Remarks of Frederick M. Lawrence
Robert Kramer Research Professor of Law, George Washington University Law School
President-Elect, Brandeis University
ADL National Commission Meeting
October 7, 2010
This is very much of a homecoming for me in a number of ways. First of all, when I see an ADL event show up on my calendar, it is very much like having another home game on the schedule. I very much feel part of the family and I appreciate that warm introduction. And, of course, this is coming back to Boston, where I spent many happy years on the faculty of Boston University School of Law, and the civil rights committee, within the New England region – the justly celebrated, sometimes controversial, always maddening, but always inspiring, New England region, my region.
I have an ADL story, not unlike many people's, of getting a phone call from the late Lenny Zakim one day, and there are a lot of stories one could tell about Lenny, and I just sort of tell the meta-story, not a specific story, but the meta-story. I don't think, in my entire life, I ever knew anyone who was as good as Lenny was at finding just the right project for you to do. So every time you got a message that Lenny had called, you thought to yourself, "I'm too busy, I can't take on another thing, I'm just going to tell him ‘no.’" Then he would call back and he would say, "I know you are busy, but I just had this idea that you might be interested in," and you heard yourself say, "That sounds great, I would love to do it," and you never regretted it. You never regretted it. So for me being back in Boston, and the privilege of, as I have described it, of being called to the presidency of Brandeis University – and that's very much how it feels to me – it's the great challenge of my personal and professional life. The opportunity now, for the ADL to be meeting in Boston at this time, as I am transitioning into Brandeis, just brings it all together.
In fact, I will conclude the first part of these remarks with one last ADL-Boston story, and that's a story that Abe, I'm sure, doesn't even remember. But there was a national commission meeting shortly after Punishing Hate came out, and I gave a talk at that meeting, it was here in Boston. After my address, I was talking to a group of people, who were asking questions, and a fellow comes up behind me, puts an arm on my shoulder and says, "Who is doing your book tour?" I said, "I don't exactly have a book tour, but we are going hopefully to try to talk about the book as many places as possible." I didn't even have a chance to turn around, in this half-conversation; someone’s hand goes in my pocket and drops a card and says, "Give me a call," and I said, "Sure." Then I finished the conversation, and ten minutes later I took the card out, and of course, the name was Abraham Foxman. And I said, "Oh, Dear God, I should have at least turned around and said 'hello.'"
But we had a pretty good run that year, and as I was just saying to Abe before, when I said to him, "how is business?" and he said, "booming," we are unfortunately in a growth industry. My brother is the chair of Radiation Oncology at the University of Michigan; I like to joke with him that if the world were a better place he and I, we would both be out of work, looking for something else to do. He studies cancer of the body, and I, in my professional career, study cancer in the society, and it turns out that we are both pretty busy; we both have a lot of work to do.
So my talk today with you is less about hate crimes, per se, but the issue of hate speech, and hate speech particularly on the college campuses is obviously something that I have always thought about in an academic sense: now I think about it in a new perspective, that of a university president. University presidents tend not to criticize each other too much about the handling of certain sensitive situations; we all know we are one phone call away. You know, you sit in Waltham, and you have your own problems, but you don't think about what might happen down in Durham, North Carolina when the lacrosse team has an episode at Duke, you don't think about what's happening down in New Jersey, when the president of Rutgers gets a phone call and someone says, "Mr. President, I have some bad news to tell you," and then on and on and on. So we are all one phone call away. I think the lesson in this is that these are serious issues and hard issues, and thus we will all do well not to be too self-righteous, because we are all, on some level, one phone call away.
What I would like to do is to share some general thoughts on what I think does not make sense for thinking about the hate speech issue on college campuses, and then to share some thoughts on general principles, how we might think about these issues going forward. That should give us ample time, I hope, for some questions that you may have.
One of the questions that obviously comes up is, why on college campuses in particular is this such an issue? When we think of hate speech, we immediately go to issue of campuses. When we think about much of the litigation over hate speech in 1980s, much of it involved speech codes on college campuses – virtually all of which were struck down as unconstitutional at state universities. What happens at private universities is obviously more immediate to me at Brandeis, but I will talk now about state universities and the jurisprudence that grows out of those hate speech cases.
