The Buckley Program hosted Nadine Strossen for a lecture titled, “Combating Hate: Censorship or Free Speech” on September 22, 2022. Nadine Strossen is the John Marshall Harlan II Professor of Law Emerita at New York Law School. Before that, she was the President of the American Civil Liberties Union from 1991 to 2008.
William Wang: What is your opinion on the Colorado website designer decision the Supreme Court issued today?
Nadine Strossen: I actually spoke to Yale Law School about that case in January. Yale Law School had a program organized by the Federal Society to illustrate civil discourse between two lawyers who have very different views on some issues but do share some overlapping views. One of them was Kristen Waggoner, the legal director of Alliance Defending Freedom, which represents the website designer Jack Phillips in the so-called cake case. And the other one was a woman whose name I do not recall, but she was general counsel or some similar position with the American Humanist Association. And that’s the event that got shouted down by some protesting students.
It got a tremendous amount of nationwide publicity. It was the most notorious and shocking law school shout-down event until Stanford upstaged Yale Law School recently. That generated a tremendous amount of controversy and condemnation. Several federal judges even said that they were not going to hire Yale Law students as clerks because of Yale Law School’s hostility toward free speech. The administration was very severely criticized for not disciplining students for having clear free speech policies. The disruption extended beyond the event itself because even after the protestors left the particular room, they stayed out near the wall and made so much noise that they disrupted a faculty meeting and two other classes.
Anyway, there was so much chagrin on the part of some members of the legal community that with the encouragement of the dean, they decided to restage the event. But this time, they asked me to be the liberal counterpart to Kristen Waggoner. I said, “Well, I hate to disappoint you, but I happen to agree with her position in this particular case.” That position is very controversial on the left. But then I said, “On the other hand, it could be interesting for them to see that even though people may disagree on some issues, you agree on some issues.”
This time around, Robert Post, who was a former dean of the Law School, agreed to moderate it. That put a big stamp of approval because he’s the faculty advisor of the American Constitution Society, the liberal counterpart to the Federalist Society.
To make a long story short, I do agree with the Court’s position in the case. Kristen and I co-authored an op-ed, which we’re hoping to get published in the New York Times. The main theme is no matter what your views are on same-sex marriage or anything else, you benefit from this decision, because all of us should be protected against compelled expression. I’m thinking that it’s going to be great ammunition to fight the proliferating compelled DEI statements and land acknowledgment statements that too many students and faculty members are being compelled to teach on so many campuses. I’m very heartened and not surprised at all. The Supreme Court has been very good on free speech.
WW: That conversation is an example of you engaging with someone who you might not agree on every issue with. I’m wondering if you could give an example of one time where you changed your mind on something, or perhaps when you changed their mind on something?
NS: One really dramatic example of somebody who changed his mind was many years ago: Mitch McConnell. I first met him back in the very early 1990s, when he was already in the Senate. Right after the Supreme Court’s flag burning decision, there was immediately a proposed constitutional amendment to make an express exception to the First Amendment for flag burning. The amendment had huge support on both sides of the aisle including McConnell. Hillary Clinton, when she was in the Senate, voted for it. You could count on one hand the people who voted against it.
As context, McConnell actually worked very closely with the ACLU in opposing restrictions on campaign finance, culminating in the case McConnell v. FEC. In a meeting with ACLU leaders, including yours truly, he said that his understanding of free expression for controversial speech was enriched as a result of crusading against campaign finance restrictions. He ended up changing his position about the flag-burning amendment and voted against the bill.
In terms of my views, I can’t think of such a dramatic change. But I think that my support for free speech has become more nuanced as a result of thinking about it so much and considering so many arguments against it.
When I look back over earlier writings, in the early eighties when we started to hear calls for censoring for hate speech codes on college campuses, I did participate in debates that framed the issue as a binary question: “Should hate speech be protected or not?” In reality, the law demands some speech with hateful content to be restricted not solely based on this message, but also the particular facts and circumstances. Now, I have a more nuanced appreciation, which I think makes support for free speech actually more persuasive. Yes, some speech does cause significant harm. And here too, Will, I think I have a deeper understanding of the adverse impact of speech, in part because there’s been more scientific evidence about physiological reactions to stress that can be caused by speech. I can’t say that I was completely unaware of that, but I take that much more seriously and I try to address it. And I hope that that makes my remarks more persuasive. because people can understand that I’m not just knee-jerk defending free speech at all costs.
WW: On the topic of emotional ramifications, some people have offered trigger warnings as a possible solution. What are your thoughts on them?
NS: To the best of my knowledge, every study that has been done on trigger warnings has concluded that they are at the very best, ineffective, and at the very worst, counterproductive. I’ve read a number of meta-studies, and the consensus of social science, psychological and trauma experts is that you can’t predict what it is that is going to trigger the traumatized reaction. It might have nothing to do with a description or depiction of whatever the traumatizing event was in that person’s past. It could just be a smell or something else that’s peripherally associated. In fact, the consensus among the psychologist seems to be that the best way to overcome trauma is not to shield yourself from whatever induces it, but to confront it gradually with some support. This way, it will no longer have that power over you. If you just keep shielding yourself, that becomes disabling and it perpetuates the harm.
