Ex-ACLU Chief Urges Free Speech

  • Nadine Stroseen

Valley News Staff Writer
Friday, November 10, 2017

Hanover — Nadine Strossen, a former president of the American Civil Liberties Union, visited Dartmouth College on Thursday to discuss free speech, hate speech and their place on campus, where efforts to confront bigotry have led to concerns about censorship.

A campus activist herself during her college years, Strossen said she had been “absolutely thrilled about the resurgence of student activism on behalf of racial justice.”

“But what was disheartening to me,” she said, “was the sense ... that too many of today’s campus activists see freedom of speech as an enemy of those causes, rather than what I believe it to be, which is its greatest ally.”

Strossen, the ACLU’s first female president and a professor at New York Law School, has written a new book on the topic, coming in May, titled HATE: Why We Should Resist It With Free Speech, Not Censorship.

“(The book) arose out of my mixed feelings about all of the ferment we’ve been seeing out of college campuses in the last few years,” Strossen said at the outset of her talk.

With that opening, she and the more than 50 students, faculty and community members in attendance at the Rockefeller Center engaged in just what she advocated: a cordial, thoughtful exchange of ideas.

Among the first to issue a respectful challenge was philosophy major Matthew Goldstein, who asked whether the ACLU’s commitment to protecting civil rights enshrined in law was enough to ensure equality.

“It also seems like sometimes existing legal systems formalize inequality,” he said.

“Freedom of speech, definitely, on the whole, in the long run, is the ally of those who are least powerful and most marginalized,” Strossen responded.

She argued that democratic governments are elected by and are accountable to whoever holds majority power, which naturally disadvantages minorities — a phenomenon known as the “tyranny of the majority.”

Traffic and drug laws are often enforced disproportionately against minorities, Strossen noted. “Why wouldn’t we expect the same to happen with hate speech laws,” she said.

She made a similar point later in the night in response to a question about the potential of subtle hate speech, the kind that still enjoys constitutional protections, to set people on a path to more dangerous behavior down the road. U.S. jurisprudence used to embrace this argument through the “bad tendency” principle, a legal test that allowed censorship of speech that could lead to illegal behavior in the future. This principle, which was overturned in 1969, was used to censor figures such as Margaret Sanger, the women’s rights advocate who criticized laws against contraception, Strossen said.

Strossen allowed that in some cases, speech protected under the law could still do harm to others and should be opposed.

One student raised the example of threats by some students at the University of California, Berkeley, to call Immigration and Customs Enforcement on their undocumented peers and have them deported.

“How distressing,” Strossen said. “It is protected speech. You’re raising the point that a lot of speech that can cause harm to somebody is protected.”

Strossen noted that the students making threats might simply be making a truthful report of a crime to authorities, but said people should fight this practice — even if were carried out in a legal way.

“One has to think of other ways to dissuade that activity and try to dissuade ICE from following up on those reports,” she said.

That particular controversy has touched the Upper Valley, too. Undocumented immigrants at Dartmouth last winter alleged they received threats from fellow students to report them to ICE, though whether or not those threats were carried out is unclear.

Despite her concerns about free speech in higher education, Strossen was willing to defend the causes that social justice advocates ultimately are working toward.

Joe Asch, of the local news site Dartblog, asked Strossen to account for an apparent change in universities’ role vis a vis free speech. Where once they were “at the forefront of defending free speech,” he said, now they are facing criticism for restricting it.

“I would even go so far as to say that this evening the majority of the questions have been to the effect of, ‘Can we restrict this? Can we restrict that?’ ” he said. “Which wouldn’t seem to be in line with the free-speech firebrands of yore at universities.”

Strossen said there often was a “positive motivation” behind campus activists’ tactics, even though she “strongly disagreed” with anything that could be interpreted as censorship.

“I think the underlying goal is to make campus a safe and welcome place for those who traditionally have been marginalized,” she said, adding that she hoped to demonstrate that restraining free speech undermines that effort.

Pressed by Asch, Strossen pointed to historical and generational differences between campus activists of the Civil Rights and Vietnam eras, who faced government censorship while trying to express their ideas, and today’s social justice advocates.

“They didn’t have the experience of censorship being used against causes they would probably support,” she said of contemporary activists.

Strossen was president of the ACLU from 1991 to 2008, and also was the youngest person to lead the organization. In addition to teaching law, she sits on the Council on Foreign Relations, a nonprofit center for foreign affairs research.

Thursday night’s talk was co-sponsored by the Open Campus Coalition, the Dartmouth College Democrats and the Dartmouth College Republicans.

After the discussion, students lined up to ply Strossen with questions and ask for photos and autographs. Some launched into lively side conversations about the merits of one or another recent free-speech controversy.

Goldstein, the student who asked about bias in the nation’s legal system, said that he was not quite convinced by Strossen’s argument that freedom of speech alone, in the long run, led to the best result.

“A lot of bad things can happen in the pursuit of what may be a worthy goal,” he said.

“Maybe there needs to be some balance there,” he added. “Or, maybe, there doesn’t.”

Rob Wolfe can be reached at rwolfe@vnews.com or at 603-727-3242.