[Senate Hearing 115-660]
[From the U.S. Government Publishing Office]


                                                    S. Hrg. 115-660

                   EXPLORING FREE SPEECH ON COLLEGE 
                                CAMPUSES

=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                                   ON

               EXAMINING FREE SPEECH ON COLLEGE CAMPUSES

                               __________

                            OCTOBER 26, 2017

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions
                                
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]                                


        Available via the World Wide Web: http://www.govinfo.gov
        
                               __________
                                

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
27-450 PDF                  WASHINGTON : 2019                     
          
--------------------------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, [email protected].                 
        
        
        
        
          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                  LAMAR ALEXANDER, Tennessee, Chairman

 MICHAEL B. ENZI, Wyoming		PATTY MURRAY, Washington, Ranking Member
RICHARD BURR, North Carolina		BERNARD SANDERS (I), Vermont
JOHNNY ISAKSON, Georgia			ROBERT P. CASEY, JR., Pennsylvania
RAND PAUL, Kentucky			AL FRANKEN, Minnesota
SUSAN M. COLLINS, Maine			MICHAEL F. BENNET, Colorado
BILL CASSIDY, M.D., Louisiana		SHELDON WHITEHOUSE, Rhode Island
TODD YOUNG, Indiana			TAMMY BALDWIN, Wisconsin
ORRIN G. HATCH, Utah			CHRISTOPHER S. MURPHY, Connecticut
PAT ROBERTS, Kansas			ELIZABETH WARREN, Massachusetts
LISA MURKOWSKI, Alaska			TIM KAINE, Virginia
TIM SCOTT, South Carolina		MARGARET WOOD HASSAN, 
                                         New Hampshire
                                  
                                         
               David P. Cleary, Republican Staff Director
         Lindsey Ward Seidman, Republican Deputy Staff Director
                  Evan Schatz, Democrat Staff Director
              John Righter, Democrat Deputy Staff Director
                          
                       
                           C O N T E N T S

                              ----------                              

                               STATEMENTS

                       THURSDAY, OCTOBER 26, 2017

                                                                   Page

                           Committee Members

Alexander, Hon. Lamar, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Murray, Hon. Patty, a U.S. Senator from the State of Washington..     4
Young, Hon. Todd, a U.S. Senator from the State of Indiana.......    43
Bennet, Hon. Michael F., a U.S. Senator from the State of 
  Colorado.......................................................    45
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...    47
Hassan, Hon. Margaret Wood, a U.S. Senator from the State of New 
  Hampshire......................................................    48
Warren, Hon. Elizabeth, a U.S. Senator from the State of 
  Massachusetts..................................................    51
Kaine, Hon. Tim, a U.S. Senator from the State of Virginia.......    53

                               Witnesses

Statement of Dr. Robert Zimmer, President, The University of 
  Chicago, IL....................................................     7
    Prepared statement...........................................     9
Statement of Nadine Strossen, John Marshall Harlan II, Professor 
  of Law, New York Law School, New York, NY......................    15
    Prepared statement...........................................    17
Statement of J. Richard Cohen, President, Southern Poverty Law 
  Center, Birmingham, AL.........................................    26
    Prepared statement...........................................    27
Statement of Dr. Allison Stanger, `60 Russell J. Leng, Professor 
  of International Politics and Economics, Middlebury College, 
  Middlebury, VT.................................................    34
    Prepared statement...........................................    35


 
               EXPLORING FREE SPEECH ON COLLEGE CAMPUSES

                              ----------                              


                       Thursday, October 26, 2017

                                       U.S. Senate,
                    Committee on Health, Education, Labor, 
                                              and Pensions,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Lamar 
Alexander, Chairman of the Committee, presiding.
    Present: Senators Alexander [presiding], Murray, Collins, 
Isakson, Young, Casey, Bennet, Hassan, Warren, and Kaine.

                 Opening Statement of Senator Alexander

    The Chairman. Good morning. The Senate Committee on Health, 
Education, Labor, and Pensions will come to order.
    Today, we're holding a hearing on Exploring Free Speech on 
College Campuses. Senator Murray and I will each have an 
opening statement, and then we'll introduce the witnesses. 
We're looking forward to the witnesses. This is an exceptional 
panel. We look forward to learning from you, and we thank you 
for coming. After your testimony, we'll each have 5 minutes of 
questions.
    Before we get into the hearing, I want to make a comment 
about the recommendation that Senator Murray and I made to the 
Senate, along with 22 other Senators, equally divided 
Republicans and Democrats, for a short-term bipartisan 
agreement to reduce premiums and avoid chaos in the individual 
insurance market during 2018 and 2019.
    I'm very encouraged by what has happened since we 
introduced that a week ago, especially by the report of the 
Congressional Budget Office yesterday, which said, in effect, 
that as we believed, the Alexander-Murray proposal, which would 
continue cost-sharing payments for 2 years, 2018 and 2019, 
would provide benefits to taxpayers and consumers and not to 
insurance companies. Senator Murray and I spent a lot of time 
trying to think of the most effective language to make sure 
that would be true in our language.
    President Trump has said repeatedly he doesn't want to bail 
out insurance companies. We're convinced our language does not, 
and the Congressional Budget Office agrees. It says that, on 
net, CBO and the Joint Taxation Committee estimate that 
implementing our legislation would reduce the debt by $3.8 
billion over 2018 to 2027, and they expected insurers in almost 
all areas of the country would be required to issue some form 
of rebate to individuals and the Federal Government.
    In plain English, that means less taxpayer money for 
Affordable Care Act subsidies if we pass our legislation. CBO 
had said earlier that it will be a lot more taxpayer money for 
Obamacare subsidies if we don't pass it. In fact, they estimate 
$194 billion over 10 years in increased debt as a result of the 
higher subsidies.
    I think this is why more Republicans and conservatives over 
the last week have indicated their support for continuing cost 
sharing. The Chairman of the Tax Committee, Senator Hatch, and 
Kevin Brady both said that. Now, they added other provisions to 
their cost-sharing payments that are different than what 
Senator Murray and I agreed to, and if they can persuade 
Senator Murray and Democratic Senators to do that, so much the 
better. But what that suggests to me is that there's growing 
support that we need to do something.
    In addition to that, I've pointed out that almost every 
House Republican voted for continuing cost-sharing payments for 
2 years when they voted earlier this year to repeal and replace 
Obamacare.
    I thank Senator Murray for her leadership in this area. As 
usual, when she sets about to get a result, we usually get a 
result, and I think we will by the end of the year, something 
close to what we proposed. I thank the 22 other Senators, 
Democratic and Republican, who joined with us, and I ask 
consent to put into the record at this point the Congressional 
Budget Office report since this Committee spent so much time on 
this subject, devoting four full hearings to it and inviting 
Senators not on the Committee to four other meetings.
    The Chairman. Senator Murray, would you like to say 
something on that subject before we move ahead with the 
hearing?
    Senator Murray. No. I very much appreciate your remarks, 
and I just want all of our colleagues to know that we believe 
this is the right kind of proposal that deals with the short-
term economic situation of so many Americans. I'm very excited 
that we are getting more and more support every day. The CBO 
report, I think, is especially important for us as we move 
forward, and we will keep working to get it done.
    The Chairman. Thank you, Senator Murray.
    Today, we are talking about free speech on college 
campuses, the right to speak one's mind without being silenced. 
As Justice Anthony Kennedy recently wrote, quote, ``A law that 
can be directed against speech found offensive to some portion 
of the public can be turned against minority and dissenting 
views to the detriment of all. The First Amendment to the 
Constitution does not entrust that power to the government's 
benevolence. Instead, our reliance must be on the substantial 
safeguards of free and open discussion in a democratic 
society.''
    There is a long history of shouting down speakers with whom 
students and other members of the university community disagree 
or take offense on college campuses. Back in the 1930s, a 
student club at the University of Chicago--the current 
president of the University of Chicago is here today--invited 
William Foster, the Communist Party's Presidential candidate, 
to speak. This led to protests and criticism. The university 
president defended the decision, saying that students should 
have the freedom to discuss any problem that presents itself, 
and that the cure lies through open discussion rather than 
through inhibition and taboo.
    When I was a student in the 1960s at Vanderbilt University, 
the John Birch Society wanted D. F. Fleming, my political 
science professor, fired. They said he was a communist because 
he thought World War I was a mistake. Vanderbilt defended him 
and he stayed. I also remember when the poet, Alan Ginsberg, 
spoke on campus, horrifying parents and some students, but he 
was allowed to speak.
    In his book, North Toward Home, Willie Morris wrote how, 
when he was a student at the University of Texas in the 1960s, 
the American Association of University Professors rose up 
because the liberal professors were being squelched. In the mid 
60's, Senator Ted Kennedy, later a Chairman of this Committee 
and a liberal leader in the Democratic Party, was shouted down 
at the University of Wisconsin and not allowed to speak because 
he was considered by the hecklers as not liberal enough.
    The University of California at Berkeley became famous as 
the home of the campus free speech movement in the 1960's and 
was known as a campus that protected all sorts of left wing 
causes.
    Now, the pendulum has swung in the opposite direction.
    It is usually voices of conservative professors and 
speakers that are being squelched. In 2014, after Rutgers 
students protested and held a sit-in in the president's office, 
former National Secretary Advisor and Secretary of State 
Condoleezza Rice withdrew from speaking at commencement.
    Earlier this year, out of fears of protests, Berkeley 
sought to reschedule Ann Coulter's lecture to a time when fewer 
students would be on campus. One of our witnesses today, 
Allison Stanger, was assaulted by students at Middlebury 
College as she was leaving a disrupted discussion she had 
moderated by conservative author Charles Murray.
    Fortunately, some liberals with long memories are reminding 
the left when they were the ones who were being shut down. Folk 
musician Joan Baez, who participated in the free speech 
movement at Berkeley, said, ``Let the Ann Coulters of the world 
have their say.'' University leaders such as Dr. Zimmer, who is 
here, and Berkeley Chancellor Carol Christ, have both taken 
action to reaffirm their commitment to free speech.
    Another is Nadine Strossen, who served as president of the 
American Civil Liberties Union and is a witness here today. 
Former Vice President Joe Biden said last week, quote, 
``Liberals have short memories. When I was coming up through 
college and graduate school, free speech was the big issue, but 
it was the opposite. It was liberals who were shouted down when 
they spoke.''
    But shouting down speakers isn't the only issue. There is 
the question of political one-sidedness, that there is a 
pervasive point of view on many college campuses. Statistics 
are hard to come by, but most everyone knows it is true, even 
at our most prestigious institutions.
    A 2014 survey by the University of California Los Angeles 
on the ideological leanings of college faculty members found 
that the number of liberal professors compared with 
conservative professors was about 6 to 1, and in New England, 
the ratio was to 28 to 1. There are not many registered 
Republicans in the town of Cambridge, either.
    As of February this year, 3.7 percent of voters were 
registered as Republicans.
    When I was on the faculty at the Kennedy School of 
Government at Harvard, where I was for 2 years before I came 
here, we laughed that I was part of an affirmative action 
program for Republicans and conservatives. I have to give 
credit to Dean Joseph Nye, who actually made a significant 
effort to bring more conservatives and more Republicans to 
campus. While I was there, I would tell conservative students 
that they got the best education. Liberal students could be 
guilty of lazy thinking because they agreed with their 
professors, while conservative students learned to be on their 
toes.
    Some campuses and some departments have a conservative 
bent, but not many. This kind of one-sidedness can result in 
students feeling uncomfortable when confronted with new ideas.
    Then there is the question of deliberately inflammatory 
speakers and the chaos that results when they show up. We saw 
that in Charlottesville. We saw it last week at the University 
of Florida--$600,000 spent on security, 1,000 law enforcement 
officials, the Governor declaring a state of emergency.
    This is a problem in a country that prizes freedom, and a 
familiar one. If you're a university president, what do you do 
about this? How do university presidents respond to the speech 
and to the reaction to the speech? A recent survey by Brookings 
Institution found that nearly 20 percent of students believe it 
is acceptable to use physical force to silence a speaker who 
makes offensive and hurtful statements. What about a speaker 
who sets out just to be controversial?
    If you create an environment that results in tens or 
hundreds of thousands of dollars in security costs, a speaker 
who can't speak, and an audience who can't listen, that's not a 
very good result.
    We have a distinguished panel. We should listen to them and 
remember Senator Howard Baker's admonition, that the other 
fellow may be right. Universities, especially, should be the 
place where people of different views may speak, audiences can 
listen, and many contrasting viewpoints are encouraged. There 
should be some sensible ways to allow that while still 
protecting freedoms guaranteed by the First Amendment.
    Senator Murray.

                      Statement of Senator Murray

    Senator Murray. Well, thank you very much, Chairman 
Alexander, and I want to thank all of our witnesses who are 
here today, and thank you for your commitment to protecting 
free speech on college campuses and elsewhere.
    You know, everyone in this room can agree that free speech 
is a cornerstone of our democracy. It is what allows us to 
disagree and debate political ideas without fear of 
retribution. It allows us to speak out, and if our government 
is acting in a dishonest or unethical or unlawful manner, it 
allows open and honest discussions of ideas new and old. It's 
allowed civil rights leaders, including Dr. Martin Luther King, 
Jr. and Delores Huerta, to stand up and peacefully fight for 
what is right.
    There is no real debate about whether or not there should 
be free speech on college campuses or anywhere else. I think 
that's something we can all agree on, despite some people 
trying to create strawmen by saying that one side or another 
doesn't.
    But here's the issue that I think is worth discussing 
today. How can we protect this constitutional right while also 
making sure our colleges and universities are places where 
everyone can feel safe so they can learn and respectfully 
debate ideas? As part of that conversation, we need to discuss 
how elected leaders and community members and college and 
university administrators can best exercise their First 
Amendment right to do everything in their power to push back 
against those who are driving an agenda of extremism or racism 
or bigotry or xenophobia and misogyny, and we must also speak 
out against groups and organizations that are looking to use 
their right to free speech to divide us, to attack the most 
vulnerable among us, and to feed on people's fear in the 
service of hate.
    This is a necessary and vital discussion for this Committee 
and all of us to have. While I believe there are a whole lot of 
people on campuses across the country who are doing great work 
on this front, recent events have made it clear we're not there 
yet. Here's where I want to start with what should be an 
obvious statement. I think we can all agree there is no place 
for violence on our college campuses. But, unfortunately, in 
the last 10 months, we've seen more and more of this across the 
country, and when you look at who we have in the White House 
right now, the rhetoric that's being used, some of the people 
that have been hired, and some of the groups he has encouraged, 
it should come as no surprise when we see an apparent 
resurgence of hate and bigotry and xenophobia and misogyny on 
our campuses.
    What we have heard coming out of this White House has been 
shocking at times. But what has been even more disturbing is 
how so many others, even those who opposed him previously, 
allowed that rhetoric and those attacks to be normalized. This 
normalization of attacks based on how a person worships or who 
they are or where they come from seems to have somehow 
emboldened extremist hate groups to now come out of the 
shadows, and with that, in some parts of the country, we've 
seen reports of a rise in hate crimes and violence, especially 
in our college campuses.
    For years, there's been a concerted effort to combat hate 
groups in the courts and in the hearts and minds of American 
people. As a result, those radical organizations had been 
steadily pushed to the margins of our society. But in 2015, 
they found a voice they could rally behind, and it's no secret 
that leadership in this country has made some disparaging 
public comments against Mexican Americans or women or Muslims, 
and unlike before, when those individuals knew they would be 
shunned by their friends or neighbors or communities for that, 
this rhetoric has emboldened extreme hate groups to come back 
out of the shadows.
    There are reports of a disturbing rise of racist vandalism 
and harassment of religious minorities, an uptick in the 
distribution of hateful flyers on college campuses, and 
recruitment of students on college campuses, including here in 
Washington, DC, and in my home State of Washington. Just 
yesterday, I met with a very bright young student named Taylor 
from American University, and she's here today, and I'm so 
proud of you for what you're doing. Earlier this year, Taylor 
was actually elected AU's first African American female student 
body president, and the same day, racist messages were found 
hanging across that campus, right here in Washington, DC.
    While the FBI is investigating those as hate crimes, Taylor 
is speaking out now to highlight the toll it is taking on the 
students being targeted by hate speech. Like a true leader, 
Taylor took that experience to begin a larger dialog about 
bigotry, working with the university's administration, to make 
the school a more welcoming and safe place for all students.
    That's just one incident. There are so many more. Earlier 
this summer, as we heard, hundreds of white supremacists 
organized from around the country to travel to the University 
of Virginia's campus in Charlottesville. Those individuals 
marched through the city, shouting Nazi slogans and racist 
chants, and when a group of counter protestors, many of whom 
were residents of Charlottesville, and students and staff and 
faculty at the university stood up and said they would not 
tolerate that kind of hate in their community, they were 
attacked.
    During the clash in Charlottesville, unconsciously, as we 
know, a young woman described as, quote, ``a passionate 
advocate for the disenfranchised'' was killed, and more than 30 
were injured. Now, I want to be clear both sides in 
Charlottesville were not to blame, and many people on both 
sides of the aisle here stood up and spoke out to condemn that 
act of domestic terrorism and to push back against President 
Trump's response.
    It is very clear there needs to be a discussion about what 
is happening today on college campuses, that we have not yet 
solved this problem, and I'm glad we're having this here today.
    As I said at the beginning, no one is debating the right to 
free speech. But colleges and universities also have to ensure 
that campuses are safe and welcoming to all students. That's 
why this conversation has to include a discussion about the 
responsibility of community leaders and college administrators 
to use their own voices to speak out against hate and refuse to 
normalize racist or otherwise bigoted viewpoints while also 
respecting the free speech rights of those they disagree with. 
This conversation has to include a discussion about what 
colleges can be doing to keep students safe and how to also 
respect the rights of students who want to speak out against 
hate and extremism.
    College campuses have long been places to discuss and 
debate ideas, where students learn to think outside the box and 
get out of their comfort zones. That is one of the greatest 
strengths of the American higher education system. I'm sure all 
of our colleagues here today agree that colleges can continue 
to challenge students' views and perspectives while also doing 
everything we can to put the safety of students and staff and 
faculty first and not allow people to incite or invoke violence 
under the guise of free speech.
    I look forward to hearing from all of our witnesses today 
on how colleges and universities can do more to both speak out 
against hate speech on their campuses and to protect free 
speech. By beginning this conversation, we can start to once 
again push hate groups back into the margins of society, combat 
the resurgence of extreme ideology and the violence and hate 
speech that has been enabled.
    Mr. Chairman, I appreciate this opportunity today, and I do 
have several statements I would like to enter into the record.
    The Chairman. They will be.
    Thank you, Senator Murray.
    Now, we'll welcome our witnesses. There are four of them. 
We'd like to ask each of you to summarize your remarks in 5 
minutes, which will leave more time for conversation back and 
forth between Senators and you.
    Our first is Dr. Robert Zimmer, President of the University 
of Chicago, in that role since 2006, formerly Provost at Brown 
University, and before that, 25 years at Chicago. He's an 
author of mathematics books and more than 80 articles.
    Next, Nadine Strossen, John Marshall Harlan II Professor of 
Law at New York Law School. She has written, taught, and 
advocated extensively in areas of constitutional law and civil 
liberties, earning recognition in The National Law Journal as 
one of America's most 100 influential lawyers from 1991 to 
2008. She served as President of the American Civil Liberties 
Union and was the first woman to hold that position.
    Our next witness is Dr. Richard Cohen, President of the 
Southern Poverty Law Center. He's led the Center since 2003. He 
joined the organization in 1986 as its Legal Director. He has 
litigated a variety of civil rights cases. He testified earlier 
in front of the Senate Committee on Judiciary.
    Our final witness is Dr. Allison Stanger, the Russell Leng 
Professor of International Politics and Economics at Middlebury 
College. She is currently on sabbatical from Middlebury serving 
as Cybersecurity Fellow at New America. Her work focuses on 
American Foreign Policy. She's a member of the Council on 
Foreign Relations. She was a consultant to the Secretary of 
State's Policy Planning Staff from 2009 to 2011.
    We welcome the witnesses, and, Dr. Zimmer, let's begin with 
you.