I think there are a number of reasons why the issues of hate speech come up on college campuses, and some of it is not bad, at least the predicate is not bad. We live in a world abounding in new ideas all of the time. If you think about society at large, people interact in terms of how they express themselves, but they have so many other things that they do as well, that is, they have other jobs besides expressing themselves. For students, expressing themselves is their job, it is really what they are about; in large measure, this is what we bring them to the university to do. To a certain extent, they are trying out extreme views, and to a larger extent, we want them to try out extreme views.
Perhaps it is those wonderful shifts in one’s world-view and ideas that take place over the four years of college that causes people to say that college "was the best four years of my life.” By the way, I have never thought that any four years in the past should be thoughts of the "the best four years of my life." I encourage students to think that the next four years of your life are always the best four years of your life. But the four years of college are certainly unique years, a special four years, where you are living in this world of expressing yourself, and trying out ideas that you are not even sure are right. None of this, of course, justifies hate speech. But what I am trying to do is to set the context for the question "why do these things happen on university campuses?" Because campuses are literally cauldrons of expression where people are, by definition, going to disagree with each other, where they are banging into each other – and that's not the bad news, that's the good news. So that's the context, that's what I do for a living, that's the world in which I live.
It is very tempting to suggest that we should merely think of university campuses as a microcosm of society, with all of the protections for free expression that apply in a free and liberal society. However, I am not sure that's an apt description. Universities are unusual settings and, therefore, just taking the rules from the outside and imposing them at a university may not capture what it is we are about. This is true from both sides of the equation. We might have more reasons to want to give freedom to views that students want to express; but at the same time we have the obligation, I would say – not just the right, but the obligation – to monitor that discussion, because at the end of the day universities have missions, they exist for a reason: the reason is the discovery, creation and dissemination of knowledge. And so in that context, we have the obligation to educate students as to how discussions take place. So universities may not be best thought of as a simple microcosm of society; they are a very specialized sub-group within the society.
Another idea might be to suggest that universities are “laboratories of democracy." Many of you will recognize that as a wonderful expression of Justice Louis Brandeis, a man I have been thinking about a great deal in the past two months and to whom I will return later in my talk. Justice Brandeis said that the 50 states, 48 states then, were laboratories of democracy; states could try out different ideas, and this is the genius of the federal system. Should we think of universities, therefore, as laboratories of the First Amendment? I think that is probably not such a great idea either. One of the advantages that I have in a private university is that we get to craft what we think free expression rules ought to be. That is to say, we can listen to what the courts say, but except for the broadest confines of that discussion, private universities are not bound by the First Amendment, per se. That, however, does not answer the question; it only begins to pose the question.
When it comes to the rules governing free expression in private universities, I reminded of my teacher Robert Cover’s words in a different context: we inhabit a nomos, a normative world. In this normative world, we get to ask the question on a day-by-day basis, "what ought our society to look like?" In some ways it is the highest aspiration of the university – not just, "what are the constitutional rules the courts give us, but what ought they to be?" – because we can craft them as we go. So just taking the First Amendment is probably not the best way to look at it either. I will say, however, that I do find great insight in Louis Brandeis' First Amendment jurisprudence. This is not the time for a lengthy First Amendment lecture based on Brandeis, but I will just give you the flavor of what I think makes Brandeis still so fresh.
If you think of Brandeis and Justice Oliver Wendell Holmes, Jr., the two great figures of that time who explored a more liberal, progressive view of free expression, we tend to lump them together; a terrible mistake, because, in fact, there is an enormous and significant distinction between the two of them. For rough-cut purposes, we can say that Holmes had much more of an outcome-oriented view of free expression. He articulated the concept of a “marketplace of ideas;" the best answers, and the best results will come out of a free and robust discussion much as the best products while emerge from economic competition in the free marketplace. Brandeis had a much more idealistic and Aristotelian view of speech, one that situates free expression in the very way in which we describe ourselves as a society. How we participate in the society is who we are, and how we develop ourselves and express ourselves is the very nature of who we are as human beings, as ultimately social animals. To me, this distinction exposes one of the reasons why Holmes, as great as he was, reads a little brittle today, whereas Brandeis has a kind of freshness that he still brings to the discussion. So in thinking about developing rules governing free expression in the university context, it is not as simple as just applying an applicable First Amendment rule on this point, nor is it as simple as asserting that we ought to have the same rules as the rest of the society. Here are some of the principles that we might think about regarding how to organize a discussion, to put limits on what should be outside the bounds of free expression and to protect that which should be inside the bounds.
