September 18, 2023
Academic freedom is closely tied to the First Amendment guarantee of freedom of expression, according to law professor Michael Dorf – and like freedom of speech, it’s not absolute.
“Academic freedom does not mean the liberty to say anything you want in a college or university setting,” said Dorf, the Robert S. Stevens Professor of Law, whose focus is on constitutional law. “It means the freedom to pursue knowledge and truth in good faith, according to the disciplinary standards and the decorum standards and the respect one shows for fellow students and others within the community.”
Dorf and three Cornell Law School colleagues participated in a forum, “The Fundamentals of Freedom of Expression,” held Sept. 7 in Myron Taylor Hall’s Landis Auditorium. The event served as the kickoff for the 2023-24 theme year: “The Indispensable Condition: Freedom of Expression at Cornell.”
The forum focused on foundations of the First Amendment’s protections for speech and assembly; challenges in applying those protections in a democratic and pluralistic society; and how free-speech principles play out in an increasingly digital world.
After a welcome from Jens David Ohlin, the Allan R. Tessler Dean and Professor of Law, President Martha E. Pollack introduced the panel and reminded the audience of the theme year title’s origins: the writings of Benjamin Cardozo, a Supreme Court justice from 1932-38, who called freedom of speech “the matrix, the indispensable condition of nearly every other form of freedom.”
Free speech is a given in this country, she said – “a bedrock assumption on which we’ve all built our lives. The ability to say what we think, ask questions, and listen to others is essential to democratic government, to our right to self-determination, and of course, to our academic enterprise. But over 232 years of American history [since the Bill of Rights was ratified], we’ve concluded that the right to free speech is not absolute.”
The panel was moderated by Gautam Hans, associate clinical professor of law, an expert on First Amendment law and technology policy, and in addition to Professor Dorf included Karen Levy, associate professor of information science in the Cornell Ann S. Bowers College of Computing and Information Science, and associate member of the Law School faculty; and Nelson Tebbe, the Jane M.G. Foster Professor of Law.
Hans asked Tebbe, who researches general constitutional law and freedom of speech and religion, about the courts’ penchant for restricting government actions that impinge upon free-speech rights. Tebbe said the high court’s history with this protection isn’t extremely long – or particularly glorious: From protests against World Wars I and II and the rise of McCarthyism in the 1950s, the failures of the Supreme Court helped shape the evolution of free expression.
“Even though the Supreme Court was not as effective as we would have liked in policing free speech during that time,” he said, “the lessons of those failures, I think, have stuck with the court and with the society in really tenacious and important ways.”
In court cases where internet search engines and platforms like Baidu and YouTube were alleged to have violated free-expression principles of private entities through content moderation, Levy – who studies the intersection of law and technology – said the courts have sided with the websites.
“(These) are cases in which a party is aggrieved because … they don’t feel that a (platform) is listing their results highly enough, or at all, and they bring these First Amendment claims,” Levy said. “Oftentimes the rhetoric that’s leaned upon is that, in some ways, these tech platforms operate as public squares, and I think there is some validity to that argument.
“But that has not translated to the analogous principle that, because a lot of speech happens on these platforms, those platforms constitute state actors,” Levy said. “So, if anything, what courts have found is that those platforms themselves have free-speech rights, and oftentimes they have no choice but to decide what content to prioritize.”
Levy said the regulation of AI, and other new technology, has run into what’s been called the “pacing problem.” “Technology moves unbelievably quickly,” she said, “and this presents a problem when we’re trying to regulate this inherent moving target.”
The panelists also discussed the idea of society as a marketplace of ideas (the “notion that ideas will compete” with one another in a metaphorical “marketplace in the same way that goods and services” compete in the actual marketplace, Dorf said); and how America’s idea of free speech differs from other free societies.
“Many democracies … allow for some regulation of hate speech – some recognition that not just governments but private actors can contribute to the unjust stratification of society,” Tebbe said. “Everyone agrees that freedom of speech is of vital importance. And I think everyone also agrees that people shouldn’t be subordinated on the basis of inherent characteristics in their citizenship status, but instead should stand before one another in the public as equals. … There’s plenty of room for complex negotiation of these competing values, at the court level but also at institutional levels.”
A recording of the 90-minute forum, which included a half-hour Q&A, is available here.
Upcoming theme year-related events include the inaugural Milstein Symposium, with professors Jameel Jaffer of Columbia University and Eugene Volokh of the University of California, Los Angeles, on Sept. 26 in Landis Auditorium.
This story was originally published in the Cornell Chronicle.