February 21, 2010
When the First-Amendment Scholar Runs the University
By Carlin Romano
Champions of the First Amendment come in many guises, with as many differences and frictions (if not shaved heads) as you might find among WWE wrestlers.
Alexander Meiklejohn, for instance, the seminal author of Free Speech and Its Relation to Self-Government (Harper, 1948), originally placed protection of "hard core" political speech so far ahead of mere satisfying self-expression that he memorably declared, "What is essential is not that everyone shall speak, but that everything worth saying shall be said."
Faced with withering criticism on that score from Zechariah Chafee, no slouch himself in First Amendment jurisprudence, Meiklejohn later backed off from a view that, current scholar Rodney Smolla tartly remarks, "could not have been more wrong."
Chafee, for his part, boldly insisted in Free Speech in the United States (Harvard University Press, 1941) that the framers, when it came to the First Amendment, "had no very clear idea as to what they meant," a notion designed to trigger apoplexy among "absolutists" and "original intent" true believers sure that all First Amendment doctrines depend on the intentions of the men who drafted it.
Indeed, the greatest First Amendment historian of his era, Leonard W. Levy, didn't even agree with himself. In his remarkable introduction to Emergence of a Free Press (Oxford University Press, 1985), a revised edition of what most in the field considered a masterwork, Legacy of Suppression (Belknap Press/Harvard University Press, 1960), Levy repeatedly castigated himself for being "wrong" about the origins of the First Amendment.
First Amendment theory may thus not be rocket science, but neither is it mere top-of-the-head tweeting (except, perhaps, for those still annotating Justice Alito's now famous mouthing, "Not true!," in response to President Obama's State of the Union Supreme Court commentary).
The real stuff abounds with doctrinal complexity, and a history of pronounced fits and starts in reaching its current unsettled state. It contains multitudes—of insider terms and vying premises—and continues to generate pitched disagreement. Case in point? The stunned reaction to the Supreme Court's recent 5-4 decision in Citizens United vs. Federal Election Commission, broadly upholding corporation-
Lee Bollinger's distinctive place in First Amendment theory stems from two different sources. One is his own innovative scholarship, from The Tolerant Society (Oxford University Press, 1986) to Images of a Free Press (University of Chicago Press, 1991) and Eternally Vigilant (University of Chicago Press, 2002, edited with Geoffrey R. Stone). He has now added to it with Uninhibited, Robust, and Wide-Open (Oxford University Press, 2010), an incisive new study—make that hybrid study and manifesto—creatively urging a projection of America's free-speech culture across our globalized world. (See accompanying essay by Bollinger on page B6.)
The other is his role as president since 2002 of Columbia University, where free-speech controversies seem to erupt more spectacularly and frequently than on other campuses. One writes "seem" because it can look that way when two local tabloids, the New York Post and New York Daily News, report First Amendment spats on Morningside Heights so constantly you wonder whether they share a free-expression bureau up there. It also helps when the town you operate in includes the U.N. and serial hate-speech visitors like the Iranian president, Mahmoud Ahmadinejad.
On the theoretical side, Bollinger, despite his leadership posts over the years (he's also been president of the University of Michigan and provost of Dartmouth College), has steadily built upon the foundational ideas he first articulated in The Tolerant Society. There, proceeding from the "extremist speech" issues involved in Skokie and other Supreme Court decisions that he described as "the anvil on which our basic conception of free speech has been hammered out," he had already begun his attention to "social functions of the free-speech idea." Now, in Uninhibited, it has evolved into his real-world focus on how free-speech values operate and should operate in a globalized world.
In The Tolerant Society, Bollinger warned that we should not allow the "continuity of language" in First Amendment jurisprudence to disguise how the meaning of free speech, its "symbolic significance," shifts over time. Like Levy, who berated himself in Emergence of a Free Press for concentrating excessively on what 18th-century Americans said about free speech instead of what they did, Bollinger resists an overly legalistic understanding of free speech while simultaneously trying to synthesize Supreme Court doctrine.
So, in Uninhibited, Bollinger internationalizes the conception of free-speech jurisprudence embedded in his first book, describing it now, in the spirit of Justice Holmes, as "a great social experiment" that "trains us in the art of tolerance and steels us for its vicissitudes." In contending that the United States, through instruments as varied as Supreme Court jurisprudence, international trade law, and international human-rights treaties, should export its free-speech values to the world, Bollinger merges his core First Amendment jurisprudence with the empirical savvy and worldly wisdom he's picked up as Columbia's roaming ambassador around the globe.
Pondering the dilemmas of being a committed free-speech advocate while also running an Ivy League university in the world's 24/7 media capital, Bollinger, chatting in the handsome wood-paneled library of his official presidential home on Morningside Drive (as well as in a follow-up conversation on the phone), rejects the idea that he must regularly compromise his free-expression values with other values important in a university.
"I've never thought of them as clashing," he says. "I have always felt that there were certain fundamental principles—freedom of speech and academic freedom in the context of universities—
And so he briefly lays out out his thinking on Columbia's free-speech controversies of recent years after they're quickly listed before him. The 2006 interruption by students, for instance, of a speech by Jim Gilchrist, founder of the Minuteman Project, an immigrant-unfriendl
All his actions, explains Bollinger, must be understood within the principles for which a great university exists.
"We don't do diplomacy," he asserts. "We're not engaged in having a foreign policy. We do education and research. We are also a forum in which ideas can be expressed, and we try to understand the world." Great universities, in short, already tilt in favor of free speech, but Bollinger notes something many of his critics ignore—that universities must also abide by their own procedural rules.
