This article is the second part of a series covering free expression events throughout Cornell’s theme year. The prior article describing a panel of Cornell Law professors was posted here.
On September 26, Cornell hosted a discussion with Eugene Volokh, a UCLA Law Professor who edits the Volokh Conspiracy blog, and Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University and adjunct professor of law and journalism at Columbia Law School. The event was moderated by Eve De Rosa, Dean of the Faculty.
Originally conceived as a debate between a left-leaning commentator and a right-leaning commentator over the limits of free speech, the actual event was relatively tame and produced more agreement than fireworks.
The event was introduced by President Pollack, who highlighted the importance of “The Indispensable Condition: Freedom of Expression at Cornell” theme year. She noted that this was the first of a series of events funded by Howard ‘73 and Abby Milstein. The Milstein family also funded Milstein Hall which houses the Architecture program.
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The background of all of this grew out of a November 2022 speech by Ann Coulter ‘84 where a group of students and Ithaca residents shouted down Coulter and prevented her from speaking. That event prompted a wide-spread debate over “cancel culture” and the right of student groups to invite whomever they chose to talk on campus. Last week’s event occurred in the Law School’s Landis Auditorium, the same room as the Coulter shout-down.
De Rosa focused the discussion on key, preselected topics. First, she asked, “what the counter speech principle is and whether you think it’s an appropriate remedy today in the context of what some have called cancel culture?” Volokh explained that having an open marketplace of competing ideas did not guarantee that the best idea would win out. Rather, it would produce better results than having the government censor or select which ideas should be believed.
Jaffer responded, “If you’re going to put your faith in some marketplace of ideas or some ecosystem of free speech, you do have to worry about the integrity of that ecosystem.“ Neither supported shouting down campus speakers.
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De Rosa then asked, “What are your thoughts on the intersection between two values held by the university: Freedom of speech and equality?” Jaffer replied that discriminatory conduct on campus can’t be tolerated, even when that conduct involves speech. “I don’t think that you can create an environment in which nothing is off the table; All ideas can be explored, until you have created an environment in which all students on campus feel like they are full citizens.” Volokh replied that most changes in society, such as the Civil Rights Movement, have been accomplished through free speech.
De Rosa then asked, “What academic freedom means to you and if you believe it’s being currently threatened or widely respected?” Volokh pointed out that the First Amendment only applied to public universities which were “state actors” while academic freedom applied in both public and private universities. Jaffer replied, “Academic freedom is something that the courts often pay lip service to. But there’s no right to academic freedom that can be vindicated through first amendment litigation. The courts rejected that idea a long time ago.” Jaffer feels sympathy for students who want to shout down a speaker with whom they disagree. However, he thinks it is a bad tactic. He sees state legislation limiting what can be taught as the greatest threat to academic freedom.
The panel took four questions from the audience.
First, in the context of campaign finance reform, the courts have held that “money is speech.” The panelists did not agree with that premise. Rather because the First Amendment protects freedom of the press and free speech, Congress cannot limit the amount of money spent on those activities as a form of indirect regulation.
Second, “What are the outer limits of what we’re all familiar with the case ‘You can’t cry fire in a crowded theater’ and all that. But what are the permissible limits under the First Amendment in a forum like this?” Jaffer claimed that as a private university, Cornell can set whatever limits it wants.
Third, some asked about private sector employers and what an employee could say on social media that might get him in trouble with his employer about religion or other such topics. Volokh responded that there are state statutes, including in New York, that prevent an employer from firing a worker for practicing his religion or expressing his religious views. California has a law that prevents firing employees based upon their political views.
The final question was about protecting and promoting viewpoint diversity. Jaffer replied:
“I think that’s a danger everywhere and maybe a special danger at a university, whether a university should make an affirmative effort to bring in new faculty because of their ideological differences. I guess I feel less sure about that It seems a little bit strange to me for an organization that is dedicated to finding the truth, to then go out and think of intellectual diversity as virtue in itself. The goal here is not to have every view represented. The goal here is to advance our collective understanding of ourselves in the world.“
Correction: an earlier version of this article misstated Mr. Jaffer’s name. It has since been corrected.
