So To Speak Podcast Transcript: University of Wisconsin Professor Donald Downs

So To Speak Podcast Transcript: University of Wisconsin Professor Donald Downs

2021-04-06 15:58:05
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Nico Perrino: Welcome back to So, To Speak: The Free Speech Podcast, where we take an uncensored look at the world of free speech every other week, through personal stories and candid conversations. As always, I am your host, Nico Perino. And today we're talking to freedom of speech hero and longtime FIRE friend, Donald Downs. He is the Professor Emeritus of Political Science of Alexander Michael John and Professor Emeritus of Law and Journalism at the University of Wisconsin Madison.

And since retirement, Professor Downs has been the lead faculty advisor to the Freedom of Speech and Open Research project at the Institute for Humane Studies in Washington, DC, and is the author of the book Free Speech And Liberal Education: A Plea, released last year. For Intellectual Diversity and Tolerance. Professor Downs, welcome to the show. It's good to finally have you.

Donald Downs: Nice to be here, Nico. Good to see you.

Nico: So the first time I ever heard you speak, and I believe I ever met you, was many moons ago. It may have been when I was a FIRE intern in 2011 or 2010 when you spoke to Bryn Mawr at the –

(Crosstalk)

Nico: – Student FIRE network.

Donald: That was a fun weekend.

Nico: You had a bulleted list of principles you went through and I always remember. Yes, and you were still a member of the faculty, weren't you retired then?

Donald: No, I had about five more years to go.

Nico: So I want to introduce our listeners to you and your background, which I find unique. So correct me if I am wrong. The first book you ever wrote was Nazis In Skokie Freedom Community And The First Amendment. And you have not taken the expected approach in that book that you may be used to from someone of your status in the free speech community. What was your path to that book? And what was the argument? It might surprise someone today.

Donald: Well, Skokie, I was in high school in Berkeley and I had to write a dissertation, graduate in three areas of the policy department there. And I had done American politics and political philosophy or theory, and I had to choose a third field. I didn't know what to choose. And so I did public administration one night at a seminar, and come out of there and said, "Well, we need public administration, but that's not for me." So I had to find a third field and I looked at the public law reading list they called it, public law and constitutional law, it's a separate field that has mostly gone into American politics now. But was a separate field at the time. And I liked the list, interesting things. And it was a way of combining political theory and practical law.

It kind of comes together. And I know it, Holmes, who is one of my first names in heroes. I talk about it a lot in the new book, of course. Said he became a lawyer or studied law because it was a way of practically applying philosophical thoughts in the real world. And that appealed to me and at the time. So then I did the field, took the exams, and then I had to do something called a dissertation. And at that point, the Skokie case was going on outside of Chicago.

Nico: So this is 1977, 78,

Donald: 77, 78. And it took a long time to get it done and get it published. But that had just started and I was still in the middle of the other prelims. So I finally got to the point of doing the dissertation. The Skokie case had been resolved but still made headlines and probably in the law and lore of the First Amendment, perhaps the most prominent case of the nine highest courts ever.

And so it intrigued me and as a student I studied with a well-known professor at Cornell, Walter Burns, who was a more conservative Straussian political thinker who was also good at constitutional law. And Burns took aside, there was more, "We need some restrictions on non-virtuous speech." He was in that mode at the time. He later changed his mind when he experienced speech codes and things like that.

Anyway, I was intrigued by that. So I started looking at Skokie and worked with a professor, Bob Kagan at Berkeley, who was also very empirically oriented. So he said, "You can't just write a dissertation on this matter. You have to talk to the people. You have to do a case study, and then you generate broader thoughts from it." And so I went to Skokie and it was real one of the great experiences of my life. I've got a lot of my books, I've done a lot of interviews, gone to places to talk to people. And so I interviewed the survivors, six of them – and my wife is talking to me on the corner.

Nico: Oh, it's okay

Donald: She says I'm too hard, which is what I usually do when I do these things. And so I did all the research and interviewed everyone. And I was really blown away by the impact the Nazis coming to the Skokie would have on the survivors.

Nico: Yes, there were about 6,000 Holocaust survivors there. And that's just –

Donald: Well, they weren't sure. Somewhere in that neighborhood Skokie at the time had 70,000 residents, 30,000 Jews. And actually it was more about between 800 and 1200 survivors, but it was the third most prominent area for survivors in the country, outside of New York City and Los Angeles. And they had all come there, because they were talking to each other, "This is a safe haven." And so they had entered Skokie to escape the nightmares of the past. And then, 30 years later, here comes this little punk Nazi party. And they were really from an objective standpoint, this was not the nightmare reborn, but in their minds it was. And understandably.

Nico: Yes, I just finished a documentary about Ira Glasser taking over at HCLU in the aftermath of Skokie. Ira and I, who, of course, were the leader of the national ACLU during most of that case. But Ira was the head of the New York Civil Liberties Union, and a large number of Jewish voters for that civil liberties union. And so he spent a lot of time defending the case. And as part of the story in this documentary we tell about Ira & # 39; s life; Mighty Ira. We revisit the Skokie case.

Donald: And it is an interesting story. You are well informed about the matter. That is amazing. When FIRE was doing its 50th anniversary dinner in New York five years ago, I was introduced to him and we ended up talking for about 10 minutes. And he told me he thought Skokie would make or break the ACLU at that point because ACLU sided with the Nazis, right, to demonstrate. And the lawyer who defended the Nazis in the Chicago area, because it's Skokie, just outside of Chicago.

Nico: Yes, David Goldberger.

Donald: David Goldberger, a Jew. And the survivors I interviewed said they were angry. They were more angry with Goldberger than the Nazis because they considered him a traitor and it was very difficult for him.

Nico: It was this experience interviewing the survivors that led you to take the position in your book, and if I sum it up from the book's summary, it is that content neutrality makes an argument for the minimal shortening of freedom of speech when that speech is deliberately harmful. You feel that something needs to be adjusted to accommodate that content neutrality.

Donald: I mean, it was a strange argument. I mean, I've gotten a lot of attention. I've gotten a lot of reviews and interviews and gotten some awards from it. And so it made a splash, but it was a strange book in some ways. Because on the one hand, I started to invent language that I'm not saying was picked up right away because I wrote it, but it was in keeping with the later language that people of critical legal studies would use. I was talking about aggressive language and things like that. And of course it was in that context. It was like a threat to many of these people, even though it didn't meet the technical legal standard of a threat because it was on the public forum.

So in that sense, I did something consistent with what would become a wave of censorship in the future. But also because of my background I tried to make the distinction as carefully as possible. So I didn't say we should ban group blasphemy, which goes back to the Bullhorn case in 1948. I think it was around that time that the Supreme Court made that speech that generally disparaged groups based on religion and race, and so on. maybe a bridge.