                   STATEMENT OF ROBERT ZIMMER

    Dr. Zimmer. Thank you very much to Chairman Alexander and 
Ranking Member Murray for inviting me here today.
    I'm going to briefly address three topics related to free 
expression on university campuses. First, why is it important? 
Second, what are the Chicago Principles? Finally, what needs to 
be done to support free expression on campuses?
    Why is it important? For all institutions of higher 
education, whether public or private, free expression and open 
discourse and their companions, free listening and open 
questioning, are at the very core of fulfilling their missions 
of education, research, and impact.
    Every student at a university deserves an education that 
deeply enriches their capabilities. This necessitates acquiring 
knowledge, but, more importantly, acquiring general skills and 
habits of mind that are going to enhance their approach to 
future challenges. They must learn to recognize and evaluate 
evidence of various sorts, challenge their own and others' 
assumptions, effectively argue their position, grasp both power 
and limitations in arguments, confront complexity and 
uncertainty, synthesize different perspectives, understand that 
context and history matter, think through unintended 
consequences, and take account of change, tradeoffs, and 
uncertainties.
    If the education that we provide does not give students the 
opportunity to acquire these skills and abilities, they will be 
under prepared to make informed decisions in the complex and 
uncertain world they will confront upon entering the workplace. 
Intrinsic to students attaining these skills is an environment 
of ongoing intellectual challenge of which free expression and 
open discourse is an essential part.
    Likewise, for research at universities to be of the highest 
quality, unfettered investigation and a willingness to 
challenge assumptions and the free expression that goes with it 
is essential. To limit free expression is quite simply to limit 
the quality of education and the quality of research.
    This has important implications for our country. 
Nationwide, innovation is driven by faculty research and an 
inventive alumni body forged by a level of challenge that 
demands an environment of free expression. To be challenged is 
also why so many of the leading ambitious young people from 
around the world have come to the United States, and such is 
the ultimate importance and stake for our country around these 
issues. Will our higher education system continue to be the 
best in the world? Will our research continue to be the most 
impactful? Will we continue to attract highly talented people? 
Or will we lose focus on the mission of universities and allow 
other concerns to erode the efficacy of our institutions?
    What are the Chicago Principles? Over the course of its 
history, as Senator Alexander has already alluded to, the 
University of Chicago has long stood for and embraced the 
values of free expression and open discourse. In July 2014, as 
campuses nationwide saw prominent speakers being dis-invited, 
disruption and even violence attached to various speaking 
events, and support for free expression in universities 
eroding, I charged the faculty committee with providing a 
concrete statement that encapsulated our longstanding values.
    The resulting document is now known as the Chicago 
Principles, which can be summarized briefly as follows.
    First, an unwavering commitment to free expression and open 
discourse, allowing views to be expressed that may conform to 
no consensus and may be strongly opposed by any segment or even 
all of the university community. Second, the university 
recognizes, indeed, embraces non-disruptive protests as a 
legitimate means of free expression and supports the rights of 
all members of the university community to engage in such 
protests. Third, disruptive protests or other means of limiting 
the rights of others to engage in free expression, listening, 
and open discourse is not acceptable and is a violation of the 
university's commitment to free expression.
    What needs to be done? The situation currently is very 
fluid. There have been a number of university and faculty 
leaders who have embraced the Chicago Principles or otherwise 
made powerful statements in support of free expression. Most, 
however, have not. Meanwhile, there continue to be 
inappropriate disruptions on campuses, while at the same time, 
there is much more open discussion of the topic than was taking 
place even 18 months ago.
    To repair the situation, it will be up to faculty, 
university leaders, and trustees, who together help define 
institutional culture over time, to forcefully embrace free 
expression through clarity of their commitment to excellent 
education and robust research. Otherwise, we will find 
ourselves on a path that is antithetical to fulfilling our 
highest aspirations.
    For the sake of our students and their future success, our 
faculty in their capacity to develop original and impactful 
research, and our country remaining a magnet for the most 
talented from around the world, we must embrace free 
expression, open discourse, and challenging questioning and 
resist its suppression that we are seeing on college and 
university campuses.
    Thank you very much.
    [The prepared statement of Dr. Zimmer follows:]
                  prepared statement of robert zimmer
    Chairman Alexander, Ranking Member Murray, and the rest of the HELP 
Committee: Thank you very much for inviting me to testify at today's 
hearing on Exploring Free Speech on College Campuses. This issue is at 
a critical juncture, with implications for the integrity of 
universities and the education we offer. There are spillover effects on 
our Nation as a whole. I am particularly pleased to share my views on 
this topic, and I am appreciative of your commitment to tackle this 
issue with the seriousness it deserves.
    Let me begin with a story about my first visit to China as 
president of the University of Chicago about nine years ago. I had been 
invited to deliver a keynote address at Zhejiang University in Hangzhou 
to an audience of about 150 students and a group of faculty and 
university leaders. My hosts asked me to speak about American 
universities in general, but also about why there were so many Nobel 
Laureates among the faculty and alumni of the University of Chicago. I 
was asked, as I have been asked regularly in my many subsequent trips 
to China, ``What is the magic UChicago sauce?''
    I replied that its key ingredient was ongoing intellectual 
challenge and rigorous questioning. Many leading economists, 
physicists, chemists, and other scholars have prospered at UChicago 
because of the strong cultural commitment on campus to discourse, 
argument, and lack of deference. I described the workshops in 
economics, where Nobel Laureates were not immune from intense, 
sometimes withering, questioning by colleagues and students. UChicago 
attracted scholars from around the world because they understood this 
environment was best for developing and sharpening their ideas. While 
UChicago may be extreme in this culture among universities, I explained 
that the lack of deference, the openness to discourse, and ongoing 
mutual challenge was one of the great strengths of higher education in 
the United States much more generally. In fact, this attribute of 
American higher education institutions provided a magnet for talented 
individuals from around the world.
    The students in China were fascinated by this description and how 
it related to many deep aspects of Chinese culture with its focus on 
duty, respect, and hierarchy. ln fact, over the past decade, many 
leaders in the Chinese academic world have been explicitly working to 
inject into their own institutions a tone of significantly more 
questioning, and with it the accompanying inventiveness.
    What I did not anticipate then was that the tone in American 
institutions of higher education would dramatically change for the 
worse over the next decade. During this period, academic institutions 
experienced proliferating demands for decreased freedom of expression 
and open discourse, demands coming from within the institutions 
themselves. Invited speakers have been dis-invited because a vocal 
segment of a university community found their views unsatisfactory; 
faculty have been pressured to make public apologies for their 
statements that some deemed offensive; and an entire culture has 
emerged in which free and open discourse, while still being formally 
embraced, is explicitly or implicitly being relegated to a lower 
priority than other concerns. Among a small sample of the dis-invited 
are Laura Bush, Henry Kissinger, Christine Lagarde, Condoleezza Rice, 
and Larry Summers. While these are highly visible public figures, the 
list of the dis-invited includes individuals from a wide range of 
fields and disciplines. Such episodes are now so commonplace that in 
some circles they are viewed as almost normal. Thus, while the Chinese 
academy aims to inject more argumentation and challenge into their 
education, many American higher educational institutions are moving in 
the opposite direction, sacrificing a commitment to challenge and 
questioning. In doing so, they avoid the difficulties of opposing the 
chilling effects of an emerging discourse of political correctness.
    While it is necessary to focus on the threats from within 
universities to open discourse and argumentation on campuses, it is 
important to see that such threats also come from outside universities. 
These are particularly significant issues for public universities where 
overly enthusiastic public officials may have a misguided sense of 
protecting the public from various types of thought. External threats, 
both to pubic and private universities, have been present throughout 
the history of universities and often been more menacing than internal 
threats. They may appear in extreme forms, for example during the 
McCarthy era. External threats continue today. The external actors 
often have totally different perspectives than internal actors--but the 
intended impacts of both are to limit discourse. Nevertheless, while 
new threats may materialize quickly, the most active threats in recent 
years have been from within universities themselves.
    These current developments undermine our universities. There are 
three questions to address in considering this phenomenon: First, why 
is it important? Second, what are the Chicago Principles, affirming a 
commitment to free expression and open discourse? Third, what are the 
drivers of this national shift in discourse within higher education 
away from free expression?
    Let me begin the question of importance by saying what is not 
involved. I am sure this is well known among the members of the 
Committee, but because there is a common misperception I want to 
emphasize that for private universities the First Amendment to the U.S. 
Constitution is not directly germane to these issues. Rather, what is 
pertinent are the very purpose and mission of universities. That 
mission can be summarized in three words: education, research, and 
impact. Every question about universities' actions and policies needs 
to be evaluated in light of these core missions. It is here that the 
roles of free expression and academic freedom--and their companions, 
free listening and open questioning--are essential.
    Every student at a university deserves an education that deeply 
enriches their capabilities. This necessitates acquiring knowledge, but 
more importantly acquiring general skills and habits of mind that will 
enhance their approach to future challenges. They must learn to 
recognize and evaluate evidence of various sorts, challenge their own 
and others' assumptions, effectively argue their position, grasp both 
power and limitations in arguments, confront complexity and 
uncertainty, synthesize different perspectives, understand that context 
matters, think through unintended consequences, and take account of 
change, tradeoffs, and uncertainties. If the education we provide does 
not give students the opportunity to acquire these abilities, we are 
simply shortchanging them. They will be under-prepared to make informed 
decisions in a complex and uncertain environment, which is inevitably 
the world they will confront upon entering the workplace, independent 
of the particular path they choose.
    Imparting these skills is a tall task. But it is evident from the 
skills I have listed that exposure to a variety of views and the 
arguments for and against them is not only critical to this process but 
lies at its very core. Conversely, permitting an environment in which 
students' views and assumptions are not challenged, in which they do 
not develop the habits of mind of recognizing and evaluating their own 
assumptions, and in which they cannot fully and actively participate in 
discourse with multiple perspectives is shortchanging them. Simply put, 
if we want to do an excellent and responsible job of educating students 
at the highest level, an environment of free expression and open 
exchange of ideas is critical.
    The same is true for an effective research environment. Deep and 
impactful research entails originality--and this requires seeing in new 
ways. The Nobel Prize winning biologist Albert Szent-Gyorgyi famously 
said, ``Discovery is seeing what everyone else has seen, and thinking 
what no one else has thought.'' A climate that fosters this level of 
discovery relies on great intellectual freedom. Gary Becker, a Nobel 
Laureate in economics at UChicago and one of the most influential 
social scientists of the second half of the 20th century, provides an 
illuminating example. Becker, who had been a doctoral student at 
UChicago, began applying economic ideas to a sequence of societal 
issues--family, discrimination, crime, drugs, education, and more. For 
some time, his work was viewed by many either with alarm or as worthy 
of dismissal. The widely accepted understanding in social science at 
that time was that economics methodologies had no weight in these very 
human problems. But Becker persisted, in an environment at UChicago in 
which these unpopular ideas were free to be explored, challenged, 
tested, and developed. Ultimately, his ideas became widely accepted as 
one valuable approach to these matters and Becker himself was 
recognized as a great pioneer. lf he had been hounded out of higher 
education because the academy found his ideas offensive, as many did at 
the time, our understanding today would be much more limited.
    Why is this important not only for the nature of universities but 
for our country? Much of universities' impact is through the power of 
their faculty's research and the work of their alumni--and, as we have 
described, such impact at the highest level depends on an environment 
of free expression and open discourse and the resulting climate of 
challenge. To be challenged is also why many of the leading ambitious 
young people from around the world have come to the United States. Such 
is the ultimate importance and stake for the country--will our higher 
education system continue to be the best in the world? Will our 
education continue to be the most impactful? Will we continue to 
attract highly talented people? Or will we lose focus on the mission of 
universities and allow other concerns to erode the efficacy of our 
institutions?
    Now Let me turn to the second topic, namely the Chicago Principles, 
which are a forceful statement of one University's commitment to free 
expression. Unlike all the Universities in the United States that 
preceded it, save Johns Hopkins, the University of Chicago was 
established as a research University from its inception. From its early 
days, the leadership and faculty of the University articulated the 
importance of free expression and open discourse to its missions of 
rigorous inquiry and providing an education embedded in intellectual 
challenge. Throughout its history, the University has stood against 
suppression of speech, with its faculty and many of its presidents--
William Rainey Harper, Robert Maynard Hutchins, Edward Levi, and Hanna 
Gray as key examples--playing visible leadership roles.
    It was in this historical context and against the backdrop of the 
shifts in the American academy over the past decade, that in July 2014, 
I appointed and charged a faculty committee chaired by UChicago Law 
School professor Geoffrey Stone. The committee was charged with 
``articulating the University's overarching commitment to free, robust, 
and uninhibited debate and deliberation among all members of the 
University's community.'' In other words, the committee was asked to 
provide a concrete statement that encapsulated the underlying and 
broadly understood culture and views on free expression of the 
University of Chicago, a culture that had been present at the 
University since its founding. In response, the Stone Committee put 
forth a thoughtful, powerful, and clear articulation of the 
University's stance, laying out a set of principles now becoming known 
as the Chicago Principles. Below, I will summarize three such 
principles from the report.
    The first principle is a statement of an unwavering commitment to 
free expression: ``the University 's fundamental commitment is to the 
principle that debate or deliberation may not be suppressed because the 
ideas put forth are thought by some or even by most members of the 
University community to be offensive, unwise, immoral, or wrong-headed. 
It is for the individual members of the University community, not for 
the University as an institution, to make those judgments for 
themselves, and to act on those judgments not by seeking to suppress 
speech, but by openly and vigorously contesting the ideas that they 
oppose. Indeed, fostering the ability of members of the University 
community to engage in such debate and deliberation in an effective and 
responsible manner is an essential part of the University's educational 
mission. ``
    In the same vein, relevant to current considerations, it states:
    ``it is not the proper role of the University to attempt to shield 
individuals from ideas and opinions they find unwelcome, disagreeable, 
or even deeply offensive. Although the University greatly values 
civility, and although all members of the University community share in 
the responsibility for maintaining a climate of mutual respect, 
concerns about civility and mutual respect can never be used as a 
justification for closing off discussion of ideas, however offensive or 
disagreeable those ideas may be to some members of our community. ``
    The second principle is that the University recognizes, indeed 
embraces, non-disruptive protest as a legitimate means of free 
expression, and as such supports the rights of all members of the 
University community to engage in such protest.
    The third principle the report articulates is that disruptive 
protest or other means of limiting the rights of others to engage in 
free expression, work, and open discourse is not acceptable, and is in 
fact a violation of the University's commitment to free expression. The 
distinction between non-disruptive and disruptive protest is essential. 
Preventing others from speaking and listening is arrogating to oneself 
the right of free expression, but denying it to others.
    The Chicago Principles are a powerful statement. However, stating 
principles is not the same as implementing them. At UChicago, we 
recognize that implementation requires constant work. We have the 
benefit of an institutional culture with a long history of support for 
free expression, a willingness to express views contrary to popular 
trends, wide support of the faculty and deans on one hand and the board 
on the other, and a student body and faculty that, in most cases, are 
at UChicago because of a commitment to an environment of rigorous 
inquiry and open discourse. Nevertheless, we have thousands of new 
students coming to campus every year, and it is essential for us to be 
articulating, explaining, demonstrating, and engaging in discourse 
about these principles and how to implement them.
    Let me turn now to my third question--what drivers have enabled the 
current movement against free expression within higher education? I 
will address four such drivers.
    First, free speech is not a natural state of human affairs. Most 
people actually do not like it. They like the speech of those they 
agree with, which they will defend at great length--but there are fewer 
who are so enthusiastic about the free speech of those with whom they 
disagree. As a result, people are often inclined to silence, or at 
least condone silencing, those who disagree with them. They justify 
this in a variety of ways--morality, politics, acceptable behavior, 
preservation of authority, challenge to authority, opposing change, 
demanding change, and more. Such individuals rarely imagine that in 
preventing others from expressing views that they are sowing the wind--
and ultimately may reap the whirlwind of someone suppressing their own 
speech. Fostering an environment of free expression and open discourse 
starts with the fundamental problem that for many people, free 
expression itself is suspect.
    One consequence for universities is that a necessary part of a 
student's education is gaining understanding of the importance of free 
expression within the most enabling and powerful education they can 
have. Functioning in an environment of free expression and rigorous 
argumentation is not simple, nor is it necessarily intuitive. It is our 
collective responsibility in providing an excellent education to help 
students understand, value, and participate fully in this environment.
    Second, suppression of speech today is a misguided response to an 
important national issue, namely that of diversity and inclusion. Our 
country, like all countries, has a history of powerful exclusionary 
behavior. A history of slavery and racism, closing of opportunities for 
women, discrimination on the basis of religion, and exclusionary and 
even criminalizing responses to same sex relationships are examples of 
real and serious issues that the country faces in fulfilling an 
aspiration of providing opportunities for all. Our country has surely 
made and continues to make very significant progress, but the legacy of 
this history remains salient, impactful, and even painful today. From 
the perspective of a University, what should this mean? It should mean 
a serious commitment to full inclusion of all our students in the most 
enriching education we can possibly provide. This in turn entails 
ensuring that all our students are fully included in open discourse, 
challenge, free expression, and argumentation that lie at the very core 
of providing such an education. What it does not mean is protecting 
students from this discourse. It is a misguided view to think that we 
are helping students--particularly students from groups who may have 
been the victims of exclusionary behavior--by protecting them from 
speech. This misguided view is a major problem--it is in fact just the 
opposite that should be happening. We should be helping these 
students--just as we need to help all students--to fully participate. 
We should not facilitate retreat and separation from the most enriching 
education we can provide. Doing so would be an abdication of our 
responsibilities as educators.
    Helping students fully participate is itself not simple. 
Universities often provide educational support for students based on 
their individual situations. There are times when engaging free 
expression may be particularly difficult for students who are a target 
of exclusionary rhetoric. This should be recognized and students 
appropriately supported. Likewise, all students should be helped to 
recognize the importance of a civil society. But both issues should be 
addressed in the context of helping students participate fully in open 
discourse, not in the context of creating an ambient environment of 
restricted discourse.
    A third driver is too much unreflective moral certainty in too many 
circumstances--that one knows what is right and that anyone who holds 
other perspectives is not just wrong but morally flawed. Simply 
declaring the unacceptable presence of villainy, while not confronting 
intellectual challenge, is just a short stop away from suppression of 
speech. Within many aspects of public life, we have seen just how 
unproductive, even destructive, moral fervor in demonizing others can 
be. Inside universities, where learning to confront those with whom you 
may passionately differ is a key part of education, such demonization 
is particularly and deeply troubling.
    The fourth and final driver that I want to address is the all too 
common de-historicized view of the world, in this case applied to the 
role of universities. Universities are institutions with a long history 
and the prospects for a very lon future. The particular contributions 
they alone can make to society--inquiry, discovery, and enriching 
education--are critical societal needs that will far outlast any 
particular political issue of the day, no matter how important it is. 
The environment of free expression, academic freedom, and open 
discourse that is critical to universities' effectiveness cannot be 
taken for granted. It has been hard-won over the course of a millennium 
and history demonstrates its fragility. It is always tempting to 
respond to the urgency of the present and fail to consider long-term 
consequences. A de-historicized view of the importance of free 
expression, in conjunction with an all too easy attitude that allows 
for minimizing its importance in return for a moment of political 
expediency, is another contributor to the situation we now confront.
    In the many examples of suppression of speech that we are seeing on 
campuses, some combination of these four forces is at play. It is their 
complexity, lack of transparency in revealing themselves, and mutual 
interactions that make combating them a significant challenge.
    Now that I have addressed these three questions--namely the 
importance of free expression, the Chicago Principles, and the drivers 
of our current situation--let me turn to how reactions in the academic 
community to the Chicago Principles illuminate the issues.
    Two related questions I am frequently asked concerning the Chicago 
Principles are: first, why doesn't every institution just sign on to 
them or, alternatively, present its own equivalent statement? Second, 
why don't those nstitutions that have made such statements in the past 
actually live by them?
    My answer begins with a reminder that a select number of 
universities or their faculty have adopted these principles or 
articulated similar ones, and strive to live up to them. UChicago is 
not alone. On the other hand, many institutions are still grappling 
with the issues. This uncertainty, not surprisingly, invites caution in 
response.
    What do I think some institutions and their leaders are uncertain 
about?
    Every institution needs to decide what it is and what it aspires to 
be. As I have described, at UChicago we have had a great sense of 
clarity about this since the University's inception. But all 
universities need not be identical. Institutions can and do--either 
explicitly or implicitly--make choices that define them. These 
definitions can differ, legitimately so. Institutions with religious 
affiliations, those with defined social missions, and military 
academies are all examples where the Chicago Principles may not be the 
appropriate articulation of values.
    What the current situation and the Chicago Principles pose for many 
institutions is a clear question--how much are free expression and open 
discourse, along with all the challenges these present, a central 
defining feature of its education, or is it just one of the many values 
they have that can be traded off against others? This in turn raises 
the question of the actual nature of the education they are committed 
to--and what they believe is of sufficient importance to this education 
that they will defend it in challenging circumstances such as we face 
today?
    I believe many institutions remain uncertain and are still 
clarifying their responses to these questions. Do they subscribe to the 
Chicago Principles, even if articulated in their own words? What 
actions would they take in supporting these principles? There is no 
reason to suppose that all institutions will come to the same 
conclusion.
    Here is an example of what an institution might honestly say if it 
came to a different conclusion:
    ``We believe in free expression most of the time, and believe that 
you as a student will have an inspiring education and that you as a 
faculty member will have a wonderful environment for research and 
teaching.
    However, this institution will on occasion decide, based on the 
passionate views of a segment of the community or our own views of 
morality, that we will dis-invite speakers or implicitly condone the 
disruption of their speech and you will therefore not have the 
opportunity to hear or question them. This institution will on occasion 
decide that views expressed by a faculty member are not acceptable and, 
accordingly, they may be asked to apologize for their statements or to 
stop raising certain issues. We accept the chilling effect this can 
have on discourse and the resulting education, because we believe other 
values are at stake.''
    As members of the Committee can surmise, I would not be pleased to 
see many universities take this stance, either explicitly or 
implicitly, because I do not believe it provides the best education or 
environment for research. On the other hand, it could be an honest and 
legitimate institutional stance. But there is a grave danger that by 
not confronting the question head on, many institutions are drifting 
into this position even if they are not stating it in a forthright 
manner. The combination of uncertainty, lack of clarity about the 
foundations of education being offered, and the increasing opposition 
to free expression I have described have led many institutions to 
reflection and understandable caution. I hope that as institutions 
think through the issues, many more will conclude the need for a strong 
articulation of the centrality of free expression and open discourse to 
the education they offer and the quality of their research, and that 
their actions will come to reflect this determination.
    These considerations lead naturally to my final topic: What is to 
be done? How do we repair, or at least begin to repair, the situation 
in which the drift into restricted rather than open discourse is so 
prevalent?
    Addressing these issues ultimately means addressing the culture of 
an institution. Where the culture of free expression and open discourse 
is strong, that culture needs to be purposefully reinforced. For every 
year, thousands of new students come to campus who may be unaware of 
the centrality of free expression to the efficacy of their education. 
On the other hand, where the culture of free expression and open 
discourse is not strong, the institution needs to undertake a 
purposeful attempt to change this culture. We all know how difficult 
culture change in an institution can be. It certainly cannot happen 
quickly and it requires sustained work.
    In either situation, leadership is required, and inevitably that 
means University presidents, provosts, and deans. These individuals are 
responsible for overseeing and sustaining great universities, where 
free expression, free listening, and free challenge are indispensable. 
Therefore, the responsibility of these positions demands that leaders 
reinforce these values as central to the meaning of universities. To be 
effective, the president in particular needs the clear support of the 
Board of Trustees on this matter.
    Likewise, in either situation, the role of the faculty and 
leadership within the faculty is critical. The faculty have ultimate 
responsibility for educational programs, and a clear view by the 
faculty on the importance of academic freedom and freedom of expression 
for the efficacy of that education is necessary. There are a number of 
institutions in which faculty are grappling with this question, and 
without a firm commitment from a significant portion of the faculty, it 
is difficult to imagine progress.
    Finally, the receptivity of students to a challenging education of 
open discourse has a significant impact on a University's culture. 
College students in particular are at a singular moment in their lives. 
They will be challenged in new ways--by unfamiliar ideas, varying 
perspectives, different assumptions, and a diverse community. Embracing 
this challenge and growing personally through the discomfort it may 
bring will serve them well for their entire Jives. It is also possible 
for students to take the easy route and seek a framework of comfortable 
and restricted discourse. This would be to miss a personal opportunity 
that will not return.
    Cultural reinforcement or cultural change is a long process that 
needs long term commitment and long term focus as a high priority. How 
many institutions are willing and able to undertake this? We shall see.
    Am I optimistic that the trend we see now can be reversed? There 
are some hopeful signs. Until recently, it was frankly difficult on 
many campuses to even discuss these issues. Areas where many would not 
tread are now being openly discussed. There are many more statements 
coming out in favor of free expression. But there is a long way to go 
and the outcome, frankly, is not certain. As always, this will come 
down not simply to what institutions say is good, but to what tradeoffs 
they are willing to make and what they are prepared to do.
    To stifle free expression and open discourse and suppress speech 
that you don't like is just an invitation for others to do the same. 
Accepting this behavior sets universities on a path that is 
antithetical to fulfilling our highest aspirations. For the sake of our 
students and their future success, our faculty and their capacity to 
develop original and impactful research, and our country remaining a 
magnet for the most talented from around the world, all this 
suppression needs to be resisted.
    I thank you very much for the invitation to share my thoughts on 
this important topic. I again want to express my appreciation to the 
Chairman, Ranking Member, and the rest of the HELP Committee for 
convening this forum to discuss this issue that is so important to the 
academy, to our students, and to our country.
                                 ______
                                 
