Overcoming the Divide: Nonpartisan Politics
Fostering insightful political discourse and debate.
Episodes published bi-weekly on Tuesdays.
To receive updates, participate in polls and promotions follow 'overcoming_the_divide' on Instagram. Rate and subscribe if you enjoy the content!
Overcoming the Divide: Nonpartisan Politics
Debating & Exploring Free Speech at UPenn with Prof. Claire Finkelstein
This episode with Professor Finkelstein cuts through the dense fog surrounding "poisonous speech." We dissect the subtle boundaries of expression within the hallowed grounds of academia. Debating the responsibilities that come with safeguarding both speech and civility, we grapple with the selective enforcement of these ideals, akin to the challenges faced in applying Title IX. This nuanced conversation doesn't just spotlight the problems; it probes the selective application of protections, all while questioning how these measures shape our university communities.
Music: Coma-Media (intro)
WinkingFoxMusic (outro)
Recorded: 1/16/23
Hello everyone, thank you for tuning in today. Today's episode debates the bounds of free speech and the First Amendment at the University of Pennsylvania and American campuses overall, elevating historical cases, analyzing calls of violence and questioning who is to write the censor speech, and much more. This conversation is with special guest Professor Claire Finkelstein. Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy at the University of Pennsylvania. She's the founder and faculty director of the Center for Ethics and the Rule of Law, a non-parison interdisciplinary institute affiliated with the University of Pennsylvania's Annenberg Public Policy Center, a PPC. She's a distinguished research fellow at a PPC and a senior fellow at the Farm Policy Research Institute.
Speaker 1:Professor Finkelstein is a sought after national security consultant, briefing individuals, pentagon officials, us Senate staff and JAG Corps members on issues relating to national security law and practice. She's also regularly consulted on matters of personal and professional ethics. She's a frequent radio podcast broadcast and print commentator and has published op-eds in the New York Times, the Washington Post, bloomberg and Newsweek. Her other scholarly work has focused on criminal law theory, moral and political philosophy, jurisprudence and rational choice theory. If you enjoy this conversation points that are made on both sides and both perspectives I please ask you to rate, share with a friend and subscribe on your listening preferred platform. Thank you, welcome to the show, professor Finkelstein. Appreciate your presence and happy to talk about this pretty important issue.
Speaker 2:Thanks so much for having me.
Speaker 1:It's my pleasure To kind of kick things off. I first want to ask just a general question what are your thoughts of what the role should all to look like? A free speech on college campuses?
Speaker 2:Free speech is a very important principle on college campuses.
Speaker 2:It has been since late 50s, early 60s, a real mainstay of university education.
Speaker 2:Everybody understands that it's one of the great engines that drives creativity and innovation on campus, both for faculty and for students and staff. But recently we have seen that universities are struggling with their free speech policies and with the profound commitment to free speech that universities have had since the 1960s, where speech has gotten so hostile and so acrimonious and at times so racist or targeting ethnicities that were really at the point of creating a hostile environment. This is something that universities have struggled with for many years, because all universities have the ambition to implement a perfect First Amendment forum and the First Amendment permits hate speech in effect. But when that speech starts crossing the line into speech that is threatening, speech, that is creating a hostile environment, then not only might there be violations of federal law under Title VI, which applies to all universities that have federal funding and tax exempt status probably enough for that but it also may even run into criminal charges for some of the people that are making these threats, and it's very hard to know where the line needs to be drawn.
Speaker 1:Understood, and you recently about a month or so ago wrote an op-ed in the Washington Post calling for the restriction of quote poison speech. Could you articulate a little more of what that means in an example of that?
Speaker 2:Yes. So I believe that this op-ed has been somewhat misunderstood, because it's been suggested that I'm trying to suppress speech, that I don't believe in free speech, that I don't respect the First Amendment and so on, and that is you know. Nothing could be farther from the truth. I have chaired the Senate Committee on Academic Freedom and Responsibility and was asked to do so because of my commitment to free speech. I'm the current chair of the Academic Freedom Committee at the law school and I sit on the Open Expression Committee of the University and would not have taken up any of those rules if I weren't doing so based on my belief in free speech and free expression on campus.
Speaker 2:I do recognize the profound importance, which is embodied in Title VI of the Civil Rights Act, of making sure that campus is an environment that preserves education equally for all students.
