Erwin Chemerinsky is one of the foremost scholars on free speech and the author of several books on constitutional law. His new book, Free Speech on Campus (written with Howard Gillman), delves into what freedom of expression looks like at universities today. Chemerinsky says the current generation of college students was taught bullying is wrong, and many of these students have applied that belief to limiting offensive and hurtful speech on campus. But, he tells, Robert Scheer, that many of these students were not fully educated in the history of free speech and how important it was to social movements including the civil rights movement and anti-Vietnam War protests. He also points out that the First Amendment applies only to government, not private companies like Google or Facebook.
Erwin Chemerinsky – Berkeley Law
Joshua Scheer, Rebecca Mooney
RS: Hi, this is Robert Scheer, and welcome to another edition of Scheer Intelligence, where the intelligence comes from my guests. In this case, it’s Erwin Chemerinsky, a legendary civil liberties lawyer; I knew him from Los Angeles, where he was really the major free speech advocate for decades. He then went on to be dean of the law school at UC Irvine, and he’s now dean of the famous school of law at UC Berkeley. And the reason for having a discussion right now is that he’s written an important book, along with the president of UC Irvine, Howard Gilman, called Free Speech on Campus. I’m not going to summarize the book, but there’s an interesting argument in the book that I found really worth considering. That this generation on campus, while it has a heightened social conscience, a concern for minorities, a concern for people of different gender and so forth, has lost a passion and a deep understanding of the necessity for free speech, free press, particularly free speech–the title of your book is Free Speech on Campus–and how that informs struggles for social justice. That we have free speech not to make us a more unfair society, but a more representative society. I think that’s sort of the main theme of the book, is it not?
EC: Well, the main theme of the book is that all ideas and views should be able to be expressed on campus. But what led us to write the book is, Howard Gillman is the chancellor at UC Irvine, and I co-taught a class the last two years for undergraduates; once it was for freshmen, once for political science honor students. And we were stunned by how little commitment their was to free speech among our students. We began each topic by posing a real-world problem and polling the students: should the university be able to punish the speech? Or should the students win on First Amendment grounds? Over and again, the majority of the students were on the side of the university to restrict speech. And we realized that this generation is different. I don’t want to overgeneralize, but we saw in our students, I see already on this campus, is this is the first generation from a young age to be taught that bullying is wrong. They’ve internalized the message. It’s laudable; they want to create an inclusive learning environment for all students. They have remarkable trust in campus authorities to punish the speech that they don’t like, but allow the speech that they do like. And for them, the Civil Rights Movement, the anti-Vietnam War protests, were as long ago as World War I was for you or me.
RS: Yeah. And the interesting thing is, of course, even the free–we’re doing this from UC Berkeley, the home of the legendary Free Speech Movement. Mario Savio was quite prominent, was a great man, a leader of it. And you know, one of the shocking things at that time is that many on the faculty, and actually many students, had a similar sentiment. This is an enlightened campus, Clark Kerr was the head of it, decent fellow. And why were these students at Sather Gate causing trouble? They surrounded a police car, there was all sorts of demonstrations. And what the Free Speech Movement said–no, power corrupts, whether it’s in a university or it’s in government. And the individual is the sacred element here, individual sovereignty; “Don’t treat me like an IBM card” was one of the slogans, I have my own view. And if you get to college, you have a basis for having your view, and the whole point of, certainly, a liberal arts education is to develop critical thinking. And that was an argument that even had to be made in the early 1060s. We’d had the loyalty oaths, we had McCarthyism; there was a lot of conformity. And one would have thought with the turmoil and excitement of the sixties, we had won that debate. But your book, based on your own teaching experiences–no. People now take freedom for granted, and they’re not suspicious of authority. Which, as a constitutional scholar, I would just ask you, it seems to me the major gift of the United States to the world was the idea of “don’t trust authority.”