                        Summary of Robert Zimmer
    In my testimony, I will briefly address three topics related to 
free speech and universities: First, why is it important? Second, what 
are the Chicago Principles? Finally, what is necessary to reinforce or 
strengthen the climate on college campuses with regard to freedom of 
expression?
    Free speech and open discourse is at the core of the very purpose 
and mission of universities. That mission can be summarized in three 
words: education, research, and impact. Every question about 
universities' actions and policies needs to be evaluated in light of 
these core missions. It is here that the roles of free expression and 
academic freedom--and their companions, free listening and open 
questioning--are essential. Every student at a University deserves an 
education that deeply enriches their capabilities. This necessitates 
acquiring knowledge, but more importantly acquiring general skills and 
habits of mind that will enhance their approach to future challenges. 
They must learn to recognize and evaluate evidence of various sorts, 
challenge their own and others' assumptions, effectively argue their 
position, grasp both power and limitations in arguments, confront 
complexity and uncertainty, synthesize different perspectives, 
understand that context matters, think through unintended consequences, 
and take account of change, tradeoffs, and uncertainties. If the 
education we provide does not give students the opportunity to acquire 
these skills and abilities, they will be under-prepared to make 
informed decisions in a complex and uncertain world they will confront 
upon entering the workplace
    Free speech is important not only for the nature of universities 
but for our country. Much of universities' impact is through the power 
of their faculty's research and the work of their alumni--such impact 
at the highest level depends on an environment of free expression and 
its resulting climate of challenge. To be challenged is also why many 
of the leading ambitious young people from around the world have come 
to the United States. Such is the ultimate importance and stake for the 
country--will our higher education system continue to be the best in 
the world? Will our education continue to be the most impactful? Will 
we continue to attract highly talented people? Or will we lose focus on 
the mission of universities and allow other concerns to erode the 
efficacy of our institutions?
    Regarding the Chicago Principles, in July 2014, I charged a faculty 
committee with providing a concrete statement that encapsulated the 
underlying and broadly understood culture and views on free expression 
of the University of Chicago. In response, the Stone Committee lay out 
a set of principles now becoming known as the Chicago Principles. Those 
principles are summarized as follows: first, an unwavering commitment 
to free expression and open discourse; second, the University 
recognizes, indeed embraces, non-disruptive protest as a legitimate 
means of free expression, and as such supports the rights of all 
members of the University community to engage in such protest; and 
third, disruptive protest or other means of limiting the rights of 
others to engage in free expression, work, and open discourse is not 
acceptable, and is in fact a violation of the University's commitment 
to free expression.
    Finally, how do we begin to repair the situation in which we find 
ourselves? In my testimony, I discuss the drivers that have enabled the 
current movement against free expression within higher education, which 
leads me to the conclusion that ultimately, we must address the culture 
of our institutions. This will require leadership on the part of both 
the administration and the faculty, as well as a receptivity of 
students to a challenging education of open discourse. Otherwise, we 
will find ourselves on a path that is antithetical to fulfilling our 
highest aspirations. For the sake of our students and their future 
success, our faculty and their capacity to develop original and 
impactful research, and our country remaining a magnet for the most 
talented from around the world, we must resist the suppression of free 
speech and open discourse on college and University campuses.

                                 ______
                                 
    The Chairman. Thank you, Dr. Zimmer.
    Ms. Strossen, welcome.

                  STATEMENT OF NADINE STROSSEN

    Ms. Strossen. Thank you so much, Chairman Alexander and----
    The Chairman. Make sure your microphone is on, Ms. 
Strossen.
    Ms. Strossen.---- Oh, that would help. It takes a scientist 
to do this. A mere lawyer cannot.
    [Laughter.]
    Ms. Strossen. If I may start again, with amplification, 
thank you so much, Chairman Alexander and Ranking Member Murray 
and other Members of this Committee, for holding these hearings 
on such a vitally important subject.
    I really appreciated the opening remarks that both of you 
gave, and if I could synthesize in a nutshell, Senator Murray, 
you were rightly saying that on University campuses, as in the 
rest of our society, we have to equally welcome and provide 
opportunities for everyone, no matter who they are, and Senator 
Alexander added to that, no matter what they believe. 
Unfortunately, today, as Senator Alexander also noted, there 
are many universities that are deeply committed to every other 
kind of diversity but not the kind of intellectual diversity 
that you saw being pursued at the Kennedy school.
    Senator Alexander was kind enough to ask me to give some 
First Amendment background, because, as Senator Murray rightly 
said, everybody is in favor of free speech, but they have very 
different concepts as to what freedom of speech actually 
entails, and most people usually have a ``but.'' They say, ``I 
believe in freedom of speech, but the one exception I want to 
make is''--and very often, we have heard even lawyers, probably 
not graduates of NYU Law School, but other lawyers and other 
political leaders have said, ``Hate speech is not free 
speech.''
    That was a statement that was made, for example, by Howard 
Dean, and I don't mean to single him out. Many others have. But 
in defending Berkeley's decision not to allow Ann Coulter to 
speak there, he made that pronouncement, ``Hate speech is not 
free speech.''
    I've just finished writing a book called Hate: ``Why We 
Should Resist it with Free Speech, Not Censorship.'' If I may 
say so, it addresses all of these concerns, because I 
completely agree, Senator Murray, that we have such a 
responsibility, including on campus, to combat the hateful 
rhetoric, the hateful attitudes, the hateful conduct, including 
violence, that we are seeing.
    I also passionately believe, based on research and 
experience, that the only effective way to do that is to fight 
censorship, to fight violence, to fight disruption, because 
those are all manners of repressing speech, and to allow 
freedom of speech, as the Supreme Court has very sensibly 
defined it. Interestingly enough, I give some quotes, including 
from then President Barack Obama, who certainly is an expert on 
hate speech, having taught constitutional law at the University 
of Chicago, having been subjected to it himself, saying, ``The 
most effective way to respond to hatred is not through 
repression, but through counter speech.''
    Interestingly enough, we have counter experiences in 
Western European democracies, including many European 
countries, Canada, Australia, which have, in fact, criminalized 
hate speech, that is, speech that is disparaging. It has no 
technical legal meaning, but the common understanding is speech 
that is disparaging on the basis of race, gender, religion, and 
other such factors.
    The European countries, Canada, and Australia have 
increasingly become critical of that repressive approach. Human 
rights activists and lawyers there are saying, ``We should move 
more in the American direction,'' because our society, for all 
of the problems that we still have, has been able to move 
forward by outlawing actual discrimination, by outlawing actual 
hateful and biased crimes, by outlawing speech that directly 
causes serious, imminent, specific harm, including the kind of 
genuine--what lawyers call the genuine threat and intimidation 
that, unfortunately, were targeted at Taylor Dumpson, and that 
also constitutes a bias crime, and I understand is being--
prosecutor--investigated that way.
    We have those tools. But, in addition, we need civil 
society to speak out and to condemn. There was a movement in 
this country about 25 years ago to suppress hate speech on 
campus. It was advocated by a number of prominent law 
professors, and I've gone back and looked at their articles, 
and, interestingly enough, they make very important points 
about the enormous harm to the psyches and equal opportunities 
of students who were traditionally discriminated against if 
they are subjected to a barrage of hate speech.
    Interestingly enough, their complaints were not so much 
only about the hate speech, but rather about the failure of 
society, from university presidents on down, to condemn it, to 
argue against it, to show support to those who were disparaged 
by it. We have just seen completely a reversal in that sense, 
which has been extremely helpful and empowering. What I find 
most heartening is in all the campus activism that is not 
disruptive, that is peaceful and constructive, we're having 
more minority students than ever before speaking up in favor of 
their own rights.
    Freedom of speech, I believe, is empowering. It's best for 
education, it's best for equality, and it provides intellectual 
safety and the kind of training we need to welcome full-fledged 
citizens of every group and of every ideological persuasion 
into our society.
    [The prepared statement of Ms. Strossen follows:]

                 Prepared Statement of Nadine Strossen
    I would like to thank Chairman Alexander and Ranking Member Murray 
for convening this hearing on such a critically important topic, and 
giving me the opportunity to participate.
    Chairman Alexander has asked me to summarize the legal standards 
governing freedom of speech in higher education, ``and what speech 
limitations schools may impose, particularly for so-called `offensive 
speech' or `hate speech.'' I am honored to have the opportunity to do 
this, especially as I have just written a book directly on point: HATE: 
Why We Should Resist It With Free Speech, Not Censorship (Oxford 
University Press, May 2018).
    The research and analysis reflected in my forthcoming book have 
made me more appreciative than ever of the two most fundamental general 
First Amendment principles, which are essential pillars of not only 
individual liberty, but also equality and democracy, including on our 
Nation's campuses:
    --the viewpoint neutrality principle, which bars government from 
punishing any speech based solely on dislike of its viewpoint, no 
matter how deeply or widely despised that viewpoint might be; and
    --the emergency principle, which permits government to punish 
speech when it directly causes specific imminent serious harm, such as 
constituting a genuine threat, targeted harassment or ``bullying,'' or 
intentional incitement of imminent violence.
    These robust speech-protective principles have consistently been 
endorsed for many decades, including in the campus context, by Supreme 
Court Justices across the ideological spectrum. The Court likewise has 
neutrally enforced these principles to protect controversial expression 
ranging across the ideological spectrum: from left-wing protestors 
burning an American flag, to right-wing demonstrators burning a cross.
    In my capacity as a human rights activist, I am convinced, based 
upon the historic and current record, that these cardinal First 
Amendment principles are essential for furthering any political or 
social cause, including human rights. This conclusion is reaffirmed by 
examining how ``hate speech'' laws recently have been enforced in other 
comparable countries; they have disproportionately suppressed 
dissenting views and disempowered speakers.
    Speaking in my capacity as a full-time educator for 33 years,\1\ I 
am also convinced based on experience that these speech-protective 
principles are essential for effectively educating and empowering our 
nation's future leaders and engaged citizens, and thus for maintaining 
a vibrant democracy. Being exposed to a diverse range of ideas, 
including those they consider ``hateful,'' and which they hate, is 
important for all students, including those who belong to groups that 
have traditionally been subject to discrimination or marginalization, 
and those who are engaged in activism. Therefore, when colleges and 
universities seek to punish such controversial speech, or to shield 
students from it, they are not only violating the students' free speech 
rights, but they are also denying the students the rigorous education 
they deserve, and hence depriving our society of fellow citizens who 
are optimally equipped to participate constructively in our democratic 
self-government.
---------------------------------------------------------------------------
    \1\ The position of ACLU President is unpaid; while I served in 
that position, I continued to earn my living as an NYLS professor. 
Before joining the NYLS faculty in 1988, I began my teaching career as 
a clinical faculty member at NYU Law School (1984-88).
---------------------------------------------------------------------------
    Significantly, the preceding points have been strongly endorsed by 
politically diverse leaders who are members of minority groups, and who 
have themselves experienced the sting of ``hate speech,'' including 
former President Barack Obama.

                                 ______
                                 
                       summary of nadine strossen
    Introduction
    I would like to thank Chairman Alexander and Ranking Member Murray 
for convening this hearing on such a critically important topic, and 
giving me the opportunity to participate.
    Chairman Alexander has asked me to summarize the legal standards 
governing freedom of speech in higher education, ``and what speech 
limitations schools may impose, particularly for so-called `offensive 
speech' or `hate speech.' '' I am honored to have the opportunity to do 
this, especially as I have just written a book directly on point: HATE: 
Why We Should Resist It With Free Speech, Not Censorship (Oxford 
University Press, May 2018).

    Summary of the most important First Amendment principles_which are 
especially important on campus, for the education and empowerment of 
all students, including those who have traditionally been subject to 
discrimination, and those who are activists
    The research and analysis reflected in my forthcoming book have 
made me more appreciative than ever of the two most fundamental general 
First Amendment principles, which are essential pillars of not only 
individual liberty, but also equality and democracy, including on our 
Nation's campuses:
    --the viewpoint neutrality principle, which bars government from 
punishing any speech based solely on dislike of its viewpoint, no 
matter how deeply or widely despised that viewpoint might be; and
    --the emergency principle, which permits government to punish 
speech when it directly causes specific imminent serious harm, such as 
constituting a genuine threat, targeted harassment or ``bullying,'' or 
intentional incitement of imminent violence.
    These robust speech-protective principles have consistently been 
endorsed for many decades, by Supreme Court Justices across the 
ideological spectrum. The Court likewise has neutrally enforced these 
principles to protect controversial expression ranging across the 
ideological spectrum: from left-wing protestors burning an American 
flag, to right-wing demonstrators burning a cross. Just this past June, 
the Court ringingly reaffirmed the First Amendment's protection even 
for hateful and hated speech, unanimously striking down a Federal law 
that denied registration to tradenames that ``disparaged'' particular 
individuals or groups. As the Court declared: ``Speech that demeans on 
the basis of race, ethnicity, gender, religion, age, disability, or any 
other similar ground is hateful; but the proudest boast of our free 
speech jurisprudence is that we protect the freedom to express 'the 
thought that we hate.\2\
---------------------------------------------------------------------------
    \2\ Matal v. Tam, 137 S. Ct. 1744, 1764 (2017), quoting United 
States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).
---------------------------------------------------------------------------
    In my capacity as a human rights activist, I am convinced, based 
upon the historic and current record, that these cardinal First 
Amendment principles are essential for furthering any political or 
social cause, including human rights. This conclusion is reaffirmed by 
examining how ``hate speech'' laws recently have been enforced in other 
comparable countries; they have disproportionately suppressed 
dissenting views and dis-empowered speakers.
    Speaking in my capacity as a full-time educator for 33 years \3\ I 
am also convinced based on experience that these speech-protective 
principles are essential for effectively educating and empowering our 
Nation's future leaders and engaged citizens, and thus for maintaining 
a vibrant democracy. Being exposed to a diverse range of ideas, 
including those they consider ``hateful,'' and which they hate, is 
important for all students, including those who belong to groups that 
have traditionally been subject to discrimination or marginalization, 
and those who are engaged in activism on behalf of various causes. 
Therefore, when colleges and universities seek to punish controversial 
speech, or to shield students from it, they are not only violating the 
students' (and others') free speech rights, but they are also denying 
the students the rigorous education they deserve, and hence depriving 
our society of fellow citizens who are optimally equipped to 
participate constructively in our democratic self-government.
---------------------------------------------------------------------------
    \3\ The position of ACLU President is unpaid; while I served in 
that position, I--continued to earn my living as an NYLS professor. 
Before joining the NYLS faculty in 1988 I began my teaching career as a 
chemical law professor at NYU Law School (1984-88).
---------------------------------------------------------------------------
    Significantly, the preceding points have been strongly endorsed by 
politically diverse leaders who are members of minority groups, and who 
have themselves experienced the sting of ``hate speech,'' including 
former President Barack Obama. (Appendix A to this testimony includes 
quotations from him and from other ideologically diverse leaders who 
are all members of racial minorities, and who all oppose censorship of 
``hate speech,'' including on campus, on the ground that such 
censorship would undermine equality and meaningful educational 
opportunities, including for minority students and student activists.)

    List of key points discussed below
    In the remainder of this written testimony, I will elaborate on the 
above themes by briefly discussing the following points:
    1) The Supreme Court has strongly enforced free speech principles 
on public campuses.
    2) Many private campuses, which are not directly governed by the 
First Amendment, have chosen to protect the same free speech principles 
that are binding on public campuses, because such principles are 
consistent with academic freedom and sound pedagogy.
    3) ``Hate speech,'' which has no specific legal definition, may be 
punished (along with speech conveying any message) when, in context, it 
directly causes specific imminent serious harm.
    This means that hateful speech that poses the greatest danger of 
harm is already punishable, but such speech may not be punished when it 
is feared to pose a more speculative, attenuated risk of future harm.
    4) ``Hate speech'' laws are inevitably unduly vague and overbroad, 
thus leading to enforcement that is arbitrary at best, discriminatory 
at worst.
    5) The First Amendment protects the rights of peaceful, non-
disruptive protestors. In contrast, any protest that prevents a 
speaker's message from being heard constitutes an impermissible 
``heckler's veto,'' which violates not only the speaker's rights, but 
also the rights of audience members who choose to listen to the 
speaker.
    6) The appropriate response to constitutionally protected ``hate 
speech'' is not censorship, violence, or disruption, but rather, 
``counterspeech,'' which counters its ideas and any negative impact 
they might have. Our society must strive to provide access to 
educational and communications resources that will facilitate robust 
counter speech, especially by and on behalf of the most vulnerable 
members of our communities.
    7) Equal rights movements are especially dependent on robust 
freedom of speech, including the viewpoint neutrality and emergency 
principles.
    8) Shielding students from hateful and hated ideas may well 
undermine their psychic and emotional well-being, as well as their 
education and preparation for effective participation in the workplace 
and the public sphere.