Speaker 2:And so when we have a situation in which we have speech that is so hateful that it shades into conduct, speech that is so pernicious that some students feel too afraid to go outside of their dorm rooms, or feel as though they have to hunker down in their dorm rooms and just scurry across campus to get to their classes because they are afraid of the acrimony and the vitriol on campus.
Speaker 2:And in effect, what Title VI says and I think this is really right morally as well is that we are not providing an equal educational environment for all students, that we must protect those students who are being vilified or attacked when it is really interfering with their ability to gain the benefits of a university education, and it is absolutely incumbent on university administrators to take responsibility for the atmosphere that exists on campus. Now, does that mean suppressing speech? Well, I think sometimes it means, for example, availing oneself of permissible time, place and manner restrictions that are inherent in the First Amendment and that courts have recognized as a legitimate basis for deferring an activity on campus. That might be particularly controversial, for example, but even beyond that, it may require for private university, which is not bound by the First Amendment, placing certain restrictions on student activities in order to make sure that some students are not creating a hostile environment for other students.
Speaker 1:Does I have a couple of questions there. I wrote some of it down because I want to tie back to it. Does the phrase from the river to the sea fall into that category?
Speaker 2:Let's back up first and start with the example that was so prominent in the hearing with the three college presidents my own among them, liz McGill, for whom I have the greatest respect and personal affection.
Speaker 2:But I think that the answer that those three college presidents gave to Representative Stefanik's question, which is would a call for Jewish genocide be permissible on your campus or would it violate free speech codes, it's really one that in my view, they did not answer accurately and for the 23 years that I've been at Penn and I've been involved in free speech issues, I never placed the interpretation on our open expression policies, on our principles of academic freedom and our principles of open expression that I heard represented in that hearing.
Speaker 2:The understanding that I have always had and this was partly based on seeing the way administrators and my colleagues respond to different kinds of speech, often in a different context is that there were certain expectations of respectfulness and decency in the way that we treat one another and that university administrators will insist on that treatment in a wide variety of situations and will try to calm things down or, if need be, shut things down when we're getting past a certain level of hostility that is actually a threat to students on campus, whether it's a threat physically or it's a threat, a severe threat, emotionally.
Speaker 2:And I believe that the question about Jewish genocide is one such case. That's a very clear case in which the answer of those college presidents should have been in my view, calls for Jewish genocide would violate Title VI. We have a duty to interpret our open expression guidelines through the lens of Title VI, and in cases in which students or others are actually calling for violence against other students on campus, that's the point at which we need to take action as administrators and we need to shut things down. So now your question is about a step removed from that. So I can say with confidence that any calls for the genocide of anyone on campus, of any discrete ethnic or religious or racial group, should not be tolerated by university administrators. And there's a lot of different ways to explain that principle. You can explain it through the lens of Title VI, but I think you can explain it within the confines of the First Amendment as well, because it creates a threatening environment that is not safe for students and that will only escalate.
Speaker 2:Now the problem arises in gray area cases where we have something that may be equivalent to a call for genocide as interpreted and, I think, very often as intended.
Speaker 2:So I'm going to ask about the slogan from the river to the sea, which is widely intended, I believe, whether people fully understand what they're calling for or not, as a call to eliminate the state of Israel and the 7 million Jews that live there.
Speaker 2:And is that a legitimate call that university administrators should tolerate? I think that, while in this sense the university presidents might have been right that it depends on the context for a slogan like that not for a slogan like we want Jewish genocide, but for a slogan in the gray area In general, I think university administrators would be within their rights to say we're going to ban slogans from demonstrations on campus that are generally understood as calling for the elimination or calling for violence against a discreet ethnic or religious or racial minority, and we could give lots of examples from other races, other ethnicities. That I think would be the equivalents as well if people were saying because they're upset about the Russian invasion of Ukraine, you know, eliminate Russia and all the Russians in it, kill all the Russians, right? I think no one should tolerate that either. It's not just because it's Jewish students, and the same would go for black students. We have a duty to protect those students and not allow other students to call for violence, even in a coded way against them.
Speaker 1:So I think a couple things there. These speak in generalities, generally speaking, like it's generally understood. It's, but it doesn't essentially mean that are necessarily mean that the people making these arguments is that what they want. If someone wants from the river to the sea, that could also mean a number of other things. Going back, or could be Palsing and not to say that I subscribed to these views but could mean, say, palestinian liberation. It could mean a whole number of things that do not include what you mentioned, which is the genocide of Jews, and that is up to one's interpretation. And just to give kind of some reference to this, the Likud party back in the 1970, 1977 had in their own election manifesto something that quoted a phrase from the river to the sea and and I mean I could, I could say the quote, I could quote it, but it's pretty similar and that calls for two different things. That calls for two different things inherently.
