness.

[Bddogs]

https://www.cnn.com/2024/09/03/politics/washington-dc-guns/index.html

And if the stores refused to sell to a black male, they’d be accused of profiling.

This case violates PLCA in any instance.

[SMP0328]

both Brandeis and Holmes are fiercely protective of free speech

Holmes authored Schenck v. United States, 249 U.S. 47 (1919), which allowed the suppression of anti-war speech on the highly dubious grounds that it was a “clear and present danger.” Brandeis concurred in Whitney v. California, 274 U.S. 357 (1927). That decision allowed for criminally punishing Miss Whitney because the Communist party to which she was a member might commit criminal acts.

Fortunately, Brandenburg v. Ohio, 395 U.S. 444 (1969), greatly modified Schenck and overruled Whitney. We have much more free speech now than Holmes and Brandeis would prefer.

[Bddogs]

Free speech should never have been applied to unacceptable ideas like Communism or leftism.

Just like freedom of religion. It was intended for good religions, not ones like Islam.

[Malika]

This is how Trumpers think.

[David Nieporent]

Obvious troll is obvious.

[Malika]

This is ahistorical goofiness.

Yes, Holmes wrote the Schenck opinion. The Court wanted very strict restrictions on speech. Holmes made it known he would dissent to these. Instead of challenging him the Court found different cases and invited Holmes to write opinions that were more tightly drawn. When he felt the Court went too far with that he dissented in Abrams, providing a model for reaching the “promised land” you will settle nothing less for. Likewise, Brandeis, when concurring in Whitney, suggested a way to rule more narrowly on the issue. As in Holmes in case that suggestion led to a new, better speech friendly law.

[Kazinski]

Yes, Holmes was a progessive.

[SMP0328]

So you think Holmes and Brandeis disagreed with their colleagues but decided to concur with them, rather than dissent, because they were playing the long game? Doesn’t sound principled. Perhaps, Holmes realized that when he decided to dissent in Abrams.

[Sarcastr0]

Holms did a 180 on Shenck 8 months later. It’s really an interesting tale with relevance to both the man and the country at the time:

https://radiolab.org/podcast/what-holmes

[JoeFromtheBronx]

See also, The Great Dissent: How Oliver Wendell Holmes Changed His Mind–and Changed the History of Free Speech in America by Thomas Healy.

It also was relevant that the later cases were not during WWI.

Brandeis concurred in Whitney on a technicality that might be hard to believe though maybe people want to parse it differently.

[Kazinski]

While some censorship is by the government, and lots by Universities, this is probably the most prevalent form of “censorship” (yeah i realize its private, but she also was reporting a true story about our president and his staffers):

“Journalist Olivia Nuzzi had the rollout of her new show killed by Bloomberg after she published an article on Joe Biden‘s declining condition, according to a bombshell report.

“The New York Magazine reporter was the target of an online campaign after she wrote about efforts by Democrats to conceal Biden’s deteriorating condition in a July article titled, The Conspiracy of Silence to Protect Joe Biden.

Semafor reports that Bloomberg had planned a splashy rollout for Nuzzi’s show, Working Capital, but abruptly cancelled them after the article came out and some Democrats demanded her firing.”

https://instapundit.com/670479/

[ObviouslyNotSpam]

Cowardice, perhaps, but not “censorship”.

[ReaderY]

This is a policy argument, which I think is as it should be.

That said, universities are some steps further down the path away from academic ideals than they were when the president of the University of Chicago proposed, over a century ago, that if the primary purpose of having university athletics was to raise money and maintain connections with alumni rather than improve students’ physical health and teach them sportsmanship, then universities really ought to be buying race horses, putting the school colors on them, and using that to raise their money and excite their alumni. They shouldn’t drag students in and use them for matters that are not for their benefit and have nothing to do with improving their welfare, intellect, health, or character.

[neurodoc]

In what sport and when did the Maroons ever win a national championship? They divert themselves by pursuing Nobel Prizes, which require no physical aptitude of any sort.

[The Margrave of Azilia]

Brandeis’ opinion is the way to go.

Holmes’, not so much.

Holmes said this in 1925 about Communist speech: “If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” (Gitlow v. NY)

https://supreme.justia.com/cases/federal/us/268/652/#tab-opinion-1930993

That’s hardly the best way to make friends and influence people on behalf of free speech! If that’s the free-speech argument, you can understand Holmes’ colleagues rejecting it at the time.

On the other hand, Brandeis’ civic republicanism (reflecting the views of at least *some* framers) zeroes in on citizens’ duties to engage in *informed* debate in order to find the best solutions to common problems. It sounds like Alexander Meiklejohn’s town meeting metaphor, inspired by New England.

Students’ education should arguably include bring *required* to debate policy questions in public disputations, educating both themselves and the audience. That might be more informative than students camping out on the quad to help coddle terrorists.