Brief discussion of these key points

        1) The Supreme Court has strongly enforced free speech 
        principles on public campuses.
    The Supreme Court has long held that the same basic First Amendment 
principles that protect speech in the broader public sphere should be 
enforced especially vigorously on public college and University 
campuses, recognizing that they constitute special ``marketplaces of 
ideas,'' where academic freedom concerns reinforce general free speech 
concerns. For example, in 1973 the Court upheld students' right to 
``disseminat[e] . . . . ideas--no matter how offensive,'' and 
accordingly overturned the expulsion of a student for distributing a 
campus newspaper whose cover page contained a graphic cartoon 
protesting police brutality; it depicted helmeted, club-wielding 
policemen raping the Statue of Liberty and the Goddess of Justice.
    In a 1967 decision, the Court eloquently paid tribute to the 
supreme importance of freedom of speech on campuses, not only for the 
sake of the students and faculty, but also for the sake of our society 
and democracy more generally:
        Our Nation is deeply committed to safeguarding academic 
freedom, which is of transcendent value to all of us....That freedom is 
therefore a special concern of the First Amendment, which does not 
tolerate laws that cast a pall of orthodoxy over the classroom . . . . 
The Nation's future depends upon leaders trained through wide exposure 
to that robust exchange of ideas which discovers truth ``out of a 
multitude of tongues, [rather] than through any kind of authoritative 
selection.'' . . .Teachers and students must always remain free to 
inquire, to study and to evaluate, to gain new maturity and 
understanding; otherwise our civilization will stagnate and die\4\.)
---------------------------------------------------------------------------
    \4\ Keyishian v. Board of Regents, 385 U.S. 589, 602-603 (1967) 
[citations omitted].
---------------------------------------------------------------------------
    2) Many private campuses, which are not directly governed by the 
First Amendment, have chosen to protect the same free speech principles 
that are binding on public campuses, because such principles are 
consistent with academic freedom and sound pedagogy.
    A leading example is the University of Chicago, which has prided 
itself on defending academic freedom and freedom of speech, and serving 
as a model in that regard for other higher education institutions, 
public and private alike. For example, in 2015 the University of 
Chicago adopted a set of principles that reaffirm the speech-protective 
tenets that the First Amendment secures on public campuses \5\ 
declaring:
---------------------------------------------------------------------------
    \5\ https://freeexpression.uchicago.edu/page/statement-principles-
free-expression
---------------------------------------------------------------------------
        [I]t is not the proper role of the University to attempt to 
shield individuals from ideas and opinions they find unwelcome, 
disagreeable, or even deeply offensive. Although the University greatly 
values civility, and although all members of the University community 
share in the responsibility for maintaining a climate of mutual 
respect, concerns about civility and mutual respect can never be used 
as a justification for closing off discussion of ideas, however 
offensive or disagreeable those ideas may be to some members of our 
community.

    3) ``Hate speech,'' which has no specific legal definition, may be 
punished only when, in context, it directly causes specific imminent 
serious harm. This means that hateful speech that poses the greatest 
danger of harm is already punishable, but such speech may not be 
punished when it is feared to pose a more speculative, attenuated risk 
of future harm.
    The term ``hate speech'' has no specific legal meaning. That is 
precisely because the Supreme Court never has defined a category of 
constitutionally unprotected ``hate speech,'' which is excluded from 
First Amendment protection based on its message or viewpoint. In this 
critical respect, ``hate speech'' is different from ``obscenity,'' the 
legal label for a subset of sexually oriented speech that the Court has 
specifically defined in terms of its message and excluded from First 
Amendment protection. To underscore that ``hate speech'' has no 
specific legal meaning, I--like some other commentators--put the term 
in quotation marks; I note that Chairman Alexander's letter inviting me 
to testify here likewise refers to ``so-called. . . `hate speech.' ''
    The most generally understood meaning of ``hate speech'' is 
expression that conveys hateful or discriminatory views against 
specific individuals or groups, particularly those who have 
historically faced discrimination. Beyond this core meaning, many 
people have hurled the epithet ``hate speech'' against a diverse range 
of messages that they reject, including messages about many important 
public policy issues. Myriad political controversies, and the heated 
rhetoric they often provoke, have generated charges and counter-charges 
of ``hate speech.'' For example, members of the Black Lives Matter 
movement have been accused of `` hate speech'' against police officers, 
whereas critiques of the Black Lives Matter movement have been 
denounced as ``hate speech'' against its supporters or against African 
Americans generally. Evangelical Christians who charge that LGBT 
sexuality is sinful have been accused of ``hate speech'' against gay 
men and lesbians, whereas those who make these charges against 
evangelical Christians have been accused of religious ``hate speech.''
    While ``hate speech'' (and speech conveying any other message, 
including an ``offensive'' one) may never be punished based on its 
viewpoint alone, it may be punished (as may expression with any other 
message) when, in context, it satisfies the emergency principle: it 
directly causes specific imminent serious harm. The Supreme Court has 
laid out criteria for several types of speech that directly cause 
particular types of imminent serious harm and hence may be punished 
consistent with the general emergency principle. Many instances of 
``hate speech'' do satisfy these criteria. For example, the Court has 
held that government may punish ``true threats'': statements through 
which ``the speaker means to communicate a serious expression of an 
intent to commit an act of unlawful violence to a particular individual 
or group of individuals'' and, in consequence, the targeted individuals 
reasonably fear such violence.
    Sadly, some instances of campus ``hate speech'' do satisfy this 
''true threat'' standard. For example, on May I , 2017, six pairs of 
bananas strung in nooses were displayed on American University's campus 
under circumstances in which they conveyed a ''true threat'' to student 
Taylor Dumpson, who on that date became the University's first African 
American student body president. The conclusion that these displays 
were intended to convey a threat to harm Ms. Dumpson was made clear by 
messages that were written on them, including: ``AKA FREE,'' referring 
to the predominantly African American sorority Alpha Kappa Alpha, of 
which Ms. Dumpson was a member; and ``HARAMBE BAIT,'' the name of the 
Cincinnati Zoo gorilla that was killed in 2016 after a child had fallen 
into its enclosure.
    Some ``hate speech'' also satisfies criteria for additional types 
of harmful expression that may be punished consistent with the general 
emergency standard. These include targeted harassment or bullying, 
which harries or intrudes upon its targets' freedom or privacy; and 
intentional incitement of imminent violence, which is likely to occur 
immediately.
    In addition, ``hate speech'' may be indirectly punished when it 
constitutes evidence of a ``hate crime'' or ``bias crime.'' These terms 
refer to acts that already constitute crimes (that are not based on any 
idea expressed)--such as assault or vandalism--when the perpetrator 
intentionally selects the victim based on discriminatory factors, such 
as the victim's race, religion, or sexual orientation. Because these 
crimes are deemed to cause aggravated harms to both the individual 
victim and society generally, they are subject to enhanced penalties. 
Typically, the perpetrator's discriminatory intent in targeting a 
particular victim is proved through the perpetrator's ``hate speech'' 
that is directly connected to the specific crime. For example, the 
American University incident described above is being investigated as a 
hate crime.
    To underscore the fact that some ``hate speech'' may be punished, 
in particular contexts when it satisfies the emergency principle, I use 
the term ``constitutionally protected 'bate speech' '' to designate 
such speech that does not satisfy this standard. Correspondingly, I use 
the term `` `hate speech' law'' to designate any regulation (including 
campus codes) that punishes constitutionally protected ``hate speech,'' 
therefore necessarily violating both the viewpoint neutrality and 
emergency principles.

    4) ``Hate speech'' laws are inevitably unduly vague and overbroad, 
thus leading to enforcement that is arbitrary at best, discriminatory 
at worst.
    The Supreme Court has held that any law is ``unduly vague,'' and 
hence unconstitutional, when people ``of common intelligence must 
necessarily guess at its meaning.'' This violates tenets of ``due 
process'' or fairness, as well as equality, because such a law is 
inherently susceptible to arbitrary and discriminatory enforcement.
    Moreover, when an unduly vague law regulates speech in particular, 
the Jaw also violates the First Amendment because it inevitably deters 
people from engaging in constitutionally protected speech for fear that 
they might run afoul of the law. The Supreme Court has therefore 
enforced the ``void for vagueness'' doctrine with special strictness in 
the context of laws that regulate speech. ``Hate speech'' Jaws--which 
suppress speech solely because of its hateful, hated message--
inevitably are unduly vague, because they center on concepts that call 
for subjective judgments, starting with the very concept of ``hate'' 
itself. Just consider the examples I cited under Point #3 above, 
illustrating that one person's hated ``hate speech'' is another 
person's cherished positive speech.
    Another closely related problem endemic to ``hate speech'' laws is 
``substantial overbreadth''; their capacious, malleable language 
encompasses speech that even the laws' proponents do not seek to 
punish. This point was well stated by Eleanor Holmes Norton, an 
African-American civil rights lawyer who was the first woman to chair 
the Equal Employment Opportunity Commission, and who has been the 
longtime District of Columbia Representative in Congress. Referring to 
campus ``hate speech'' codes, she said:`` It is technically impossible 
to write an anti-speech code that cannot be twisted against speech 
nobody means to bar. It has been tried and tried and tried.''
    In the United States, virtually all of the many campus ``hate 
speech'' codes that courts have reviewed have been struck down on 
grounds of undue vagueness and overbreadth. Typical is the University 
of Michigan's ``hate speech'' code, which was one of the first to be 
adopted, and which led to the first judicial decision about these 
unavoidable First Amendment flaws. Federal judge Avern Cohn found that 
the following key terms, describing the punishable speech, were unduly 
vague: ``stigmatize,'' ``victimize,'' and ``threats to'' or 
``interfering with an individual's academic efforts.''
    During the oral argument, when Judge Cohn asked the University's 
attorney how he would distinguish the proscribed speech from other 
offensive speech, which the attorney conceded was protected, the 
attorney answered, ``Very carefully.'' Welcome as this answer is in its 
candor and humor, the point at issue is no laughing matter. When even 
the University's legal counsel cannot explain the distinction between 
protected and punishable speech, all members of the campus community 
face enforcement that is unpredictable and inconsistent at best; and 
arbitrary, capricious, and discriminatory at worst.
    Indeed, the enforcement record under ``hate speech'' laws, 
including on campus, has shown that they have (predictably) 
disproportionately targeted whatever ideas or speakers are relatively 
unpopular or dis-empowered in that particular community at that 
particular time. As former Harvard University President Derek Bok 
warned, in opposing efforts to suppress ``hate speech'' on campus: 
``[W]e . . . should remember the long, sorry history of preventing . . 
. civil rights activists from speaking at Southern universities on 
grounds that they might prove 'disruptive' or 'offensive' to the campus 
community, not to mention the earlier exclusion of suspected 
communists.''

        5) The First Amendment protects the rights of peaceful, non-
        disruptive protestors. In contrast, any protest that prevents a 
        speaker's message from being beard constitutes an impermissible 
        ``heckler's veto,'' which violates not only the speaker's 
        rights, but also the rights of audience members who choose to 
        listen to the speaker.
    The right to dissent extends to peaceful, non-disruptive 
protestors. They may express their disagreement with speakers in any 
way that does not interfere with the speaker's right to convey a 
message or audience members' right to bear it. Examples of such 
permissible, non-disruptive protest include: displaying picket signs or 
other symbols that don't obstruct audience members' views of the 
speaker; turning backs to a speaker or other physical gestures that 
don't block audience members' views; walking out of a speaker's forum; 
and even making oral statements that briefly, temporarily interrupt the 
speaker--for example, momentarily booing, hissing, or heckling. In 
contrast, any protest that prevents a message from being delivered or 
heard violates the free speech rights of the speaker and audience 
members alike. Any such ``heckler's veto'' should be prevented and 
punished by campus officials or other law enforcement authorities.
    In order to secure our cherished freedom of speech and academic 
freedom, it is important to prevent, deter, and punish any effort to 
undermine these precious freedoms: not only official censorship, but 
also violence by demonstrators or counter-demonstrators, and disruptive 
protests.
    Peaceful protests constitute the very kind of ``counterspeech'' 
that the Supreme Court repeatedly has hailed as the appropriate 
response to hateful, hated speech, because the net result is more 
speech, not less; in contrast, violent or disruptive protests have the 
opposite effect, of stifling and reducing speech.

    6) The appropriate response to constitutionally protected ``hate 
speech'' is not censorship, violence, or disruption, but rather, 
``counterspeech,'' which counters its ideas and any negative impact 
they might have. Our society must strive to provide access to 
educational and communications resources that will facilitate robust 
counterspeech, especially by and on behalf of the most vulnerable 
members of our communities.
    As Justice Louis Brandeis declared in a historic 1927 opinion that 
the Supreme Court unanimously embraced in 1969: ``The fitting remedy 
for evil counsels is good ones. . . .If there be time to expose through 
discussion the falsehood and fallacies, to avert the evil by the 
processes of education, the remedy to be applied is more speech, not 
enforced silence. Only an emergency can justify repression.''
    The term ``counterspeech'' encompasses any speech that counters a 
message with which one disagrees. In the context of ``hate speech,'' 
counterspeech comprises a potentially broad range of expression, 
including speech that directly refutes the ideas the ``hate speech'' 
conveys; broader, proactive educational initiatives; and expressions of 
remorse by discriminatory speakers. .
    Paradoxically, in some circumstances the most effective form of 
counterspeech can be silence. By deliberately choosing to ignore 
provocative, hateful speakers, silence can powerfully convey Implicit 
messages of disdain, while at the same time denying hateful speakers 
the attention they seek and often get from sparking controversy.
    The Southern Poverty Law Center (SPLC), which ``is dedicated to 
fighting hate and bigotry,'' strongly opposes confrontational counter-
protests on strategic grounds. In 2017, it issued a guide for students 
about how to curb the alt-right's increasing campus recruitment 
efforts. The guide recommends a number of steps, including: seeking to 
persuade the group that invited the alt-right speaker to campus to 
withdraw its invitation; speaking out peacefully against the event; 
meeting with campus groups that the alt-right targets, such as minority 
student groups, to provide mutual support; and holding ``an alternative 
event-away from the alt-right event-to highlight your campus' 
commitment to inclusion and our Nation's democratic values.'' The first 
and foremost strategy that the guide recommends, though, is ``above 
all, [to] avoid confrontation with the alt-right speaker and 
supporters.'' explaining: ``The alt-right thrives on hostility, and 
hate feeds on crowds. Video footage of an altercation will only provide 
cover for the speaker, who can claim to be a victim.''
    In 2015 the European Commission against Racism and Intolerance 
(ECRI) issued a report strongly urging European Nations to pursue non-
censorial responses to ``hate speech,'' including counterspeech. This 
is especially noteworthy because many European Nations have enacted and 
enforced ``hate speech'' laws with the encouragement of regional 
bodies, including ECRl. But, as a result of its monitoring of the 
efforts of European Nations to curb ``hate speech'' and discrimination, 
ECRI has concluded that alternative, non-censorial measures are ``much 
more likely'' than ``hate speech'' laws to prove effective in 
ultimately eradicating'' ``hate speech'' and its potential harmful 
effects.
    Appendix A quotes former President Obama and other, ideologically 
diverse leaders who are members of minority groups, urging minority 
students and others who are disparaged by ``hate speech'' to engage in 
counterspeech. This can be an empowering experience, thus curbing 
feelings of shame and Joss of self esteem that ``hate speech'' 
potentially engenders. Counterspeech transforms into activists those 
whom ``hate speech'' laws cast as passive victims of such expression, 
dependent on government protection.
    Of course, not all targets of ``hate speech'' will respond with 
counterspeech. The potential adverse psychic and emotional impact of 
the ``hate speech'' might be so incapacitating for some that they are 
unable to engage in effective counterspeech, at least in the short run, 
and some disparaged people might not have access to means of 
communication that would make their counterspeech effective. These are 
serious concerns, which can and must be addressed through the following 
kinds of measures: proactive counseling and training about encountering 
and engaging constructively with ``hate speech''; education about 
utilizing social media and other communications vehicles for drawing 
attention and responding to ``hate speech''; providing access to 
communications devices and technology for people who lack educational 
and material resources; and information about organizations that track 
and respond to ``hate speech'' incidents, and provide resources for 
enabling others to do so.
    Fortunately, we have seen increasing social justice advocacy 
nationwide, including on campus, with members of minority groups 
actively leading and engaging in such efforts, including much vigorous 
(but non-violent and non-disruptive) counterspeech against hateful 
expression. Moreover, surveys indicate that this encouraging trend 
promises to continue.

        7) Equal rights movements are especially dependent on robust 
        freedom of speech, including the viewpoint neutrality and 
        emergency principles.
    Equal rights movements always have depended on robust freedom of 
speech, in particular the viewpoint neutrality and emergency 
principles, which shelter the egalitarian ideas that many have 
considered harmful, disturbing, dangerous, and even hateful. By 
definition, ideas that challenge the status quo and advocate law reform 
tend to be seen in a negative light by the majority or the power elite. 
That certainly has been true of expression challenging racial 
injustice.
    The leading pro-slavery advocate, Senator John C. Calhoun, argued 
that abolitionists who criticized slavery ``libeled the South and 
inflicted emotional injury.'' During the 1830's, many Southern states 
enacted Jaws suppressing abolitionist speech, which was feared to spur 
violence-in particular, slave rebellions--and indeed to threaten the 
Nation's very survival. Likewise, Martin Luther King, Jr.'s historic 
letter came from a Birmingham jail because he had sought to condemn 
racial segregation and discrimination to audiences who hated and feared 
those messages.
    Given officials' consistent pattern of enacting and enforcing laws 
to stifle civil rights advocacy, the NAACP (National Association for 
the Advancement of Colored People) and other leaders of the twentieth-
century Civil Rights Movement opposed viewpoint-based censorship that 
was inconsistent with the emergency principle, including ``hate 
speech'' laws. When such Jaws were enacted in Skokie, Illinois, in 
1977, for the specific purpose of blocking a planned neo-Nazi 
demonstration, the ACLU, which won a Supreme Court ruling striking them 
down, pointed out that these laws ``could have been used to stop Martin 
Luther King, Jr.'s confrontational march into Cicero, Illinois, in 
1968.'' As Congressman John Lewis eloquently observed in 2017: 
``Without freedom of speech and the right to dissent, the Civil Rights 
Movement would have been a bird without wings.''

    8) Shielding students from hateful and bated ideas may well 
undermine their psychic and emotional well-being, as well as their 
education and preparation for effective participation in the workplace 
and the public sphere.
    It might seem self-evident that shielding people from speech that 
could have negative psychic impacts would be positive for their mental 
health. But some experts maintain that, at least in some circumstances, 
people's mental health is actually undermined by shielding them from 
speech to which they have negative psychic reactions, including 
constitutionally protected ``hate speech.''
    In a 2015 article, NYU psychology professor Jonathan Haidt and Greg 
Lukianoff, the president of FIRE (Foundation for Individual Rights in 
Education), summarized the pertinent psychological literature and 
concluded: ``A campus culture devoted to policing speech and punishing 
speakers . . . may be teaching students to think pathologically,'' 
causing depression and anxiety. They recommend that, to better protect 
students' psychic well-being, colleges and universities should abandon 
rather than enforce restrictive speech codes.
    As Northeastern University psychology professor Lisa Feldman 
Barrett wrote in 2017, while ``chronic'' stress can cause physical 
illness, shorter-term stress, including the stress that results from 
bearing ``hate speech,'' actually can be beneficial:
        Offensiveness is not bad for your body and brain. Your nervous 
        system evolved to withstand periodic bouts of stress, such as 
        fleeing from a tiger . . . or encountering an odious idea . . . 
        . When you're forced to engage a position you strongly disagree 
        with . . . [it] feels unpleasant, but it's a good kind of 
        stress--temporary and not harmful to your body--and you reap 
        the longer-term benefits of learning.
    Haidt and Lukianoff add that this ``good kind of stress'' at least 
``sometimes makes an individual stronger and more resilient,'' 
explaining that ``[t]he next time that person faces a similar 
situation, she'll experience a milder stress response because . . . her 
coping repertoire has grown.''
    The foregoing teachings from psychologists dovetail with the 
conclusions of political leaders, including those who are members of 
racial minority groups, based on their own experience and expertise. I 
quote a number of these experts in Appendix A, including liberal 
political activist Van Jones. From his perspective as a political 
strategist, he recently made this point to a campus audience:
        ``I got tough talk for my liberal colleagues on . . . campuses 
        . . . . I don't want you to be safe, ideologically. I don't 
        want you to be safe, emotionally. I want you to be strong. 
        That's different. .. . [L]earn how to deal with adversity . . . 
        . I want you to be offended every single day on this campus. I 
        want you to be deeply aggrieved and offended and upset, and 
        then to learn how to speak back. Because that is what we need 
        from you.''
Conclusion
    lf all of us who are committed to equal justice for all would 
exercise our precious First Amendment rights, we would wield more 
positive power, for more positive change, than any censorship could 
ever do. As Dr. Martin Luther King declared: ``In the end, we will 
remember not the words of our enemies, but the silence of our 
friends.''

