A College Free Speech Crisis: Highway to the (Intellectual) Danger Zone

This is Part 4 of a four-part series in which a college professor examines modern challenges to campus free speech and how we can overcome them. Part 1 examines the unnatural and counterintuitive nature of academic freedom and freedom of expression; Part 2 looks at college administrators’ complicity in cracking down on free speech; and Part 3 discusses the Supreme Court’s role in fomenting the campus speech chaos.

When it comes to speech, there’s an age-old tension between freedom and safety—and on America’s college campuses, safety is frequently winning out. According to a recent report from the Foundation for Individual Rights and Expression (FIRE), 57% of college students believe that campus authorities should “restrict student expression of political views that are hurtful or offensive to certain students.” These students tend to equate the “moral distress” that naturally occurs during academic debate with physical or severe psychic trauma and, believing that the harms that come with free discourse outweigh its benefits, seek to shut these debates down. In “The Coddling of the American Mind,” FIRE President Greg Lukianoff and co-author Jonathan Haidt call this phobic state of mind “safetyism.”

Safetyism rejects the core First Amendment presumption that the benefits of free expression ultimately redeem whatever short-term discomforts come when erroneous, or even hostile, people have the right to speak their minds. It is also the animating spirit behind much of the illiberal repression that has spread throughout higher education over the past decade.

FIRE’s research reflects a serious problem. However, as Mr. Miyagi says in “The Karate Kid,” “There’s no such thing as [a] bad student, only bad teacher[s].” My generation of educators has failed to teach young people free speech values. It’s time to start again.

Doing so won’t be easy. No one likes to be offended, and everyone is naturally averse to ideas with which they disagree. This is especially true of young people, whose brains are still maturing even in college and whose passions haven’t yet been tempered by experience. Few convictions are stronger than youthful convictions.

Fortunately, though, the young are also naturally intellectually curious—and safetyism is a curiosity-crusher. It labels intriguing ideas as dangerous and shuts down questions whose answers, even if true, might hurt feelings. Many students resent being put in this kind of intellectual straitjacket. Recently, I’ve begun to wonder if safetyism’s excesses may be frustrating students so much that they might be more receptive to free speech values.

The Dangers of ‘Safetyism’: More Ignorance, Less Protection

I first sensed an ideological shift toward censorship in higher education in 2014. That year, Harvard criminal law professor Jeannie Suk Gersen had published an article in The New Yorker describing a problem that some of my fellow criminal justice professors were facing but I found a little hard to believe: Feminist criminal law students had begun demanding that the study of rape no longer be a required part of the criminal law curriculum. Classroom discussions of the topic were too triggering and traumatizing, they complained.

Gersen asked readers to “imagine a medical student who is training to be a surgeon but who fears that he’ll become distressed if he sees or handles blood. What should his instructors do?” The answer seems obvious: Remove the student from the course. It’s no mystery why blood-fearing medical students can’t become surgeons: It’s impossible to perform a successful operation without tolerating the sight of blood. Similarly, those who, for whatever reason, are incapable of studying sex crimes simply aren’t qualified to be criminal lawyers.

As a law student a decade earlier, I’d been made to study rape cases. While interning with the Innocence Project during my third year of law school, I’d been assigned several of them. One involved a convict who’d infected a child with a venereal disease; another focused on a man convicted of punching out an old woman’s teeth in a senior citizen’s home before sexually assaulting her. My classmates and I visited prisons, studied those convicted of the worst crimes imaginable, and took notes as they answered our questions about the details of their cases.

I imagine opening a human body with a scalpel can be distressing, especially for beginners. What we did was, too. But we’d chosen this training. Helping others sometimes involves looking into terrible conditions and unthinkable situations. It doesn’t disrespect students who themselves have been crime victims, nor does it minimize their pain, to insist that if this course of study is too much for them, they should try something else.

In her article, Gersen describes how “student organizations representing women’s interests now routinely advise students that they should not feel pressured to attend or participate in class.” She goes on to explain that “teachers were giving up on the subject” of sexual assault. Why would feminist activists want to deter the study of rape? They seemed to be undermining their own interests—not just professionally by denying themselves essential training, but also politically by promoting ignorance of something vital to the health and safety of women.

