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Three decades ago, Stanford Law School’s renowned constitutionalist (1927-2002) predicted the problem that today has engulfed his law school in a heated free speech controversy. Gunther did so in a debate published in the in 1990. His exchange with professor centered around the topic of whether “one person’s freedom of expression may be another’s verbal assault — a dilemma with First Amendment implications.” 

Below are a few passages from Professor Gunther’s comments:

[Limits of free speech on campuses] are not only incompatible with the mission and meaning of a university; they also send exactly the wrong message from academia to society as a whole. University campuses should exhibit greater, not less, freedom of expression than prevails in society at large

Proponents of new limits argue that historic First Amendment rights must be balanced against “Stanford’s commitment to the diversity of ideas and persons.” Clearly, there is ample room and need for vigorous University action to combat racial and other discrimination. But curbing freedom of speech is the wrong way to do so. The proper answer to bad speech is usually more and better speech-not new laws, litigation, and repression.

Lest it be thought that I am insensitive to the pain imposed by expressions of racial or religious hatred, let me say that I have suffered that pain and empathize with others under similar verbal assault. My deep belief in the principles of the First Amendment arises in part from my own experiences.

Gunther’s personal history influenced his views on free speech. The German-born American constitutional law scholar was in primary school when Hitler gained power and “virulent anti-Semitism.” One Nazi teacher called Gunther a “Jew-pig” and “segregated him from his classmates.” In response, his family fled Germany in 1938, “only a few hours after witnessing the destruction of their town synagogue.”

Reflecting back on those experiences, Gunther explained:

I lived in a country where ideological orthodoxy reigned and where the opportunity for dissent was severely limited. The lesson I have drawn from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigots’ hateful ideas with all my power, yet at the same time challenging any community’s attempt to suppress hateful ideas by force of law. . . . Obviously, given my own experience, I do not quarrel with the claim that words can do harm.

Such harm notwithstanding, Gunther felt compelled to defend such expression:

I firmly deny that a showing of harm suffices to deny First Amendment protection, and I insist on the elementary First Amendment principle that our Constitution usually protects even offensive, harmful expression.

That is why — at the risk of being thought callous or doctrinaire — I feel compelled to speak out against the attempt by some members of the Stanford community to enlarge the area of forbidden speech under the Fundamental Standard. Such proposals, in my view, seriously undervalue the First Amendment and far too readily endanger its precious content. Limitations on free expression beyond those established by law should be eschewed in an institution committed to diversity and the First Amendment.

For Gunther, even offensive speech — the very kind railed against by Stanford’s (associate dean for diversity, equity, and inclusion) — deserved protection:

[S]peech should not and cannot be banned simply because it is ‘offensive’ to substantial parts or a majority of a community. The refusal to suppress offensive speech is one of the most difficult obligations the free speech principle imposes upon all of us; yet it is also one of the First Amendment’s greatest glories — indeed it is a central test of a community’s commitment to free speech.

After the fact: Stanford Associate Dean Steinbach’s views

• Tirien Steinbach, “,” The Wall Street Journal (March 23)

Regardless of where you stand politically, none of this heated exchange was helpful for civil discourse or productive dialogue. . . . As a member of the Stanford Law School administration — and as a lawyer — I believe that we should strive for authentic free speech. We must strive for an environment in which we meet speech — even that with which we strongly disagree — with more speech, not censorship.

[ . . . ]

Diversity, equity and inclusion plans must have clear goals that lead to greater inclusion and belonging for all community members. How we strike a balance between free speech and diversity, equity and inclusion is worthy of serious, thoughtful and civil discussion. Free speech and diversity, equity and inclusion are means to an end, and one that I think many people can actually agree on: to live in a country with liberty and justice for all its people.

Related

• Sylvia Goodman, “,” Chronicle of Higher Education (March 22)

Tirien A. Steinbach, the diversity official at Stanford’s law school who has drawn fire from right-wing pundits and free-speech activists over during a federal judge’s recent disrupted speech, is now on leave. It’s not clear whether the school placed Steinbach on leave or she stepped aside voluntarily.

Fallout: Stanford free speech controversy continues

• Erwin Chemerinsky, “,” Sacramento Bee (March 28)
• David French, “,” The New York Times (March 23)
• Ed Whelan, “,” National Review (March 23)
• Taylor Penley, “,” Fox News (March 19)

FIRE to host webinar on law schools and free speech

Efforts by Stanford Law students to a speech by Judge Kyle Duncan on March 9 reminded us of the growing hostility we’ve observed from law school students toward First Amendment principles and civil discourse.

FIRE’s President and CEO Greg Lukianoff, a Stanford Law alumnus, was alarmed by the conduct of the students. Greg and ������ýapp�ٷ�’s Director of Campus Rights Advocacy Alex Morey will discuss the breakdown of free speech culture at law schools in light of recent instances of shout-downs and censorship at , , , and more.

as they address the effect this illiberal culture is having on future generations of lawyers and how university stakeholders can work to promote a culture of free expression.

Sign up now to online on April 4 at 4:00 p.m. ET/1:00 p.m. PT.