Speaker 1:I also want kind of get back to the private institution point, because there's there's a couple, there's a couple things with that one that Penn may be a private institution but it's a public campus and it also has a number of thorough affairs that are public property, such as Locust walk, where a lot of these yeah, yes, look, is actually. That's really it, to my knowledge. So I believe on walnut, but let me continue and offered opportunity to um respond. But that's, um, that's public property. And there's also a second point that I'd like to make with this, which it stems back to the Supreme Court ruling of I won't say in 1969, of Tinker verse, des Moines Community School Board, which rule that someone's Constitutional rights do not stop at the schoolhouse gate. So I think those are both fair points.
Speaker 1:I think what you're calling for we may have the same and goal and this is something that I think it's lost in these debates is talking about hateful rhetoric, no doubt about it, but and obviously both of us would not want that, but we may have two different means of getting there and it's it's quite the issue.
Speaker 1:For example, I'm gonna reference Skokie a couple times throughout this episode and I'll just be clear and talk about it. And one of the things that they point out is the Orinces. They see Lu, who defended the Nazis, marching down in Skokie. They point out that the Orinces that the town of Skokie Want to use against, say, the Nazi protesters for not being able to march down, say peacefully protests wherever Hateful calls it was. They use that against a Jewish War veteran memorial parade decades before. So you're speaking like I think we have like a same, similar and goal. By see you talk about pernicious effects and pernicious language, I see the pernicious effects of these good intended policies that could easily take place and then have taken place in the past, and that's that's what deeply concerns myself and others.
Speaker 2:Right, and I think those concerns are understandable, but we have to balance them off against what we're risking by taking no action and by actually fanning the flames of Hate-based rhetoric on campus. And it's not all hate-based rhetoric, some of it we're gonna tolerate, right.
Speaker 1:So I don't, I'm sorry. I'm sorry, but why? Why tolerate that hate-based rhetoric but not others?
Speaker 2:and this is where university administrators need to make a judgment call. There's no getting away from the fact that certain judgments have to be made. And certain judgments have to be made whether we're implementing a First Amendment strategy or not, because there's always a boundary right. So, even within the First Amendment, even if you're talking about a public university that is strictly bound by the First Amendment, there's always a limit. There's always a line where the speech is protected by the First Amendment and where it goes beyond the scope of protection and University administrators have to make those judgment calls. And so now you put on to that that basic First Amendment framework which will say okay, it's permissible for university administrators to make judgment calls around time, place and manner restrictions. It is permissible for university administrators to make judgments around what constitutes incitement and to shut down events or speech that they feel is inciting violence on campus. They can shut down events that threaten harm to particular students, imminent harm and so on the equivalent of shouting fire in a crowded theater, and so on. So there are always restrictions on speech, whether we're implementing a First Amendment framework or not. And now you layer on top of it a piece of federal law which we came to through a lot of reflection in this country in the hard fought battles, which is the Civil Rights Act, and people forget why the Civil Rights Act is there and the various different parts of it.
Speaker 2:But it was a landmark statute passed in 1964 that was really designed to, in particular in that Title VI, designed to protect black students on campus, with very good reason, because they were encountering enormous hostility as there was an attempt to integrate schools and universities and, in some sense, the situation with any ethnic or racial group or religious minority, when they are facing hostility as a group, when there is a group identity that is at issue and you have a kind of piling on effect on the part of other students with regard to that group, there is a level of risk to the community.
Speaker 2:There is a kind of risk to those students, students who may or may not share the views that they're being accused of sharing.
Speaker 2:Not every Jewish student on campus endorses Israel's conduct and so, but they're getting identified as a member of a group and subjected to hostility on the basis of it. And that is the original situation that the Civil Rights Act was meant to address and yet it is being fairly selectively applied and actually universities don't really seem to understand how to implement the Civil Rights Acts. We went through this with Title IX as well and where you have a real revolution, I think, surrounding the Me Too movement and failure on the part of universities to grasp the level of open license for sexual harassment on campus. It was a problem that was first focused on in the military. Eventually the Department of Education under Obama brought it to study universities and there may have been in the beginning a sort of over-correction with the famous Dear Colleague letter and so on, but I think it was a very necessary process because the problem of sexual harassment and sexual assault on campus is a very significant one.
