Seeking Justice, Seeking Truth: a Conversation with Nadine Strossen

Aug 26, 2022 | Opinion & Commentary

Seeking Justice, Seeking Truth: a Conversation with Nadine Strossen

Conducted and edited by Olivia Glunz

Have you always been a proponent of academic freedom? If so, why, and if not, what led you to embrace the idea?

I’ve been a proponent of academic freedom ever since I became aware of the concept. I was in high school during the Vietnam war, which was still very popular at the time. Raising any questions or criticisms of the war was deeply unpopular. One of my social studies teachers in high school simply put together a slide show that showed some images of some of the carnage, including civilians. It was accompanied not with any words at all but just with some folk songs. This presentation made a number of local political leaders and journalists irate. How could students be exposed to such anti-patriotic speech? The local newspaper actually editorialized in favor of firing my teacher, and there was a public effort to do so. I didn’t even know the term academic freedom at that time, but I just knew that this was wrong. I came to his defense: I wrote a letter to the editor rebutting the editorial and started a petition drive. I was very happy when I ultimately learned that I had a legal leg to stand on under the First Amendment.

That said, there is a difference between K-12 institutions and higher educational institutions in the degree and the exact scope of academic freedom, but I think the same general principles— freedom of open inquiry and discussion, freedom of research, freedom to teach, freedom to learn—are involved at all levels of education. I’m glad that organizations such as FIRE and Heterodox Academy, which began with a focus on college campuses, have recognized how important it is to extend their activities to both teachers and students in our K-12 institutions. Among other reasons, the students are showing up to college without any prior understanding of free speech principles and intellectual freedom principles.

I recently participated in a debate with Ann Coulter who loved my book, HATE: Why We Should Resist it With Free Speech, Not Censorship, and invited me to be on her show. While we agreed on most points, I disagreed with her disdain toward college students and her use of the dismissive term “snowflakes.” I fully agree with her that there is a problem in terms of lack of openness to new ideas; students are not only offended but, even worse, suffer adverse psychological impacts, sometimes even with physiological manifestations. But, as I explained to her, we can’t blame the students themselves. This comes from their upbringing, from their education prior to entering college. Too many of them grew up in very closed environments where they weren’t exposed to a great diversity of people in terms of identities, ideas, ideologies, religion and so forth. They also haven’t been exposed to concepts of classical liberalism, including free speech and academic freedom. In fact, studies indicate they haven’t been exposed to much information at all about the way our government works and the important role that freedom of expression and academic freedom play in our democratic republic. So, they themselves are not to blame. We need to look at all of the underlying causes and do a better job of preparing young people from an early age not only to tolerate different ideas and perspectives but to welcome them enthusiastically and joyfully as a way to test their own ideas, to shape their own views, and to engage with the world in a more interesting and deeper way.

Talk about a time that you encountered a person, book, or idea that challenged your beliefs. What did you learn from this experience?

I’ve often made the point that “hate speech” is an inherently subjective, vague concept that no two people are going to interpret the same way. Some people call Black Lives Matter hate speech, some other people call Blue Lives Matter advocacy hate speech, others say All Lives Matter is hate speech, and so forth. But a recent experience made me realize that my mind had been closed. 

There was one particular group that, I was convinced, engaged in hateful speech; I still defended their free speech right to do so, but I was completely confident that they could objectively be labeled a hate group. The organization is the infamous Westboro Baptist Church, whose website is www.godhatesfags.org. This is the group that has picketed outside funerals of slain members of the US military to demonstrate not only against gay people but also against the Pope, against Catholics, and against basically anybody who’s not a member of their church. 

Megan Phelps-Roper was born into this church and had been crusading for its causes all her life. She recently wrote an amazing book called Unfollow: A Memoir of Loving and Leaving the Westboro Baptist Church. It’s a classic example of counterspeech; she went online in an effort to try to recruit people to her church. Instead, she started engaging with an Orthodox rabbi in Israel who simply questioned her about how she interpreted particular Bible verses and led her to question her own views. She was ultimately convinced that she had been wrong; she left the Westboro Baptist Church and persuaded her younger sister to leave with her. This meant giving up not only her entire belief system but her entire world. It was a very brave step, and she’s committed herself to spending the rest of her life undoing the harm that she believes she did.

