Free Speech Lecture 2024
February 14, 2024
St. Ignatius Parish (53 E 83rd Street, NY, NY, 10028)
I am very grateful for the invitation to be with you this Ash Wednesday. I spent much of my life in New Orleans, where we prepare for Lent far more thoroughly than you do here. But I at least cooked some gumbo
yesterday in the snow, invited my neighbors over, and draped them in beads. Because in the parts of the global church that celebrate Carnival, we overdose on everything before Lent, especially joy.
And now we turn to Lent. We remember that life is short and precious. We fast to remember how many go hungry. We stop and think deeply about how the world works and our place in making it better.
It is particularly appropriate to spend Ash Wednesday at a lecture on free speech and academic freedom, both within Catholic universities and within higher education more broadly.
There is so much to talk about – how we teach and learn in these times of turmoil, how we debate issues that matter.
Fordham is a Catholic, Jesuit, and American university, steeped in each of these overlapping traditions. And within each of these traditions, we value the search for truth, ability to debate, and freedom of expression.
Tonight I want to talk about freedom of speech – as part of the Catholic intellectual tradition, as part of our Jesuit mission, and in American higher education.
Let me start by asking you some questions….
- How many of you believe profoundly in the freedom of speech and expression as a fundamental value?
- BUT, since October 7th, how many of you have thought that universities allowed too much protest on our campuses?
- How many of you believe that Catholic universities have an obligation to prevent speech that stands in direct contradiction to Church teachings and values?
See – this is why it gets interesting! I am going to come back to the free speech issues that have embroiled us since October 7th, but let me give you a broader framework first.
Universities bring together communities in search of truth. And we make that possible only if we are free to challenge deeply-held assumptions.
We build ourselves a world full of nuance and complexity in which we cannot constantly worry about being quoted out of context.
We teach by challenging and pushing our students.
This work of education and research requires freedom, a boundary of grace that allows discomfort and offense in furtherance of greater goals.
Do Catholic universities have that same permission from the Church? Basically yes.
More than 50 years ago, Catholic university leaders in the U.S. gathered at a retreat house in Land ‘O Lakes Wisconsin, and declared their independence. They argued that a Catholic university could only BE a
university with academic freedom. This declaration got mixed reviews from the Church as you might imagine.
In 1990, Pope John Paul II weighed in with Ex Corde Ecclesiae. The Pope made clear that Catholic institutions are still subject to the authority of the Church, including the local bishop, but reserved primary jurisdiction over our theologians. But Ex Corde also acknowledged the importance of academic freedom to the very nature of a university.
As a practical matter, Catholic universities do generally function with the same academic freedom as American higher ed more broadly. There are the occasional skirmishes, but that’s not what I want to focus on tonight. Because right now, we have bigger fish to fry. (That’s a pretty good metaphor during Lent.)
In general, we work within our own broad and very Catholic traditions of academic freedom.
The Catholic intellectual tradition requires us to seek the truth, knowing that truth is vast and elusive.
We understand that the work of seeking truth requires intellectual humility. In the Middle Ages, scholars ended their work with the Latin phrase, “salvo meliore judicia.” Let my theory stand unless there is a better one. I believe, but I know I could be wrong.
The Jesuits have been the champions of the Catholic intellectual tradition. Ignatius and his friends founded their first school in Messina, Sicily, back in 1548. They quickly became known as the educators of the Church -- founding universities at a dazzling speed, with amazing ambition and MacGyver-like ingenuity. By the 1700s, the Jesuits had more than 700 colleges and universities on five continents.
The Jesuits believed profoundly that faith and reason are intertwined. During centuries when that relationship was sometimes fraught, the Jesuits took a stand for both. They proclaimed the gospel of finding God in all things, especially in human reason. They believed that education doesn’t dilute our faith, it fuels it. They believed that God intended us to understand his creation through science and math and art.
There are 35 craters on the moon named after Jesuit astronomers.
The Jesuits also proudly taught their students to challenge authority, even when that meant training really annoying students like Voltaire and Galileo who took that lesson quite literally.
And so Fordham lays claim to proud Catholic traditions of seeking truth and questioning assumptions, and a particularly Jesuit tradition of challenging authority.
We also lay claim to American traditions.