Nico: An outdated teaching, although not dead.

Donald: That's an interesting way to put it, because that's correct. Supreme courts have never set it aside. It played a big part in the Skokie lawsuit, but the lower federal courts, both the Federal District Court and the Appeals Court, actually said other areas of the First Amendment doctrine as they evolved and now cornered Bullhorn. So we refuse to apply it, even though the Supreme Court has never quashed it. So I was really taken with the survivors. And, at that point, the other side of the coin here –

Nico: Have you interviewed Goldberger?

Donald: Yes I did. And I think he was not happy with the book. He thought I was treating him unfairly. And if I did, I regret it because I now consider him a hero.

Nico: Have you spoken to him since then?

Donald: I don't think so – no, yes I did. I gave a speech at Ohio State Law School in 1993 on a completely different matter. It was brought in by Kagan who was there for a year. And we met and talked and I told him I had changed my mind. And he was courteous and he's a good guy, but I can still feel he was a little bit bitter about it, and maybe understandable because he got a lot of wind about it.

Nico: But despite that, he did most of the interviews that were asked of him. I mean, he went to the Phil Donahue Show where Donahue filled the audience with survivors and he traded with himself – I can only imagine. I mean, his parents go to the synagogue and they are slandered for being their son. I, you know –

Donald: It was horrible. He was indicted by his rabbi with him over there in the meeting. And –

Nico: He moved when Frank Collin did his first meeting in Chicago, right in the Plaza, the Federal Plaza there before going to Marquette Park. He got his family out of town because he feared violence would ensue.

Donald: Wow, I think his family –

Nico: Yes.

Donald: Because if they had the real demonstration, it could have changed the teaching of the First Amendment. When I taught the First Amendment, I always told my students that there is a very important doctrine, like the doctrine against previous reticence, the New York Times case in the Pentagon Papers case. So, the Pentagon Papers case, what would have happened if that information had actually led to a national security debacle? Now the court may have had to reconsider its doctrine, but fortunately not, and it's the same with this: Nazi have the right to demonstrate, but what if mass violence happened because of that? Most of the time we've had these eruptions in very limited locations, but they don't repeat.

Nico: Well, you saw that at Charlottesville, right?

Donald: Absolutely.

Nico: I mean, someone died, but you didn't see it in Charlottesville, which you saw when you looked at the archive footage from the Marquette Park rally in particular, there was just no police presence in Charlottesville. And if you look at what happened in Marquette Park in 1978, there was a division of police officers.

Donald: But that tells you a lot. I'm talking about this in the new book, the need for the authorities to maintain order. Freedom must be commanded freedom.

Nico: So, quell the political violence or the prospect of it.

Donald: Turn right. You have to arrest people who go to your arrest, speakers who have insight according to the legal standard. And you have to deal with and possibly arrest bystanders who are at risk of causing problems because of the loudspeakers. That's the heckler's veto.

Nico: Yes of course.

Donald: So you need the power of the state to protect freedom. And also the kind of current rights of the listeners to hear what the speaker has to say. In Charlottesville, they discontinued as an art term then used with predictable results.

Nico: Yes. So yes, you tip your hat on this. As I said before, your Nazis In Skokie book challenges the doctrine of content neutrality, but you said you had changed your mind about that. What led to that and how quickly did you change your mind after the book came out?

Donald: It took a while. It took a while. Several things have happened and I talk a little bit about it in the new book, the book is not about me. So I don't talk about it much.

Nico: Yes. And just a reminder for our listeners, the book is Free Speech And Liberal Education. It came out last year and we'll get to that later.

Donald: Proper Cato Institute. And, well, first of all, I did one more – my next book, that was my tenure at Madison. I was at Notre Dame and I wrote the Nazi book, the Skokie book. And then I came to Madison with a different kind of context, different environment, different background. And I wrote a book on the new feminist approach to pornography, Catharine MacKinnon in that group. And I realized that what they were doing was, in fact, an attack, not just on some form of pornography, that changed the traditional obscenity doctrine, which was more morally based. This is based more on political quality agendas, which are good. I was all for political equality, but they wanted to achieve that way by limiting speech and differentiating between egalitarians and non-gelateria and pornography.

And that was very much based on viewpoints. And I, along with the courts, viewed it as an attack or attempt to radically change First Amendment doctrine, which I essentially accepted even in a Skokie book. And I figured this is where this kind of thinking goes. And it was my first wake-up call about new arguments for censorship. And interestingly enough is the ordinance that MacKinnon and Andrea Dworkin enacted, and it was passed by a few communities across the country, including the arch-conservative city of Indianapolis.

Nico: Yes, I wanted to say that I went to Indiana University. So I remember that.

Donald: Wow, my daughter too.

Nico: Oh, did she?

Donald: Yes. And Strange Beders; the name of one of my chapters in that book. But the regulation was based on four main points. They called it a legal attack. And in fact it was said that the mere presence of pornography in itself discriminates against women as they define pornography. And that boiled down to the statement that expression or speech here is the same as action, because the mere presence formed was a matter of discrimination regardless of where it was found.

Nico: And no matter who was engaged, I mean it could be a porn company owned by a woman. It could only be women, yes that didn't matter.

Donald: It didn't matter. Only the content mattered. And so, in some cases, the harassment law would say in court that pornography on the walls in a workplace is sexual harassment, which is a form of discrimination and rightly so, but that's a very specific context that resembles fight words, right. If there is omnipresence, it is in a narrow context. But the ordinance was that you can find pornography at some little gas station in the middle of the desert, like that last scene in Terminator two or something, and that's the discrimination that's going on there. So I started to see where the approach I had taken in the Skokie book was going. And that was the first foreshadowing of that.

And then, the second, my teaching in Wisconsin, I started getting a lot of students. I really started to see the importance of academic freedom. There was talk of speech codes. That was when I had my turning point when Wisconsin adopted a college student in faculty speech code. I was more in the business then. So I appreciated the connection between strong intellectual freedom and the pedagogical mission to which I became so attached.

Nico: But you could be an advocate for that within the educational context and still hold the position you held in Skokie. And only that the academic environment is a unique environment, but you went beyond that.

Donald: I went that wider. And the reason was just because I was – perhaps because of the way I did my profession, that Wisconsin was essentially a unique kind of context, because we rate professors in most college degrees for research, education, and citizenship. Okay. I forgot the third preference. I've been retired for too long.

Nico: Well, many colleges and universities are now adding diversity and inclusion as something they have to demonstrate.

Donald: And that's an ideology you may or may not agree with, but that's a little bit different. What are the third teeth? It's not citizenship. I need to think about it. Anyone that's going to listen to this will say, "My God, he can't remember what that is …"

Nico: I don't think anyone will blame you.