    APPENDIX A: Statements by politically diverse minority leaders, 
 opposing censorship of `` hate speech,'' including on campus, because 
   it undermines equality and education, in particular for minority 
 students and student activists (listed in alphabetical order by last 
                                 name)

    Anthony Kapel ``Van'' Jones, commentator and liberal political 
activist, speaking at University of Chicago, 2017
    ``I got tough talk for my liberal colleagues on these campuses . . 
. . There are two ideas about safe spaces: One is a very good idea and 
one is a terrible idea. The idea of being physically safe on a campus-
not being subjected to sexual harassment and physical abuse . . . --I 
am perfectly fine with that. But there's another view that is now . . . 
ascendant, which I think is just a horrible view, which is that `I need 
to be safe ideologically. I need to be safe emotionally I just need to 
feel good all the time, and if someone says something that I don't 
like, that's a problem for everybody else including the administration. 
'
    ``I think that is a terrible idea for the following reason: I don't 
want you to be safe, ideologically. I don't want you to be safe, 
emotionally. I want you to be strong. That's different. I'm not going 
to pave the jungle for you. Put on some boots, and learn how to deal 
with adversity. I'm not going to take all the weights out of the gym; 
that's the whole point of the gym. This is the gym.
    ``You can't live on a campus where people say stuff you don't 
like?! These people can't fire you, they can't arrest you, they can't 
beat you up, they can just say stuff you don't like-and you get to say 
stuff back-and this you cannot bear?! This is ridiculous BS, liberals! 
My parents . . . dealt with fire hoses! They dealt with dogs They dealt 
with beatings! You can't deal with a mean tweet?! You are creating a 
kind of liberalism that the minute it crosses the street into the real 
world is not just useless, but obnoxious and dangerous.
    ``I want you to be offended every single day on this campus. I want 
you to be deeply aggrieved and offended and upset, and then to learn 
how to speak back. Because that is what we need from you in these 
communities.''

    Alan Keyes, conservative political activist
    ``The. . .protection [of a ``hate speech'' law] incapacitates. . . 
. To... be told that white folks have the moral character to shrug off 
insults, and that I do not. . . .That is. . . the most racist statement 
of all!"

    Michael Meyers, Executive Director, New York Civil Rights Coalition
    ``As a former student activist, and as a current black militant, 
[I] believe[] that . . . paternalism [and] censorship offer the college 
student a tranquilizer as the antidote to . . . racism . . . . What we 
need is an alarm clock . . . more free speech!"

    President Barack Obama, Howard University Commencement Address, 
2016
    ``[O]ur democracy gives us a process designed . . . to settle our 
disputes with argument and ideas and votes instead of violence and 
simple majority rule . . . . So don't try to shut folks out, don't try 
to shut them down, no matter how much you might disagree with them. 
There's been a trend . . . of trying to get colleges to dis-invite 
speakers with a different point of view, or disrupt a politician's 
rally. Don't do that no matter how ridiculous or offensive you might 
find the things that come out of their mouths. Because as my 
grandmother used to tell me, every time a fool speaks, they are just 
advertising their own ignorance. Let them talk . . . . If you don't, 
you just make them a victim, and then they can avoid accountability.
    ``That doesn't mean you shouldn't challenge them. Have the 
confidence to challenge them . . . . [Y]ou will have the responsibility 
to speak up in the face of injustice. But listen. Engage. If the other 
side has a point, learn from them. If they' re wrong, rebut them. Teach 
them. Beat them on the battlefield of ideas. You might as well start 
practicing now, because one thing I can guarantee you--you will have to 
deal with ignorance, hatred, racism, foolishness . . . . I promise you, 
you will have to deal with all that at every stage of your life.''

    Theodore Shaw, former President, NAACP Legal Defense and 
Educational Fund
    ``I believe deeply that minority group members who are 
discriminated against . . . have the . . . responsibility . . . to 
struggle and speak on their own behalf.''

    Ruth Simmons, first Convocation Address as President of Brown 
University
    ``The protection of speech that is offensive or insulting to us is 
one of the most difficult things . . . we do. But it is this same 
freedom that protects us when we are in turn powerless . . . . I won't 
ask you to embrace someone who offends your humanity through . . . free 
speech. But I would ask you to understand that the price of your own 
freedom is permitting th[at] expression. . . . . You know something 
that I hate? When people say, 'That doesn't make me feel good about 
myself.' I say, 'That's not what you're here for.' . . . I believe that 
learning at its best is the antithesis of comfort . . . . [So,] [i]f 
you come to this [campus] for comfort, I would urge you to walk 
[through] yon iron gate . . . . But if you seek betterment for 
yourself, for your community and posterity, stay and fight.''

    Gwen Thomas, educator and civil rights activist
    ``We have to teach (our young people] bow to deal with adversarial 
situations. They have to learn how to survive with offensive speech 
they find wounding and hurtful.''

                                 ______
                                 
    The Chairman. Thank you, Ms. Strossen.
    Mr. Cohen, welcome.

                 STATEMENT OF J. RICHARD COHEN

    Mr. Cohen. Thank you, Mr. Chairman. Thank you, Ranking 
Member Murray. It's an honor to be here today, especially with 
such a distinguished group of fellow panelists.
    You know, after Charlottesville, this Congress recognized 
the growing prevalence of hate groups in this country, as 
Senator Murray pointed out. The current debate about free 
speech on college campuses is taking place against the backdrop 
of that growing prevalence, against the backdrop of a white 
nationalist movement that has been energized by Mr. Trump's 
rhetoric, and that is targeting our colleges and universities.
    As Professor Stanger wrote in a New York Times piece after 
the incident at Middlebury, political life and discourse in the 
United States is at a boiling point, and nowhere is the 
reaction to that more heightened than on college campuses. Over 
200 colleges have been targets of white supremacist, white 
nationalist recruitment in recent months.
    Prominent white nationalist figures have gone on college 
speaking tours. Their goal is to poke a stick in the eye of 
what they see as the bastions of liberal multiculturalism. They 
want to spark a backlash so they will ennoble themselves and be 
able to parade around as First Amendment martyrs.
    In the material that we distribute to schools, to students 
throughout the country, we urge students not to play into the 
hands of the Richard Spencers of the world. Instead of 
attending their speeches and giving them the spectacle that 
they seek, we counsel students to hold alternative events that 
express our deepest democratic values. If students choose to 
protest, we urge them to do so peacefully.
    Unfortunately, some students have other ideas and have 
shouted down speakers. In some cases, protests have turned 
violent, as members of loose knit coalitions of self-described 
antifascists have stormed college campuses. Obviously, some 
college students do not have a clear understanding of the First 
Amendment. Part of the problem is, as Professor Stanger pointed 
out in her article, that we have a crisis of civic education in 
our country, particularly at the K through 12 level.
    Despite the challenges that universities and colleges face, 
I completely agree with Professors Strossen and Zimmer that 
they must uphold our First Amendment values. Just as students 
have a right to read what they want, they have a right to 
listen to whoever they want, however obnoxious and racist those 
speakers may be. When universities hold their facilities open 
to outsiders, racists have a right to rent them on the same 
terms as anyone else. We emphasize this point in the resources 
that we distribute across the country to campuses.
    We also emphasize that it's critical that the voices of 
college leadership be heard. College presidents need not be 
neutral. They can and should speak out in support of the First 
Amendment, because it's among our most highest values and 
because the presence of racist speakers on campus presents a 
teachable moment. Just as importantly, college presidents 
should speak out in support of the values of the 14th 
Amendment, to distance their universities from racism and to 
assure students who feel threatened that the University is 
committed to maintaining an inclusive environment.
    Indeed, every prominent person in public life, starting 
with the President, should speak out in support of these same 
values. Unfortunately, as Professor Stanger pointed out in her 
New York Times piece, the President has not always demonstrated 
fidelity to the First Amendment. He has suggested that the laws 
protecting freedom of speech in the press, laws that have 
constitutional underpinnings, should be changed. He has 
encouraged his supporters at times to use violence against 
those who protest against him. The implicit message is the 
silencing of dissent. It is a message, according to Professor 
Stanger, that has not been lost on college students.
    In its post-Charlottesville joint resolution, Congress 
urged the President to speak out against hate groups that 
espouse racism, extremism, xenophobia, anti-semitism, and white 
supremacy. Unfortunately, he has not done so consistently 
during his campaign or during his Presidency. Indeed, the truth 
is that President Trump has energized the white Nationalist 
Movement that is now targeting our colleges and universities. 
For this reason, the President has a special responsibility to 
take the air out of the movement, a special responsibility to 
heed Congress' recent call, to use all resources available to 
the administration to address the growing prevalence of hate 
groups in our country.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Cohen follows:]
                 Prepared Statement of J. Richard Cohen
    The debate over free speech on college campuses is taking place 
against the backdrop of increased activity by a white nationalist 
movement that has been emboldened by President Trump's rhetoric and 
that is targeting Colleges and Universities. As Congress has 
recognized, there is a ``growing. . .prevalence of hate groups'' in our 
country, something that was on full display at the University of 
Virginia in Charlottesville this August. Since March 2016, white 
nationalist groups have distributed racist recruitment flyers at more 
than 200 colleges and universities across the Nation, and white 
nationalist speakers have appeared at dozens of colleges. Their 
appearances and that of other controversial speakers have been met by 
disruptive protests in some cases. There also have been instances of 
violence carried out by loose-knit, self-described outside groups of 
anti-fascists.
    The messages of white nationalist speakers may be abhorrent, but 
their First Amendment rights, as well as those of students who wish to 
listen to them, must be protected. Colleges and Universities are facing 
difficult issues over the cost of security; however, they may not ban 
speakers merely because of the anticipated reaction by protestors to 
their words. To avoid giving white nationalist speakers the spectacle 
they seek, students should boycott their speeches and hold alternative 
events that promote our Nation's democratic values. If they choose to 
protest white nationalist speakers, students should do so peacefully.
    Colleges and Universities must protect the First Amendment rights 
of all speakers. But College and University Presidents also should 
speak out against racist speakers to distance their schools from them 
and to reassure students that their schools are committed to 
maintaining welcoming and inclusive environments. With his bully 
pulpit, the President should speak out consistently and forcefully 
against bigotry and in support of the First Amendment. Furthermore, he 
should take responsibility for his role in energizing the white 
nationalist movement and heed Congress' call to ``address the growing 
prevalence of. . .hate groups in the United States.''

                                 ______
                                 
                      summary of j. richard cohen
    My name is Richard Cohen. I am an attorney and the President of the 
Southern Poverty Law Center, a civil rights organization founded in 
1971. I have testified before numerous Congressional Committees, 
including the Senate Committee on the Judiciary in June on the subject 
of free speech on college campuses. I have served on the Department of 
Homeland Security's Countering Violent Extremism Working Group and am a 
recipient of the FBI Director's Community Leadership Award. I am 
honored to appear before you today.
    For more than three decades, my colleagues and I have been 
monitoring and issuing reports about radical right activity in the 
United States, including at colleges and universities, and have been 
advising law enforcement officials, civic leaders, and college 
administrators on how to respond to speeches and rallies held by hate 
groups and their leaders. A few days before the violent demonstrations 
in Charlottesville, Virginia, in August, we released a guide with 
advice to student groups on how to respond when speakers associated 
with the white nationalist movement come to their campuses.\1\ Less 
than a week after the deadly Charlottesville events, we released a new 
edition of Ten Ways to Fight Hate, our community guide for responding 
peacefully to hate activity.\2\ A few weeks from now, we will be 
releasing a training video for the law enforcement community on lessons 
that can be learned from the events in Charlottesville.
---------------------------------------------------------------------------
    \1\ The Alt-Right on Campus: What Students Need to Know (2017), 
https://www.splcenter.org/20170810/altright campus-what-students-need-
know.
    \2\ Ten Ways to Fight Hate: A Community Response Guide (2017), 
https://www.splcenter.org/20170814/tenways-fight-hate-community-
response-guide.

---------------------------------------------------------------------------
    I'd like to make three points this morning.

    First, the debate over free speech on college campuses is taking 
place against the backdrop of increased activity by a white nationalist 
movement that has been emboldened by President Trump's rhetoric and 
that is targeting colleges and universities.
    Second, although University officials and students may find white 
nationalism abhorrent, they must respect the First Amendment rights of 
white nationalist speakers and of the students who want to listen to 
them.
    Third, University administrators and public officials, particularly 
the President, must speak out forcefully against white nationalism and 
in support of the First Amendment. The President also should heed 
Congress's call to use his administration's resources to fight the 
growing prevalence of hate groups in our country.

White Nationalist Movement Emboldened by the Presidential Campaign Is 
                    Targeting Our Nation's Colleges and Universities

    On the night of Friday, August 11, 2017, as the joint resolution 
unanimously passed by this Congress stated, ``hundreds of torch-bearing 
White nationalists, White supremacists, Klansmen, and neo-Nazis chanted 
racist, anti-Semitic, and anti-immigrant slogans and violently engaged 
with counter-demonstrators on and around the grounds of the University 
of Virginia in Charlottesville.''\3\ The shocking number of hardcore 
racists who came to Charlottesville reflects that our country is facing 
a newly energized white supremacist movement. The fact that the racists 
marched at the University of Virginia reflects that the movement is 
targeting our colleges and universities. The fact that violence erupted 
reflects that the threat colleges and universities are facing is very 
real.
---------------------------------------------------------------------------
    \3\ S.J. Res 49, 115th Cong. (2017) (enacted).
---------------------------------------------------------------------------
    Congress has recognized the ``growing prevalence of . . . hate 
groups'' in our country.\4\ Our research confirms the point. During the 
last 2 years--a period that coincided with the Presidential campaign--
we documented a surge in the number of hate groups.\5\ The growth in 
the number of hardline anti-Muslim groups last year was particularly 
dramatic and followed a significant increase in hate crimes against 
Muslims the year before, according to the FBI.\6\ As former President 
George W. Bush noted during a speech earlier this month, ``bigotry 
seems emboldened.''\7\
---------------------------------------------------------------------------
    \4\ Id.
    \5\ Hate Groups Increase for Second Consecutive Year as Trump 
Electrifies Radical Right, Southern Poverty Law Center, Feb. 15, 2017, 
https://www.splcenter.org/news/2017 /02/15/hate-groups-increase-
secondconsecutive_vear-trump-electrifies-radical-right.
    \6\ Mark Potok, Anti-Muslim Hate Crimes Surged Last Year, Fueled by 
Hateful Campaign, Southern Poverty Law Center, Nov. 14, 2016, https://
www.splcenter.org/hatewatcb/20I6/11/14/anti-muslim-hate-crimessurged_ 
last-year-fueled-hateful-campaign; Fed. Bureau of Investigation, Hate 
Crime Statistics, 2015 (2016), https://ucr.fbi.gov/hate-crime/2015/
topic-pages/incidentsandoffenses_final. pdf.
    \7\ http://thehill.com/homenews/news/356212-george-w-bush-bigotry-
seems-emboldened-in-us
---------------------------------------------------------------------------
    Regardless of whether President Trump intended it, his campaign 
rhetoric ``unearthed some demons,'' to borrow Representative Mark 
Sanford's words.\8\ Although white supremacists typically eschew the 
political process, seeing both parties as irredeemably corrupt, they 
took the unusual step of rallying around Mr. Trump's candidacy and 
celebrating his victory. On his radio show from February 2016, for 
example, former Klan chief David Duke told his listeners that ``voting 
against Donald Trump. . . is really treason to your heritage.''\9\ On 
election night, he tweeted that ``our people played a HUGE role in 
electing Trump!''\10\ During a gathering of white nationalists just 
blocks from the White House shortly after the election, white 
nationalist leader Richard Spencer--who later played a prominent role 
in the Charlottesville demonstrations--prompted sieg heils from 
audience members after quoting Nazi propaganda in German. He responded 
by shouting, ``Hail Trump! Hail our people! Hail victory!''\11\
---------------------------------------------------------------------------
    \8\ Karen Tumulty and Robert Costa, The GOP Inherits What Trump has 
Wrought (May 26, 2017), https://www.washingtonpost.com/politics/the-
gop-inherits-what-trump-has-wrought/2017/05/26/4e I 943ea-4177-1 I e7-
adba-394ee67a7582 story.html?utm term=.bc5a926d86fa
    \9\ David Duke Says a Vote against Trump is Treason to White 
Heritage, Hatewatch, Feb. 26, 2016, https://www.splcenter.org/hatewatcb 
/2016/02/26/david-duke-says- vote-against-trump-treason-white-heritage.
    \10\ 10 David Duke (@DrDavidDuke), Twitter (Nov. 9, 2016, 2: 14 
AM), https://twitter.com/drdavidduke/status/796249464826687488'Iang=en.
    \11\ Joseph Goldstein, Alt-Right Gathering Exults in Trump Election 
with Nazi-Era Salute, N.Y. Times, Nov. 20, 2016, https://
www.nytimes.com/2016/11 /21/us/alt-right-salutes-donald-trump.html? 
r=90
---------------------------------------------------------------------------
    In the 10 days following the election, we documented nearly 900 
bias-related acts of harassment, intimidation, and violence.\12\ 
Sixteen percent of the incidents took place on college campuses. Many 
of the perpetrators invoked the president-elect's name or his slogans. 
Cf supra note 8 (quoting Rep. Sanford) (``I've talked to a number of 
people about it back home. They say, `Well, look, if the President can 
say whatever, why can't I say whatever?' He's given them license.''). 
During the Charlottesville demonstrations, David Duke stated, ``We are 
determined to take our country back. We are going to fulfill the 
promises of Donald Trump.''\13\
---------------------------------------------------------------------------
    \12\ Ten Days After: Harassment and Intimidation in the Aftermath 
of the Election, Southern Poverty Law Center, Nov. 29, 2016, https://
www.splcenter.org/20161I29/ten-days-after-harassment-and-
intimidationaftermath_ election.
    \13\ Libby Nelson, ``Why we voted for Donald Trump'': David Duke 
explains the white supremacist Charlottesville protests, Vox, Aug. 12, 
2017, https://www.vox.com/2017/8/12/16138358/charlottesville-protests_-
david-duke-kkk.
---------------------------------------------------------------------------
    Colleges and universities are a prime target of the newly energized 
white supremacist movement because it sees them as bastions of 
liberalism and multiculturalism--institutions that are ``infected'' 
with political correctness. From the movement's perspective, making a 
speech on a college campus is a highly symbolic act equivalent to going 
into the belly of the beast. The statistics tell the story: Since March 
2016, we have documented 329 incidents of racist recruitment flyers 
being distributed on 241 different college campuses across the United 
States--a number that continues to grow.\14\
---------------------------------------------------------------------------
    \14\ https://www..splcenter.org/hatewatch /2017/I0/17 /white-
nationalist-fliering-american-college-campuses.
---------------------------------------------------------------------------
    A group called Identity Evropa, whose members must be of 
``European, non-Semitic heritage,'' has been responsible for the 
largest number of these recruitment efforts. The group was founded by 
Nathan Darnigo, a student who was inspired by reading David Duke's 
autobiography while in prison for assaulting an Arab cab driver \15\ 
Darnigo was involved in the Charlottesville demonstrations.
---------------------------------------------------------------------------
    \15\ Shane Bauer, I met the White Nationalist Who `Falcon Punched' 
a 95-Pound Female Protester, Mother Jones, May 9, 2017, http://
www.motherjones.com/ politics/20177/05/nathan-damigo- punching-
womanberkeley_white-nationalism/.
---------------------------------------------------------------------------
    Members of Vanguard America, another racist group that has been 
distributing flyers on college campuses, also were present in 
Charlottesville. Wearing white polos with khakis, they chanted ``Blood 
and Soil'' while marching on the campus of the University of 
Virginia.\16\ James Fields, the man who killed Heather Heyer and 
injured numerous people when he ran his car into a crowd, was 
photographed rallying with Vanguard America.\17\
---------------------------------------------------------------------------
    \16\ See Justin Moyer et al., Vanguard America, a White Supremacist 
Group, Denies Charlottesville Ramming Suspect Was a Member, The 
Washington Post, Aug. 15, 2017, https//www.washingtonpost.com local/van 
guard-america -a-white- supremacist-group-denies charlottesvi11e-
attacker- was-a-member /2017/08/15/ 2ec897c6- 810e-1 le7-8072-
73e1718c524d story.html?utm term=.c83c0761Zba0: Deconstructing the 
Symbols and Slogans Spotted in Charlottesville, The Washington Post, 
Aug. 18, 2017, https://www.washingtonpost.com/graphics/2017 /local/
charlottesvillevideos/?utm_term=.eOSbed64f589.
    \17\ See Moyer, supra note 16.
---------------------------------------------------------------------------
    Richard Spencer and Milo Yiannopoulos are prominent ``alt-right'' 
figures making the rounds on campus speaking tours. Spencer is an 
openly racist, white nationalist leader who heads a small organization 
called the National Policy Institute. He has called for ``peaceful 
ethnic cleansing'' and the creation of a white ethno-state in North 
America.\18\
---------------------------------------------------------------------------
    \18\ Richard Bertrand Spencer, Southern Poverty Law Center, https:/
/www.splcenter.org/fightinghate/ extremist-files/ individual/richard-
bertrand-spencer-O.
---------------------------------------------------------------------------
    Propelled by the publicity he received from his Washington speech 
shortly after the election, Spencer launched what he called a ``danger 
tour'' of campus speaking engagements. The Chronicle described Spencer 
as a ``clean-cut 38-year-old, who attempts to bring an air of 
respectability to a movement commonly associated with Nazis and the Ku 
Klux Klan.'' Spencer told The Chronicle that he hoped to speak at ``all 
the big'' Universities.\19\ He added that it was ``really important now 
to go in with all guns blazing figuratively speaking, of course-and be 
really radical and say I fundamentally disagree with you. The Donald 
Trump phenomenon was, and still is, about identity at some deep 
level.''\20\ At a speech at Texas A&M University on December 6, 2016, 
Spencer told the audience and protestors that ``America, at the end of 
the day, belongs to white men.  . . . Our bones are in the ground. We 
own it.''\21\
---------------------------------------------------------------------------
    \19\ Katherine Mangan, Richard Spencer, White Supremacist, 
Describes Goals of His ``Danger Tour'' to College Campuses, The 
Chronicle of Higher Education. Nov. 28, 2016, http://
'Arww.chronicle.com/ article/White-Supremacist-Describes/2 38515.
    \20\ Id.
    \21\ White Nationalists Work to Make Inroads at U.S. Colleges, 
Intelligence Report, Feb. 15, 2017, https://www.splcenter.org/fighting-
hate/ intelligence-report/2017/ white-nationalists-work-make-inroads-
us-colleges.
---------------------------------------------------------------------------
    Milo Yiannapoulos, a deliberately offensive, flamboyant provocateur 
who calls himself the ``Dangerous Faggot,'' has spoken at dozens of 
colleges.\22\ The co-author of Breitbart News' ``An Establishment 
Conservative's Guide to the Alt-Right,'' he described Spencer as one of 
the ``intellectuals'' of the movement.\23\ As a former tech editor at 
Breitbart, Yiannapoulos was a frequent guest on Stephen Bannon' s radio 
show. Bannon lauded Yiannopoulos as ``one of the leading voices of his 
generation in this whole fight against cultural Marxism, the defense of 
Western Civilization'' and compared his courage to that of Winston 
Churchill.\24\
---------------------------------------------------------------------------
    \22\ Allum Bokhari, Suck it up Buttercups: Dangerous Faggot Tour 
Returns to Colleges in September, Breitbart News, July 6, 2016, http://
www.breitbart.com/milo/2016107/06/ milo-yiannopoulos- dangerousfaggott-
our-returns-campuses-fall/.
    \23\ Allum Bokhari & Milo Yiannopoulos, An Establishment 
Conservative's Guide to the Alt-Right,Breitbart, Mar. 29, 2016, http://
www.breitbart.com/ tech/2016/03/29/ an-establishment-conservatives-
guide-to-the-alt-right/.
    \24\ Keegan Hankes, How Stephen Bannon Made Milo Dangerous, 
Hatewatch, Feb. 23, 2017, https://www.splcenter.org/hatewatch/2017/02/
23/ how-stephen-bannon-made- milo-dangerous.
---------------------------------------------------------------------------
    Given the provocative nature of white nationalist activity aimed at 
colleges and universities, it is not surprising that we have seen a 
strong backlash among students. There have been instances when students 
shouted down speakers. Unfortunately, there have been times when 
violence has broken out, including at the University of California at 
Berkeley and at the University of Virginia,\25\ something that we have 
always denounced.
---------------------------------------------------------------------------
    \25\ Carlo David & Frances Dinkelspiel, Chaos Erupts, Protesters 
Shut Down Yiannopolous Events, Banks In Downtown Vandalized, 
Berkeleyside (Feb. 2, 2017, 9:15 AM), http://www.berkeleyside.com/2017/
02/02/chaos-erupts-protesters-shut-yiannopolous-events-ban 
banksdowntown-vandalized/; Events Surrounding White Nationalist Rally 
in Virginia Turn Fatal, NPR: The Two-Way (Aug. 12, 2017, 5 o'clock AM), 
http://www.npr.org/sections/thetwoway/2017/08/12/542982015/home-to-
university-of-virginia-prepares-for-violence-at-white-nationalistrally.
---------------------------------------------------------------------------
    Much of the violence has been perpetrated not by students but by 
persons who identify with the so-called Antifa--a loose-knit, self-
described anti-fascist movement. Antifa have been involved in bloody 
street fights with white supremacists for decades. Many are organized 
under a loose, national network known as Anti-Racist Action (ARA), 
formed by anti-racist skinheads in Minneapolis in 1988 to combat neo-
Nazi skinhead gangs. ARA is dedicated, according to its website, to 
``eliminating racism, sexism, anti-semitism, Islamophobia, homophobia, 
transphobia, and discrimination against the disabled, the oldest, the 
youngest, and the most oppressed people.'' Its tenets include 
``challenging racists and fascists when they attempt to recruit, 
organize, mobilize, propagandize, and cause harm to people'' and 
``refusing to ignore the violent bigots that comprise racist and 
fascist groups.''\26\
---------------------------------------------------------------------------
    \26\ ``About Anti-Racist Action,'' available at https://
antiracistaction.org/about/.