The concept of academic freedom is planted in even more fertile ground here in the United States.
Freedom of speech is one of the most fundamental American rights, the very first of the Bill of Rights.
We believe in the right to express our ideas – whether they are brilliant or silly or subversive – and we look at those countries that suppress political opposition with horror. We believe that only through robust debate can we get to the right answer.
Except, of course, when Americans don’t believe in those things. During times of war, we have sanctioned rather remarkable crackdowns on speech. [American Midnight -- WWI.]
But even free speech purists must admit that there are some necessary exceptions to the freedom of speech.
Threats, for example. When I was a Asst. U.S. Atty, I received a death threat from a man I was prosecuting. I went through the really unnerving experience of being taught by the FBI how to kneel to look under my car for bombs, which ruins both your morning and your stockings. It didn’t matter that the threat was only speech – or that he did not actually act on his threats. Threats cause real harm, and so our Constitution allows us to punish them.
But which ones? What if it’s just trash talk? Or a joke? What if it’s sinister, but vague, carefully walking a line?
I’ll remind you of one dramatic example of how hard this is. In 2016, both Congress and the American people divided on whether President Trump’s speech to the crowds about marching to the Capitol during the vote count constituted a call to violence.
Where does protected political speech end and sedition begin? Not easy.
Does free speech exist everywhere? In every aspect of our lives? No. That would lead to chaos.
The right to free speech is about public discourse –
Times and places when members of our community get to shout to the heavens about their political beliefs.
But we regulate speech all of the time. For example,
We regulate competence. When you hire a doctor or lawyer to help you, they have no right just to make things up and say whatever they want. They are required to give you competent advice based on professional norms.
In some spaces, we regulate truth. Companies are not allowed to tell you on their packaging that potato chips will help you lose weight and live longer. As much as I wish that were true.
We are often allowed to regulate basic civility. If you run a workplace, you are not required to allow your people to run around screaming at the top of their lungs. (Unless you are a kindergarten teacher.) You may require your employees to have basic filters, to be polite, to treat each other well, even though that very much restricts their speech.
True free speech rights are about the public sphere – petitioning government, speaking your mind in your own capacity. That’s where we do our best to limit the least.
How does that play out on a college campus?
We have areas of free speech, places where we allow members of our community to protest and speak their minds. But that can’t be everywhere. We do not allow student protests to interrupt the basic functioning of the university. No shouting during exams. No breaking into buildings.
I’m going to say something that may surprise you -- we also do not have free speech in the classroom. Instead, we have academic freedom, a very different thing. We give students enough freedom to allow them
to learn, but not so much that they are allowed to say whatever the heck they want.
When we teach, we must restrict speech. We give bad grades for terrible answers on tests. We correct students who get the facts wrong. That means we punish speech.
We do that, because we are busy trying to teach facts. Once we’ve taught the facts, we get to the good part – those things that can be debated – because they are contested, or uncertain, or just really fun to kick around. That’s where we provide as much freedom as possible.
But have to insist on those facts.
When my daughter Lucy was four, she met my Provost, a mathematician. She proudly told him “2+2=5.” When he gently corrected her, she insisted she had a right to her opinion! Except she didn’t.
Not everything that is debated in this crazy world is actually up for debate. Our job is NOT to teach students that science is all a conspiracy, just because it says that on the internet.
Especially at this moment in our history, we must help students see through the fog of disinformation, to understand reliable sources of knowledge, to think critically about what they know and why.
Because now that Lucy is 11, and we debate current events, she tells me with indignation, “but Mommy, I learned it from Google.”
Indoctrination
Some of you may be sitting here thinking – but what about the faculty who are up to more than just teaching facts? There is a growing anxiety that faculty are pushing an agenda, indoctrinating students with a particular liberal politics.
Are faculty liberal? On average, yes. Those who seek out careers in academia tend to be more liberal than the population as a whole, although some fields are more conservative than others, and many subjects don’t engage with politics at all.
The pool of PhDs from which we hire trends liberal. And faculty are generally chosen and hired by other faculty, which creates further leanings toward the existing norms. We all have a very human bias towards those who think like we do.
(I catch myself doing it too -- I have a terrible tendency to want to hire people who’ve sung in choirs like me. For no reason that I can defend.)