Donald: It's all part of higher education, but Wisconsin is. We have something called the Wisconsin Idea. It goes way back to the (inaudible) (00:18:52) era when the university was there to also serve the state. And we have Wisconsin public radio here. It is the third largest public radio network in the country. We have a lot of reach to the world.

And so I think there was the boundary between the ivory tower and the world beyond or beyond. I think it's important to make that distinction, right. We want to be an ivory tower to a certain extent, but I also think it's important for many of us to have an impact on society. And so that boundary between what happens in Skokie and what happens in college was not as tight as before for me.

Nico: So you mentioned your interest in speech codes and your campus experience as a professor. Wasn't that Wisconsin, if I remember correctly on the subject of a speech code lawsuit in the early 90's?

Donald: Yes. And I should have said briefly, I was a Senate faculty member when they approved those speech codes and I voted for them. Because that was just before the tipping point. Okay. And then I later became a leader of a movement to abolish the faculty speech code. So I did a 180 on that, but there were two –

Nico: Well, I should say, in the broader context of free speech, there were many current, very active free speech advocates who took the opposite position in Skokie and developed. I mean, George Will is another famous example of that.

Donald: Right, right.

Nico: So it is not uncommon. It's actually a testament to a person's ability to re-evaluate positions to change their mind. If you never change your mind, how are your thoughts?

Donald: Well, I think that's true. You can see there are several ways to change your mind, right. Different reasons. I used to say to my students, "Your compromises are good if they are made in the name of principles. But if you only compromise because you just want to get along or because you are (inaudible) (00:20:53) , open your mindlessness instead of open-mindedness. You want to distinguish between the two. "And it took me, I evolved, this was an evolution. And as I said, much of it was simply due to my own intellectual scientific and pedagogical development.

So I started to realize what was at stake. Students pushed me too. I had a great group of students who were activists for free speech on campus. It was a diverse group in terms of gender and race. And they kept saying, "Downs, your supporting speech codes contradict everything you teach us. It's not you." And eventually I realized I had painted myself in a corner because it's a metaphor that I use now when it comes to speech codes because I held the speech codes here, but everything else I did was based on having a wide open, free speech.

Nico: Well, the late 80's was a time when many colleges and universities passed on speech code. I mean, the famous Doe v. Michigan case would later be dropped. But then the speech code at the University of Wisconsin that you voted for was also crossed out, right?

Donald: That was a student code that was deleted.

Nico: Gotcha.

Donald: And that came from the UW Milwaukee & # 39; s a student newspaper; they've filed a lawsuit, Brady Williamson, a major Democratic activist in town. You may remember that when Trump was debating Clinton, there was a man in the background who kept grabbing her folder and moving it after the debate. And he was on social media and things. "Who is this guy?" He's Brady Williamson.

Who is a leading First Amendment Attorney Lawyer in Wisconsin. And he took that case on behalf of the UWM post in Milwaukee. And they want it based on – because it wasn't limited to fighting words. There is a broader kind of hate speech. And so he won it. However, the faculty code stayed on the books and the faculty code was much broader and did not make the same exceptions as the student code, but it also had disputed constitutional status meaning that because we are employees of the institution and we do our work in the class, a case could be made.

And I have a separate chapter of my new book on Academic Freedom vs. Regular Freedom of Speech, which makes this argument at least possible that the faculty speech code was at least arguably constitutional, but bad in terms of policy and pedagogy.

Nico: Yes. So for clarification: the speech code for which you had voted was the faculty one or –

(Crosstalk)

Donald: They were both presented at the same time.
Nico: So the faculty senate would vote on both. Do you have.

Donald: Both of them, the student code got almost all the debate that once got through and it was actually a pretty good vote. The faculty code has just been easily voted. It was an afterthought because we were told this is anti-harassment. It's a professional environment. You have to do what the university tells you. Okay. And so the student code was deleted. It was that time when I changed my mind. Ninety-one to 92, they set up a committee and Donna Shalala was the chancellor. She was one of the leaders of the voice code movement in the country, a pioneer. And we have put together a group. However, I spoke briefly against it. I was not on the committee to come up with a revised speech code for the students.

Nico: After the trial.

Donald: Yes.

Nico: I assume.

Donald: And then we had a faculty senate meeting and in preparation for that I changed my mind. This is in the spring of 92, a turning point in my life because life was never the same after that. And what they did was they limited the exception to fighting words, but they did not say that these were just certain types of combat words, such as race, gender, sexual orientation, religion, ethnicity, those kinds of combat words were prohibited, others were not. And I was asked to go to Wisconsin public radio and talk about the code. And they thought I would defend it.

Nico: Because you voted for it before?

Donald: Yes. And the night before I had a bill and it had to come, I had talked to my students, I had a seminar for them. I called them my primal horde because they were so interesting. And I thought hard about it and it published the book on pornography. And I suddenly realized, "Okay, I'm not for this thing." So I go on public radio and I give a talk. Usually it is a one hour, 15, 20 minute show. I talk to the MC and they would have callers. And I presented my case against the code.

And then, very soon after, they took a break from advertising. Then we come back, there is a call from a man in McFarland, near Madison. An art school professor here. And his name is Richard Long. And he called me and he said, he called and he said, “I want to thank you for your arguments against the code. But let me tell you, there is one more code that you are not talking about. Then I said, "Which code?" He says, "Oh, there is a faculty speech code."

Then I said, "What are you talking about?" We had all forgotten this faculty code. Meanwhile, several cases had come under (inaudible) (00:27:01) that no one knew, because it was just happening in administrative secrecy. And he really struggled with it. In his case, that had been horribly misapplied, which I talked about at length in my 2005 book.

Nico: What is the name of the 2005 book?

Donald: It's called: Restoring Free Speech Liberty On Campus.

Nico: Yes. So you have written many books about freedom of speech and the campus environment. We're mid-90s or early-to-mid – before I forget, your book on pornography must have come out around the same time that the (inaudible) book in defense of pornography came out, right?

Donald: Yes, hers was 93. Mine was 89.

Nico: So you led the way there.

Donald: Jaaa Jaaa. And I'll tell you who's the other way, is ahead of the curve. And I don't want to honk the horn here, but …

Nico: Go ahead, do it.

Donald: We had a faculty senate meeting about the student code and I spoke against it. And I said the following, I said, "If you want to have a restriction on fighting words that are constitutionally allowed, if they are correctly defined, you must ban all fighting words. not just ban religion, because that is discrimination And then, a few months later, RAV came out against St. Paul and the same argument was made by the Supreme Court.