---------------------------------------------------------------------------
    Clearly, college administrators have their hands full.

    The First Amendment Rights of All Speakers and Listeners Must Be 
Protected
    Last week, the organizer of Richard Spencer's campus speaking tour 
filed a lawsuit against Ohio State University for refusing to rent a 
campus venue to him for a Spencer speech.\27\ The organizer is likely 
to win, just as he won a similar lawsuit against Auburn University 
earlier this year.\28\ Although many universities, particularly after 
Charlottesville, would like to refuse to allow Spencer to speak on 
their campuses,\29\ they will all almost certainly lose if they try to 
do so, absent unusual circumstances, in light of settled First 
Amendment jurisprudence.
---------------------------------------------------------------------------
    \27\ Comp!., Padgett v. Bd of Trs. of The Ohio State Univ., No. 2: 
17-cv-00919 (S.D. Ohio Oct. 22, 2017), https://mgtvwcmh.files. 
wordpress.com/2017 /1 O/osu-complaint.pdf.
    \28\ Prelim. lnj., Padgett v. Auburn Univ., No. 3:17-cv-00231 (M.D. 
Ala. Apr. 18, 2017), 
ECF No. 9.
    \29\ Ramsey Touchberry, Penn State Becomes Fifth University to Deny 
White Nationalist Richard Spencer, USA Today College, Aug. 22, 2017, 
http://college.usatoday.com/ 2017/08/22/ penn -state- becomes-fifth-
university- to-deny-white-nationalist- richard-spencer/.
---------------------------------------------------------------------------
    The First Amendment is a bedrock principle of our diverse 
democracy. It protects the right to an open dialog, described by the 
Supreme Court as a ``profound national commitment to the principle that 
debate on public issues should be uninhibited, robust, and wide-
open.''\30\ Crucial to that commitment is that the Constitution does 
not merely protect expression that is beautiful, or moral, or wise. It 
commits us to protecting speech and acts that may be disagreeable or 
even downright offensive to some.\31\ That commitment safeguards both 
the rights of students to peacefully protest \32\ and the rights of 
anti-war activists to burn the American flag.\33\
---------------------------------------------------------------------------
    \30\ Times v. Sullivan, 376 U.S. 254, 270 (1964).
    \31\ Snyder v. Phelps, 562 U.S. 443, 458 (2011); Erznoznik v. city 
of Jacksonville, 422 U.S. 205, 209-10(1975).
    \32\ Tinker v. Des Moines lndep. Cmty. Sch. Dist., 393 U.S. 503, 
506 (1969).
    \33\ Texas v. Johnson, 491 U.S. 397, 414 (1989).
---------------------------------------------------------------------------
    Public colleges and universities are state actors.\34\ They must 
ensure that their campuses both uphold the First Amendment and are 
safe, welcoming, and supportive environments for students of all 
backgrounds.\35\ Although private school administrators are not legally 
bound by the same obligations,\36\ most typically assume those.duties 
regardless, given their role in building a society in which First 
Amendment freedoms are paramount.
---------------------------------------------------------------------------
    \34\ Nat 'l Collegiate Athletic Ass 'n v. Tarkanian, 488 U.S. 179, 
192 (l 988) (``A State university without question is a state 
actor.'').
    \35\ Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 
U.S. 629, 633 (1999); see also Letter from Russlynn Ali, Assistant 
Sec'y for Civil Rights, U.S. Dep't of Educ., to Colleagues (Oct. 26, 
2010), https://www.ed.gov /about /offices/ list/ocr/letters/colleague-
201001O.pdf.
    \36\ See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 843 (1982) 
(holding that a private high school for troubled students need not 
observe First Amendment rights of a teacher fired for criticizing 
school officials).
---------------------------------------------------------------------------
    The First Amendment firmly protects the right to receive 
information from all manner of sources, from controversial speakers to 
books and pamphlets.\37\ No matter how repugnant one may find a 
speaker's views, as long as a college has a policy of allowing student 
groups to invite people from outside their campus to speak, college 
administrators cannot pick and choose based on the views the speaker 
holds.\38\ This is why Middlebury College's student chapter of the 
conservative American Enterprise Institute (AEI) had a right to invite 
Charles Murray to speak to them on campus.\39\ It is why neither other 
students nor college administrators should be allowed to stop someone 
from speaking merely because they dislike the speaker's ideas.\40\
---------------------------------------------------------------------------
    \37\ See, e.g., Stanley v. Georgia, 394 U.S. 557, 564 (1969) 
(internal citations omitted) (``It is now well established that the 
Constitution protects the right to receive information and ideas . . . 
. This right to receive information and ideas, regardless of their 
social worth is fundamental to our free society.'').
    \38\ Widmar v. Vincent, 454 U.S. 263, 277 (1981) (``Having created 
a forum generally open to student groups, the University seeks to 
enforce a content-based exclusion of religious speech. Its exclusionary 
policy violates the fundamental principle that a state regulation of 
speech should be content-neutral, and the University is unable to 
justify this violation under applicable constitutional standards.'').
    \39\ See Taylor Gee, How the Middlebury Riot Really Went Down, 
Politico, May 28, 2017, http://www. politico .com/magazine/story/20 17 
/05/28/bow- donald-trump-caused-the-middlebury-melee-215195.
    \40\ See Healy v. James, 408 U.S. 169, 187-88 (1972) (``Whether 
petitioners did in fact advocate a philosophy of 'destruction' thus 
becomes immaterial. The College, acting here as the instrumentality of 
the state, may not restrict speech or association simply because it 
finds the views expressed by any group to be abhorrent.'').
---------------------------------------------------------------------------
    When controversial speakers like Richard Spencer come to college 
campuses without the invitation of a student group, they have the same 
right as anyone else to use a public space to promote their message: if 
a school allows those outside its community to use or rent a space on 
campus, then any group or speaker has just as much of a right to use 
that space as anyone else.\41\
---------------------------------------------------------------------------
    \41\ Good News Club v. Milford Cent. Sch., 533 U.S. 98, 108-09, 
112-13 (2001) (``[The school] has opened its limited public forum to 
activities that serve a variety of purposes . . . . [It] engaged in 
viewpoint discrimination when it excluded the [religious] Club from the 
afterschool forum.'').
---------------------------------------------------------------------------
    In the Auburn case, the court stated that the University presented 
no evidence that Spencer's speech was ``likely to incite or produce 
imminent lawless action.''\42\ The court also emphasized that the 
University could not cancel Spencer's speech for fear that protestors 
would object violently to his message. The court quoted a Supreme Court 
case stating that ``[l]isteners' reaction to speech is not a content-
neutral basis for regulation.''\43\ The court also noted that the 
University was prepared to provide security and that Spencer had 
provided insurance against damage and paid for extra security.\44\ 
After a preliminary injunction was entered against the University, it 
had to pay $29,000 in attorneys' fees to the lawyer for Spencer's 
organizer.\45\
---------------------------------------------------------------------------
    \42\ Prelim. Inj., Padgett v. Auburn Univ., supra note 28, at 2.
    \43\ Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 135 ( 
1992).
    \44\ Prelim. lnj., Padgett v. Auburn Univ., supra note 28, at 3.
    \45\ Jay Reeves, Auburn to Pay $29K for Trying to Block 
Controversial Speaker Richard Spencer, Montgomery Advertiser, May 16, 
2017, http://www.montgomeryadvertiser.com/ story/news/2017 /05/16/
auburn-pay-29-k-trying- blockcontroversial- speaker- richard-spencer/ 
32466100 l/.
---------------------------------------------------------------------------
    Richard Spencer is a wealthy individual. Most controversial 
speakers will not be able to afford the cost of extra security and, in 
any event, the law is decidedly against imposing the cost of security 
on speakers to control those who may violently protest their 
messages.\46\ Were the law otherwise, protestors could raise security 
costs to such a degree that they would amount to a classic ``heckler's 
veto.'' This leaves us, as Professor Erwin Chemerinsky, a staunch First 
Amendment advocate, has pointed out, with a dilemma.
---------------------------------------------------------------------------
    \46\ See, e.g., Forsyth Cty. v. Nationalist Movement, 505 U.S. at 
136-37.

        At what point can a University say that it cannot afford the 
        necessary security precautions and therefore must cancel a 
        speaker because public safety cannot be assured? The law 
---------------------------------------------------------------------------
        provides no clear answer to this question.

        Yet, it is a very real and difficult issue. If [Ben] Shapiro 
        [another controversial speaker] and Yiannopolous and others 
        like them announced they were coming every week, no campus 
        could possibly afford it. Never should anyone be prevented from 
        speaking because of his or her views, but there must be a point 
        at which a campus can say the financial bill is just too high. 
        The law needs to develop in this area to provide guidance to 
        campus administrators. \47\
---------------------------------------------------------------------------
    \47\ Erwin Cbemerinsky, Why UC Berkeley Was Right Not to Ban Milo, 
and Other Lessons from Free Speech Week, The Sacramento Bee, Oct. 3, 
2017, http://www.sacbee.com/opinion/californiaforum/article 
176680106.html.

    Texas A&M University recently instituted a rule that will require 
all campus speakers to be sponsored by an organization or person 
affiliated with the University. Such a rule would prevent strangers to 
the University, such as the organizer for Spencer's speaking tour, to 
rent a University venue. ``If the University is going to incur security 
and overtime costs associated with controversial speakers,'' a Texas 
A&M spokesperson said, ``at least it will be for its own 
students.''\48\
---------------------------------------------------------------------------
    \48\ Christine Hauser, Campuses Grapple with Balancing Free Speech 
and Security After Protests, N.Y. Times, Mar. 29, 2017, https://
www.nytimes.com /2017/03/29/us/ texas-aandm- speaking-policy- 
richardspencer.html.
---------------------------------------------------------------------------
    In the SPLC' s student campus guide, we emphasize the critical 
importance of the First Amendment. ``Neither other students nor 
administrators,'' we explain, ``can stop someone from speaking merely 
because they dislike the speaker's ideas.'' We urge students ``to 
deprive the speaker of the thing he or she wants most--a spectacle.''
        Alt-right personalities know their cause is helped by news 
        footage of large jeering crowds, heated confrontations and 
        outright violence at their events. It allows them to play the 
        victim and gives them a larger platform for their racist 
        message. Denying an alt-right speaker of such a spectacle is 
        the worst insult they can endure.

        While there's nothing wrong with peaceful student protests 
        against a hateful ideology, it's best to draw attention to hope 
        instead. Hold an alternative event_away from the alt-right 
        event_to highlight your campus's commitment to inclusion and 
        our nation's democratic values.\49\
---------------------------------------------------------------------------
    \49\ See supra note I.

    If students choose to protest, we urge them to be peaceful. We also 
recognize that ridicule and mockery, when used peacefully, may be 
effective tactics ``to disarm protesters who espouse bigotry and white 
supremacy.'' \50\
---------------------------------------------------------------------------
    \50\ Tina Rosenberg, Neo-Nazis in Your Streets? Send in the (Coup 
Clutz) Clowns, N.Y. Times, Sept. 6, 2017, https://www.nytimes.com/2017 
/09/06/opinion/comedy-protest-taxes-nazis.html.

    College Administrators and Public Officials, Including the 
President, Should Speak Out against White Nationalism and in Support of 
the First Amendment; the President Also Should Heed Congress's Call to 
---------------------------------------------------------------------------
Address the Growth of Hate Groups

    Although public colleges and universities cannot ban those invited 
to campus by student groups or forbid speakers whose messages they 
abhor from using otherwise publicly available facilities, nothing in 
the First Amendment requires public colleges to respond neutrally to 
these speakers.\51\ As the Supreme Court recently affirmed, ``[W]hen 
the government speaks it is entitled to promote a program, to espouse a 
policy, or to takea position. In doing so, it represents its citizens 
and it carries out its duties on their behalf.'' \52\ Colleges and 
universities may not censor speakers like Richard Spencer, but they can 
censure them.
---------------------------------------------------------------------------
    \51\ Johanns v. Livestock Mktg. Ass 'n, 544 U.S. 550, 553 (2005) 
(``[T)he Government's own speech .. . is exempt from First Amendment 
scrutiny.''). But see Pleasant Grove City v. Summum, 555 U.S. 460, 468 
(2009) (``[G]overnment speech must comport with the Establishment 
Clause.'').
    \52\ Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 
S. Ct. 2239, 2246 (2015).
---------------------------------------------------------------------------
    Many college presidents have issued forceful statements denouncing 
the messages of racist speakers and affirming their commitment to 
maintaining welcoming and inclusive campuses. Often, they have coupled 
such statements with affirmations of their school's commitment to the 
First Amendment as well. The statement issued by Michael Young, the 
president of Texas A&M University, is a good example.\53\
---------------------------------------------------------------------------
    \53\ ``Aggies United'' Event Planned for Dec. 6 at Kyle Field (Nov. 
29, 2016), http://president.tamu.edu/messages/aggies-united.html.
---------------------------------------------------------------------------
        Freedom of speech is a First Amendment right and a core value 
        of this University, no matter how odious the views may be.
        Outrage and indignation are emotions understandably running 
        high; I share these sentiments. At the same time, I am also 
        truly heartened by the clear message that the Aggie community 
        is sending in reaction to this intrusion--the firm resolve to 
        speak up in opposition to these views, the resounding 
        affirmation that they do not represent the Aggie values we 
        espouse and to which we aspire, and the call to action to 
        reject these views.
    Both aspects of such statements are important. By denouncing the 
racist messages of speakers like Spencer and affirming their commitment 
to maintaining welcoming and inclusive campuses, University presidents 
distance their schools from racism and reassure students who may be 
troubled by the presence of incendiary speakers on campus. By affirming 
their commitment to the First Amendment, University presidents take 
advantage of a teachable moment at a time when there is widespread 
confusion among students about the constitutional protections afforded 
to freedom of expression.\54\ It is important, in my view, that 
statements such as that issued by Mr. Young come from University 
presidents or other high-ranking officials, rather than from a 
disembodied institutional office.\55\ Actions, of course, speak louder 
than words.
---------------------------------------------------------------------------
    \54\ Views among College Students regarding the First Amendment: 
Results from a New Survey (Sept. 18, 2017), https://www.brookings.edu/
blog/fixgov/2017/09/ 18/views-among- college- students- regarding-the-
first- amendment-results-from-a-new-survey/.
    \55\ The statement that Auburn University issued on the eve of 
Richard Spencer's appearance on campus is an example of an ineffective 
one coming from an institutional voice rather than from the university 
president. Auburn University Statement on Richard Spencer, AUBURN UNN. 
(Apr. 12, 2017), http://ocm.auburn. edu/newsroom/news articles/2017 /
04/aubum-university-statement-on-richard-spencer.htm.
---------------------------------------------------------------------------
    Ironically, the Goldwater Institute is promoting model legislation 
that, in the name of protecting free speech on state college campuses, 
actually could circumscribe the ability of college presidents to speak 
out against racism.\56\ The model legislation provides that state 
colleges and universities ``shall strive to remain neutral, as an 
institution, on the public controversies of the day.''\57\ Although the 
Goldwater Institute states that this section of its model legislation 
is ``aspirational,'' it also states that ``[d]espite the aspirational 
language,'' certain policies ``would be a fairly straightforward 
violation of the principle of institutional neutrality.''\58\ The model 
legislation does not define the term ``public controversies of the 
day,'' so one is left to wonder.
---------------------------------------------------------------------------
    \56\ Campus Free Speech: A Legislative Proposal (2017), http://
goldwaterinstitute.org/wpcontent/ uploads/cms page media/2017 f2/2fX 
Campus %20Free %20Speech %20Paper.pdf.
    \57\ Id. at 20.
    \58\ Id. at 9 (emphasis added).
---------------------------------------------------------------------------
    Fortunately, Congress has not remained neutral. In the joint 
resolution it unanimously passed after the shocking incidents in 
Charlottesville in August, it unequivocally ``reject[ed] White 
nationalism, White supremacy, and neo-Nazism as hateful expressions 
that are contradictory to the values that define the people of the 
United States.'' Congress urged the President to likewise ``speak out 
against hate groups that espouse racism, extremism, xenophobia, anti-
semitism, and White supremacy.''\59\
---------------------------------------------------------------------------
    \59\ https://www.Congress.gov/ 115/bills/sjres49/BILLS-
115sjres49enr.pdf.
---------------------------------------------------------------------------
    Unfortunately, the President's post-Charlottesville statements have 
appeared equivocal at times.\60\ He also bas sent mixed messages when 
it comes to his support of the first Amendment.\61\ Given his bully 
pulpit, the President should speak more clearly, more forcefully, and 
more often about our country's commitment to the constitutional values 
embodied in both the First and Fourteenth Amendments. He also should 
take responsibility for the fact that he has ``unearthed some demons,'' 
to use Representative Sanford's words again,\62\ and heed Congress's 
call to ``use all resources available'' to his administration to 
``address the growing prevalence 
of . . . hate groups in the United States.''\63\
---------------------------------------------------------------------------
    \60\ Hayes: Where Are Trump's `Very Fine People'? (Aug. 17, 2017), 
http://www.weeklystandard.com/hayes-where-are-trumps-very-fine-people/
article/2009330; Trump Gives White Supremacists an Unequivocal Boost 
(Aug. 15, 2017), https://www.nytimes.com/2017 /08/15/us/politics/trump-
charlottesville-white-nationalists.html? r=O.
    \61\ A Brief History of Donald Trump's Mixed Messages on Freedom of 
Speech (Sept. 29, 2017), https://www.washingtonpost.com/ politics/a-
brief-history-of -donald-trumps- mixed-messages-on-freedom-of speech/
2017/09/28/ dd44160c-a3b6-1 I e7-ade 1-76d061 d.56efa storv.html?utm 
term=.2be8d2b6dc07.
    \62\ See supra note 8.
    \63\ S.J. Res 49, I 15th Cong. (2017) (enacted).