But are faculty indoctrinating students? Most of the time – absolutely not. Every day in classrooms across this country, faculty do a masterful job of teaching students to question their assumptions, to think critically.
That is particularly true in my own academic subject – law. Our job is to play devil’s advocate – to challenge students to articulate the other side of their argument. When we do that, we aren’t being morally relative, we are making clear that you don’t really know the strength of your belief until you’ve thought about the other side in a deep way.
And if we’ve played devil’s advocate well, students will have no idea what we ourselves believe.
Faculty don’t always succeed. First of all, it’s a difficult set of skills. And we all have bad days sometimes and mess up (as anyone who has parented an adolescent knows.) But the other important thing to remember is that students are quick to assume you will give them a bad grade if they disagree with you, even when it’s not true. They sometimes feel “silenced” even when you are just trying to challenge them. More to the point, they often feel silenced by each other because they just don’t want to be disagreed with.
DEIB and Free Speech
BUT, our critics say, higher ed has definitely been indoctrinating students on issues of diversity. They tell us -- you’ve forced students to drink the Kool-Aid of diversity trainings. You’ve punished dissent. You’ve been part of creating an ever-longer list of acronyms, and pronouns, and identities.
It is true that higher ed, in general, focuses intensely on diversity, from the orientation of new students to the language we use every day. Why? And how do we reconcile that work with our ideals of academic freedom?
Let me start with the pragmatic reasons before I get to our values.
Remember I spoke about one of those exceptions to free speech principles – regulating civility. Imagine a workplace where people hurled racial epithets at each other or mocked their co-workers as ugly or fat. How much work would you get done? What kind of workplace would you have created?
It is pretty hard to teach in a classroom like that too. And it’s really hard for students to learn when their humanity is being questioned.
We navigate between allowing debate on contested issues around race and gender without letting it get too ugly. We want to debate anything and everything, except each other’s fundamental humanity and dignity.
Does anybody here want to volunteer to figure out where those lines are? No. It’s terrible. But we have to.
In fact, the law requires us to root out discrimination against students based on their race, gender, national origin, and religion. If we fail to do so, we can be investigated by the government, or sued.
These laws exist because they are necessary. It wasn’t that long ago when almost no one in this entire church would have been allowed into an elite institution like an Ivy League. Don’t believe me? They didn’t take women at all, and they refused the vast majority of Black people, Catholics, Jews, Irish, Italians, immigrants in general, and poor people. Does that leave anyone here?
These are laws we believe in, laws that have made this country a better place, created more meaningful meritocracy and improved American global competitiveness.
These laws don’t just regulate who we admit. The law also no longer tolerates the humiliation of students because of who they are.
When faculty or students violate these norms, both inside the classroom and outside, we hand out discipline. You do the same in the workplace – because it’s required and because it’s right.
[Block story]
We need to make students sometimes feel uncomfortable, to challenge them, but without making them feel unwelcome. We work hard to
create the kind of belonging that helps students learn. Because we are teachers.
At Fordham, there is another reason that we teach diversity, equity, and inclusion. These issues are core to our faith and our mission. We believe that all human beings are created in the image of God, equally beloved by God. We believe in fundamental human dignity.
And academic freedom does not preclude us from teaching our own core values.
DEIB and Academic Freedom
BUT, our critics would still argue, higher ed still gets caught in ridiculous examples of restricting speech beyond what is necessary to avoid discrimination. We have narrowed too tightly what can be debated around controversial issues of race, gender, sexuality, gender identity, and the rest.
They point to the occasional absurdity of some DEI work – the ways it seems to teach a culture of grievance and victimhood. They mock those intersectional lists of categories of oppression, each of which must be mentioned in every breath. The constantly changing terminology, designed to trip you up and make you feel old.
The critics remind us that academic freedom cannot just cover speech that you agree with. That the response to offensive speech should not be to cancel or shout down controversial speakers, but to ask them challenging questions at the end of the lecture. Or invite your own speaker the next week. They will admit that there may be some views too horrible to allow on our campuses, but those moments should be rare.
I have two responses. One, the ways students feel silenced and pressured is real, but it rarely comes from our institutions themselves. Students feel intense social pressure from their peers more than from us.