Nico: Fighting vocabulary is an interesting teaching. And one that I don't know if I'm all on board personally just because I don't like restrictions on speech that are subject to audience response. I know you have the reasonable person standard, but it is the reasonable person standard is necessarily a difficult standard.
I want the instance, at least for the speech, if we exclude or accept it from the First Amendment, to be based on the speaker and not on a subjective response from the listener. So, I mean, in general, what is your opinion on the doctrine of the combat words, because we think about the doctrine of the combat words? It goes back to a case that …

Donald: Horrible case.

Nico: Yes, a terrible case involves speech that you wouldn't consider fighting words today.

Donald: Now it's classic protective speech, right?

Nico: Yes. I mean how Jehovah & # 39; s Witness called a police officer? A goddamn blackmailer.

Donald: Yes, and fascist.

Nico: And fascist.

Donald: Right, right.

Nico: When we imprison people for calling them fascist. I mean 40% of the country would be in prison right now.

Donald: Especially nowadays.

Nico: Yes right?

Donald: It is a problematic teaching. For the same reason, the Supreme Court has limited it so much. For example, I would give my students to go back to the Westboro Church case. And we've had interesting experiences with Westboro Church here in Wisconsin. I was actually an adviser to a number of students who counter-protested at the Westboro Church on campus. They wanted to shut them down. And I said, "No counter-protest." And we did. But you have a military funeral and there they say, “Soldier dies because America is bad. They deserve to die.” It's terrible stuff.

But what if you went to the family of the deceased soldier and started making these kinds of comments right in the face of that family, and someone got angry and started getting violent? If you get an exception for fighting words, that's the kind of case it's for.
Now, maybe you shouldn't have an exception because you don't want the bad cases to be a rule that will affect other cases. There have been cases, at least in principle, when I think a line can be drawn where the speech is so provocative and so personal. And it has to be very personal after Cohen vs California, personally targeted insults. I can probably live with that. In addition, there are very few cases where it is almost never applied. And the Supreme Court painted in a corner as it (inaudible) (00:31:09) might not be that tight.

Nico: What is your thought? I know we are getting into the philosophy of free speech at this point, but there are calls to expand the defamation laws, as Trump said. And you see Clarence Thomas in the Supreme Court questioning the New York Times V Sullivan case. Beroemd genoeg debatteerde Nat Hentoff begin jaren negentig, of misschien eind jaren tachtig, over een andere geleerde, alleen maar zeggend dat we de leer van laster in het algemeen moeten afschaffen, wat een zeer Nat Hentoff-argument is.

Maar het is er een waar ik sympathie voor heb, alleen omdat ik merk dat het vaker wel dan niet wordt gebruikt om spraak het zwijgen op te leggen. En u hebt de anti-SLAPP-statuten die dit helpen voorkomen, maar wat is uw gevoel voor laster, het doctoraat inzake laster in het algemeen?

Donald: Nou, heb je het over ambtenaren of gewoon in het algemeen?

(Overspraak)

Nico: Het is natuurlijk moeilijker met de privépersoon dan met de overheidsfunctionarissen. De feitelijke norm voor boosaardigheid, denk ik, is een goede standaard als je de doctrine wilt hebben, maar het is natuurlijk erg moeilijk te bewijzen en terecht. Maar ja, ik vraag me gewoon altijd af, en ik word gewoon altijd gedwongen door Nat Hentoffs algemene argument.

Donald: Ja. Ik zou het beste argument ertegen zijn. Ik ben er niet per se tegen, maar ik denk dat het gemakkelijk kan worden misbruikt. En wie is de beroemde schrijver van de New York Times, hij schreef het beroemde boek over de zaak met betrekking tot het recht op een advocaat als je een arme criminele beklaagde bent. Gideons trompet, Anthony Lewis.

Nico: Ja. En hij schreef ook een boek over vrijheid van meningsuiting.

Donald: Rechtsaf.

Nico: Hoe heet dat boek?
Donald: Ik ben de naam ervan vergeten, maar ik heb het gelezen en zijn argument is dat Sullivan, hoewel het zeer beschermend is over zijn uitspraken over ambtenaren en publieke figuren, toch een krant failliet kan laten gaan alleen vanwege de rechtszaak.

Nico: En dat is wat de anti-SLAPP-statuten, de strategische rechtszaken tegen de statuten van publieksparticipatie, moeten voorkomen.

Donald: En ze moeten krachtig worden gehandhaafd.

Nico: Maar ze bestaan ​​niet in elke staat, dus –

Donald: Ze kunnen het niet.

Nico: – Yes.

Donald: Supreme Court, maybe if they wanted to, they could expand that and call that kind of remedy those constitutionally requirements. That gets it into policy questions that are difficult for a court. But –

Nico: ‘Cause we’re talking to these anti SLAPP statutes aren’t just statues. I mean, they’re not court and posed obviously.

Donald: Right, right. But I think they’re important. So, I think in principle, if you intentionally lie about somebody and that does harm that person’s reputation in a meaningful way that is a real harm. That is a discrete enough harm that the law can recognize. But by the same token law firms can abuse these torts in order to intimidate people and to bankrupt them. So, SLAPP statutes, I think are really necessary as antidotes.

Nico: But isn’t the argument that the free speech activists usually make is that, to correct an error you should engage in the marketplace of ideas and fight bad speech with more speeches. There’s something peculiar or narrow about defamatory speech that creates a market malfunction that doesn’t allow more speech to correct it. And that therefore would allow for this tort to –

Donald: Yeah, I haven’t thought about that enough. That’s a really good point though.

Nico: I know I’m just thinking aloud here.

Donald: Yeah.

Nico: I’m not asking for answers.

Donald: Yeah. I mean, the harm that can be done I think is already so substantial and you’re asking the person to dig out of that hole and that can actually even compound the problem. So, I’m not sure I can agree with that, but I haven’t given that point a whole lot of thought of it.

Nico: I’m gonna try and remember to put in the show notes, the Nat Hentoff debate from the late 80s or early –I think it was organized by Cato. It’s a really good –

Donald: Oh, it’ a great (inaudible) (00:35:20).

Nico: Yeah. So, I want to get back to your time at the University of Wisconsin. There was another big – I think it was a Supreme Court case at the University of Wisconsin that shapes the student –

Donald: Oh, yeah. I saw it.

Nico: – that was at the – what’s the name of the kid?

Donald: Southworth (Inaudible).

Nico: Yeah. And that’s the student fees and funding case, right?

Donald: Yeah, yeah.

Nico: What year was that? Do you remember? That was before your time.

Donald: It came out in 2000. I had been here eight, 15. I was involved in that case. I had students on both sides of it. So, I had a lot of students that were in student government that were student government activists, partly. So, they could be in a situation to raise money for student groups. So, they were on the pro student funding side. And then, I had students that were more on the conservative side in religious side that didn’t wanna have to give money to some of these groups. And so, it was really interesting. I was on some public forums on this. I was at the Supreme Court when the hearing took place, and I was pretty much on the side of calling the compelled speech.