                                 ______
                                 
    The Chairman. Thank you, Mr. Cohen. Thank you for coming.
    Dr. Stanger, welcome.

                STATEMENT OF DR. ALLISON STANGER

    Dr. Stanger. Thank you. Chairman Alexander, Ranking Member 
Murray, and distinguished Members of the U.S. Senate Committee 
on Health, Education, Labor, and Pensions, it is an honor and 
privilege to share some thoughts with you here today.
    Last February, several of my students asked me to moderate 
a talk with the libertarian scholar, Charles Murray. Dr. Murray 
was drowned out by students who never let him speak. We were 
forced to retreat to another location to live stream our 
conversation, and he and I were intimidated and physically 
assaulted while trying to leave campus.
    Why did this happen in the United States of America on a 
bucolic college campus in the green mountains of Vermont? I 
think there are three reasons. First, any liberal arts college 
campus is something of a bubble, but Middlebury College is in 
the State of Vermont, making it a bubble within a bubble. In 
that context, Charles Murray was a lightning rod that he might 
not otherwise have been.
    Second, a minority of Middlebury faculty cheered on the 
protest and did not encourage their students to read Charles 
Murray or listen to him first before drawing their own 
conclusions about his work or his character. Some faculty 
acknowledged publicly that they had not read a thing Charles 
Murray had written but still knew everything they needed to 
know about him from what the Southern Poverty Law Center 
website had to say about him.
    Third, some students believed that shutting down speech was 
a means to social justice. Some Middlebury faculty shared that 
view, thereby encouraging radical action.
    We can and must do better. We need to teach students to 
think for themselves so they are equipped for democratic 
citizenship and resisting peer pressure in their pursuit of 
self-knowledge, truth, and the good. Viewpoint diversity is 
thus an asset for any college or University. Nothing less than 
liberal education and the possibility of reasoned political 
debate is at stake in the debate over campus censorship.
    Universities exist to promote an arena in which ideas can 
be exchanged freely, not to render value judgments on the ideas 
themselves. Free expression is also the means to greater 
inclusion and diversity. Reducing group think in the academy is 
thus a necessary condition, in my view, for reducing it in the 
electorate. To quote the Chinese dissident, Liu Xiaobo, in his 
Nobel Peace Prize lecture, ``Freedom of expression is the 
foundation of human rights, the source of humanity, and the 
mother of truth. To strangle freedom of speech is to trample on 
human rights, stifle humanity, and suppress truth.''
    Our constitutional democracy will depend on whether 
Americans can relearn how to engage civilly with one another. 
Our national security also depends on it. America's enemies all 
seek to divide us. We must not allow them to do so. The 
challenge before all of us, therefore, is to channel our 
emotions into thinking about how we might better work together 
as Americans on what Lin-Manuel Miranda's Alexander Hamilton 
calls ``America, you great unfinished symphony.''
    There is important work for Democrats and Republicans to do 
together. Let's get to it.
    Thank you for your attention, and I welcome your questions.
    [The prepared statement of Dr. Stanger follows:]
                 Prepared Statement of Allison Stanger
    Last February, several of my students asked me to moderate a talk 
with the libertarian scholar Charles Murray. Dr. Murray was drowned out 
by students who never let him speak, we were forced to retreat to 
another location to live stream our conversation, and he and I were 
intimidated and physically assaulted while trying to leave campus.
    Why did this happen in the United States of America, on a bucolic 
college campus in the Green Mountains of Vermont? I think there are 
three reasons.

        1. Any liberal arts college campus is something of a bubble, 
        but Middlebury College is in the State of Vermont, making it a 
        bubble within a bubble. In that context, Charles Murray was a 
        lightning rod that he might not otherwise have been.
        2. A minority of Middlebury faculty cheered on the protests, 
        and did not encourage their students to read Charles Murray or 
        listen to him first before drawing their own conclusions about 
        his work or his character. Some faculty acknowledged publicly 
        that they had not read a thing Charles Murray has written, but 
        still knew everything they need to know from what the Southern 
        Poverty Law Center (SPLC) website had to say about him.
        3. Some students believed that shutting down speech was a means 
        to social justice; some Middlebury professors shared that view, 
        thereby encouraging radical action.

    My aim is to teach students to think for themselves so they are 
equipped for democratic citizenship and resisting peer pressure in 
their pursuit of self-knowledge, truth, and the good. Viewpoint 
diversity is thus an asset for any institution of higher learning.
    Nothing less than liberal education and the possibility of reasoned 
political debate is at stake in the debate over campus censorship. 
Universities exist to promote an arena in which ideas can be exchanged 
freely, not to render value judgments on the ideas themselves. Free 
expression is also the means to greater diversity and inclusivity. 
Reducing group think in the academy is thus a necessary condition for 
reducing it in the electorate.
    To quote the Chinese dissident Liu Xiaobo's Nobel lecture, 
``Freedom of expression is the foundation of human rights, the source 
of humanity, and the mother of truth. To strangle freedom of speech is 
to trample on human rights, stifle humanity, and suppress truth.''
    Our constitutional democracy will depend on whether Americans can 
relearn how to engage civilly with one another. Our national security 
also depends on it. America's enemies all seek to divide us. We must 
not allow them to do so. The challenge before all of us, therefore, is 
to channel our emotions into thinking about how we might better work 
together as Americans on what Lin-Manuel Miranda's Alexander Hamilton 
calls ``America, you great unfinished symphony.'' There is important 
work for Democrats and Republicans to do together. Let's get to it.
                                 ______
                                 
                       summary of allison stanger
    Chairman Alexander, Ranking Member Murray, and distinguished 
Members of the U.S. Senate Committee on Health, Education, Labor, and 
Pensions, you have invited me to testify about my own personal 
experiences with free speech issues on college campuses and what I have 
learned from them. It is an honor and a privilege to share some 
thoughts with you here today.
    Last February, several of my students asked me to moderate a talk 
with the libertarian scholar Charles Murray and another set of students 
asked me to moderate a talk with Edward Snowden. As I wrote in the New 
York Times, this was a chance to demonstrate a commitment to the free 
and fair exchange of views in my classroom.\1\ While Mr. Snowden's 
presentation went forward without a problem, Dr. Murray's was drowned 
out by students who never let him speak, we were forced to retreat to 
another location to live stream our conversation, and he and I were 
intimidated and physically assaulted while trying to leave campus.
---------------------------------------------------------------------------
    \1\ https://www.nytimes.com/2017 /03/13/opinion/understanding-the-
angry-mob-that-gave-me-aconcussion. htrnl? r=0
---------------------------------------------------------------------------
    Why did this happen in the United States of America, on a bucolic 
college campus in the Green Mountains of Vermont? I think there are 
three reasons.
    First of all, any liberal arts college campus is something of a 
bubble, but Middlebury College is in the state of Vermont, making it a 
bubble within a bubble. We are the state that elected Senator Bernie 
Sanders, and we had the second smallest percentage of Trump voters 
(30.3%) in the country.\2\ In that context, Charles Murray was a 
lightning rod that he might not otherwise have been.
---------------------------------------------------------------------------
    \2\ https://www.nytimes.com/elections/results/president.
---------------------------------------------------------------------------
    The second reason I wound up injured follows from the behavior of a 
small minority of Middlebury faculty, who cheered on the protests, 
which is their right. However, these faculty also did not encourage 
their students to read Charles Murray or listen to him first before 
drawing their own conclusions about his work or his character, which 
was their obligation as educators. There are Members of the Middlebury 
faculty who acknowledged publicly that they had not read a thing 
Charles Murray has written, but still knew everything they need to know 
from what the Southern Poverty Law Center (SPLC) website had to say 
about him.\3\ Just because everybody is saying something about some 
person or group obviously does not make it true. Exhibit A is 1938 Nazi 
Germany. Our responsibility as educators is to encourage students to 
read and think for themselves, not to outsource their thinking to 
others. The SPLC's blurred lines between advocacy and information also 
must bear a portion of the blame for what transpired.
---------------------------------------------------------------------------
    \3\https://www.nytimes.com/2017/04/03/education/edlife/middleburv-
divided-campus-charlesmurray- free-speech.html.
---------------------------------------------------------------------------
    The third reason events took place as they did on the Middlebury 
campus is that some students believed that shutting down speech was a 
means to social justice; some Middlebury professors shared that view, 
thereby encouraging radical action. It is important to realize that 
everyone inside the lecture hall was a member of the Middlebury 
community, as IDs were checked at the door. Outside agitators were 
among those protesting outside. Some Members of the Middlebury 
community would like to draw a distinction between what happened inside 
the lecture hall and what happened outside it, where I was injured. 
They are mistaken. Shutting down speech is always an invitation to 
violence. There was a direct line between the fighting words on campus, 
the suppression of speech and the angry mob that gave me a concussion. 
All violence is a breakdown of communication.
    I met JD Vance, author of Hillbilly Elegy, last week, and he asked 
me whether what happened to me was a one-off thing related to a 
particular moment in time or an expression of something larger. It's a 
good question. I responded that it is both. The overreaction was very 
much rooted in the bubble within a bubble that is Middlebury College, 
but it is also a reaction to larger trends that have long been in 
motion having to do with growing inequities in our country that 
correlate with unequal K-12 educational opportunities. Middlebury 
successfully recruits a diverse class of the best and the brightest 
from all corners of the country and world, but some students of color 
who arrive on campus from urban areas are confronted for the first time 
with the challenges of living in one of the whitest states in the 
union. At Middlebury, they encounter unfathomable privilege, which is 
sometimes accompanied by a sense of entitlement. Since our Constitution 
once counted slaves as 3/5 of a human being, when vast inequality 
aligns with racial difference, it breeds legitimate resentment. None of 
this is to excuse the shutting down of speech and the violence to which 
it led, but it is to point out that the emotions the protesters brought 
to the event were real and justified. There is still much equality work 
to be done in our country.
    Lest I be misunderstood, I want to make it clear that we are 
talking about a small minority of students and faculty who applauded 
censorship. But they were loud and vocal, just as those of us were who 
stood for freedom of expression. A fundamental misunderstanding arose. 
Instead of seeing freedom of speech as the bedrock of both liberal 
education and American constitutional democracy, the ground rules 
through which greater diversity and inclusivity have been and can still 
be achieved, the opponents of having Charles Murray speak on campus saw 
a tradeoff between freedom of speech, on the one hand, and inclusivity, 
on the other hand. Nothing could be further from the truth, since free 
expression is the foundational means to greater diversity. The idea 
that there was a tradeoff between free speech and inclusivity, however, 
initially carried the day in our campus discourse. It could do so only 
by ignoring both American history and the empirical world beyond the 
Green Mountains, which provide inescapable evidence that it is 
precisely the marginalized who suffer most when civil liberties are 
compromised. The view that inclusivity and free speech are mutually 
exclusive had and will continue to have popular appeal, since it seems 
to embrace moderation defined as middle ground between two extremes. It 
comforted those pained by the conflict they were witnessing, both on 
campus and beyond, because it meant that one didn't have to choose a 
side.
    There were quite a few brave souls, however, who saw the foundation 
of the University under challenge and spoke out publicly, including 
Middlebury's president, Laurie Patton.\4\ They understood that academic 
freedom is a foundation for both knowledge and human excellence, and 
that it matters what is happening in universities, because democracy 
and liberal education are intertwined. Two of my colleagues organized a 
Principles of Free Expression petition that garnered over 100 
signatures from Middlebury faculty and was published in the Wall Street 
Journal in March. There were three general patterns among the 
signatories:
---------------------------------------------------------------------------
    \4\ https;//www.wsj.com/articles/the-right-way-to-protect-free-
speech-on-campus-1497019583

        1. Many supporters had studied or experienced intellectual life 
        under an authoritarian or totalitarian regime.
        2. Others had lived in American red states and had loved ones 
        with whom they disagreed politically.
        3. Quite a few were older rather than younger.

    I myself happen to fall into all three of these categories. I 
should also add that professors from the STEM fields, religion, and 
political philosophy were disproportionately represented.
    In general, the signatories understood the critical importance of 
being able to agree to disagree, for the sake of the community, free 
inquiry, and democracy itself. It was shocking to discover that I had 
colleagues who did not share my understanding of the academy's and 
America's core values.
    Part of the reason I was shocked by what happened at Middlebury is 
that I do not encounter captive minds in my classroom. I have been able 
to shape a learning environment where ideas can freely collide. My 
students know that I want them to speak their mind without worrying 
about whether or not what they say might be labeled offensive. If 
anybody winds up offended by what another student has to say (this 
rarely happens), they know they must apologize, and we can then move 
on. Students must feel free to speak their minds, make mistakes, and 
learn from them if they are to develop both intellectually and 
emotionally. They must learn to challenge speech with more speech, to 
think for themselves rather than relying on somebody else to tell them 
what to think or do, as well as to reflect on how their words and 
actions affect others. While students must always first demonstrate 
that they understand an argument on its own terms, I make sure they 
know that they are free to disagree, both with a particular text and 
with me. I will grade them on the strength of their argument and the 
evidence they muster in support of it, not the conclusions they may 
reach. With these maxims, students not only write better papers, they 
also learn skills that arm them to fight injustice in all its 
manifestations.
    Because cultivating open-mindedness is so important for learning, I 
am always on the lookout for challenging alternative viewpoints, as 
they provide an ideal catalyst for intellectual growth. As a graduate 
student in the Harvard Government department, civil conversations with 
conservative professors with whom I disagreed changed my life by 
forcing me to examine my own biases. In so doing, I came to understand 
the difference between emotion and reason, both of which are important 
for human flourishing. Part of the reason I agreed to engage with 
Charles Murray is precisely because I want my students to benefit from 
a comparable educational experience. I want them to learn to think for 
themselves so they are capable of standing on principle and resisting 
peer pressure in their pursuit of self-knowledge, truth, and the good. 
Viewpoint diversity is an asset for any institution of higher 
education.
    Nothing less than liberal education and the possibility of reasoned 
political debate is at stake in the debate over campus censorship. The 
very values that animated and inspired the founders of our 
constitutional order are being challenged when protesters chant 
``Liberalism is white supremacy'' and ''the revolution will not uphold 
the Constitution.'' As a professor of comparative and international 
politics, I can tell you with complete confidence that those who 
embrace such logic are misinformed about their relative good fortune in 
being born in the United States. Because they have seen what happens to 
civil liberties under authoritarian regimes, African students at 
Middlebury College tend to view recent events through a different prism 
than African-American students. We have a civic education crisis in our 
country today, and it originates in K-12 education.\5\
---------------------------------------------------------------------------
    \5\ https://www.washingtonpost.com/news/powemost/paloma/daily 2/
2017110/23/daily 202-thecorrosion- of-support-for-first-amendment-
principles-started-before-trump-he-s-superchargedit/ 59ed49b 
130fb045cba000926/?utm term= .eba3e92844c5&wpisrc=nl daily202&wpmm=. 1
---------------------------------------------------------------------------
    Looking to the future, what have I learned over the course of the 
past 7 months? I have three conjectures for your consideration.
    First, while the entire University cannot and should not be a safe 
space, there must be some safe enclaves on campus to foster 
inclusivity. That commitment, however, must not undermine social 
interaction across socioeconomic and racial/gender divides. That 
commitment must not come at the expense of liberal education. Sports 
teams can function as safe spaces for Team Members and should also be 
pushed to integrate with the larger community whenever possible. Free 
discussion in a diverse classroom can help make that happen.
    Second, if we are to avoid the implicit endorsement of real 
violence, such as what happened at Middlebury, institutions of higher 
learning cannot be in the business of policing symbolic violence. 
Calling speech symbolic violence, unfortunately, seems to justify 
physical violence as a reciprocal response. Many protesters rightfully 
pointed out that Charles Murray's research and thinking have been 
weaponized. Fair enough, but Pierre Bourdieu's, Jean-Francois 
Lyotard's, and Kimberle Crenshaw's writings have also been weaponized. 
What justifies shutting down one and not the other besides ideology? 
Universities exist to promote an arena in which ideas can be exchanged 
freely, not to render value judgments on the ideas themselves. There 
are larger implications to getting this right. Reducing group think in 
the academy is a necessary condition for reducing it in the electorate.
    Third, we need a Treaty of Westphalia between departments and 
programs on our college campuses.\6\ At Middlebury, a student club 
invited Charles Murray to speak, and the political science department 
co-sponsored the event. In the campus outcry that ensued, the 
Sociology/Anthropology department sought to rally the community to 
censor the Political Science department by demanding that we withdraw 
our co-sponsorship. In so doing, they abandoned long established norms 
of tolerance and open-mindedness, as well as collegiality. Universities 
must denounce efforts by one department to sanction another in this 
way, even when it is done with the best of intentions. Attempted 
censorship is a violation of academic freedom.
---------------------------------------------------------------------------
    \6\ The 1648 Treaty of Westphalia ended the wars of religion in 
Europe by upholding Cuius regio,eius religio (Whose realm, his 
religion), meaning that the ruler of a sovereign state could dictate 
the religion of those ruled.
---------------------------------------------------------------------------
    Allow me to conclude with some wise words from the Chinese 
dissident Liu Xiaobo, who won the 2010 Nobel Peace Prize while 
imprisoned for his commitment to democratic values and who died this 
summer. For his Nobel lecture, he penned the following memorable lines:
    ``Freedom of expression is the foundation of human rights, the 
source of humanity, and the mother of truth. To strangle freedom of 
speech is to trample on human rights, stifle humanity, and suppress 
truth.''\7\
---------------------------------------------------------------------------
    \7\ https://www.nytimes.com/2017/07/13/world/asia/liu-xiaobo-china-
nobel-writings.html
---------------------------------------------------------------------------
    There is a dangerous idea that has recently taken hold on the 
American left that one must fight fire with fire. As a result, we now 
have an Alt-Left and an Alt-Right in the US. In resisting what they see 
as extremism, they embrace extremist tactics. Democracy and reasoned 
debate have been and will be the main casualties, since the extreme 
left and extreme right are rebelling against liberalism itself. 
Upholding freedom of expression protects all of us, because it gives 
individuals ways to dissent without resorting to violence.
    More broadly, our constitutional democracy will depend on whether 
Americans can relearn how to engage civilly with one another. Our 
national security also depends on it. America's enemies all seek to 
divide us. We must not allow them to do so.
    The challenge before all of us, therefore, is to channel our 
emotions into thinking about how we might better work together as 
Americans on what Lin-Manuel Miranda's Alexander
    Hamilton calls ``America, you great unfinished symphony.''\8\
---------------------------------------------------------------------------
    \8\ Lin-Manuel Miranda and Jeremy McCarter, Hamilton: The 
Revolution (Hachette Book Group, 2016), p. 273.
---------------------------------------------------------------------------
    There is important work for Democrats and Republicans to do 
together. Let's get to it.
    Thank you for your attention, and I welcome your questions.

