by By Jonathan Peters
This is the seventh in a series of interviews I’m conducting with lawyers and scholars around the country who’ve made a mark on the First Amendment. Follow me @jonathanwpeters on Twitter.
Lee Bollinger is the president of Columbia University. Previously, he was the president of the University of Michigan at Ann Arbor, where he also had served as a law professor and dean of the law school. Bollinger is the chair of the Board of the Federal Reserve Bank of New York, a director of the Washington Post Company, and a member of the Pulitzer Prize Board. He is a fellow of both the American Academy of Arts and Sciences and the American Philosophical Society. A leading First Amendment scholar, Bollinger is widely published on the freedoms of speech and press, and his books include: “Eternally Vigilant: Free Speech in the Modern Era,” ”Images of a Free Press,” “The Tolerant Society: Freedom of Speech and Extremist Speech in America,” and “Uninhibited, Robust, and Wide-Open: A Free Press for a New Century.”
What’s the most serious threat today to free expression?
Censorship increasingly is a threat not only to the citizens of countries where there is censorship but also to the larger system, which is global in nature. We can expect censorship anywhere to be censorship everywhere. You see the effects of censorship on new technologies and on the substance of speech itself. I think we’ve moved in the world, through markets and trade and foreign investment, to a point where there’s a degree of interdependency of all countries. And that means we need to have a global marketplace of ideas.
In the United States, though, we’re still thinking of freedom of speech and press as national phenomena, and of course we care about free speech in other countries, but we think of it as a matter of human rights. But it’s more than that—it’s about the collective global discussion that has to happen in order to shape the world in ways that citizens want to shape it.
Twitter announced a few weeks ago a technology update that allows the company to withhold tweets—on a country-by-country basis—when it receives a complaint that the content of a particular tweet violates the law in a particular country. Twitter said it would post a public notice whenever a tweet was withheld. The company called the policy an attempt to be transparent. Foreign dissidents said the policy would chill speech. China and Thailand embraced the policy. To what extent do American companies bear the responsibility for helping to realize, on a global scale, the American principles of free expression?
That’s a good example of what I just discussed. Censorship in a country like China, where we have so many ties, has an effect on the free expression rights of people in China, and it interferes with the ability of U.S. citizens to understand China and to open up dialogues with institutions and people there. It’s comparable to what happened in the 20th century, when free speech and press principles were developed in the United States.
We had an enormous variety of state laws that restricted speech in different ways, some more than others. And as the country developed a national economy and national communications technologies, like radio and TV, national issues began to arise. Politics until then had been conducted largely at the state and local levels. We needed a national forum for public discussion of those national issues, and we needed to think about free speech and press in that context.
We recognized as a society—and the Supreme Court recognized in its cases, most notably New York Times v. Sullivan—that speech-restrictive laws in one state would have a profound effect on speech in other states. So we developed a national system of free expression. We are beginning to recognize the same things on a global scale. You might say something in the United States and be protected, but in Italy or Turkey or France you might be prosecuted. So the laws restricting speech around the world are having an effect not only locally but also globally.
There’s no international supreme court to enforce this stuff, either. We can’t turn to an international judicial body and say, “Please interpret the constitution to reflect this new reality, because we have a certain global norm.” What we have is Article 19 of the Universal Declaration of Human Rights—that’s the global legal norm. But there’s no enforcement mechanism. We don’t have the institutions globally to address these problems, to enforce global legal rules and norms that emerged in a world filled with global economic activity. There are, however, a few things we can do.
I’ve argued, for example, that the WTO should incorporate freedom of speech and press into its thinking on global trade. The U.S. Department of State and the U.S. Department of Commerce should do the same. When our trade reps talk with China, they should say that China must not censor, because it’s a human rights violation and because the nature of our relationship demands it. We’re creating a degree of interdependency through our trading of goods and services, and that interdependency means we need greater openness for discussion.
Are there countries with free-expression records better than ours? Maybe we would want to import some of their ideas?
It depends on what you mean by “records.” I think we need to begin with the fact that the United States has the strongest protections for freedom of speech and press of any country in the world. We have taken those principles farther than any other country, and we have built those principles into our identity. They are not just in the constitution; they are part of us as a people, inasmuch as we respect freedom of speech and press to an extreme degree. That reflects many things about the American character.
It’s also important to recognize that this—our broad protection for speech and press—is a recent phenomenon in American history. We’ve had the First Amendment since the beginning, but the U.S. Supreme Court didn’t interpret it until 1919, and the Supreme Court didn’t really embrace freedom of speech and press until the 1960s, with the great cases: Sullivan, Brandenburg, Cohen, the Pentagon Papers case, and so on. At best, you can say that our embrace of free speech and press is a 20th century development, but it’s probably more correct to say it’s a second-half of the 20th century development.