Speaker 2:And so there was a moment where there was a kind of awareness that was being raised that these kinds of interactions are not tolerable, that a hustle environment is being created for mostly women students on campus and that the federal government just said we are gonna force you to address this, Whether it was done the right way or, as I say, with some over-correction. Many people had valid concerns about the rights of the accused on campuses, but I think a correction there needed to be, and it was very, very difficult to figure out how to do that in a way that still preserved the open expression rights and the freedom of interaction that we've come to expect on university campuses.
Speaker 1:There's a couple of things that come to mind. One in particular is you make a fair case for why issues need to be addressed, whether when you're talking about Title IX, sexual harassment and assault, or when it comes to just hateful rhetoric. I simply don't believe. Any of it, though, is a justification for infringing on one's constitutional rights. That may be a fundamental disagreement, and there could be a lot of word games around it, but I'll let you reply in just a moment, and I just I kind of wanna go into the sexual say, addressing sexual assault versus, say, hateful rhetoric, because one is a physical act, know, physical violence. Now, what's being put forward now, on on on the basis of restricting speech, is you know, words are violence, words are causing harm, and what that boils down to is words can cause stress, 100%. Words can call stress, and prolonged stress can call physical harm in a number of ways. But you know who else can do that? Homework, a relationship ending, a parent dying, your parents gain, divorced?
Speaker 2:No, there's a difference between a situation in which words on campus, as I said before, that target an ethnic or religious minority or racial minority creates such an atmosphere of hate that violence almost inevitably erupts from it. Can you give me an example? It's actually similar on the sexual harassment side, because if you allow rampant sexual harassment on campus, which is often just words, that creates an environment in which sexual assault is more likely to emerge. So you have a situation in which you can say it's just words, but in fact, depending on the level of vitriol with regard to those words, you may be creating the conditions in which violence is not only likely to emerge, but certain to emerge.
Speaker 2:But this is target situation that we are in and it's actually a principle that the First Amendment recognizes. Now I want to say one more thing about constitutional rights. People have this idea that the First Amendment is a right that has to be respected on campus because it's a constitutional rights. What they don't think about is all the other constitutional rights that are not respected on campus where nobody thinks they should be. I mean, you don't find a lot of adherence although there are some but you don't find a lot of adherence saying that there has to be a right to bear arms under the Second Amendment on private university campuses.
Speaker 2:That argument has been made in public universities and in fact in some universities you do have a right.
Speaker 2:State legislatures have ruled that you have a right to bring arms on campus, but most university presidents would not be there in front of Congress defending the fact that they allow open carry on college campuses because it's dangerous and the legislature doesn't tolerate it either, and we allow state legislatures to regulate that. So we allow state legislation and federal legislation to override and set the conditions for the exercise of that constitutional right In an educational environment. That makes a heck of a lot of sense. Right, because university administrators are understandably setting the conditions to maximize the educational objectives of high level teaching and research and, of course, taking care of and nurturing our students and helping them to to mature in all the various ways intellectual, moral, emotional, physical that they need to mature while they are on campus. So you know, the Second Amendment is not compatible with with university life and university aims and sometimes, while it's much more of an engine for good than the Second Amendment, in my view sometimes the First Amendment has to be limited for some of the same reasons.
Speaker 1:The universities are not built upon the basis of the Second Amendment, but they are built upon the basis of Fremont thinking, fremont speech, and that is why it's so closely tied together, of challenging viewpoints. And let me provide you some examples where you know people think, oh, you could restrict speech and for the sake of good things, it's gone too far. You had a feminist philosopher, rebecca Tuvelle, who put on, who put out essay, who put an essay on the acceptance, just juxtaposing the acceptance, of transgenderism versus transracial, accepting transracial people, and she was called this like homophobic, white supremacist, all the isms and the phobes in the book. And if who's like, I'm going to say your talk question, I'm going to make a second point on life to respond who's determining? Who's determining being able to label it's this or it's that? And I guess I want to follow up with with another, another question or another quick point, because I don't think that, like you've seen, for example, I think that the way certain people are feeling too, they have these emotional distortions of the actual situation.
Speaker 1:The book the mare, the coddling of the American mind, with Luke Greg, greg, luke Yanov and Jonathan height speak this rather well where people cat castra or catastrophes, excuse me and use dichotomous thinking to kind of kind of worse in situation. So someone's speech could be X or that could label that, but in reality it may not and was on the basis of and there has been a number of violent outbreaks I've seen that have occurred over speech that wasn't hateful. So I think even and I make this point is even in your pursuit to say, curb hateful speech, that doesn't even, I don't think it even accomplishes the ends that you would want to get to in the end. And that was just. I allow you to respond right there.