And while I have enormous empathy for students who feel like they are walking on eggshells, too often students equate being disagreed with as being silenced. We have to teach them that you are free to speak your
mind – and you should be brave and do so – but your peers are also free to respond, to tell you when they feel insulted. Freedom of expression goes both ways.
My second response to critics is that I think in many ways they have been right. Some schools (though not most) have been too quick to cancel controversial speakers instead of teaching students to challenge those speakers, politely and passionately.
But let me clue you in to another way these free speech discussions play out, on both sides, not just the left. We are all for free speech unless and until someone says something we find abhorrent. Then our commitments start to crumble.
And boy is that happening now. For free speech purists, these difficult last few months could have been a moment when they modeled what it is to put up with discomfort and debate, even when you find it heinous.
Instead, many of them have dropped those principles and called on higher ed to be consistent in its willingness to limit academic freedom. If you did it for others, they say, you should do it for our side.
It’s a fair point, but it still begs the question of whether we believe in free speech principles or not. Are we against cancel culture except when we are for it?
I’ll circle back to the recent protests, but this issue began years before. In a growing number of states around the country, legislatures have decided that the way to respond to a perceived lack of academic freedom on our campuses around issues of diversity is to violate academic freedom even more egregiously.
Government has begun to rewrite history books, telling everyone from first-grade teachers to college professors what they can and cannot say in the classroom. Subjecting them not just to the risk of being fired, but even criminal prosecution.
Our reaction to these laws depends in part on what we think of their purpose. Are these well-meaning people simply exhausted by the excesses of identity politics run amuck? Who want to stop the insanity and go back to normal teaching?
OR – is this a violent reaction to the racial progress achieved after George Floyd? The kind of pushback that has happened in the wake of every period of progress in this country, from Reconstruction to the Civil Rights Movement.
Regardless, this move clearly represents a serious violation of the values of academic freedom – values that are fundamental to the American concept of free speech and to the Catholic intellectual tradition.
In universities, we believe that faculty are the experts in curriculum and teaching. We regulate their competence, and then we give them a wide berth to question assumptions and challenge authority. We protect them from outside interference, with tenure, and shared governance.
The concept of academic freedom was formalized as a central tenet of the meaning of a university after World War II. Why then?
Because Stalin and Hitler came for their universities first. They required the teaching of a different kind of history -- a story of a chosen and virtuous people fighting for their nation against hostile villains. Their movements required the kind of history that includes only heroes – never criticism, only nationalism.
We now have legislators in this country writing that kind of history. The kind that dares to rationalize slavery.
The kind that treats progress as inevitable, not contested.
The kind that buries our mistakes, ensuring we can never learn from those mistakes. These are statutes that forbid making anyone feel guilty for past sins, specifically banning teaching that makes students feel “guilt, anguish, or other forms of psychological distress for historical acts of racism.”
Is there anything less Catholic than that?
October 7
Let’s turn to the remarkable events of the last few months.
Higher education has rightfully been criticized for not paying sufficient attention to anti-Semitism (and with lesser political force, to Islamophobia.)
It is true that dversity efforts on the average campus focus on other issues, that growing list of categories of oppression. Religion and religious identity get short shrift at secular schools worried about offending anyone. And society as a whole has not paid sufficient attention to the violent hatred of Jews and Muslims in this country.
Those who have bravely fought these battles for years finally getting traction. They remind us of the real work we have to do – not just to scold our students, but to teach them. The kind of deep empathy and respect that comes from learning about other faiths and cultures. At Fordham, for example, the religion requirement in our core curriculum means thousands of our graduates have taken semester-long courses on Judaism and Islam.
On the other hand, there are suspicious new allies in the battle against anti-Semitism. People who didn’t raise an eyebrow when torch-bearing neo-Nazis marched in Charlottesville, and talked about “replacement theory.” For them, this moment seems like an excuse to attack higher ed as the latest political football. This feels like another moment to tear down trust in institutions and score political points. Though we’re thrilled at their newfound devotion to fighting anti-Semitism.
We in universities find ourselves scolded by those who are themselves anti-Semitic because we have not done enough to fight anti-Semitism.
We are being scolded by those who would legally ban us from any mention of “diversity” or “equity,” because we should have done more diversity work.