If you look at American history in terms of respecting the freedom of speech and press, at least as we think of those things today, it’s a mixed record. So we’ve had periods of great intolerance, especially at times when the society is frightened or concerned about some foreign or internal threat. And just like many other societies, we’ve found reasons to excuse our repression of speech and press rights. Perhaps the most famous example is the prosecution of Eugene Debs, the presidential candidate of the socialist party in World War I. He was prosecuted because of his speech, and the Supreme Court upheld his conviction. Think about a time in America when a presidential candidate would be put in jail for a speech. It’s pretty extreme, and it’s been blocked out of much of America’s memory.
Speaking of tolerance, in the book The Tolerant Society, you proposed a model that protects speech in large part because it’s a means of inculcating broader habits of tolerance. You wrote that we carve out “one area of social interaction for extraordinary self-restraint … to demonstrate a social capacity to control feelings evoked by a host of social encounters.” So extremist speech, rather than being the price we pay for more valuable speech, allows us to test our commitment to tolerance. It makes us a stronger society. Do you think that model applies with special force in the digital era, where speech on the Internet can be so extreme?
I do. And I realize that this is an evolving environment. Our conception of free speech is based not only on abstract theoretical reasoning but also on practical understandings of how this society and others generally work. You have to recognize that circumstances change and may call for a different way of analyzing free speech and press principles. But based on what I’ve seen, I’m not persuaded that the new threats posed here—by our speech, to our social stability—are significantly greater than the old threats and thus justify a new approach.
Free expression is a context in which the American character is shaped and to some extent created, and if you look at the powerful statements that many justices and theorists have made about free expression, you find that they reflect one profound understanding, among others: the problem, in social settings and in democracy, of hampering your own inclination to insist on having your way and to punish others when you don’t get your way.
Free expression, over time, has become a context where we’re interested in fostering the flow of information and ideas and in testing our capacity to make that very difficult judgment about tolerance, about compromise, about making sure we don’t let our own impulses for intolerance get out of control. I still believe that’s a highly relevant element of free speech and press in America, every bit as relevant today, with the Internet, as it was yesterday, without the Internet.
Does the anonymous nature of some online speech—the extreme kind—make a difference in the tolerance model? Can anonymous speech inculcate habits of tolerance just as well as non-anonymous speech?
These are good questions. Basically, we’re asking: Are we capable of living in a world where there’s an enormous amount of speech that good people, for good reasons, believe is wrong and dangerous? Yes, because it represents a commitment to being able to function successfully in an environment we can’t fully control. I’ve often used the analogy of the dangerous wilderness. We could eliminate the dangers and make all wilderness areas completely safe, but we choose not to do so, because there is a testing, a development of character, that occurs when we expose ourselves to those dangers.
Of course, there may be real harms that come from it, too. That’s true in the context of anonymous speech. You know there are risks and dangers, and maybe there are greater risks and dangers then we had before. But anonymous speech is nothing new, and the greater good in society is achieved by engaging in extreme tolerance. Again, that idea applies today to anonymous speech online, just as it has applied in the past to other types of speech.
A few weeks ago, the U.S. Court of Appeals for the Sixth Circuit reversed a summary judgment decision, and in doing so it extended the Hazelwood case to public colleges and universities. Judge Sutton, writing for the panel, said, “The Hazelwood test … arose in the context of speech by high school students, not speech by college or graduate students. But for the same reason this test works for students who have not yet entered high school, it works for students who have graduated from high school. The key word is student.” Do you think, as a university president, not long ago at a public university, that the Hazelwood standard should apply to public colleges and universities?
I definitely do not think, and have not thought, it should apply to public colleges and universities. The recognition for many decades has been that universities are basically dealing with adults, and our general conception of free speech and press very much applies in that context. Sure, there may be slight variations, to accommodate the purposes and interests of institutions of higher education, but not very many. And I don’t think that Hazelwood’s sensitivity—to speech that might be inappropriate or make people uncomfortable—would in any way apply in the university context. So I would be deeply surprised if that were the ultimate outcome in a case like that.
Some say the Roberts Court is a friend of free speech, others say it’s a foe, and many say it’s somewhere between those extremes. What’s your take?
I think it’s mixed. I don’t agree with a number of the decisions, but the ones with which I disagree are within the reasonable interpretation of the jurisprudence that the Court inherited. There is an analysis that counts the number of times the Roberts Court sided with free speech claims, and that’s one way of making an assessment. But it’s not by any means the full measure of the Court’s commitment. On the major cases, it’s fair to say that the Roberts Court has demonstrated a strong commitment to freedom of speech and press.
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