First and maybe foremost, is an observation that is sometimes hard for our students to hear. It can be painfully difficult for them, and all of us, to hear. Universities are not advocacy institutes; they are places of higher learning. As universities, they are places where there are many different views, and many different views that will be expressed. As a result, we know that part of being a student and part of being on a campus is that you will be upset by what other people say, sometimes very upset. In fact, as I have told students, we will actually not only let people upset you intellectually, we will encourage them to do that, because that is what it means to be part of a university campus. And let me not just let this fall into the context of things about which reasonable people can differ, like, I don't know, Yankees/Red Sox – which, by the way, there's no reasonable disagreement about, there is a correct answer to that question!
Let me take a rather hot topic example, but from some years ago. Back in the early 1970s, when the brilliant inventor and engineer, William Shockley, as many of you will remember, had begun to venture from his career as an inventor into areas of genetic studies, and voiced some fairly extreme views about race and genetics. Shockley, whatever else he was, a Nobel Prize winner, was a pretty bright guy. Shockley was on a lecture tour, and he gave a lecture early in the 1970s on his views, at no less an institution than Yale University. I should say that he tried to give a lecture. Students protested outside, as was certainly their right, and as Shockley came in, and started to talk, they started to shout, as he tried to talk more, they started to shout, they continued to shout and they would not sit down, they would not stop shouting. In a memorable response, Shockley turned around – there was a blackboard on the podium, this was before PowerPoint – and he turned, took a piece of chalk and he wrote, "Pity for Yale," and walked out of the lecture hall. He never got to say a word.
Was what he was going to say hate speech? He was going to certainly share racialist views, some people would say racist views, and he was shouted down, he was not permitted to talk. There was clearly a regulation of his speech, although not by the institution at which he sought to speak, but rather by the audience. "Pity for Yale," was his response. I don't agree with practically anything that Shockley said, starting from the early mid '60s on, but I think he got “pity for Yale” spot-on.
So we will and we should let people upset people on college campuses, and people will disagree. But where are the bounds? No one can be threatened, no one should be intimidated, and no one should be fearful on a college campus. Is that a line that's going be easy to draw? Not always, although I am going to suggest that line is often not as hard as we think it is.
Threatening can be extreme cases, words of overt threat, or actual physical acts. It is tempting to distinguish between speech and conduct, the former being protected and the later subject to regulation. I would suggest, however, that the speech-conduct distinction is ultimately not going to be the best way to try to draw those lines. We need to ask, "What is it that the speaker had in mind; what was the purpose of the speaker's behavior; is it to instill a threat in another individual?" Because if it is, then it is out-of-bounds. There are limits, and that is one of the limits. Can mere speech cross that line? If it is intended to threaten or instill fear in a targeted victim -- absolutely.
There was a dramatic case on a college campus, not that many years ago, of a group of racists who followed an African-American woman student around campus. Now they knew that they were not allowed to threaten her, per se, and they knew they could not shout at her, per se, so they followed her around the campus, and all they said, in very soft voices was, "We like dark meat, we like dark meat," over and over again. They terrified her; it's no question that this was their purpose and it is equally not question that that behavior is out-of-bounds. There's no question in my view that it constitutes hate speech. What was the purpose behind that behavior or, as criminal law doctrine would put it, what is the mens rea behind the actus reus? It is an intent to threaten, it is an intent to terrify. Out of bounds. No acceptable place for that kind of talk, that kind of behavior.
So if the principle is "no threatening," but otherwise a broad spectrum of discussion, why not just embrace the First Amendment? The First Amendment obviously coexists with criminal law in the society, but it turns out not to be so simple.
We take another example, this one out of the front pages, relatively recent. What about someone who decides it would be a good idea to burn the Koran, down in Florida? I will take the maybe not universally shared view that as a matter of the First Amendment, he is entitled to do that. There are questions about whether it would violate national security concerns, and I think that's why General Petraeus laid down a marker that this would affect our troops overseas, but let’s put the national security issue aside for a second, and just think of it from the point of view of how offensive that behavior was. Depending on where he did it, and if he's trying to communicate his views, views that I would reject – that I hope most right thinking people would reject – rather than trying to intimidate individual victims, is that protected, as a matter of First Amendment? I believe it is.