We find ourselves scolded by free speech advocates because they now want us to limit speech more, with harsh and immediate discipline, or else they will accuse us of being complicit with every dumb thing any one of our students says.
And we find ourselves scolded by those who model vitriol and self-righteousness to our students for not persuading our students to act differently.
It's enough to make your head spin.
The hypocrites who accuse us of hypocrisy.
But all of it still begs the question – what should we do? Just because your critics are being hypocritical, it doesn’t mean they are wrong.
We do the agonizing work of deciding what is a threat versus protected political speech. What is anti-Semitism versus allowable criticism of Israel.
Criticism of Israel is often rooted in vicious anti-Semitism, except when sometimes it is not – because sometimes criticism of Israel takes the form of normal political debate that happens every day among Israelis. Where do we draw the lines? Because the fear felt by many Jewish people right now is very real. It is fear often rooted in profound, generational trauma - the knowledge that optimism about humanity can kill you, that you should never let your guard down against centuries of hatred and murder.
I can’t tell you how many books I have read about Germany in the 30s, obsessed with the question of who understood the danger and how they reacted.
But how do we make our Jewish students feel safe on our campuses while still allowing Palestinian students, some of whom have grandparents in Gaza, to proclaim their own rage and powerlessness? How do we console people on either side of a brutal war without provoking them and making them feel worse?
Is a student who says “from the River to the Sea” threatening genocide? Do we judge that by the reaction of the listener? Or the intent of the speaker?
What if the speaker is himself Jewish? Or what if the speaker has no idea what river or what sea they are talking about – if they are just being an ignorant, self-righteous teenager? Were we like that when we were their age? Maybe a little?
On the one hand, those words, those protests, cause real harm, terrifying many Jewish students. On the other hand, Palestinian students and their supporters have a right to express their own howling pain and outrage about this war. To make clear how afraid they are too.
What do we do? We carefully navigate these lines as best we can, knowing we will get excoriated for our decisions regardless of what we do.
I do not have the answers, but I ask all of you to pray for us as we try so hard to get it right.
Civility
This public focus on universities and our reaction also misses an enormous point.
What we need is not just more freedom – or less freedom – for our students to spout toxic nonsense. What we need is civility. To teach our students how to persuade, not just to insult and yell. To teach them to listen and be open.
We need our students to behave exactly opposite to everything they see out in the world. Which, I might add, is what makes it a little hard to take being lectured by Congress right now given the current state of political discourse.
This is not easy work.
Gen Z is a generation often mocked for being “snowflakes,” and it is true that they are fragile. It is also true that their levels of anxiety and depression are real, and skyrocketing. And lest you think their suffering is invented – the rates of attempted suicide keep skyrocketing too.
When we look at the data, the rates of anxiety and depression soar for exactly the age group of children who learned to swipe a screen before they could walk. These are the young people raised on social media, a
terrifying place full of disinformation, bullying, and toxic rhetoric. For them, the idea that we all just need more robust debate is laughable. For them, the idea that mere speech can make them feel “unsafe” is sincere.
These are young people who need help getting stronger.
Educators, like parents, struggle every day to find the excruciating line between providing the kind of loving support that helps young people get stronger, and the kind of coddling that is counterproductive.
We know that mocking fragile people for being fragile doesn’t work. We also know that indulging in that fragility won’t help either.
This is where our Jesuit and Catholic identity matters most.
The Jesuits are known for their commitment to both education and social justice, but they should also be known for their “way of proceeding.” Centuries before the invention of psychology, or ideas of modern leadership, the Jesuits crafted extraordinary methods of navigating debate and engaging community.
What we need right now is the Jesuit superpower -- discernment.
Discernment is the opposite of social media warfare.
It means slowing down before jumping to conclusions. It means listening, hard, and with respect.
It means remaining open and constantly curious. Assuming good intentions. (See – I told you it’s the opposite of social media.)
Discernment means considering both sides of the argument, one at a time, because without that, we will not get the right answer.
Discernment means the kind of radical self-awareness that allows us to identify our own blinders and biases, that block us from the truth.
At Fordham, we work to teach students the skills of discernment both as moral imperative and because they just work.