WW: You mentioned in your book how you have been the target of antisemitism. How do you stand up to hate speech? Do you brush it aside, or do you combat it with counterspeech of your own?
NS: How I deal with any particular instance of speech that I find problematic in any way has to be very fact specific. If someone is trying to insult me and make me feel bad about myself, one reaction is just to ignore the person and walk away. Another situation would be if somebody is voicing an idea that I deeply disagree with, which by the way, many people would call hate speech. If it seems to me that there’s some ground for open-mindedness and conversation, I would engage in conversation.
When I appeared on Fox News, people sent me what could be considered hateful speech. I’ve on multiple occasions engaged in email conversations with those folks. I’ve brought new facts to their attention; they’ve brought other facts to my attention. In a couple of cases, we have become even fairly cordial, so that if I’m speaking in their part of the country, they actually come to hear me talk. If somebody else is a target of hateful speech, it’s really important to show support for that person and to speak up in support of their dignity.
But you also have to consider those who wield the term “hate speech” to characterize speech that really isn’t hateful. Again, I’m thinking of Yale. A couple of years ago, Trent Colbert used the trap house reference, which none of us knew had an origin relating to cocaine houses and therefore had some potentially racial, but not racist, connotation. He refused, under intense pressure from the administration, to apologize to students who claimed that they were hurt by that. He was then accused of being a hater.
I consider that to be defamation for those of us who support equality, which I know Trent does. That kind of defamation itself was a form of hate speech. I had a chance to talk to Trent and he said, “You know, it was really helpful to have some people he trusted completely, who trusted him completely, who would just offer him support.” We know that that’s not a fair accusation. So that’s something else really important that we could do with our speech.
WW: A lot of these instances of shouting down speakers and hate speech codes are prevalent in colleges. Do you think there should be a different speech policy for different age groups? Some may contend that elementary and middle schools should have more power to restrict hate speech than universities, because it may detract too much from their educational purposes.
NS: There, we have to be careful about what we mean by speech. I think that most people, imagine a racist slur: let’s say an epithet that one person hurls at another. That’s not constitutionally protected. That comes within the emergency principle of so-called fighting words, or bullying and harassment. If you’re specifically targeting an epithet at somebody, I think that campuses are well within their legitimate powers, even under the First Amendment, to prescribe that. Where it becomes dicier is what I was alluding to earlier, when one is making a general point about a policy issue or something that is directed more generally to an audience, as opposed to targeting a particular individual.
There, maybe grade school isn’t too early. I was thinking of Huckleberry Finn. Should we should shield students from even at a young age reading it because of the prolific use of racist language for black people? Or is that something that is important for them to understand as part of American history and to underscore the enormous courage of this young boy? I’m sure many parents would object that this is hate speech. I would make an argument that they should be exposed to it if it’s age appropriate for them for other reasons.
WW: I’m assuming that your default position is that you debate and converse with almost anyone about almost anything. Other speakers may consider some speech as so invidious that even being present and debating them may legitimize their sentiments. Do you draw the line anywhere with speaking or debating engagement?
NS: That is a strategic question. It’s not a matter of principle, but rather because we all have limited time. For every invitation, I have to consider if it is a good use of my time. For me, that would be if I can reach an audience where I can communicate something that in my view is going to have a positive impact. Hopefully, I’m reaching an audience that’s interested in free speech, and hopefully, I’ll give them some additional reinforcement for their views and encouragement to keep advocating.
In the case of somebody who is a confirmed hateful person or anti-free speech absolutist, I still wouldn’t necessarily say no, even though I realize that I’m not going to be able to change that person’s mind. But suppose they have a platform that is reaching somewhat open-minded people, who could be moved if they see me doing a persuasive job debating somebody that they believe they agree with. That could be an opportunity. So that’s why I’ve never stopped accepting invitations from Tucker Carlson and other people that are disliked by most of my liberal friends.
I think in my recollection, I’ve turned down only two invitations that I can recall. One was at the request of the ACLU media relations Experts. It was another FOX program. I’ve done so many FOX programs that I can’t remember which one it was. I think it was O’Reilly, but I can’t swear to it. But the accusation was that they doctored what you said. Suppose you say “not x,” they would take out the “not.” In other words, they would make it seem as if you were saying exactly the opposite of what you actually said. So of course, that’s not a good platform. So that was the reason for saying no.
The only other time I can remember turning down a request for an interview was from a white supremacist who participated in the Charlottesville Unite the Right rally in 2017. He had some kind of radio or podcast show. I just thought that’s probably not an audience that would care that much about other people’s free speech rights. It’s just not a good use of my time.
WW: Just broadly about free speech, I’ve heard two kinds of defense for it. One characterizes free speech as a means to an end, for example, to the proper functioning of democracy. Another is more philosophical, that it’s an end in itself. How do you view free speech?
NS: I think they’re twin pillars. For me, the most eloquent defense of free speech is Justice Brandeis concurring opinion in Whitney vs. United States. Nobody has more eloquently explained the power of free speech. In the beginning, he says it has both an intrinsic value and an instrumental value. And I think that the two are integrally interrelated. Freedom of speech, which facilitates freedom of thought and vice versa, is essential. It’s important not only for us to have a sense of fulfillment and autonomy as human beings, but also to be effective, meaningful participants in our democratic self-government. I think they’re really inseparable and mutually reinforcing.