And I think I was wrong. I now agree that the system works. It’s a good system, as long as you abide by viewpoint neutrality. Problem is that it wasn’t viewpoint neutral. Though Southworth who brought the case conceded, it was stipulated for the court that it was viewpoint neutral. You could see what it to bring the whole system down. If the court rules that as compelled speech, even if the system is viewpoint neutral in terms of allocating funds for student groups, then you can pretty much do away with the whole system if people don’t wanna give their money.

Nico: And just for our listeners who can probably read through the lines from what you’re saying, the facts of the case were essentially that, like most, you pay a student activity fee and that’s distributed to student groups through the student government.

Donald: And it’s mandatory.

Nico: And it’s mandatory. And the student would, in this case, I forget the particulars of the University of Wisconsin system. But the student in this case was arguing that the distribution of the fees result was compelled speech.

Donald: Right. Compelled speech who’s now he’s being forced to give money that goes to groups he doesn’t like, okay? And so, that’s a compelled association aspect of it. And he wanted both the federal, the district level, at the appeals level, in the federal courts. Then it goes to the Supreme Court and he loses nine nothing. And the reason is that he’s stipulated that the allocation of fees was viewpoint neutral. And now granted the system very much tilts to the left.

This was the university of Wisconsin and Madison, right. A notorious or famous school for student activism. Most of it on the left-hand side of the spectrum, but that’s just the way the marketplace works. As long as it’s not distributed in a viewpoint neutral way, then you just have to let the marketplace go where the marketplace is gonna go. More student groups happened to be liberal. Then so be it.

Nico: Or more student senators.

Donald: Right, whatever it is.

Nico: Well, I guess in that place, I mean, the student senators can’t vote to fund or not fund a group based on viewpoint.

Donald: That’s right.
Nico: So, I guess you’re right then it would’ve been it’s based on how the composition of the student groups.

Donald: But I tell you what, I had a student who was very much in favor of student funding who also opposed how they did it. And she was in one of my seminars. After the seminar, she brought me to the meeting where they decided whether or not to fund Southworth. Neem me niet kwalijk. So, I just happened to be at that meeting and it was awful. All these, ‘We’re not gonna give money to this jerk. He is a conservative Christian.” So, it was indeed viewpoint, non-neutral.

Nico: And was that not in the discovery or in the facts of the case, the fact that you actually have students?

Donald: Southworth stipulated that the system was viewpoint neutral. So, it was never part of the case. If he wanted to go big and he lost because of that. But I tell you something, the university celebrated his loss.

Nico: It’s a bad lawyering, I mean, don’t let your client, I don’t know if he did it in an affidavit or what?

Donald: Yeah, yeah.

Nico: Or he did it in an interview?

Donald: Yeah, well, actually I took place in a mock trial or moot court exercise in Milwaukee with Southworth’s team. And I offered to do it for the other side as well. And they just said, “No, we don’t use your viewpoint neutral on it.” So, yeah, the Supreme Court just said, “Look –” partly it’s courts also defer to other institutions. And they said it was a valid pedagogical reason for having the forum. And we will largely defer to the university if there is a valid pedagogical reason. That competitive with other school cases, the pedagogic reasonable pedagogical purpose test.

And so, he lost and the university celebrated. And I went home that night though after the court case came down and I said to my wife, I said, “Damn it you know what, they have to be viewpoint neutral now.” And so, in that sense, Southworth did win, even though it wasn’t a particular victory that he wanted. And as far as I know since then, if you have some involvement with some other cases, the student government has striven very conscientiously to be viewpoint neutral. It’s hard thing to do. And then, what if one group has 20 people and another groups has a thousand people there’s a lot of different criteria they have to try to weigh. And so, there are a lot of grounds in which you can maybe bring a lawsuit, but they’ve really tried hard.

There have been a couple other lawsuits after that, that came about and they had to get their act together more, but on the whole I think they’ve carried out the viewpoint neutral standard pretty well.

Donald: Well, I remember when I was at Indiana University, I was involved with a student group that was seeking to – And I was a libertarian student in college seeking to bring an economist to campus and the student government before it would give us the funds – We were registered student group – the funds to bring them went to the economics department and said, “What do you think of this guy?” And you can imagine at a school like Indiana, they weren’t big fans of the libertarian economist and we were denied funding on that basis.

So, in that sense, was it viewpoint discriminatory? Probably, but you also have the bandwidth to do your due diligence and go to the academic departments and ask, well, is this person have sufficient credentials and experience to warrant the $1000 or whatever it was, and we’re gonna give, and so how do you weigh that? How do you weigh –

Donald: That’s a tougher decision because that’s where universities want to have some control over this. You don’t want to spend a lot of money just bringing in total quacks because we’re intellectual institution, right? We have intellectual standards. We don’t hire quacks to teach. But some people argue we do too much of that now, but we’re not supposed to, right? It violates our norms. And I don’t think there’s necessarily, it depends again on how it’s applied, but in Wisconsin, in order to get certain support from security or the organization that allocates rooms, you have to get a sponsor and it could be any faculty member.

And if you don’t get that sponsor, you can still bring somebody in, but then you don’t get some of the benefits that allow that facilitate and assist in that process. And, I don’t know, I’m ambivalent about that a bit.
Nico: Well, it’s tough because it’s a burden or even attacks on more outside the mainstream or controversial student groups.

Donald: That is very true.

Nico: And that sense the effect is viewpoint discriminatory, right? ‘Cause if you’re outsourcing the decision-making to faculty members who are not going to become the faculty advisor for the alt-right student group, then you effectively can’t have an alt-right student group with the same benefits as other student groups.

Donald: That is true. And that’s a problem. That’s why, if you’re gonna go this route and you have to put in safeguards to the best of your ability.

Nico: Yeah. And I know of faculty members, because FIRE has dealt with this issue from time to time, there are faculty members who will on principle be the faculty advisors for these groups.

(Crosstalk)

Donald: I was one of those.

Nico: Oh, were are you?

Donald: Many times.

Nico: Yeah. I mean, it’s important. And I know there are other systems which if you cannot find a faculty advisor on your own, the administration will assign you one and there’ll be –

Donald: Well, okay. That’s good. I totally approve of that.

Nico: Yeah. They’ll serve just an administrative role in that sense, but –

Donald: Right, right.

(Crosstalk)

Donald: I think it’s a problem. Daar ben ik het mee eens.

Nico: Yeah. You need to come up with some solution and I understand why you wanna have a faculty advisor involved as a liaison between the students and the administration. And to make sure that there’s no mismanagement of money or any other funny business that might be happening. But I realized we’re already at the 45 minutes that I –

Donald: It happens with me. I’m sorry.