But here’s the kicker: I listened to many of her interviews, and in one, the interviewer asked her about the Westboro Baptist Church’s “hateful ideas” toward gay people. Phelps-Roper interjected and said—I’m paraphrasing here—“I didn’t hate gay people; we didn’t hate gay people. We were the only ones who truly loved them. Think of our slogan: it’s not ‘We hate fags;’ it’s ‘God hates fags.’ We truly believed that these people are damned to hell, that they will suffer eternal torture by virtue of their sexual orientation. It was out of love that we were trying to rescue them from this horrible fate.”

When I heard this, a lightbulb went off in my head. I obviously still totally disagree with the Westboro Baptist Church’s message, but this was such a dramatic example of how literally true it is that you can’t assume that you understand the intent or the emotion that prompts anybody else to say anything. What we really have to strive for is intellectual humility.

 

How do you suggest balancing open-mindedness with firmness in personal convictions? 

On the one hand, we need curiosity and empathy for other people’s views; on the other hand, we want the courage to maintain our convictions. Are these two ideals somehow in tension with each other? 

I think it all depends on why you change your convictions. You should change your convictions if you are convinced that they are based on faulty analysis or on incomplete evidence that has been superseded by more recent evidence. This of course goes back to the classic defense and explanation of free speech, John Stuart Mill’s On Liberty. Mill explains that even, indeed, especially one’s most cherished tenets and convictions have to be subject to reexamination for many reasons. One, they may prove to be false on reexamination; two, they may prove to be partly true but partly false and so require revision; and three, you may conclude that they were, after all, correct, but you will have a deeper understanding and appreciation of why they are correct and be more persuasively able to articulate these reasons to others. Ultimately, what’s the worst thing that can happen? You learn what is really the truth. Isn’t that a benefit?

The more strongly we want to have convictions that justify our continued adherence, the more we have to treat every idea like a scientific hypothesis that is open to potshots, counter arguments, and counter evidence. If we don’t have confidence in our ideas withstanding that kind of test, they become a matter of faith rather than intellectual or rational analysis. I’m not disputing that some people have tenets of faith that are very important to them, but I don’t think that’s appropriate in an academic institution, other than perhaps a religious one.

Now, if the reason that you change your convictions is because they are no longer popular, or your friends won’t like you, or you fear some other repercussion from Twitter mobs, professors, or others who may have power to do damage to you, I don’t condone that, but I do understand it. I certainly am not asking people to subject themselves to too painful retaliation, but I would wish for a world where we were not pressured to change our convictions due to these kinds of concerns.

 

What are the limits of academic freedom?

The gold standard for academic freedom was laid out by the AAUP, the American Association of University Professors, in 1915 originally and then with some updates subsequently. The standard is basically a professional one; if a teacher or a scholar is manifestly, clearly incompetent—for instance, they’re falsifying evidence, engaging in plagiarism, or conducting demonstrably, undebatably shoddy research—this should certainly be a basis for discipline. In terms of extracurricular statements—in other words, statements made in your capacity as a citizen rather than in your official professorial capacity—you still have freedom of speech beyond the university’s walls. You don’t forfeit your right to comment on political and other current social controversies. But in an extraordinary circumstance, that extramural speech itself could be ground for punishment. The statement would have to clearly demonstrate the faculty member’s unfitness for his or her profession. Note that “unfitness” and “clearly demonstrate” are very high standards. 

Furthermore, according to the AAUP, “extramural utterances rarely bear upon a faculty member’s fitness for the position. Moreover, a final decision should take into account the faculty member’s entire record as a teacher and scholar.” Tenure should not equate with a lifetime sinecure. You cannot say, “I wrote excellent pieces and got great teaching reviews prior to tenure, but now that I have tenure, I can get away with not writing anything anymore, being a horrible, unprepared teacher, and making embarrassing statements inconsistent with the basic tenets of my discipline.” In those cases, there should be some recourse, including even dismissal and firing, but it should never be based on popularity of somebody’s ideas or of the topics they’re exploring. 

Recently, we’ve seen another problem of using pretextual bases to silence a professor. In cases like Joshua Katz’s, for instance, a professor is ostensibly punished for some alleged sexual impropriety when it’s very clear that the real reason the university wants to get rid of the professor is his unpopular ideas.

 

Speech at public universities is protected under the First Amendment. At the same time, are researchers at all accountable to the taxpayers funding their work?

When it comes to controversial research and writing, there is an important difference for universities—as well as libraries and publishing companies—between endorsing a particular idea and providing a neutral general platform for all ideas as long as they pass some professional standards. A public library, I hope, has a copy of Mein Kampf, Hitler’s infamous book, because it’s so important historically. Of course they don’t endorse that book, and the fact that they’re spending taxpayer funds to buy, shelve, and loan it out doesn’t mean that our taxpayer money should be seen as propounding Hitler’s ideas. What our money is supporting is the notion that there should be a neutral platform where professional librarians seek to serve different, diverse elements in the community. There may be some who are very interested in history, or there may be people like me: I never read Mein Kampf until I was writing my book about hate speech, and I really wanted to understand the roots of anti-Semitism not to purvey it but to counter it more effectively. 