I remind students that self-righteousness is performance, not activism. I love being self-righteous. It is my favorite guilty pleasure. But I have realized over time that sarcasm and snark have never convinced anyone of anything in human history. Insulting people just doesn’t seem to persuade them.
Personally attacking those who disagree with you is also intellectually lazy, and it might just mean you don’t have the best argument. If you find it abhorrent to consider other people’s views, it may mean that (deep down) you are worried yours won’t hold up.
Let’s try a different way than the world is modeling right now. CATHOLIC
It’s not just the Jesuit skills that offer us a lifeline right now, it is also our Catholic teachings. Let me explain why.
As I learned in my college history classes, there have always been two competing instincts in American political values – individualism and communitarianism.
Individualism drives the American search for opportunity and human freedom. It is a fundamental part of our national character.
But that individualism has always been balanced by a powerful communitarianism, one that defines a common good and teaches us civic virtue. In our history, we have believed not just in rights, but in responsibilities -- to family, community, and nation.
Lately, that balance is out of whack. Unchecked individualism is trouncing our communitarian norms, poisoning our political discourse with unfettered selfishness. More and more of us refuse to see our neighbors as one human family, deserving of respect and dignity. We are losing the common values to push back against growing movements of hatred and political violence.
Catholic teachings provide the antidote to this streak of selfishness. We focus on the common good. We believe not just in rights, but in responsibilities, to feed the hungry, to care for each other.
Let me talk about how this plays out in the debates over diversity.
Catholic doctrine provides an obvious rebuke to those on the right who would deny equal humanity and dignity to any of our brothers and sisters around the world.
We are all of us, each of us, created in the image of God. We are all loved equally beloved by God.
And one of the strongest tenets in our faith (and actually in all of the world’s great religions) is to “welcome the stranger,” even when you don’t feel like it. Even when you want to focus on taking care of your own.
Catholic doctrine also provides a rebuttal to the idea of formal equality – the argument that we should treat everyone the same no matter what. Our Church believes instead in “equity,” treating people according to their needs. We specifically believe in the preferential option for the poor, again as moral imperative.
There are so many parables in the Gospel about this – the laborers or borrowers who receive different amounts and then complain. The lesson is always clear. God does not want us to treat everyone the same regardless of their needs.
And the Church rejects the idea that we should avoid learning the lessons of history because they risk making us feel guilty and bad about ourselves. Our faith teaches us that we must own our sins – both what we do and what we fail to do. We must atone and seek forgiveness before we can achieve absolution. (As I had to teach Lucy before her first confession, if you’re not actually sorry for hitting your brother because you kind of enjoyed it, the confession won’t count.) The idea that we should teach our children to avoid guilt, to avoid responsibility, to avoid learning from mistakes – that is anathema to our faith.
What gets less notice is how the Catholic language of diversity also provides an antidote to some of the extremes on the left, to a sometimes brutal identity politics.
Too much of current debate seems to go like this – we will have a bitter argument about which of us is more oppressed, and then if I win, your oppression, your suffering, your experience, and identity, are negated. Because I am suffering more than you. So you best be quiet.
We see people as rooted in community. We care about a common good, one that is not a zero-sum game to be fought over. We reject the ways that racism has always been used to divide the poor. We call out the ways that identity politics continue to divide us, and keeps us from seeing how much more we could fight for together if we were not so busy fighting each other.
Catholic teachings also reject the culture of grievance.
Our Church (again, like all of the world’s great religions) teaches a different way. Even in our suffering, we look for those who suffer more. We meet hatred, not with more hatred, but with radical love.
These are not easy lessons. But we believe in courage rooted in love rather than rage.
CONCLUSION
I am going to wrap up and ask for your questions.
The work of teaching our students a new way of engaging has never been more crucial, and it is why I love my job so much as hard as it is.
Because at Fordham, we have an enormous opportunity and responsibility to matter.
We teach our students to be good people and good citizens (in the broadest sense of that word.)
We help them to distinguish facts from propaganda and disinformation and hyperbole.
We teach them that truth exists, and also that they must have humility about whether they have found the truth.
We teach them to stand against the growing politics of indignation and cynicism. The rabid eagerness to cast the first stone. And most of all, we teach them empathy to pierce the growing tide of selfishness.