Gersen mentions a part of the history of criminal law as an academic discipline that those of us in the field are well aware of: The inclusion of rape law in the criminal law curriculum had been considered an important feminist victory only a decade before. Susan Estrich, whose landmark 1986 law review article boldly titled “Rape” is a scholarly masterpiece, was emphatic that this subject be given its due attention. Her article begins with an unflinching account of her own rape in a parking lot by a man wielding an ice pick.

After describing her ordeal, including how an inept criminal justice system had failed to help her, Estrich laid out a history of how that system had disregarded women and argued that urgent reforms were necessary, which, as she explained in a subsequent article, would be impossible without better education at law schools:

No one would ever suggest that we should skip homicide in those years when we have students who have been touched by it, or skip insanity because some of our students have fought mental illness, or never mention drunk driving because we’re all probably too familiar with that. Why should rape be different?

In response to Estrich’s persuasive admonitions, well-meaning professors—myself included—reserved space for rape law in our syllabi. This, we thought, was progress. Yet by 2014, a rising generation of feminist law students were deterring the teaching of both Estrich’s story and her scholarship.

I began to see what was happening. Ideology often demands irrationality, even to the point of working against one's own self-interests. Estrich was (and is) a liberal feminist. Her article used scholarly tools—facts, evidence and logic—to argue that through a better understanding of rape law, we would better protect women and bring more justice to society. But the students Gersen described had displaced liberalism with safetyism. If learning was too painful, it was better to remain ignorant, even if ignorance made stopping the ultimate source of the pain—sexual violence—more difficult. This is safetyism in its purest form: discounting reason to accommodate fear.

Around the same time, Northwestern University professor Laura Kipnis had been writing prolifically about what she called “sexual paranoia” on college campuses. In a Chronicle of Higher Education article, she argued that there was a moral panic on our campuses that was stripping core due process rights from teachers and students accused of sexual harassment and misconduct. As if determined to prove Professor Kipnis correct, two graduate students complained that the publication of her article was itself a violation of Title IX of the 1972 amendments to the Higher Education Act. Northwestern launched an investigation, and, fortunately, the effort to punish her failed.

All this occurred before the onset of the #MeToo movement in 2017, which, despite its many virtues, including the overdue punishment of villains like Harvey Weinstein, even further constricted free and candid discussion of sex and gender issues on campus. In 2018, award-winning author Ian Buruma, who’d been a professor of human rights and journalism at Bard College for 15 years, was fired as editor of the New York Review of Books for publishing Canadian radio personality Jian Ghomeshi’s first-person account of being accused by many women of sexual violence before ultimately being acquitted in criminal court.

One of #MeToo’s central claims was that for sex crimes against women, criminal trials couldn’t be relied upon to give victims just outcomes. Despite his acquittal, many readers believed Ghomeshi guilty, and Buruma was deluged with criticism for giving Ghomeshi a platform. Buruma explained his reason for publishing Ghomeshi’s essay in an interview for Slate Magazine:

[N]obody has quite figured out what should happen in cases like his, where you have been legally acquitted but you are still judged as undesirable in public opinion, and how far that should go, how long that should last, and whether people should make a comeback or can make a comeback at all—there are no hard and fast rules…. The reason I was interested in publishing it is precisely to help people think this sort of thing through.

Buruma also told Slate that “I have absolutely no doubt that the #MeToo movement is a necessary corrective on male behavior…. But like all well-intentioned and good things, there can be undesirable consequences.” This caution against overzealousness further enraged the already overzealous folks who were still seething over Buruma’s decision. Within a week of the publication of his Slate interview, Twitter was on fire, and Buruma was shown the door at the New York Review of Books.