At a university, research should be permitted as long as the experts within the discipline say that the methods are appropriate, the sources are respected, and the analysis is logical and persuasive. These are viewpoint-neutral criteria; we’re evaluating the content to make sure that it’s consistent with the standards of the overall discipline. Let’s say we were discussing whether Dobbs was right. What I care about is the rigor of the analysis: does it engage with constitutional text, the history behind it, the intent and original meaning, and precedent? Or is the author just making ad hominem conclusions or arguing based only on religious beliefs without legal analysis? 

What we the taxpayers are paying for is precisely the freedom to explore new frontiers. I’m always telling my students that we have to have intellectual and historical humility; too many people now look back on awful Supreme Court decisions such as the Dred Scott decision or Plessy v. Ferguson and think, “Oh, we would never do that now.” But I always remind them, a future generation is going to be looking back upon us and condemning mistakes that we now see as gospel truth. Historical humility is key.

 

How has the academic freedom scene changed in recent years?

There have been serious attacks on academic freedom throughout history; I think, prior to the current moment, the biggest attacks came during the McCarthy era and during the post-WWI Red Scare, when there were attacks on professors who were suspected of being communists or socialists. I started to look at some statistics that FIRE, the Foundation for Individual Rights and Expression, has been digging up because I’m really interested in the comparison between the number of faculty members who were investigated and retaliated against during the McCarthy era versus now. FIRE is still in the process of gathering the data about the McCarthy era, but it seems as if the numbers are much worse now. Since 2015, there have been over 700 incidents of faculty members who were targeted with various retaliatory measures because of speech that is constitutionally protected or that their private universities pledged to protect; about two thirds of these cases have resulted in some kind of sanction. Moreover, there have been 38 incidents in which tenured professors have been terminated for their constitutionally protected speech; these are really shocking numbers.

Contrary to much mainstream media coverage and popular misconception, these attacks are coming from all across the ideological spectrum. Frankly, I think the conservative media have done a much better job than the mainstream and liberal media in complaining when people who share their views are subject to censorship; groups like Breitbart News, The College Fix, and Turning Point USA focus on censorship incidents that come from the left to suppress views to the right. But what FIRE looks at is whether the pressure is coming from the right or the left of the particular professor. That’s more indicative because a lot of the professors that have been subject to retaliation are liberals; they’re just not extreme liberals or so-called “progressives.” 

63% of the incidents have come from the left of the targeted professor—these cases are mostly initiated by students and other professors. Meanwhile, 37% of incidents are coming from the right of the professor mostly due to pressure from politicians, public figures, and the general public. This last fact is not nearly as well known as it should be. Members of the left tend to think, “Oh well, if it’s those conservative people who are getting shouted down, our hearts don’t bleed for them.” I think that mindset is completely unprincipled, but you’ve got to persuade people by what appeals to them. If they understood how many liberal views are being suppressed on campuses, maybe they would take this issue more seriously.

Greg Lukianoff, the CEO of FIRE, and Komi Frey, FIRE Research Fellow, co-authored an excellent piece about cancel culture a couple of months ago. Based on the data that FIRE had gathered, Lukianoff and German pointed out that there’s hypocrisy on both ends of the political spectrum: conservatives complain about cancel culture while engaging in it, whereas liberals deny that cancel culture exists even though they have been victimized by it.

 

You are involved with many free speech and academic freedom organizations around the country. What makes the AFA distinct?

As the tide of attacks on academic freedom and free speech has been rising, I’ve been very heartened not only that pre-existing organizations such as FIRE have gained more resources and broadened their scope but that several new organizations are being formed. Even when I was head of the ACLU, I always welcomed other organizations doing the same work because there’s too much to go around—I never see this as a turf battle, and I’m happy to be a leader of many of these organizations. 

I was very honored to be invited as one of the AFA’s founding members because the people who invited me obviously knew the AFA’s mission is completely in sync with my values. I also saw the AFA as filling a gap in the existing institutions because none of them, with one possible exception, consisted of professors nationwide who have nothing in common with each other other than a fidelity to academic freedom, free speech, and classical liberalism. The group is designedly nonpartisan, multi-partisan; they come from different fields of academic expertise, different kinds of institutions, and yet every member is committed fully and evenhandedly to intellectual freedom—we would defend the rights even of somebody with whom we completely disagree. 