Nico: No, no. If you’re willing to stay on, I’d like to continue the conversation for a little bit longer because where we left off and your career timeline was with the faculty speech code –

Donald: It’s early in the game.

Nico: I know it’s early in the game, but if we can speed up the timeline a little bit. Did you end up defeating the faculty speech code or was that, or was CAFAR or the committee for academic freedom and rights established to help defeat it? Or was it established in the wake of –

Donald: We were already there.

Nico: Okay.

Donald: We had formed in 1996 over a notorious case in the history department here. CAFAR had two functions. It was one, to defend faculty members who had been problematically – I say problematically ‘cause it would depend on what we found out once we looked into it – accused of having violated university rules that dealt with speech. And we had about 20 some cases over the years. We were together from 96, through 2016 when I retired. Then we disbanded. We had 20 some cases here in other schools in Wisconsin.

And we had satisfactory conclusions to virtually every one of them. And so, that was our one purpose outside funding, a $100 dollars –

Nico: From the university?

Donald: Oh, it was from the Bradley foundation.

Nico: Okay.

Donald: But they had no strings attached, a 100%, our autonomy, we pick cases. We defended a few left-wing speakers because there was some censorship of debt going on in the system.

Nico: Yeah. What was the history department case that kicked it off?

Donald: Yeah, got another 45?

Nico: No, actually I don’t.
Donald: It was an improper investigation of a professor for alleged discriminatory teaching and pedagogy. And it was a trumped up thing. Pretty much set up in response to another case in which the activist didn’t think the proper penalty was inflicted. So, they came up with this investigation and it was improper. And the target went through the attorney general of the state who became our governor later, Doyle, and told him about it. And Doyle called the university and said, “You better lawyer up and stop doing what you’re doing.” And then, so our group formed out of that very nonpartisan group.

And then, we had several other cases. Plus we devoted ourselves to policy and to campus politics. And the first big political victory was the faculty speech code because we found out about Richard Long. What happened to him? The guy I mentioned earlier called him from McFarland.

And we found out about some other cases that nobody knew about and we made them public. And we generated support to build a movement on campus to abolish the faculty speech code. And we were the first university in the country to resend a code without being ordered to by a court. It was due to a political movement that we won through the faculty Senate. And it was a year and a half or two year movement in which we mobilize and build up support. And we found out we had a majority of the faculty Senate on our side. We were like, “Wow.” We thought we were these free speech crazies out there on the margin and stuff but we were mainstream because we ignited the silent majority.

Nico: Was this faculty speech code a system-wide speech code? ‘Cause I remember when I was at Indiana University, some of the worst speech codes were system-wide. And when you say two years, I mean, two years would be a fast track to get rid of a system-wide policy.

Donald: Right. Right. Light speed. The student code was system-wide. That’s why I had to go through the board of Regents. And the Regents never adapted that reform I mentioned earlier because of IRV that came down right before they were going to endorse it. So, we haven’t had a student code since then in terms of regular speech. The others we that can talk about, we don’t have the time. But I’ve been working on with Azar, with your group.

Nico: Yeah, Azar Majid.

Donald: I love him.
Nico: He’s our vice president of policy reform. And he’s just a dynamo. Him and his team –

Donald: Yeah, he’s a fantastic guy.

(Crosstalk)

Nico: – are just speech code slayers across the country.

Donald: The faculty code was specific to UWA Madison. So, we had to go through the faculty Senate to deal with that rather than the regions. And we want it. And this is – the FIRE was started around the same time.

Nico: 1999, yeah.

Donald: We had Harvey come out here. Harvey advised us. We had dinner with Harvey at my house. And I tell you, I was so into this movement that I didn’t even watch the Super Bowl the night that Harvey came over for dinner. I kept taking a break every 15 minutes to check out the score. It was a game, Atlanta against Denver. I didn’t even care really, but I’m a big football fan. So, I had to keep track. I didn’t even watch it because of Harvey.

Nico: Was that John Elway’s last game?

Donald: Yes, it was his last game. Mr. Ed, we used to call him, I’m a Raider fan and we always called him Mr. Ed. And –

Nico: Are you still a Raider fan now that they’re in Las Vegas?

Donald: I’m not happy about it, but it’s like the mafia, once you’re in, you can’t get out with the Raiders.

Nico: Yeah.

Donald: It’s not allowed. So, that was really, that launched us. And we did a bunch of other things after that. And actually, sometimes we were even brought into the administration to advise them because our group had some success and then FIRE started right after that. Was 2000, was it or 1999?

Nico: 99. Yeah.

Donald: Yeah. And I’ve got them in touch with Bradley. Bradley helped fund them so far. FIRE was sort of, you know, I mean, it was my course and your course would have been an article on it – excuse me – in Reason magazine called Breaking the Code. And he interviewed me and a bunch of other people.

Nico: We might have a copy of that article and –

Donald: Yeah it’s a famed article. And so, we were right there with FIRE at the beginning.

Nico: Now when you read and hear about these campus free speech debates, it seems like they’ve been with us forever. And it’s like, it’s just a natural, it’s like one of the things that we talk about in higher education. I mean, you can read inside higher ED every week and there are discussions about academic – But back then it was like, that core’s article and CAFAR, were probably on the cutting edge. Am I right? I mean, were these things that were part of the national discourse about higher education much before the 90s?

Donald: No, no. Speech codes were something new under the sun. Under that code under the pedagogical sun. And I mentioned in my new book, most previous waves of censorship on campus and in the country, they didn’t last forever. Right? There were cycles. McCarthyism died. This hasn’t. We have our interregnums, I call it, in my book, periods where things are relaxed and then boom, they come back. And the latest stuff, we have all these bureaucratic policies like bias reporting systems and the like. Microaggression policies, trigger warning policies, a lot of the training policies.

And those are meant to achieve through the back door, what speech codes attempted to achieve through the front door. But the front door was problematic because you have this thing called the First Amendment. And you have a university policies that guarantee the same rights to their faculty members as the First Amendment if they’re private schools. It’s a speech code, we won the verbal war. It’s a speech code and this is America. We don’t like speech codes. You don’t want no stinking speech codes. Right.

But these new policies, oh they’re not there to censor. They’re there to inform. And so, now you have these Orwellian policy – you saw that piece by the dispatcher about a year ago, about how bias reporting systems are being used?

Nico: Yeah. Well, we did the first big report. We had FIRE do the first big report on bias response teams. And it was Adam Steinberg, who is our director of individual, our individual rights defense program forehand. Something like our public records requested something like 250 schools to see if they had bias response teams and wrote, got collected all the data. And that really kicked off the pushback against them. But –

(Crosstalk)

Nico: Very much. So, the CAFAR was that emulated elsewhere in the country?

Donald: No.