Students Want To Be Challenged

I teach courses on crime for a living. My shelves groan under the weight of memoirs written by thieves, murderers, torturers and other bad people. During Buruma’s public shaming, I realized how much insight into the criminal mind I’d gained from reading these books. I’d be much more ignorant of my own academic discipline today had their editors chosen not to give them a platform. While he hadn’t been censored by students or fired from an academic position, Buruma’s story still weighed on me: Are students chafing under the restrictions of overwhelming safetyism?

I decided to conduct an experiment in my own classroom to try to figure it out. I wanted to see how students would respond to a semester-long course focusing exclusively on controversial sexual activity, virtually all of which was either criminal or had been at one time. I developed a course titled “Sex Crimes & the Courts,” which contained units on rape, child sexual abuse, obscenity, prostitution, homosexuality, incest, adultery, contraception, commercial sex toys and non-consensual (or “revenge”) pornography. Students would be required to analyze and critique both sides of every court case and explain whether they agreed with the judges’ rulings.

I would teach the course without shying away from, or preventing students from exploring, any other relevant issues that might emerge during the natural give-and-take of classroom discussions. The content wouldn’t be lurid or salacious, nor would I tolerate even the slightest attempt to drag the discussion in that direction. We’d read nothing that wasn’t written by law professors or judges. Any question or observation made respectfully and for learning’s sake would be welcome, however explicit or unpopular.

I taught versions of this course three times—twice in Adrian College’s graduate program in criminal justice in 2018 and 2019, and once at the University of Toledo College of Law, where I teach part-time, in 2019. The first two reading assignments for the law school course were the aforementioned articles by Gersen and Estrich.

Students loved it. The feedback, both informally and on my course evaluations, was universally positive. Many students were studying to be criminal justice professionals and expressed thanks for finally being able to speak candidly about important topics—some of which they knew they might encounter in their careers but they thought wouldn’t be covered in their classes. Some complained about other professors around whom they had to self-censor.

Given the sensitivity of the subject matter, I did make a special point of emphasizing three things that I thought necessary to convince potentially skittish students that they should actively—that is, critically and independently—engage with the readings and participate in the discussions.

First, I expressly integrated free speech theory into the class and tried to show, in real time, how challenging the authors’, and one another’s, claims with truth-testing questions facilitated learning. I was as concerned with teaching free speech values as I was the law regulating these sex crimes. I regularly reinforced the benefits of open inquiry and discussion, especially during those moments when, because students disagreed with one another, they might have been uncomfortable or feeling intellectual growing pains. There was no shame in asking questions or if mistaken being corrected, I’d remind them. That’s how we learn.

Second, I made sure I got to know my students. I asked them about their goals, showed interest in their opinions, and comforted them during the rough-and-tumble of class discussion when they’d made a weak argument or had been caught in a contradiction. Mentoring is built on trust. Teaching is an act of caring. When students feel cared for, their resolve to learn often increases.

Third, I was candid about my own ignorance. I assigned cases that presented difficult questions. I, too, struggled to figure out the correct answers. I invited students to question anything I said that didn’t seem correct. When they took me up on it, I wasn’t defensive. I thanked students whenever their comments taught me something.

In short, in my experiment, I treated the canons of safetyism like kryptonite and sought instead to create intellectual danger zones: learning environments where everyone was physically safe and personally respected, but at the same time challenged in their deeply held social and political beliefs.

I have to be honest: I was in a fortunate position to be able to run my experiment, maybe more fortunate than most other professors would have been. I was protected by tenure, and furthermore, I had the backing of my employer. Adrian College’s president had announced his unqualified endorsement of the Chicago Statement supporting academic freedom and freedom of expression. While free speech is a right all professors are due, it is in fact an increasingly rare privilege.

This experiment seems to corroborate what I’ve always believed to be true: Just below the surface of the viewpoint intolerance that’s troubling campus life, most students yearn to break free. They want their classrooms to be learning spaces, not safe spaces. They want to explore bold questions for truth’s sake.

Creating a Campus Climate of Free Speech

While I’d heard alarming stories of various forms of campus censorship in the years following reading the Gersen article in 2014, it was with the March 2017 riot at Middlebury College that I realized that American higher education was descending into a full-blown crisis. A group from the small liberal arts college in Vermont had invited Charles Murray to speak on its campus. Murray is the co-author of The Bell Curve, a controversial book some have criticized for its discussion of the relationship between race and IQ.