EC: There’s no doubt that the framers thought of government as a necessarily evil. They wanted to limit government power. Protecting speech is a crucial check on government. There’s a forum on this campus at UC Berkeley in mid-September; the chancellor convened it in anticipation for so-called Free Speech Week. One of the faculty members on the panel said, “We shouldn’t allow hateful speakers like Milo Yiannopoulos to come on campus.” He got huge applause. Several of the students in the question and answer period said, the chancellor should just prohibit speakers who they perceive as hateful from being on campus. Huge applause. Finally I spoke, as a lawyer, as a law professor; I said, be clear. If the chancellor were to exclude someone like Milo Yiannopoulos on the basis of viewpoint, she would get sued. Milo Yiannopoulos would win in court and get an injunction protecting his ability to speak. He would win attorney’s fees, maybe collect money damages. He’d be a martyr and a victim, and he’d get to speak anyway, so nothing would be achieved. That’s the current law. No one applauded to what I said.
RS: But I think the argument of your book goes much further. We are cheated–that was the traditional argument, this larger society is cheated by not hearing despicable views. I mean, after all, maybe if people in Germany, which was the best-educated, most enlightened, most science-oriented society in the world at the time, had been exposed to how nasty and vicious the fascists were, they would have been more on guard and maybe the big industries, including BMW and Mercedes, would have been more vigilant in opposing Nazism. I mean, the free-speech argument is that there’s a vitality, an indispensable vitality, to hearing that other point of view.
EC: That’s right, but it’s also based on a faith. It’s based on a faith that we’re all going to be better off when there’s more ideas expressed, than having the government pick and choose which ideas are acceptable and which are unacceptable. Maybe that faith is misplaced, but the alternative, to me, is much more frightening. So when I engage in debates or panel discussions about free speech, and those criticize allowing certain speech, I say–what’s really the alternative? The marketplace of ideas is a very flawed metaphor, but yet it’s a whole lot better than letting campus officials or government officials decide what they’re going to censor and what they’re going to allow.
RS: I’m annoyed that we have to have this discussion about the value of free speech, frankly. In my own classes, and I teach at USC where you taught for I think 21 years or something, legendary professor, what I tell my students is, I’m not going to limit your speech, but we’re not going to have barroom conversation. You’re not going to insult the other students, you’re not going to just express some guttural thought without backing it up; this is a college, you have to have evidence, and present your case in a reasonable way. That a university can require. But it’s a big issue right now, I have to create safe space, believe it or not, for Trump supporters. You know, there are students who voted for Trump to be president, or certainly their parents did. And I get students coming up to me and saying, you know, I feel really intimidated to explain why. You know, now, maybe he didn’t get a majority [Laughs], he certainly got what, you know, 45 or 47 percent of the vote. And on a liberal campus, to not seriously examine why there’s that support, what his appeal was, and listen to people who voted for him, we’re subverting education.
EC: I completely agree. I believe the whole idea of a campus is that all ideas and views, liberal and conservative, everywhere along any spectrum, should be able to be expressed. You used the phrase “safe spaces.” It’s a phrase that’s very much in vogue. But the problem is, it can mean many different things. It can mean the campus’s obligation to protect the physical safety of students, staff and faculty, and there’s both a legal and an ethical obligation to do so. It can be, as you say, in your classroom or mine, I want all students to feel safe; they can express any idea, and they’ll be treated with respect. It might mean repose; we all need a place we can go to to get away from it, and so I think campuses can restrict speech in dormitories more than the middle of the campus, so long as they’re not doing so on the basis of viewpoint. But one thing that safe spaces sometimes means, where I strongly disagree, is that campuses should be restricting offensive speech so the students feel more safe. I’ve heard students say: I feel unsafe if somebody’s expressing something that I regard as hateful or offensive. Campuses can’t create safe spaces in that way. It’s the nature of campuses, that we ought to be exposed to things that we disagree with, that annoy us, even that offend us.