Now, let me quickly shift to college campuses. Let me assure you that if anyone sought to burn the Koran on the Brandeis campus, I have absolutely no compunction or problem with prohibiting that, and I think most people on campus would want me to. So the First Amendment and what happens on a college campus cannot be completely coextensive.
Is there a principle we can tease out of that? Yes, I think that, on a university campus, we can say it is not just that you cannot threaten other people, which is an important point, but frankly an obvious point; but also you cannot instill fear in other people – and that too is an important point and an obvious point, and it applies on and off the campus. You may not, within a university community, delegitimize another person. You may not delegitimize another person's right to speak, or to hold opinions on either side of an issue. Not only can people not be excluded from the conversation out of fear, they cannot be deprived of their right to take part in the community. I think that is a line that might be harder to draw in the general civil society, but it is one that we must try to draw on university campuses. And again, I do not pretend to tell you that I have easy answers for each individual case – these situations have to be addressed on a case-by-case basis.
I told you at the beginning "we are all one phone call away." I know that it won't take long after January 1st before I get my first phone call. The question is not what the answer is as much as how we begin to think about it. And I think that concept is broadening the expression, letting people be at loggerheads, disagreeing with each other, but disagreeing with each other not disagreeably, because the goal is to foment discussion. The goal is to express ourselves within the broader confines of the community. Not to instill fear, not to threaten, and not to delegitimize the other.
Let me add a word or two, in conclusion, on Louis Brandeis' jurisprudence, which I keep being drawn back to. First, if we express ourselves as a way of being members of the community, if that is a right, then I would say within the university it is an obligation. That is part of why we call on people in class, take something as simple as that. I don't know if any of you had any experience of saying in class, "I don't particularly feel like talking in this class," and the professor says, "that's not your call." Or as a student who said to me once, you know, "I'm not into locution, I am not paying to talk in class, I'm paying to hear what you would say." There are a lot of ways I could have responded to that. What I said to the student is "frankly, what you are paying for is to hear is exactly what it is I think you ought to hear, and sometimes what you ought to hear is what comes out of your own mouth. And you need to hear what other people think about that, and how other people respond to that."
So it is an obligation, actually, to respond and to express oneself. But if there is an obligation to express oneself, there is also an obligation to own the consequences of that expression. One cannot act as if he or she speaks into a vacuum – we speak into a society, and I think Brandeis gives us a good sense of that as well. It was also Brandeis, by the way, who said "the answer to bad speech is more speech." When we find ourselves thinking that the answer to bad speech is to repress it and suppress it, it seems to me that Louis Brandeis gives us a pretty good answer to that, both within the university and outside as well.
Finally, and here it seems to me there is resonance for any university, but particularly for Brandeis. It is for universities sometimes to take the hottest issues there are and – to push this metaphor a little bit – to demonstrate how to turn down the heat and turn up the light. It is precisely the standing of a university like mine that gives us the opportunity to do that.
Every year there are two student brought to Brandeis called Slifka Scholars after the donor who endowed this extraordinary program. They spend four years together, one an Israeli Jew, and the other either an Israeli Arab, or a Palestinian, and they are twinned; they study together for four years. I had the privilege recently to talk to the two seniors, who are quite tearful about the fact that they're graduating. And I said, "Do you think you are staying in the States, or do you think you are going back?" And they said, "We have to go back, we have to go back to where we come from, and share what we have learned." And I said, "Do you think you are going to stay in touch?” They took each other’s arms, these two young women, and they said, "of course we are going to stay in touch, we are linked forever now."
Education can do that, universities can do that, and I daresay that when Brandeis does this, it has a certain power; it has a certain resonance that everyone understands. I think Louis Brandeis himself understood that – that the power of education, that obligation to communicate, even if it means we run into each other from time to time, also means we are in dialogue with each other. By turning down the heat, and turning up the light, maybe that's the closest we can come to the obligation that we all have to be a light unto the nations.