On September 7, the Cornell Law School hosted a panel entitled “The Fundamentals of Freedom of Expression hosted by Cornell Law School” presented by Law School with Professors G.S. Hans (moderator), Michael C. Dorf, Karen Levy (who holds a joint appointment with the Bowers CS School), and Nelson Tebbe.
The event was introduced by Law School Dean Jens Ohlin who set the goal of providing the community with the background needed to participate in “a historic year.” He said,
As we embrace this academic theme year, let us embrace the challenge of preserving and promoting free expression and academic freedom, not only for the sake of our University but as a contribution to the very fabric of democracy itself.
Ohlin then introduced President Pollack who praised the Theme Year Steering Committee that includes Prof. Hans. She said,
Freedom of speech is in many ways a bedrock assumption upon which we all built our lives. The ability to say what we think, to ask questions, and to listen to others is essential to democratic government, to our right to self-determination, and of course, to our right to academic enterprise.
Professor Tebbe argued that free expression can come into conflict with “a right to be free from structural injustice.” Outside the U.S, in Canada and Europe, regulation against “hate speech” is allowed in order to provide “equal citizenship for all individuals.” However, the First Amendment limits that in the U.S. Some private actors, including universities, attempt to regulate hate speech.
Professor Levy was asked about the regulation of artificial Intelligence (AI). She noted the “pacing problem” that stems from regulation evolving “more slowly” while technology changes “unbelievably quickly.” This problem can be handled by private companies acting without regulation. For example, Google adopted a policy that banned ads for “mugshot” websites.
Professor Dorf was asked about academic freedom in the university setting. He noted that private colleges are not bound by the First Amendment. There are some cases that hold that Cornell is a private university despite the four statutory colleges. However, academic freedom is guaranteed by contract at Cornell. Academic freedom is related to the First Amendment in state universities. He said:
… academic freedom does not mean the liberty to say anything you want in a college or university setting. It means the freedom to pursue knowledge and truth in good faith according to the disciplinary standard, decorum standards and the respect one shows for fellow students and others within the community.
Professor Dorf was asked about the marketplace of ideas. This is a line from Oliver Wendell Holmes, in the 1919 case Abrams v. U.S. The concept is that all competing ideas should be allowed to win believers, without the government censoring some to advance others. The theory is somewhat similar to what lawyers call the adversary process.
Professor Tebbe was asked about the downside to using the “marketplace of ideas” approach rather than regulation of speech. There was agreement that universities can regulate speech when one is truly threatened or subjected to prolonged harassment.
RELATED: Pollack introduces “The Indispensable Condition: Freedom of Expression at Cornell”
Professor Dorf was asked about the “heckler’s veto” where disruptors prevent a speaker from talking or the audience from hearing. In general, the First Amendment protects the speaker and not the hecklers. Excessive permit fees based upon speech content is also unconstitutional.
Professor Levy suggested that the community should interact “both selfishly and generously.” A listener should be constantly questioning the value of the message for himself, yet be forgiving of a bad choice of words and make an attempt to understand the intent of others.
The program included an extensive question and answer session.
One question asked for the difference in treatment for remarks of Ann Coulter ‘84 and Donald Trump. Professor Dorf responded that Coulter was provocative and her speech should be protected, while Trump represented a threat to democracy. He noted that attacks upon free speech have come from both the political right and the left.
Dean Ohlin asked about the nature of “harm” in the free speech context. Professor Tebbe responded by discussing the tension between free expression and feeling of equality. There is a concern that expressing some ideas can “contribute to structural injustice.”
An extension faculty member from ILR asked about the free expression rights of non-academic staff at Cornell. The panel agreed that they have rights as well.
Professor Risa Lieberwitz, President of the Cornell Chapter of the American Association of University Professors (AAUP), made a comment that we can create the institutions that we want to have. Academic Freedom stemmed from a 1915 AAUP report that set professional norms that exist independent of First Amendment law. Academic freedom protects against unwanted government regulation.
The entire event occurred without incident or protest other than the audience jokingly booing Professor Dorf as he discussed the heckler’s veto. The video of the livestream has been posted.