RS: I guess what’s bothering me here is why are we having this particular discussion now. And I want to offer a view of this: that it’s a distraction. It’s a distraction for provocative speakers who want to get speaking fees or build their audience or provoke, so it’s sort of theater. And the best way to deal with that kind of theater is say fine, ho-hum, go listen if you like, and the second time you hear that speaker you won’t be outraged, and enough, OK. And that’s the way I think many people on a college campus have taken extreme talk radio and so forth; they just chalk it out. There’s another question, though, I want to ask you about. Campuses themselves, these campus authorities–and you are one, you’re a dean of one of the leading law schools now–they have their own contradictions. And when you say you’re going to trust the university, and this came up in the Free Speech Movement, oh, you’re trusting their contracts with the Pentagon? Are you trusting the way they allow students in? Are you trusting their recruitment practices? You know, after all, the very students on campus that say “we don’t want to hear a right-wing speaker,” they have issues with the university. For instance, both of us taught at USC; I don’t know what the statistics are here at Berkeley, where we’re recording this, but at USC we have very small, low African-American representation. Do we trust that university? Or do we trust them on administering the football program when we’ve had some issues? And this, there must be similar issues here at Berkeley. Why are these students so willing to trust it? Is it because they are part of the favored group that did the right things to get the SAT, that has the money to get in, and so forth? Are they part of kind of an emerging establishment?
EC: You asked three questions. Let me take them one at a time. First is, why now? You’re right that to some extent you have people like Milo Yiannopoulos and Ben Shapiro wanting to use the campus as the stage. This campus spent over $2 million to be able to protect the ability of Shapiro and Yiannopoulos and others to come speak without there being disruption. But it’s more than that. Just a few weeks ago, when the president of the University of Oregon, Michael Schill, went to do a state of the campus address, he was shouted down by students so he couldn’t speak. Weekend before that at William and Mary Law School, when an ACLU lawyer came, shouted down so couldn’t speak. So I think that there’s something else that’s going on, and it’s a reflection of our deeply polarized times. I think that there are a lot of students, lot of faculty who are very upset now. They want to speak out, but they also want to silence those they disagree with. And so I don’t think it’s just about people coming and wanting to use this as a stage; I think it’s something much deeper in society going on right now. Second, in terms of campus officials, it’s important to remember that campus officials also have free speech. We had an ugly incident at Berkeley Law School a week ago. Alan Dershowitz came and spoke. Alan’s controversial, he supports Trump, he supports the current Israeli policies. But it went off without incident; students disagreed with him, he responded respectful, they responded respectfully. There was a poster somebody put on the wall in the law school with his picture and someone drew a swastika over it. I’ve been a law professor 38 years. I’ve never been in a law school building where somebody put a swastika on the wall. It’s a reflection of the times where we’re living. But I put out an email, 8 o’clock the next morning, condemning the hate speech and saying why it’s inconsistent with the kind of community we are and aspire to be. So in terms of campus officials, I’m very respectful of my speech rights too. Finally, in terms of, you talked about why current students. I don’t think it’s what you say. I think it’s much more, this is a generation that may equate free speech much more with the vitriol of yik-yak or the Internet than with the noble use of speech for the Civil Rights Movement and for the anti-war protests. They don’t know the history of what happened during the McCarthy era, where professors lost their jobs or students were expelled because campus officials didn’t like their speech. And we’ve done a terrible job in this society of providing civic education and history to students, so they come not knowing that history, which leads them to give far more trust to campus officials than history would warrant.