Speaker 2:There are a lot of different factors that university administrators need to take into account and a lot of different ways in which university administrators and faculty need to nourish and help to develop the intellect and the moral sensibilities and the emotional sensibilities of their students. I really believe that education needs to be of the whole student and freedom of speech, as I said at the outset, plays a very important role in that. So it is not a call for suppressing all speech or even all hateful rhetoric. That has a role.
Speaker 1:So why not Like? Why? That's a question. Why not suppress? Who gets to determine what hateful rhetoric is suppressed or is restricting? Who determines? University administrators have to take, so it's arbitrary in that.
Speaker 2:No, it's not. That doesn't make it. The fact that a judgment needs to be made doesn't make it.
Speaker 1:Or subjective. Let me make it subjective then.
Speaker 2:So of course, every value is subjective in a certain sense. That is, they have to do their. University administrators have to make their best guess and determine what counts as plagiarism. We've recently been through a lot of discussion about that on university campuses and it's a difficult determination to make sometimes. But university administrators are gonna make those decisions. They have to make decisions about what counts as sexual harassment.
Speaker 2:Now there's always a court in the background where we're talking about legal instruments. So a university administrator may make a judgment that a student needs to be kicked off campus because he's engaged in sexual harassment or sexual assault. We're accustomed to university administrators making such judgment. Nobody's saying, well, they shouldn't be able to make such judgments because it's subjective. Of course it's subjective.
Speaker 2:All of every legal concept in application has a certain subjective element to it in the sense that they have to make their best guess in the shadow of law. Of course it's always open to potential plaintiffs to sue universities and say, hey, we disagree, we think you got it wrong, and a court can decide that. Here a court would be balancing principles of free expression against compliance with Title VI. So I don't think that it's so subjective any more than any other area, Any more than university administrators having to decide yeah, we think that this counts as sexual harassment and would violate Title IX, and this student needs to be suspended, or this student needs to be expelled. Universities have to make those judgments for their own communities. And that doesn't replace the role of law enforcement. That doesn't replace the role, the protections that exist for students in the larger world.
Speaker 1:I understand and I think just going back to that is when you're pointing forward and you make a top point that things are subjective. However, it's also when you're going against a set right that public universities have to adopt but private institutions largely have followed and largely followed in recent, say, decades, but not always and I think when you're calling for university administrators to say restrict, poison speech, like the freedom of speech movement started at the University of California, Berkeley in 1964.
Speaker 2:Or I used to teach, by the way.
Speaker 1:Oh, that's great. So I have been at a public institution and I understand how they work. Well, I'm just saying well, you pen Ivy League school, well-renowned like you, could set the tone for a law. This and that's why I think it's important to bring to compare the two. But the rhetoric that they were pointing forward in that movement was largely in terms of the civil rights, yes, but also the anti-war, the anti-Vietnam War.
Speaker 2:That's right, and political dissent is important.
Speaker 1:Yeah, and let me just say that who's to say like a university administrator saying that, hey, that's poison speech, you're poisoning the young American minds because it is anti-war. But I mean, I know you have to because anti-American, but I know you have to wrap up, but I appreciate your time and I'll give you final thoughts, anything you wanna mention, but thank you for this conversation.
Speaker 2:Well, great to have this discussion and debate. I think it's a really important topic, and so I don't think that these conversations are at all superfluous. I think that part of this conversation about whether or not there should be restrictions on speech and what the scope of those should be needs to be coupled with discussions of positive ways that university administrators can make a difference to building and growing a cohesive community and to lowering the temperature on campus and to getting people to have constructive dialogue with one another, and so I only see the toning down on really the worst of the hateful rhetoric as just one piece of a puzzle where most of the work has to be done.
Speaker 2:On the affirmative side, because I do agree with you that just toning down some of the most hateful rhetoric won't by itself accomplish enough to really start to cultivate the attitude of respectful engagement that we ought to be teaching our students to have or our students and our colleagues, frankly.
Speaker 1:It's not just students. Well, thank you so much for your time. I really do appreciate it. I do agree that these are important discussions.
Speaker 2:Thanks for having me.
Speaker 1:Yeah, thanks for tuning in. Bye, we'll see you next time.