Nico: En waarom niet? Because, FIRE is only so effective, I’d like to think we’re pretty effective, but you’re gonna be more effective. If you have people at the institution, faculty members, especially who have interact with the students, are well-respected, know the administrators who are actually doing the work on the ground to reform these policies, and to protect each other. I mean, you’re all faculty members. It sounds like you’re protecting the rights of fellow faculty members. Why not emulate that?

Donald: Oh, so we are hoping that would happen. The book I came out with later was meant to do the cores article. Our movement was covered nationwide, all sorts of major media, New York Times, Wall Street Journal, national public radio, et cetera, partly because we pushed it that way. I was involved in group outreach to different media organizations. So, the whole country was watching. And a phone rang off the hook after that vote went through and we abolished the code. So, I was hoping for that. And when I worked for IHS, I’m no longer working with them by the way.

Nico: Oh, so scratch that introductory line. You should have corrected me.

Donald: The whole purpose of what I was doing there was exactly to do what you’re talking about. And it’s really hard to do. I often think of CAFAR as – it’s like an eclipse, but I really fancy one where a whole bunch of planets have to line up. It was just the right time at the right place. And the people we had on that, I had people on CAFAR – the first president before I became the president of it was Stan Payne. Probably the world’s leading scholar on European fascism. 28 books. I mean, you don’t mess with this guy. And we had several people like that in our group.

I was always looking up at them. And these are people you couldn’t dismiss as these are the campus kooks that are too committed to free speech. We had good cases that we gave as examples of why this stuff can be pernicious. So, it was a very fortuitous set of circumstances. A lot of campuses, you have one or two guys that feel this way, they’re isolated. They’re not able to develop that kind of synergy that to move – (inaudible) in his book that I talk about in both books about private truths, public lies, arguments of how like a Soviet union, no one liked communism in the Soviet Union anymore, but they could be afraid to speak out until –

Nico: It’s the emperor has no clothes situation.

Donald: Precies.

Nico: And we here at FIRE, and I hear personally from professors every week who are disappointed with the environments and the direction that their campus is going in, but they don’t to each other because you have those private truths. They’re afraid of being ostracized. They’re afraid that the person that they want to go and approach about it is not on their side, but there’s more of them than they think there are because I hear from them. John McWhorter hears from them on our board.

Donald: Precies. And look, Laura Kipnis, her book, she became a national weather vain. I stress this in my new book. I use her as an example. And suddenly she learned about all these cases all over the country she had no idea were going on because they were beneath the radar screen. So, the first thing you gotta do, and this is what I did initially when I made my conversion, I taught a First Amendment class. I had a lot of students. I was well known on campus. So, I spoke out and I was invulnerable, but couldn’t really – I had tenure and I had a following and I had some allies.

And so, we were able to speak out and at least give public presence to these principles and why they mattered. But we couldn’t get traction in terms of mobilization in policy innovation, until we got CAFAR to come together because of the event in the history department, which made campus in state news. And then, everything just crystallized. I can’t begin to tell you the amazement in the feeling of satisfaction we had when suddenly our voices, which were out there, that was the first step, get those damn voices out there because otherwise, no one’s going to be thinking about this stuff. It has a half-life principle. It’s not mana from heaven.

Nico: Or they don’t know that there are other people out there who think the same way they do.

Donald: And then, things here just came together and we were blown away. It was wow. And so, we were able to build on that over the years. Now Wisconsin has slipped back. I mean, it’s everywhere, but there’s still some stuff going on here that’s better than a lot of people know.

Nico: Yeah. Well, that’s, I mean, that’s the story. Student groups operate the same way. You’ll have a very active and successful student group. And then, the principal leaders, groups are often determined by their leadership, the success of them. And then, they’ll leave or they’ll retire. And the groups tend to deteriorate and become not as successful as they were before. So, you see that with faculty groups, it sounds like in the same way you do with student groups, but you also trained isn’t the right word, but inspired another generation of free speech advocates. One of the previous guests on this podcast was Ian Rosenberg.

Donald: Yeah. Yeah. He and I are gonna be doing a similar thing like this, between with his book and my book.

Nico: Yeah the fight for free speech.

Donald: With Madison Alumni Association. Yeah. You came right before all that stuff. He graduated in 95 and then all this stuff really started happening in 96.

Nico: Yeah but he refers to you as a mentor and Alex Morey who works at FIRE.

Donald: Oh, sure. She was my PA.

Nico: Yeah. And she became inspired by these issues through you. And I’ve heard from other people who’ve gone through your classes and had you as a mentor who were inspired to become activists in this work.

Donald: First thing, you’ve got to tell faculty they’re reluctant, it’s fun. It’s exciting if you get it right, but it’s a special situation like I said, but you got to find allies. We’ve dealt with some professors. There’s one from New Jersey that was here for a year who got persecuted in a totally wrong way, bad way. Whether it’s always wrong when you’re persecuted. Right. But he was accused improperly and he had no support. I mean, people would call him on the phone and say, “I’m sorry, I wish this weren’t happening to you, but they wouldn’t speak out publicly.”

Nico: Yeah. It’s the same case today. Same thing there all the time.

Donald: Yeah. And so, people are intimidated and things have given the environment now who knows? Look at this stuff that is going on at Princeton. And we got some good people there that are doing something to modify the way that you’re about to hear even more about probably fairly soon. But without those people – he was a professor at Princeton – what they tried to do there with that faculty letter –

Nico: Oh, yeah. I remember, yeah, over the summer.

Donald: Yeah, and he said, this will lead to a civil war.

Nico: Yeah, yeah, yeah. And thankfully there are great faculty at Princeton who are pushing back and we have some people with the Princeton connections here at FIRE, including Samantha Harris and Alan Charles Kors. And so, by way of closing your book free speech and liberal education the subtitle is a plea for intellectual diversity and tolerance, which is slightly different than free speech and academic freedom though related, right?

And this idea of intellectual diversity is almost a necessary requirement to protect against the censorship. It allows well intellectual diversity. It helps with the institutional disk confirmation that’s necessary in an academic environment, but also helps to check the biases and the more extreme inclinations that any mano group might have. Cass Sunstein, I refer to him often in the podcast, did a study of judges that found that you had more extreme opinions on a panel of three judges that all had the same opinion than even if there were just one dissenter.

Donald: That’s right. Yeah. It spreads out to the more extreme. Absolutely. I mean, intellectual diversity is a sign of intellectual freedom and tolerance, right. Because it’ll naturally happen at least to some extent. And also it’s a check and balance kind of thing. It’s a checker, using Roche’s term of checking the checking function of (inaudible – crosstalk) (01:02:45) –

Nico: Liberal science. Yeah.

Donald: So, that helps promote what universities are about, which is my chapter two, The Pursuit of Truth.