RS: The good guys now–and this was Google’s slogan, do no harm and so forth–the fact is, these people are benefiting from the current arrangement. The information age, these people made a lot of money, make money by driving out regular journalism. We’re broadcasting this from the school of journalism at Berkeley, a very famous school of journalism. And the fact of the matter is, students here will have trouble making a living as journalists. Why? Because the content that they produce is not marketable in any profitable way, because it’s basically aggregated and distributed by Google, Facebook, and so forth. That’s one reason to be concerned. But from a civil liberties point of view, there’s another reason to be concerned. And this happened mostly after the election: a lot of liberal people were disappointed by Hillary Clinton’s loss, and so what they–and they had to have a scapegoat. They couldn’t blame Hillary’s campaign, they couldn’t blame the Democratic Party. And they blamed–oh, the Russians, they blamed fake news, they blamed this–and they did this incredible thing, people I know that are very liberal and so on, they appealed to these giants of the Internet business, Google and Facebook, to censor news, basically. And to change their algorithms so they can punish. And now we have sites, I happen to edit one, Truthdig, but there’s AlterNet, there’s a lot of sites out there, very good sites; AlterNet claims they’ve lost millions of readers, and they have an official statement on that, that we’ve suddenly–and you find it from legacy media, even the New York Times, which should know better–they seem to be urging these, you know, Google, Facebook, Instagram, what have you–to censor news. And because we’re not in the age that the founders imagined, where anybody could put up a broadsheet or get, like Tom Paine, get a printer to give you a little pamphlet, or even when I did Ramparts, get somebody to help us put out a magazine–no. If Google and Facebook decide you’re not worth going to, they can put you out of business in a matter of days. So as a civil libertarian, are you wrestling with that issue?
EC: Yes. What you raised is enormously important. On the one hand, the Internet has more democratized the ability to reach a mass audience than we’ve ever seen before. Used to be, in order to reach a mass audience, you had to be rich enough to own a newspaper, or get a broadcast license. Now, anyone with a smartphone, even access to a modem at a library, can immediately reach a mass audience. That can have tremendous benefits; the ability of the government to control speech is far more limited than it ever used to be before. On the other hand, it can also lead to great harms. Think of revenge porn over the Internet; think of the ability to quickly disclose very personal information about a person; think about the ability to spread false information. Well, instead of it being the government that’s responsible for being the gatekeeper on this, we have relatively few companies, like Google, that do this. Now, the First Amendment and the Constitution apply to the government; they don’t apply to Google. But Google has enormous power. We want Google or Facebook to stop revenge porn from being put up, but we don’t want them to be able to engage in political censorship. How do we have both? That, to me, is an enormously important issue with regard to free speech and the kind of society we’re going to live in.
RS: [omission] We’re back with Dean Erwin Chemerinsky, the dean of the UC law school, a major expert on civil liberties. OK, I want to be clear about something here. These companies do not exist in isolation, and therefore beyond the reach of the First Amendment. First of all, one of the points you make in your book, you feel the First Amendment arguments apply to private universities as well as public, because the principles are sound, right?
EC: The First Amendment only applies to the government, but we think private universities should follow the same principles of free speech because of the commitment to academic freedom.
RS: Right, I understand. But in your book, you make the argument that these principles are themselves valid, right?
RS: OK. Now, on the government-private industry connection, Google and Amazon and Facebook could not exist if government followed a different regulatory scheme. Held them account–this is what the European Union is pushing back on, exactly. They’re saying, no; you’ve been given this space, you’ve been given licenses, you–first of all, the Internet itself was created by government; we know DARPA and the Pentagon and so forth. We know there’s a great deal of cross-fertilization; Amazon is building the cloud, holding information for the major intelligence agencies, the NSA, CIA–they’re a major defense department contractor. Google has had intimate relationships with the Pentagon and with the CIA and so forth. You have In-Q-Tel, which was a CIA operation, to put seed money into Silicon Valley. So this idea that there’s this wall between the private sector of the information technology companies, and the government–that’s not true.
EC: You’re absolutely right. No such wall exists. My only point, and it’s a more limited one, is the First Amendment applies only to the government. No matter how much power private industry possesses, they’re not governed by the First Amendment. Free speech principles can still apply; we still can be enormously concerned. I’m terribly concerned about the privacy implications of these enormous, private companies. I’m concerned about what they do with the data about us. I’m concerned about their ability to influence and control public discussion. But it’s not a First Amendment issue.