Professor Allison Stanger, a Democrat who disagreed with Murray, was set to moderate the discussion. She planned to challenge his views, but she sensed from the outset that the crowd was restless and might erupt. Stanger urged calm and assured the audience that she had prepared tough questions for Murray.

To say her effort failed would be an understatement. The mob shouted down the event and ultimately chased after Murray in a violent rage. When Stanger intervened to protect him, the mob sent her to the hospital with whiplash and a concussion. This was worse than the typical cancellation or shout-down: Most academic controversies don’t put professors in a neck brace.

With Middlebury in mind, I helped launch a debate series on Adrian College’s campus that would focus on the nation’s most politically divisive topics and test whether unfettered public debate on important hot button issues was still possible in the age of safetyism. Over the past few years, we’ve hosted battles of ideas on affirmative action, gun rights, defunding the police, the separation of church and state, and other issues—including, most recently, whether the Constitution allows former President Trump to serve as president in light of the events of Jan. 6, 2021.

As with the sex crimes course, we never provoke for provocation’s sake. We select experts for these debates who, while holding nothing back, have been models of good faith and scholarly decorum. I know many of them personally and trust that while passionate advocates for their cause, they believe in the importance of academic debate itself even more. The response from the college community has been overwhelmingly positive. These events have all been well-attended. Once, the auditorium was so packed our college’s president had to sit in the aisle on the floor.

During my introductory remarks, I encourage students to challenge the debaters as vigorously as they wish during the question-and-answer period. “There can be no light without heat,” as Christopher Hitchens was fond of saying. And indeed, sometimes the heat can be palpable. Referring to the question-and-answer segment of our abortion debate—the run-up to which was easily the tensest—an audience member told the student newspaper, “A guy in front of me brought up the word murder, and then the air just sort of left the room, but both speakers handled the debate pretty well.” The participants prioritized reasoned argument over inflammatory rhetoric, and students appreciated and learned from the debate. Heat turned into light.

The Right Kind of Stress

Safetyism’s proponents contend that students can't learn if stressed. They have it precisely backwards: Students can’t learn unless stressed—so long as it’s the right kind of stress and is administered in the right doses.

The “Safe Space” signs decorating faculty office doors and email signatures teach the wrong lesson. They inculcate young minds with the presumption that other spaces on campus, including classrooms, are dangerous. They aren’t. They’re nothing compared to the cruel world that awaits them after they graduate, anyway. Nothing dispels fear of something faster than understanding how it works, as I learned as a young driver when I figured out how to change a tire. By welcoming onto campus the loathsome figure of the censor, safetyism reinforces anxiety and impedes the kind of understanding that makes the world around us less scary.

We can treat students with respect and dignity, and show them how to demand that from others—without censorship. Traditional college and university rules, mirroring the Supreme Court’s First Amendment teachings on harassment, threats, incitement to violence and other forms of speech that distract from learning, if properly enforced, are perfectly adequate.

Safetyism’s excesses may be causing the fever of the past several years to break. Yale Law School, notoriously hostile to free speech of late, has just hired Professor Keith Whittington, a leader of the Academic Freedom Alliance, a national organization of professors founded in response to the present crisis. (Full disclosure: I’m a member.) Faculty free speech groups have recently emerged at other schools that have been at the fore of free speech crackdowns, including Harvard University and Columbia University.

Professors nationwide should continue this momentum by turning their offices and classrooms into intellectual danger zones. Embracing this danger is really the only way to prepare students for the difficult situations and questions that the real world will pose.

This article has been inspired by and adapted from “Our Emersonian First Amendment,” published on the Grand Valley State University Koeze Business Ethics Initiative website, written testimony submitted to the Ohio House of Representatives’ Higher Education Committee, and from the Teaching Philosophy the author submitted to Adrian College. It doesn’t necessarily reflect the views of the author’s employers.