Whose Ox is Gored? Free Speech, the War on Terror, and the Indivisibility of Rights

Rights have two lives. There are the rights that exist on paper, and those that exist in actuality, or in practice. In a similar vein, it is one thing to have a right declared by a court, and another to have this right respected by those who have power over others. One branch of political science is replete with literature on the gap between what constitutional courts hold, and what authorities and citizens actually do.¹ A number of reasons help to explain such gaps. For example, classic civil liberty attitudinal research teaches us that there is generally more support for rights in the abstract than in individual cases.² Everyone loves free speech, but not always the free speech of those who fall too far outside of the mainstream. In Nat Hentoff's words, it is a matter of "free speech for me, but not for thee."³ And as Alexis de Tocqueville portrayed so hauntingly in Democracy in America, Americans love liberty at the same time that they are prone to the "tyranny of the majority."⁴

Tocqueville delineated several "remedies" to the soft despotism posed by the tyranny of the majority, one of the most important of which is the nurturing of such "free institutions" as local government, private associations, rule of law, and a free press.⁵ Institutions of higher learning perform a similar political and normative function. Universities have a fiduciary obligation to promote respect for dissenting thought and freedom of inquiry, and to instill the intellectual skills that foster critical, independent thinking.⁶ Furthermore, universities' "moral charter is first and foremost to advance human knowledge," an obligation that depends on freedom of inquiry as a necessary condition.⁷ Yet history has shown that universities and other institutions of higher education have not always lived up to this responsibility.

In this essay, I want to address how institutions of higher learning have dealt with free speech in the aftermath of September 11. Some intriguing reactions have taken place on at least two fronts, telling us something about the politics and practice of rights.

Pre-Existing Censorship: The Rise of Progressive Censorship

The question of the post-September 11 status of intellectual freedom is interesting because a different kind of threat to free speech, academic freedom, and civil liberty had already gained a foothold in higher education during the later 1980s and the 1990s. This challenge came about when censorship became a tool for promoting progressive and egalitarian goals on campus. (What, in the spirit of the philosopher Herbert Marcuse, is now known as "progressive censorship," or censorship designed to promote social justice.)⁸ The most important reforms included speech codes, very broad anti-harassment codes, orientation programs dedicated to promoting an ideology of sensitivity, and new procedures and pressures in the adjudication of student and faculty misconduct. Though these measures were laudably intended to foster civility, tolerance, and respect for racial and cultural diversity, they too often had illiberal consequences. Rather than improving the campus climate, the new policies often provided tools for moral bullies to enforce an ideological orthodoxy that undermines the intellectual freedom and intellectual diversity that are the hallmarks of great universities. Several books have chronicled the extent of this problem, most notably The Shadow University: The Betrayal of Liberty on America's Campuses, by Alan Charles Kors and Harvey A. Silverglate.⁹ I also have a recently released book, Restoring Civil Liberty on Campus, which deals with these issues from the perspective of political mobilization and resistance.¹⁰

Basic rights were infringed upon several times on my own campus during the 1990s; these developments led me to join in organizing the Committee for Academic Freedom and Rights, an independent, non-partisan academic freedom and civil liberty group at the University of Wisconsin. What happened at Wisconsin also took place at many other schools. Consider an anonymous e-mail sent by a senior-level judicial administrator at a "top ten institution" in July 2001 to Thor Halvorssen, chief executive director of the Foundation for Individual Rights — a leading academic freedom...