RS: OK, but let me challenge this, and I do not have your credentials as a law professor. But it seems to me this is begging the question. Because as with radio stations, if government gives you a spectrum space and government doesn’t allocate spectrum for broadcasts, then you’ll have static. So government is the enabler of a commercial, television–OK. This is true of a lot of what happens on the Internet. Government is deeply involved in keeping the Internet open, robust, not hacked, and so forth. And there are enormous contracts between the Internet companies and the government; there is an information technology complex of the kind of military technology complex that General Eisenhower warned us about. They’re in bed together, and they expect the U.S. government to protect their ability to work, right? They expect it internationally, and they expect the U.S. government. So it seems to me it’s begging the question to say that Amazon or Google, which have so deeply connected–the government keeps this Internet free and open and working; the FCC makes decisions about it. For instance, I have a book here I have just given you. It’s called, They Know Everything About You: How Data-Collecting Corporations and Snooping Government Agencies Are Destroying Democracy. OK–it’s an argument I make. I don’t think I make it in a barroom way; I think I support it, I think I have facts. But someone over at Google, since I’ve devoted a good part of this book to criticizing Google and Facebook, they might say, hey, why should this guy’s site, Truthdig, why should it be allowed to have traffic? He, he’s doing fake news, because we don’t agree with it. And you don’t see a danger in that?
EC: Of course I see a danger. My point was a much more limited one. I completely agree in terms of the danger, and the danger with regard to free speech, the danger in terms of our society. But it’s not a constitutional issue. That’s just my small point. The fact that the government allocates broadcast licenses doesn’t mean that a private broadcaster is governed by the First Amendment. The private broadcaster is a private company. The fact that the government created the Internet doesn’t make the Internet a part of the government. That doesn’t mean that we don’t need to regulate; we do need laws to deal with this. It’s just not a constitutional issue.
RS: OK. I’m talking to Erwin Chemerinsky. And the reason I want to talk to you, is I think this is the most important message the United States has to the world, OK? Power corrupts, government power is the most awesome power because you have military police backing it. And then the real issue is, how can we restrain government so individual freedom can thrive, right? That’s the basic equation. I’m only asking whether your book, which I admire, has to be extended, the focus has to be extended to, what is the arena we’re talking about now? And you have a very clear arena in your book, and there’s no question about it. On a campus with a tradition of academic freedom, there’s no doubt that free discussion, civil discussion, has to reign, OK? As I said at the beginning, I’m amazed we’re even having this debate, right? I mean, you would have thought–and that, by the way, applies to more liberal people who want to change that. They don’t want to hear certain views, they don’t want to hear concerns–I don’t even, frankly I don’t get it. You know, and I’ve known David Horowitz, he used to be, I hired him at Ramparts many years ago. The idea that people are afraid to hear David Horowitz as a conservative now on some campus is absurd to me. Hear him once or twice, you’re not going to have to hear him again. You know, it’s not that interesting. So I guess I’m only indicating frustration. But I’m asking you, as a major scholar of the whole question of access to ideas and freedom, to consider this Orwellian age that we’re in. And I don’t hear much discussion about it. That in fact, the game can be rigged without our even knowing that it’s being rigged. There’s no accountability over a Google algorithm. None.
EC: You’re absolutely right. Seventy percent of the American population is on some form of social media. There are more people on Facebook across the globe than the entire population of North America. Google and Facebook are private companies; except where the law regulates them, they can do whatever they want. So if they don’t want to carry or allow you to access your magazine, or some journal, or some newspaper, they have that power. I don’t think that our thinking or our law has begun to keep up with these private power centers and their ability to influence political discussion, and thought more generally.
RS: There’s a lot of law that government makes that allows these companies to function, right? Without government intervention, Google could not function. That’s why they can’t get into China, for example, right? The Chinese government has kept Facebook and Google out. We criticize that; we think you’ll be a better society if you let these companies operate, OK. And the argument should contain some notion that if Google does not serve our interests, that other companies can form to do what Google does, right? It’s that sort of basic, competitive model. But it seems to be we’re in an era now where they can take all the air out of the room. And you have people like Peter Thiel, who is a Trump supporter, actually defending monopoly. We’re up against a notion of monopoly as the model in these industries, something we hadn’t thought about before. As I say, if we go back to the dream of the founders, the town crier was mass media, right? The wall poster was mass media. Tom Paine could seduce the wife of some printer and come out with one of his great pamphlets, you know. It didn’t take much capital. But nowadays, once a company like Google controls that space, even Microsoft can’t get into that space, OK? And what you have is, I would suggest, an Orwellian world in which these companies are–and this is, you know, Google, we’re talking about multinational companies–wherever they are, they will make a deal with the government that allows them to get profit, but that is not necessarily good for freedom. So if we have trouble understanding that in the U.S., let’s say China says Google, you can come in, but you’re going to follow our rules. Right?