At Columbia, he says, "students can invite anybody they want and can say whatever they want, basically. ... But faculty and the university, there are limits on what we can do. We don't have the same degree of freedom that students have. We do as citizens, but not as officers or faculty of the institution. We can't, in other words, use the university for political purposes."
"We are an educational, research, scholarly institution," he emphasizes, "and we make decisions about who to invite in the context of that basic mission. ... People don't have a right to come to Columbia or a university and speak."
Much of the time, Bollinger notes, when he's criticized for allowing some controversial speaker at Columbia—Ahmadinejad being the most prominent case—he hasn't issued the invitation himself but is standing up for the right of someone else in the Columbia community to do so. "It is," he states, "absolutely my responsibility to defend that."
In the case of Ahmadinejad, which sparked international headlines praising or condemning Columbia for its decision, Bollinger explains, during the conversation in his house, that he knew he had to engage more directly, acknowledging the behavior of a past tenant of his Columbia mansion. (Nicholas Murray Butler, Columbia's president from 1902 to 1945, has been roundly criticized by scholars for inviting Nazi officials to the campus and treating them courteously.
"I believe that the price of free speech," Bollinger elaborates, "is the responsibility to answer and speak out oneself." He maintains that "the context in which the speaker is going to be permitted to speak is really important. I felt that given the positions Ahmadinejad had taken in the world, the behavior he had engaged in, and the future capability of a person who was prepared to deny the Holocaust in a world forum, it was incumbent upon us to speak to those issues."
So he did it himself, calling the Iranian president "brazenly provocative or astonishingly uneducated," accusing him of exhibiting "all the signs of a petty and cruel dictator," and expressing his own "revulsion" for what Ahmadinejad stood for. A fresh contingent of critics then excoriated Bollinger for his incivility, his violation of standards of courtesy, as if Bollinger had simply channeled his inner Khrushchev. (Some earlier critics against the invitation, in turn, applauded him.) But after reading Bollinger's always thoughtful and respectful prose, sensitive to other points of view, and witnessing his almost reflexive courtesy in the daily functions of a university president, from a luncheon talk honoring an alumnus to how he balances his scheduled phone calls, one senses it must have taken an enormous act of sheer will—not to mention courage—for him to depart from his customary good manners and verbally smash Ahmadinejad in the face.
Some of the principles Bollinger follows in keeping with his free-expression commitments are predictably common-sensical, tolerant, and human. They arguably parallel the New York Times vs. Sullivan opinion he celebrates—the one that declared that an "uninhibited, robust, and wide-open" free-speech culture simply must allow people to make mistakes, to get things wrong. He mentions one of those principles in commenting on criticism he received from the New York Post when Columbia's months-long investigation of students who shut down Gilchrist's talk resulted in what the newspaper felt were slaps on the wrist.
"This is an environment in which young people need to be able to make mistakes," Bollinger says, "and not to suffer the full consequences of those mistakes. People don't like to think about universities as having a special parental responsibility for students. But there is clearly, in my view, a nurturing kind of role that universities must and should have in respect to young people who come into our communities. I think that is very much part of the free-speech issue."
Rodney Smolla, author of Free Speech in an Open Society (Knopf, 1992)—now apparently mirroring Bollinger's career path in ascending to president of Furman University—wryly and aptly titled a key chapter of his magisterial book "The Shortcomings of All Simple Answers." Bollinger plainly agrees with the point, but that hasn't kept him from launching bold prescriptions for how a globalized world might adopt the free speech too many Americans take for granted.
Sophisticated and well traveled, Bollinger knows that his appeal in the new book to extend the same wide-ranging free expression that Supreme Court jurisprudence of the last 90 years has provided the United States is likely to call forth predictable criticisms: that it's a new form of American imperialism, that Americans are already too outspoken for the tastes of others (making "American" free speech an export other countries don't want), that it violates the norms of other cultures.
Bollinger grants that such responses may amount to "a powerful point of view," but is unapologetic: "First of all, we have spent at least a century debating this issue ourselves. ... At the end of the day, we've opted for a society organized along a principle of extraordinary openness. And we believe, I think, that it is rooted not only in a desire to find the truth, and to keep the government honest, but also in a sense that that kind of extraordinary openness will lead to a much more tolerant and creative society."
So he concedes that, yes, in line with free expression, he is saying to others that this "is a good way to live." But that's not his only answer. Bollinger insists that we can no longer think in isolationist terms, that in the modern era "we are utterly dependent and integrated with a broader world." What happens "there" affects us "here," and vice versa. "Censorship anywhere," as he puts it, "is censorship everywhere." In the same mode, he writes in Uninhibited that "when the rights of foreign media are curtailed, our rights are threatened. That's what globalization means ... Americans must, therefore, see the foreign press as our press, as important to the United States as it is to the society in which it resides."
"We need to start from a premise that we believe in something," Bollinger concludes, "open to argument and change, willing to make our case for it, and trying in the context of processes like law and debate and so on to advance that."
Memo to President Ahmadinejad: Remember that American university president who harshly criticized your politics, character, and intellectual courage? Probably just a dim memory at this point, with all the unpleasant things people say about you these days. But he's back, and his new book contains a message for you about the world of globalized media best capsulized by that noted American thinker Joe Louis (though you may be more of a Muhammad Ali fan):
You can run, but you can't hide.
Carlin Romano, critic at large for The Chronicle Review, teaches philosophy and media theory at the University of Pennsylvania.
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