This is especially crucial at a time when people are so afraid of guilt by association. We hear so many reports of faculty members coming under attack and then receiving all kinds of individualized communications: “Oh, I really agree with you, I really support you, I really defend you, but I dare not do so publicly.” But there is comfort in numbers; the AFA assures people that there is “institutional backing” for supporters of academic freedom. Further, the fact that the group is so ideologically diverse makes it very hard for critics to say, “You must support the views of the faculty member you are defending.” Instead, we’re clearly defending academic freedom for everybody even if we disapprove of their particular research topic or conclusion.

How do you encourage others to value free speech and academic freedom?

Even as a school student, I was engaged with and committed to freedom of speech and academic freedom; I gave an example from high school, but my interest actually started earlier. When I was in grade school, I never understood the restrictions teachers put on questions we could ask or points we could make. Again, I had no idea that there might actually be a constitutional right or principle of academic freedom at stake here; intuitively, I felt that for individual thriving as well as for the advancement of society and the pursuit of any important cause, we need to have robust free speech rights. 

Recently, we have seen a real deterioration in support for free speech, especially among young people and on college campuses. It is justified in the name of the—wonderful, from my perspective—crusade for human rights, racial justice, anti-misogyny, and LGBTQ rights. These causes are all dear to my heart, and I’ve devoted much of my life to them, so it is rather heartbreaking to see that so many student activists who are promoting these causes that we deeply share have at best indifference and at worse hostility toward free speech, which they see as antithetical to these other causes. I took it upon myself not only to try to persuade them but also, in the spirit of John Stuart Mill, to reexamine the evidence myself, including evidence from other countries that have enforced laws against hate speech. Have they made more progress toward countering racism and other forms of discrimination? Have they done more than the United States has to counter discriminatory acts and discriminatory violence? What role, if any, has the censorship of hate speech played in that?

From my research I concluded that, no matter how well-intentioned censorship is, it ends up doing more harm than good, including to the very groups it is supposed to benefit. Human rights advocates all over the world have reached the same conclusion, so I really wanted to make that plea to new social justice activists on campus. My advocacy has been mostly aimed at young people, at liberals, because that’s where I think there’s been weakness and fear that free speech and DEI causes are incompatible. I disagree with that; I think these are all mutually reinforcing. That’s why I’ve decided to spend this part of my life trying to open people’s minds to that perspective.

 

What practical steps can students, faculty, administrators, and others take to promote academic freedom?

First of all, I think that the Academic Freedom Alliance is a really excellent model, and I hope that it will be replicated on many levels. Why not have a really active chapter at every university? The nationwide organization is very important, but why not recruit a significant group of faculty members on every campus? Also, why not try to mobilize students to stand up for the academic freedom and free speech of any group, whether it’s pro-life, pro-choice, pro-gun, anti-gun… you name it?

I recently heard from a Princeton professor that Harvard Law School has adopted a non-attribution policy for classes. Every faculty member and student makes a pledge that what is said in the classroom stays in the classroom and doesn’t go on social media in a way that could identify the speaker. That way, people can have the benefits of candid face-to-face exchanges with each other without the fear of them going viral. I must say I’m a bit skeptical that we can expect people to adhere to those norms, but even stating them as norms to aspire to is really important. You’ll hopefully get students to reflect on the fact that they need a “safe space”—in a sense very different from how that term is usually used—a space where they can safely air questions and float out theories they might not even identify with but which are worthy of discussion.

Quite frankly, at the law school level, I really don’t care what my students’ own views are. This is not a seminar where we’re exchanging our different viewpoints. I am training them to be analysts and advocates, and so my mantra for all of my students, which I think would work very well in college and even lower levels as well, is that they must be able to understand, articulate, and advocate all plausible perspectives on all issues. I don’t want them to say, “Well, this isn’t my point of view”; I don’t want any of those disclaimers. I assign them to make the strongest argument that Roe was correct and then to make the strongest argument that Roe was incorrect. You’re not going to pass my course unless you can do that.

This approach not only has the advantage of rigorously training in advocacy and analysis, but it may actually get people to question and refine their own ideas. It certainly liberates them to explore ideas that they might not even want to explore as devil’s advocates. I’ve heard some reports that some law students are refusing point-blank to articulate certain positions if they don’t agree with those positions, even in moot court exercises. That would be a real loss to the legal profession, which means a real loss to the system of justice and the rule of law.

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