Dominion v. Fox updates

• Oliver Darcy and Marshall Cohen, “,” CNN (March 28)
• Jim Geraghty, “,” National Review (March 28)
• Sarah Fitzpatrick, “,” NBC (March 27)
• Jeremy Barr, “,” The Washington Post (March 20)

Forthcoming scholarly article: Bhagwat on social media and search for ‘truth’

• Ashutosh Avinash Bhagwat, “’,” Journal of Free Speech Law (forthcoming 2023)

One of the most notable, and noted, consequences of the spread of social media is the collapse of sources of information that are broadly trusted across society. This is a troubling development, it is argued, because trusted communicators are needed if we are to maintain a common base of facts, accepted by the broader public, that is essential to a system of democratic governance. As consensus on facts collapses, so too does democracy. Why do we find ourselves in this situation?

The crucial insight here is that through most of the 20th century, trusted communicators were also the gatekeepers of knowledge and news. These gatekeepers — the institutional media — tended to be highly concentrated, and sought to develop a reputation as “objective,” nonpartisan figures — as epitomized by Edward R. Murrow and Walter Cronkite of CBS. The key point to understand, however, is that the public trusted media gatekeepers because they had no choice — there were no significant opposing voices to question or undermine that trust. And because these gatekeepers overwhelmingly tended to reflect the views of the political center, there were simply no opportunities for the public to question consensus facts or to become aware of what the institution media was not telling them.

Eventually, of course, this system of institutional concentration and consensus collapsed. While the decline in trust in the media dates back to the 1970s, there can be little doubt that the internet put a final end to institutional media’s dominance. In a world in which every citizen became a potential publisher, people suddenly had a choice of what voices to pay attention to. For similar reasons, the range of opinions expressed publicly became massively more diverse, and so consequently did factual world views. And political polarization ensures that people embrace those worldviews that reflect their own pre-existing views and biases. Hence the collapse in consensus.

The loss of faith in institutional elites and the institutional media has created an intellectual atmosphere of existential angst. The primary response to this angst has been to place enormous amounts of pressure on the new gatekeepers—which are surely social media platforms, given their dominance in funneling public discourse—to replicate the role of the 20th-century institutional media. The question I am raising is whether, leaving aside the (dubious) constitutionality of regulating social media, is it even a good idea to try and push social media to be gatekeepers who determine who is, and is not, a trusted communicator.

I will argue that it is not, for several reasons. First, social media have no economic incentives to act as responsible gatekeepers. Second, social media firms have absolutely no expertise or training that would enable them to be either effective gatekeepers of truth, or identifiers of trusted communicators. But third, and finally, I would question whether any gatekeepers are a good idea. Leaving aside the difficulty of identifying ‘truth,’ my question is, are gatekeepers and deference to designated “experts” (i.e., trusted communicators) really the best way to identify “truth” and, conversely, misinformation? I think not, and I think that First Amendment principles support my view. First, there is a deep tension between this institutional conformity and Justice Holmes’s notion of the “marketplace of ideas”: “that the best test of truth is the power of the thought to get itself accepted in the competition in the market.” In an institutional system of conformity and concentration, from wherein will emerge competition among ideas? Relatedly, the Supreme Court has insisted since the time of Louis Brandeis that when faced with false or dangerous speech, “the remedy to be applied is more speech, not enforced silence.” Gatekeepers are anathema to competition and are quintessentially silencers.

Latest ‘So to Speak’ podcast

• “What’s going on in Florida?” FIRE(March 28)

What’s going on in Florida? Host Nico Perrino and his FIREcolleagues break down the latest efforts to censor speech in the Sunshine State.

More in the news

• Matt Ford, “,” The New Republic (March 29)
• Aaron Terr, “Congress should require the government to disclose its communications with social media companies about user speech,” FIRE(March 28)
• Jessica Gresko, “,” The Free Speech Center (March 28)
• Aaron Terr, “Florida city bans ‘political’ events of 10-plus people in all parks, streets, and sidewalks,” FIRE(March 28)
• Doug Jacobson, “,” The Free Speech Center (March 27)
• Susanna Granieri, “,” First Amendment Watch (March 23)
• Adam Liptak, “,” The New York Times (March 22)
• Rebecca Boone, “,” The Free Speech Center (March 22)
• Colin Moynihan and Alan Feuer, “,” The New York Times (March 20)
• “,” Politico (March 19)

2022-2023 SCOTUS term: Free expression and related cases

Review granted

• (argued Dec. 5)
• (argued March 22)
• (argued, March 27) (Volokh commentary)
• (to be argued, April 19)

Pending petitions

State action

Qualified immunity

• (cert. denied) 

Immunity under Foreign Sovereign Immunities Act 

• (cert. denied)

Liability Anti-Terrorism Act

• (argued Feb. 22) 

Section 230 immunity

• (argued Feb. 21) 

Review denied

• ()

Previous FAN

FAN 372: “The costs of risks: Is Dominion v. Fox headed to settlement?”

This article is part of First Amendment News, an editorially independent publication edited by professor Ronald K. L. Collins and hosted by FIREas part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIREor of professor Collins.