EC: It’s all about power. We’re long past the day of the pamphleteer being able to reach a mass audience. It used to be in recent decades, newspapers, broadcast stations. Now, the advantage is, anyone can reach a mass audience; but we’ve given tremendous power to things like Google or Facebook to be able to censor speech. How do we feel about so much power being exercised by those who aren’t controlled by the Constitution, who largely can act however they want? That’s an enormously important issue. And as you said, that’s the focus of your book.
RS: You’re the dean of a very prestigious law school. And you were at USC, you were the dean at UC Irvine, and so forth. And I look at what has happened to our country in relation to the economy in particular. But national security is another area. And I wonder, where were the law schools? It seems to me in terms of regulating Wall Street, the law schools like the business schools, mostly focused on helping people get right up to the ethical edge of the law. And when that failed, they changed the law. And so they allowed all these crazy derivatives to function, and so forth. I’m not going to go into the question of torture, and which law schools have people who have been involved with that. And that’s a more obvious question, and I don’t want to, really it’s not my job to make you get angry with a particular member of your faculty; I’m not going there. I’m talking about a broader question: where does ethics come up in these law schools? How did we get into this incredible financial crisis, where basically swindlers were allowed to do what we would throw the Mafia in jail for easily, right? And yet I’m just wondering, does ethics enter into legal education in any profound way?
EC: Well, ethics is certainly a key part of legal education. At UC Irvine we had a required first-year, year-long course on professional ethics. Every school requires one. But if you ask the question, did law schools, did law faculty do enough with regard to the unscrupulous practices that led to the collapse of the stock market? No, they didn’t. Did law schools do enough with regard to the abuses of civil liberties? I don’t think they did. That’s not to say there aren’t professors who spoke out with regard to business practices. Certainly professors spoke out with regard to things like torture. But I think it’s hard for law schools to be a vehicle for social change, though that’s what we need to aspire to be.
EC: I think there’s something inherently conservative about law and studying the law. That you’re studying what is, much more than what you’re studying what should be. Most law students are going to go and represent big business. I’m proud Berkeley is among the very top law schools in placing its students in public service jobs. So, I went to law school, and now it’s over 40 years ago, because I believed that law was the most powerful tool for social change. I still believe that; it’s just social change is showing to be so much harder than I could have imagined when I was in college.
RS: If there’s one lawyer I don’t have an argument with, it’s Erwin Chemerinsky, the dean of the law school at UC Berkeley, an exemplary civil liberties advocate. Can I say advocate, is that–?
EC: I’m very much an advocate. Thank you.
RS: And if you want to read, or maybe you already know why we need free speech on campus. And this applies to liberals, let me be clear about this book. This is not, oh, let’s, the Trump people only–no, this is a pointed critique of do-gooder, liberal people who have started to take free speech for granted. And are forgetting the warnings of a Holmes and a Brandeis, and a Justice Black and Douglas and others. Free Speech on Campus, Erwin Chemerinsky, thank you so much.
EC: Such a great pleasure to be with you.
RS: Well, that’s it for this edition of Scheer Intelligence, a conversation with the dean of the UC Berkeley Law School, Erwin Chemerinsky. Our engineers are Mario Diaz and Kat Yore. Our producers are Joshua Scheer and Rebecca Mooney. And we’ve had a tremendous assist here from Northgate Studios at UC Berkeley, where the engineer is Chris O’Dea. And that’s it for Scheer Intelligence.