Nico: Yeah. Well, Jonathan Height says that most universities claim that they are in favor of the pursuit of truth, but right now they’re claiming that, but also acting like a social justice university. Said you can either be one or the other. You can be an activist university or a university pursuit of truth. But let me ask you this other question that throws a wrench in the intellectual diversity argument, which I’m very much in favor for, but a lot of the ways that academic departments make their name is to not have intellectual diversity.

You think about the Chicago school of economics, for example. You have a academic department built around a specific viewpoint, which can lead to more funding. So, long as you have not every academic department in the country who ascribes to that opinion, then you have the academic departments fighting against each other.

Donald: It was just like, excuse me. I don’t think that being a professor requires you to just neutrally lay out all the information and tell the students to make up their own minds. We make the best of the best teachers I had like Burns and there’s many others I could – I’m so indebted to people that influenced me that they had a point of view, but they did it in an intellectually powerful way that also engaged and was open to challenge.

And if a professor has a particular point of view, that’s different from every professor having the same point of view as you just said. Of course that applies to departments nationally. So, you want people that are committed to their truths. It’s a question of how you do it and then how those truths are. How they relate to each other at a broader scale.

Nico: Yeah. You want battles between different belief systems are arguments to happen. But if every department at every college in the country believes the same thing, then you never get that confrontation that is necessary to improve the knowledge base that we have now.

Donald: Well, I talk in the book in my chapter where I talk about why it all matters. It’s a key chapter, chapter seven. The last chapter is all about mobilization stuff. We’ve talked about much more practical suggestions on how to mobilize influences, things on campus. But I talk about Holmes and the famous (inaudible) (01:05:27) said, and he talks about fighting fates. And I mentioned Mill. He said he admires people that are so committed to pursuing something that’s narrow and deep. We want people that are willing to courageously confront others.

Who are willing to pursue something despite the cost. But most people are a little bit fanatical, right? Or they’re a little bit, you know, they’re committed. So, how does that relate then to the need for, quote and quote tolerance? And I said, well, one model then is to have a competition. So, as long as you have enough people that are like that, that are checking each other and have different views, then the marketplace is what resolves that problem. And then, those who make the policy for speech, not policy of the ideas, but the policy for governing speech, they have to have a different mentality.

Which I called democratic character. Which means that, yeah, you’re committed to an idea. You committed to a truth, but you harbor sufficient self-doubt in a way that makes you more thoughtful. And if anything, that’s what a university should be. It should make us more thoughtful. I say that over and over in the book, we’re here to train people to be better citizens, but mainly to become better citizens because they’re more thoughtful. And they understand that truth is a difficult thing to achieve and that no one has a monopoly on it.

So, you wanna guarantee that there’ll be open competition. This is the (inaudible) (01:07:07) let a thousand prejudices (inaudible) right. As long as they check each other. And then, there’s the other type that’s just “I have a truth, but I entertain a little bit of doubt. I might be wrong.” And that creates a different character. You take a deep breath and step back.

Nico: Yeah. Well, that’s the John Stuart Mill argument. What Greg Lukianoff, my boss and the president of FIRE, calls Mill trident. There are three main arguments or three main outcomes from any argument; you might be right, you might be wrong or you might be partially, right? All of them are bolstered by free and open discourse. If you might be right, you’re get a greater conception of your truth by a free and open encounter. You might be wrong, then you’ll have a chance to check your error or you might be partially right, and you’ll learn in which ways you’re partially right, and partially wrong.
Donald: Yeah. Well, Greg is awesome and is great on this stuff. I quote in the book Dana Villa who wrote a book called Socratic Citizenship. He’s a Randian scholar. He talks about how Socrates is really the basis of the pursuit of truth, but there’s also an ethical dimension. And he says that by pursuing the truth, we make ourselves better people because pursuing the truth also requires that kind of self-doubt and checking oneself, use of self-restraint.

And he has a line that I quote all the time. It says that, “Any idea, no matter how virtuous it appears, becomes a recipe for injustice, if it is not allowed to be challenged.” And that applies to all the pet policies, or the sacred things on campus today. We need to question everything and that spirit needs to be inseminated – disseminated somehow.

Nico: I remember I was hearing a speaker on campus. It was actually a speaker who was the spark for a big campus controversy at Indiana University, Pastor Douglas Wilson from Idaho. He famously debated religion with Christopher Hitchens on a nationwide tour, but he began his speech by saying, “I think I’m always right, but I don’t,” or “I always think I’m right, but I don’t think I’m always right.”

Donald: Right, right. That’s great.

Nico: Which I thought was a good way of putting it. I always think I’m right, but I don’t think I’m always right.

Donald Don’t want milk toast. Right. You don’t want people to, “Oh, I think I might be wrong. Usually I sort think, but I’m sorry. I think –” You don’t want that. You want strength, right? I mean, you want virtue, that you want thoughtfulness, that’s great. What was your major at Indiana?

Nico: I was a journalism major who ended up adding a double major with history. So, I thought I was gonna go into advertising and marketing, but I interned at FIRE in 2010. And Greg Lukianoff was in the market for an assistant when I graduated and encouraged me to apply. And almost a decade later, the rest they say is history.

Donald: Right. It seems a great fit. So, it’s great. I’m glad you went that route.

Nico: Well, FIRE’s is a great place to work. And especially for those who are principled and passionate, and for those who are looking for an environment much like the one that we’ve talked about, higher education being in this conversation, one where people from all different perspectives can come together around shared principles and values and that’s definitely here at FIRE. So, I think we’ll leave it there.

Professor Downs, we’ve been doing this podcast for four and a half years, and I can’t believe we haven’t had you on yet. It’s almost like water. You swim in the same environment as us. It’s like –

Donald: Yeah, yeah.

Nico: You’re always an omnipresence that it’s – but I’ll have to have you on again. So, thanks again for taking the time.

Donald: No, especially I think the last half we got into the mobilization stuff in the, you know, that’d be kind of nitty gritty of it. That’s really good stuff.

Nico: Yeah. I have been criticized by listeners before just assuming they know the background of the people I’m interviewing. So, I always try and get the autobiography or the biography, excuse me in there at the beginning. So, anyway thanks again.

Donald: Okay, well thank you and say hi to everyone there.

Nico: Zal ik doen. That was professor Donald Downs, and the book is Free Speech And Liberal Education: A Plea For Intellectual Diversity And Tolerance. This podcast is hosted, produced and recorded by me, Nico Perino and edited by Aaron Reese. You can learn more about So, To Speak by following us on twitter @twitter.com/freespeechtalk or liking us on Facebook @facebook.com/sotospeakpodcast. We also take email feedback at [email protected] If you enjoyed this episode, please consider leaving us a review on Apple podcasts or Google podcast. Recently rebranded from Google play. Reviews help us attract new listeners to the show. And until next time, I thank you all again for listening.


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