On September 13, 2022 the Buckley Program at Yale hosted Ilya Shapiro and Robert Leider with Yale Law Professor E. Donald Elliott for a Supreme Court Roundup Discussion on Dobbs, Bruen, and West Virginia. Mr. Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute. Previously he was executive director and senior lecturer at the Georgetown Center for the Constitution, and before that a vice president of the Cato Institute, director of Cato’s Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review. Mr. Shapiro was interviewed via Zoom by Trevor MacKay ‘25 after the event.

Mr. MacKay:

In your June 6 Wall Street Journal opinion piece, you said “It’s all well and good to adopt strong free-speech policies, but it’s not enough if university administrators aren’t willing to stand up to those who demand censorship. And the problem isn’t limited to cowardly administrators. Proliferating IDEAA-style offices enforce an orthodoxy that stifles intellectual diversity, undermines equal opportunity, and excludes dissenting voices.” Do you think that university bureaucracies are fundamentally designed to stand against free speech in the name of DEI initiatives?

Mr. Shapiro:

They don’t have to be, but the way that they’re constituted now in most places, the answer has to be yes. The main difference, I think, on college campuses now versus when I was in college 25 years ago or law school 20 years ago, isn’t the ideological mix among either the faculty or the students. What’s really changed is the growth in the bureaucracies. The ratio, not of faculty to students, but bureaucrats/administrators to faculty or to students. A significant part of that growth is in the DEI sector. And of course bureaucrats, whether they’re in government or in private universities, have the incentive to justify their own existence and to enlarge their budgets. So if you have a large DEI bureaucracy, you are going to find lots of investigations and disciplinary actions aimed at various transgressions that I think can be categorized in the speech-oppressive or academic freedom-preventing category.

Mr. MacKay:

For example, Yale adopted the Woodward report in the seventies designed to protect freedom of expression among students and faculty. Even if university presidents or leaders at the top affirm their commitment to free speech or espouse their support for such initiatives, how do we fix bureaucracies that are illiberal?

Mr. Shapiro:

Well, I’m not as familiar with the Yale example, either the text or how it’s been enforced. Yale obviously has been at the center of various controversies of this kind, whether at the law school this past March with an event shutdown or a few years ago with the hounding of the Christakises. And now Judge Jim Ho has announced he won’t be hiring clerks from YLS because of the illiberal culture the administration there has created. I think it’s just a matter of administrators setting the tone from the top. Just as much as they instill commitments to diversity and inclusion or public service they know how to set certain cultures. And to students it’s quite evident in campus culture whether freedom of speech, whether the free exchange of ideas and civil discourse, whether these are indeed values that the administration holds high.

For example, Georgetown, with my experience, what they have on paper or on pixels in terms of their free speech and expression policy is excellent, top-notch. I’m not sure I would write it a different way. But the way that that was read by Dean Treanor in my case is to say, “Well, that’s one value, but then we have this other value of making people feel comfortable and not offended” which contradicts the letter- let alone the spirit -of the free speech policy. Very few colleges and universities these days don’t have good free speech or expression policies on paper. It’s mostly a problem therefore, of educational leaders–deans, provosts, presidents, department chairs, et cetera–who simply will not push back against the mob or will not say at the outset, “Look, I’m not in the speech policing business. You don’t like what this person has to say, speak against them, do whatever you like, protest without disrupting.  But my administration is not going to evaluate what’s good speech and bad speech.” And there’s too little example of that.

Mr. MacKay:

I’ve seen the phrase on Twitter and in various discourse “stochastic terrorism” used to criticize people who push back against certain progressive ideas or policies within institutions. Do you think you could explain from a legal perspective what this means and are there significant amounts of legal intellectuals who want to fundamentally change what free speech means?

Mr. Shapiro:

I’ve actually never heard that phrase, “stochastic terrorism.” I don’t know whether that means I don’t hang out on Twitter enough. That’s probably a healthy thing. I read widely in this area. I write about this area and I have not come across that particular phrase. If you mean mobbing, if you mean the online version of cancel culture and things like that, it’s complicated. We have laws against harassment. We have laws against facilitating violence. Threats of certain kinds are not allowed if they’re credible. And that’s to the good. The problem now in the digital age is when it’s a largely anonymous mob that goes against someone, what can you do about that? I mean, the number one thing you can do is turn off your screen and don’t click on that social media app on your phone–kind of divorce yourself, live in the real world more than letting those who would go after you virtually get into your head.

That’s certainly a lesson that I learned from my recent experience but in general, even before my Georgetown experience, when you’re out in the public writing and speaking, you’re gonna get people going after you on social media. There are certain strategies–you can Google “How do you survive an online mob” and things like that–both psychological and practical, to help people with that. Beyond that, it’s issues of campus culture. If it’s not the administration taking actual disciplinary actions against students or faculty, there’s peer pressure, there’s the development that students are afraid to express their own views in class or on papers or exams, lest they be downgraded.

These are unfortunate developments. I certainly never felt that way. More and more surveys show that students of all kinds- save the far left- feel like they aren’t at liberty to have an open discussion in class or outside of class, for that matter. That certainly is disappointing and it goes against the basic mission of higher education to expose people to different ideas and seek the truth, stereotypes about collegiate bull sessions at two in the morning, and things like this. If that’s not happening anymore then I guess college is just a place where you go into debt, and go on these fancy rock climbing walls, and enjoy your gourmet meals, and get your credential at the end of the day so we can be organization kids- but isn’t actually contributing to education.

Mr. MacKay:

So my understanding of stochastic terrorism is it’s been particularly used by the left as a phrase to go after conservatives. Particularly conservatives who are involved in the culture wars who criticize progressive policies when it comes to children and “gender-affirming” care. Basically their argument is that by pointing out these policies that they disagree with using their mass media, using their social media influence, and by using their speech, they are essentially causing people that they don’t know personally to threaten or commit acts of violence against progressives or institutions that are implementing progressive ideologies.

Mr. Shapiro:

So when president Biden calls Republicans “enemies of democracy” and things like that, is he practicing stochastic terrorism in the way that a couple of people recently have killed Republicans? I mean, in the law, speech that incites violence isn’t protected, but it’s a high bar. So if you command a mob to go kill someone or kill a particular ethnic group or something like that, that’s not protected speech. But simply criticizing policies, that’s trying to weaponize words. That’s the “words are violence” sort of thing, which is fundamentally against a liberal conception of the law.

Mr. MacKay:

Being a college student, we often talk about free speech on college campuses. Do you think that in the legal sphere of American life, there’s a retrenchment of free speech or is it the same? How is the battle for free speech going in terms of the legal field and in courts across the country?

Mr. Shapiro:

The courts are pretty good. The Supreme Court is very good on free speech. We probably have the most speech-protective Supreme Court we’ve ever had. Most of the problems that we see with respect to the freedom of speech are not legalistic ones. It’s not the government censoring. It’s private actors, private companies, culture broadly defined. Even we lawyers should realize that just because our tool is a hammer, doesn’t mean that every problem is a nail. I don’t think there’s necessarily a legalistic solution to some of these cultural issues with students feeling they have to self-censor and things like that.

Mr. MacKay:

Do you think that social media companies should take stronger positions on free speech? Do you think that as companies, they have a right to censor what they want to and what they do not want to?

Mr. Shapiro:

I mean, they are for-profit organizations. They should do whatever they think is going to maximize value for their shareholders, or for their owners if they’re a non-public company. Beyond that I’ve not yet seen a public policy solution for whatever people criticize the various tech companies for. Not everyone’s on Twitter. Not everyone’s on Facebook. Facebook is apparently for old people these days. Kids your age: do they use Facebook at all?

Mr. MacKay:

Yale students do still use Facebook to some extent.

Mr. Shapiro:

Because when it came out, it was an Ivy League thing, first of all, and then you had to have an .edu email to do it, and then it opened up more broadly. So it started off as a college kid thing in my generation… The problem of Big Tech using its power to distort public discourse is a real one. But I haven’t yet seen either through existing laws or proposals solutions that would both fix what problems we have identified and not create whole new ones.

Mr. MacKay:

So I want to kind of move away from the free speech part of my questioning and ask you a few questions about your personal work. Some people have described certain aspects of your legal positions as being libertarian or at the very least very individualistic in nature. And given this, I’m wondering, why did you take up a fellowship at the Manhattan Institute rather than the Cato Institute or a similar libertarian organization?

Mr. Ilya Shapiro:

Well, I like to call myself a classical liberal. Especially now with some of the craziness at the Libertarian Party, it might not be a word that’s in favor. I’d been at Cato for nearly 15 years and Cato had been good to me. When the Georgetown opportunity came along, I thought this would be a new way of having an impact. Still writing and speaking, but getting to teach more and having a university platform might be an interesting way to take my career. And when that fell apart I got to talking to my friends at MI and it seemed like a good fit.

It seemed like an opportunity to build something new. They’d never had a con law focused scholar. They wanted more of a national presence and they wanted to speak more to the courts with amicus briefs. I was a good fit for them in that regard. I thought it would be a good opportunity to try something new. And I hope to continue to work with my friends at Cato as the opportunity arises. I just spoke at their Constitution Day conference [Sept. 16] and published an article in the Cato Supreme Court Review, which I had edited and published for a long time. But this presents a new opportunity, a new challenge, and three months in, so far, so good.

Mr. MacKay:

That’s great to hear. A final kind of wildcard question, it seems increasingly popular among many circles on the right and in many conservative circles to support broken windows policing policies. I think that some people at MI have pushed or advocated for such policies. So I’m wondering what your opinion is on this kind of approach to crime.

Mr. Shapiro:

I haven’t researched it myself. I’m not an expert on that. I can read the same things that you do, including by my colleagues. I don’t know what’s been added to the broken windows idea and operations from the nineties when Giuliani was mayor (before he went off the reservation) and turned New York around from what it had been in the seventies and eighties. I don’t know whether taking those same strategies, but using better data with GPS, drones, and however the technology works now is the way to go. Or whether that’s what people in other contexts called “zombie Reaganism”- addressing the problems of now with older solutions. I’ll defer to my colleagues that work on that principally, but I do think that the examples that we’ve seen in San Francisco and elsewhere is that if you don’t prosecute certain lower level crimes, that does have an effect on making criminals feel like they can get away with more.

Mr. MacKay:

Well, thank you so much for speaking to me today. I really appreciate it. Thank you for coming to the Buckley Program last week. I hope you enjoyed your time and I wish you all the best Mr. Shapiro.

Mr. Shapiro:

Thanks, Trevor.

Trevor MacKay is Membership Director of The Beacon and a sophomore in Timothy Dwight College majoring in History. Contact him at trevor.mackay@yale.edu.