                                 ______
                                 
    The Chairman. Thank you, Dr. Stanger.
    Thanks to all four witnesses. I wish every Member of the 
Senate could have heard that. We're grateful for your coming. 
As to civic education, the lowest score on the advanced 
placement test we have in the United States today for high 
school students is not in math and science. It's in American 
history. I think that goes to that point.
    We'll now begin a round of 5-minute questions.
    Dr. Zimmer and Ms. Strossen, let me start with you. Some 
lawmakers have suggested that we enact a free speech mandate, 
which means that students could say whatever they want to say 
on campus. Some other lawmakers have suggested that we enact a 
speech code, which means there are some things you can't say on 
campus.
    What do you think we should do, we Members of the Congress? 
Should we enact a free speech mandate for the 6,000 colleges 
and universities we have or a free speech code, or should we 
leave that to the presidents, faculty members, universities, 
and students to interpret the Constitution of the United States 
on what the First Amendment means?
    Dr. Zimmer.
    Dr. Zimmer. This is an important question, and I would be 
loathe to see at this point any greater Federal regulation 
imposed upon private colleges and universities than already 
exist. I think, ultimately, the questions are deeply cultural. 
They're going to have to be solved by those on campuses. 
They're not going to be improved by having a debate about which 
end of the spectrum should apply and what additional type of 
regulation, but it's going to be solved and enhanced, 
ultimately, by the very process of free expression and 
argumentation on college campuses.
    Seeing that type of argument evolving and emerging now, I 
think, is a healthy thing. I think the situation is actually 
better because people are talking about it, and I think that 
seeing the culture evolve through discussion on campuses is the 
proper way to proceed.
    The Chairman. Ms. Strossen, should Congress enact a free 
speech mandate or a free speech code? While you're at it, why 
don't you comment--and I've just got 5 minutes--so why don't 
you comment on your membership, which, I believe, in a group 
called the Heterodox Academy, a coalition of faculty members 
who design to address a slightly different problem to make sure 
that there's a genuine diversity of viewpoint on campus.
    Ms. Strossen. Absolutely. I would say, with all due 
respect, Chairman Alexander, with respect to public 
universities, there is a free speech mandate. It is the First 
Amendment, and all of the juris prudence associated with the 
First Amendment, which the Supreme Court has very firmly, 
across the spectrum of justice, has said applies fully on 
public campuses.
    As to private universities, I would defend their First 
Amendment rights to make their own determinations about whom 
they admit as part of their academic freedom. For example, if 
it's a religiously oriented University, it should be free to 
prefer certain religious views and not allow others.
    The Chairman. Well, I agree with you. But what about a free 
speech code? Do you think Congress should enact a free speech 
code?
    Ms. Strossen. I think you can tell that I would not, both 
because it would violate the most fundamental First Amendment 
principle, what the Supreme Court has called the bedrock of our 
First Amendment, viewpoint neutrality, that government may 
never pick and choose which particular viewpoints to favor or 
to disapprove, no matter how deeply despised certain views 
might be.
    That brings me to the other point, Chairman Alexander, and 
I agree here with President Zimmer that we will depend on 
education and the acculturation that comes through education to 
stimulate students' critical thinking and their respect for 
freedom of speech. I think--and this is part of the mission, 
central mission, of Heterodox Academy, recognizing that that is 
going to happen only if students are exposed to multiple points 
of view, including views that they deeply despise, so that they 
can learn to effectively respond to it.
    The Chairman. Ms. Stanger, I only have 30 seconds if you 
want to add to that.
    Dr. Stanger. Yes. I would just say that I agree with 
President Zimmer that it would be a bad idea for Congress to 
legislate in that fashion. However, I would think that we can 
all do our part as Senators, as faculty, as students to model 
the behavior we want to see, and I think that will get us all a 
step forward to greater--better civil discourse.
    Faculty can also support viewpoint diversity and realize 
its importance in education. Part of the reason I invited 
Charles Murray to campus is precisely because I wanted my own 
students to have the chance to interact with conservative 
thinkers, like I did myself in the Harvard Government 
Department.
    The Chairman. Thank you.
    Senator Murray.
    Senator Murray. Thank you very much. Thank you to all of 
our witnesses today. I really appreciate it.
    Mr. Cohen, I wanted to go back to something you started 
your testimony with. You said, quote, ``All of this debate is 
taking place against the backdrop of increased activity by a 
white nationalist movement that has been emboldened by 
President Trump's rhetoric.'' Can you expand for us on some of 
the trends that you and your colleagues have seen as a result 
of that, and an example or two would be helpful.
    Mr. Cohen. In 2013 and 2014, we saw a decrease in the 
number of hardcore organized hate groups in our country. In 
2015 and 2016, we saw an increase in those groups. It was a 
period that coincided with the Presidential campaign. An 
unusual thing happened during the Presidential campaign. White 
supremacists openly endorsed President Trump, whether he wanted 
them to or not. It's unusual because, typically, it's a pox on 
both their homes. I think both parties are irredeemably 
corrupt. Not this time. They celebrated his victory. They feel, 
rightly or wrongly, that they have the ear of the president, or 
especially when they had Mr. Bannon there.
    I hope he sorely disappoints them. I hope he changes his 
rhetoric. But that's the state-of-the-art now, and that is why 
we are seeing this targeting of college campuses by an 
energized white supremacist movement.
    Senator Murray. You know, no one person has the market on 
free speech. It's a constitutional right. Every person enjoys 
it, including a school administrator. I know the Southern 
Poverty Law Center works closely with colleges and universities 
around the country to promote best practices.
    Mr. Cohen, I wanted to ask you, for a college president or 
a University administrator who might be watching this hearing, 
I have some questions for you. When a speaker spreads a message 
of hate or intolerance on campus, should the leadership of the 
University exercise their free speech right to provide context 
for students and to clarify the University's values?
    Mr. Cohen. I think it's essential that that happens. When 
someone like Milo Yiannopoulos is invited to campus, and he's 
invited by, as happens many times, the Young Republican clubs, 
the students are like, ``My heavens. What kind of school am I 
going to where my colleagues are inviting this incendiary 
personality to the school?'' I think it's really quite 
important for University presidents in those situations to 
separate themselves from the messages of incendiary racist 
speakers like Mr. Spencer and say, ``Our college doesn't 
believe in that. Our college is here to support you.''
    I know that Dr. Zimmer, in his testimony, made the same 
point, that it's critically important for colleges and 
universities to appropriately support students who have been 
traditionally marginalized and may feel marginalized by the 
presence of racist speakers on their campuses.
    Senator Murray. Well, second, if a speaker is coming to 
campus, and the administration knows students will want to 
exercise their right to express disagreement, what should 
colleges do then? Should they respect the rights of the 
speaker, respect the right for that speaker to be heard, 
respect the rights of the students to express their 
disagreement? What do they do then?
    Mr. Cohen. All of the above. They have to respect the right 
of the speakers, and they have to respect the rights of the 
students who wish to protest.
    Senator Murray. How do they do that? What are the best 
practices?
    Mr. Cohen. Well, what we try to do with--what we try to 
tell students and what we try to tell administrators is to 
organize an alternative event. If you have kind of a racist 
speaker coming to campus, don't give them the spectacle that he 
or she wants. Organize a separate event where one can express 
kind of the University's true values and values of our country.
    We sometimes also suggest that when students learn that 
there's going to be a racist speaker on campus, particularly 
one who's been invited by a campus group, go try to persuade 
them to disinvite the speaker. Try to persuade them that this 
kind of speaker is only going to sow division on college 
campuses. We can't force that, but we try to do things like 
that, hold alternative events, stay away. Those seem like the 
most important things to be done.
    Senator Murray. Dr. Zimmer, I wanted to ask you--you heard 
me talk about Taylor, who is sitting behind you there. She's 
the survivor of a hate crime on campus. When I was talking with 
her, I asked her how that made her feel. She said to me--and I 
want to quote it--``I felt like I didn't belong on campus. I 
felt like my voice was not wanted.''
    She's not alone. In August, we saw a white supremacist 
descend on the University of Virginia, surely making a lot more 
students feel like Taylor did. Obviously, we need to protect 
free speech. But I want to know what is a University's 
responsibility in this situation? You lead the University of 
Chicago. What should universities do to be making sure that 
students, like Taylor and many others, feel like they belong 
and their voice is wanted?
    Dr. Zimmer. This is the question of diversity inclusion on 
university campuses, a profound one. It's exceedingly important 
not just to be reactive to a particular situation, but to take 
a long, sustained, and purposeful approach to inclusion of 
everybody who comes to campus, every student who's on campus, 
independent of their background--a sense of inclusion and, 
indeed, ownership of that environment.
    I think that this is something--for example, at the 
University of Chicago, we're certainly not alone in this and 
pay an enormous amount of attention to it. There are many 
programs that begin from the very beginning. I would say that 
we, like most universities, are still working on how to do this 
best. I would say places have developed good practices, but 
there's still a lot of work to do here.
    This cuts across a whole range of individuals who are a 
minority sector for one reason or another. We have long lists 
of issues in our history connected to racism, to anti-semitism, 
to misogyny, to homophobia, and so on, and all these 
individuals at various times because of various behaviors, both 
of universities themselves and of the people on campus, can be 
in a situation in which they are feeling excluded or not a full 
participant, and it's very important that universities work on 
this.
    I would say, in the context of the topic here, that when 
you say, ``what does inclusion mean,'' what it should mean is 
inclusion in the best education that we can offer. That's why 
students are on campus. This tension that gets articulated 
between inclusion issues on one hand and free speech issues on 
the other hand, I think, is honestly not the right line to 
draw. It conflates things that are different, and what we want 
is to be including all students and helping them learn that the 
power of the education that they're going to have is going to 
be enhanced and defined by ongoing open challenge.
    Senator Murray. Thank you.
    The Chairman. Thank you, Senator Murray.
    Senator Young.

                       Statement of Senator Young

    Senator Young. Well, thank you, Chairman.
    Dr. Zimmer, former University of Chicago scholar and Nobel 
Laureate Milton Friedman was once at one of his celebrated 
public forums, and he was fielding tough questions from the 
student audience, and one of the students asked him shouldn't 
people, shouldn't his fellow citizens, be intelligent enough to 
know the difference between deceit and truth. Milton Friedman 
unequivocally said no, they should be intelligent enough to 
know to choose among alternative purveyors of truth, which is 
really what I've heard here today. They can discern truth from 
falsity only if they hear a variety of opinions.
    Then he cited the USSR, which then, of course, still 
existed. He said so many in the USSR are enormously skeptical 
of their government, but they only know one truth, or they 
don't know the truth. They're only exposed to one opinion, and 
that was by design, in large measure. It was the objective of 
the USSR to stifle speech so that civil discourse, civil 
society couldn't flourish, and that helped the regime stay in 
power.
    To the extent that the habits of mind that you mentioned, 
things like the ability to challenge assumptions, synthesize 
different views, and account for uncertainty, are not developed 
by Americans, whether they're college students or don't happen 
to go to college. How does this undermine our national unity 
and handicap our collective capacity for self government?
    Dr. Zimmer. Well, I think these skills are necessary for 
leadership, for example, in all sorts of human endeavor, I 
mean, in building human capacity to act thoughtfully, to 
discern the implications of potential actions, to not act 
simply but to act in what is inevitably a complex environment, 
and understand various implications that will take place.
    I think these are skills that apply to what I would say is 
the full range of human endeavor, and the extent to which we 
are, as a country, producing people who can approach this full 
range of human endeavor with these types of skills, we will 
flourish more. The extent to which we don't, we will flourish 
less.
    Senator Young. Ms. Strossen, in the interest of free 
expression, I'd like to ask for more than one opinion. If you 
could kindly address that question.
    Ms. Strossen. I absolutely agree that what we are talking 
about is vital not only for individuals liberty, but also for 
education and for democracy, the anti-authoritarian values that 
you talked about, Senator Young. We the people are the 
Governors, with all due respect. We elect folks like you to 
represent us, but you are accountable to us, you and other 
government officials. How can we hold you accountable unless we 
are able to express dissenting points of view? How can we feel 
empowered to do that if we're going to universities where we 
are indoctrinated in a single point of view?
    Senator Young. What are the greatest barriers we face to 
developing these important habits of mind, the ability to 
differentiate or, in the best sense of the word, discriminate 
between different views and opinions and truths, if you will? 
Are they institutional in nature? Are they a result of a 
combination of confirmation bias and how we now receive our 
information?
    We live in a different era, when we have access to more 
opinions than ever. But, psychologically, so many of us are 
hardwired not to receive multiple perspectives and opinions. In 
my remaining minute, would one of you like to take this 
question?
    Mr. Cohen. If I could.
    Senator Young. Yes, sir.
    Mr. Cohen. I think it's quite critical to start at the 
elementary school level to help students understand the point 
of view of others, to help them feel safe in their own identity 
but give them a mirror into other people's views, help them 
understand that everyone has a perspective that's a valuable 
thing to offer. We're really, through our work in the education 
sphere, trying to help students become active citizens in the 
diverse democracy that we live in, and I think that's a 
responsibility at every grade, K through 12, because I think if 
that occurs, the kinds of problems that we have seen on college 
campuses would be diminished greatly.
    Senator Young. Thank you.
    The Chairman. Thank you, Senator Young.
    Senator Bennet.

                      Statement of Senator Bennet

    Senator Bennet. Thank you, Mr. Chairman. I'd like to start 
by once again saying how much I appreciate your leadership and 
the Ranking Member's leadership on this healthcare bill, and my 
fervent hope that we will actually move forward on it.
    I also want to thank you for an excellent panel today. This 
has really been fantastic. Like you, I wish the whole Senate 
could hear this.
    Dr. Zimmer, I had the good fortune for the first time to be 
at the University of Chicago two or 3 weeks ago, and I can tell 
you your students were excellent. The questions that they 
asked--basically, I had a town hall there--were phenomenal, and 
I also came away with a strong sense that I could never be 
admitted there.
    [Laughter.]
    Senator Bennet. Thomas Jefferson wrote during the 
Constitutional Convention--of course, he wasn't there. He was 
in Paris at the time. He wrote, ``The basis of our government 
being the opinion of the people, the first object should be to 
keep that right, and were it left to me to decide whether we 
should have a government without newspapers or newspapers 
without a government, I should not hesitate for a moment to 
prefer the latter.''
    In his second inaugural address, he said that the artillery 
of the press, he described it, had been leveled against him. 
But in the end, the answer to that was more speech, not less 
speech. Today, we have a President who every day, day after 
day, attacks the free press in America, calls leading 
journalists in America fake news, attacks edited content, 
attacks curated content, in favor of opinions that are rendered 
on the Internet, that are not edited content, that are not 
curated content.
    I wondered, Dr. Zimmer, if I could start with you, what the 
University of Chicago is doing to ensure that your students can 
distinguish between what is edited content and the importance 
of that and what is someone's opinion on the Internet.
    Dr. Zimmer. Well, our entire education is, in fact, built 
around the question of argumentation so that nothing is left 
simply as a statement. In fact, somebody said to me the other 
day they characterized the University of Chicago as a place 
where you say, ``Good morning,'' and somebody asks you for 
evidence of that.
    [Laughter.]
    Senator Bennet. I very much had that sense while I was 
there.
    Dr. Zimmer. I would say it's simply, again, this matter of 
culture in which people do not take statements for granted, in 
which you have to understand what assumptions other people are 
making, what assumptions you are making, and it's simply an 
ongoing process, and it's the nature of the education that we 
offer.
    Senator Bennet. I appreciate that, and I believe it's true, 
and I'd ask the other panelists to talk a little bit about what 
this wholesale attack on journalism in this country from the 
President of the United States--what is the effect in your 
institutions or among the students that you serve? Mr. Cohen, 
you talked about the importance of elementary school students.
    I'm having to have conversations--and I'm a former school 
superintendent. Every time I have a conversation now with 
middle school students or a high school student, we have to 
discuss the importance of edited content and what it means to 
write a paper now in high school or in middle school, when you 
have a President who is not just disregarding, but attacking 
the leading journalists in this country. Professor Strossen?
    Ms. Strossen. Well, obviously, I defend his freedom of 
speech to do that, and we all do.
    Senator Bennet. As I do.
    Ms. Strossen. I have to say, as an activist, I always see 
the glass half full. The reaction that he is causing is, at 
least, as much galvanizing opposition, as we've heard from some 
eloquent statements from you and other members of this 
Committee, and energizing people to not only respond to the 
allegations that he is making, not only to come to the defense 
of the critical role that journalism plays, as Thomas Jefferson 
said, but also educating students from the beginning--and that 
certainly carries through law school--to fully inform 
themselves, to use the Internet, which is often demonized 
because it does allow people to live within bubbles.
    But it also has the positive capacity to empower us to 
discover information, to pick holes in what used to be truths, 
and I have to say ProPublica recently did a study in which they 
showed that the U.S. Supreme Court in a number of its opinions 
had facts that were questionable. While that's disturbing to 
some extent, I think it's really--to my students, I made it 
into an illuminating experience, that you have to question 
literally everything, that just because it's on the pages of 
the Supreme Court reports doesn't mean it's beyond criticism, 
but criticism in a constructive vein, not in a destructive, 
let's shut them down. Let's be more rigorous in the future 
about examining our facts.
    Senator Bennet. If the Chairman will allow it----
    The Chairman. Sure. If you----
    Mr. Cohen. I'd just, very quickly--you know, we put out a 
variety of new teaching tools to promote digital literacy in 
the high schools and middle schools to help people understand 
how a tweet from one source can get amplified and suddenly 
become common wisdom. We're trying to help students understand, 
or help teachers push their students to ask for evidence, to 
understand the sources, and to be critical when they look at 
information.
    Dr. Stanger. Just very briefly, Senator Bennet, I think 
you've put your finger on something very important, that in a 
fake news world, liberal education becomes only all the more 
important, precisely because we do live in a big data world 
where data mining of social media habits has affected the 
outcome of elections. I think in that context, liberal 
education teaches us to think for ourselves, and if we're 
thinking for ourselves, we can't be reduced to an algorithm. We 
cannot be manipulated by either corporations or our government. 
Liberal education only becomes all the more important in this 
world you've described.
    Senator Bennet. Thank you.
    Mr. Chairman, I just would say to Ms. Strossen on the point 
on the Supreme Court, I used to say in Colorado that when I 
read the majority's opinion in Citizens United that it was like 
reading a seventh grader's American government paper. Then I 
decided that that was insulting to Colorado's seventh graders, 
so I don't say it anymore.
    [Laughter.]
    The Chairman. See, we have free speech in the Senate too, 
don't we?
    [Laughter.]
    Thank you, Senator Bennet.
    Senator Isakson.

                      Statement of Senator Isakson

    Senator Isakson. Well, thank you, Mr. Chairman, and thank 
you for calling this hearing. You know, I came here with a set 
of questions to ask, which I'm going to in just a second. But 
listening to Dr. Zimmer in the discussion earlier and the three 
principles of the Chicago Principles reminded me of Dr. King in 
the south in the 1960's and the 1950's. He took the First 
Amendment and his belief that people believing contrary to him 
had the right to speak, too, but all of them needed to be non-
violent, and it changed this country.
    The Chicago Principles applied to that era and used by Dr. 
King, and, ultimately, embraced by those who wrote about the 
Civil Rights Movement as well as those who were confronted with 
making the decisions to make the Civil Rights Movement work, 
were based in large measure on what became the Chicago 
Principles. I just wanted to make that point, that free speech 
is, as I think Senator Murray said, the most important, if you 
had to pick one, of all our rights, and used in the proper 
perspective and without abuse of using it in the proper 
perspective can make fundamental change.
    I commend what you've done by embracing that at the 
University of Chicago and appreciate all your comments with 
regard to it. I say that to begin with, because my questions 
are going to be trivial. But if you'll listen to the end of 
them, they'll end up making sense.
    Dr. Zimmer, are you a Bears fan.
    Dr. Zimmer. I am, yes.
    Senator Isakson. Your turn is next, Ms. Strossen. You need 
to listen to this.
    You're a Bears fan, and right now, we have a huge issue in 
the NFL in terms of standing for the National Anthem. Does 
every Chicago Bear player who is owned by the--I guess the 
Halas family still owns the Bears--whoever does own them--are 
they free under our Constitution and under the laws of our 
country to exercise their right to stand or not stand for the 
National Anthem?
    Dr. Zimmer. Well, I'm not a constitutional lawyer and 
you're asking me a constitutional question. I'm going to pass 
that off to my colleague, who will answer the question.
    Ms. Strossen. I know nothing about sports, but I do know 
about the First Amendment. The First Amendment only binds the 
government, as I'm sure Senator Isakson knows, so that you do 
not have First Amendment rights, vis-a-vis, a sports team, 
which is not the government. However, I'm not a labor lawyer, 
and I understand there are some labor laws that might, in fact, 
provide protection.
    Now, if this were a government matter, so you have--you did 
have President Trump threatening to impose some kind of 
sanctions on those football players or other sports players, 
that would be government abridgement of free speech, if he's 
throwing around the power of the Presidency. But unless there's 
a statutory protection, their league owners could, in fact, 
control their on-the-job behavior.
    Dr. Zimmer. But I will just say that if this was the 
University of Chicago football team and players wanted to 
express their views one way or another like that, they would be 
free to do so. But, again, that's not a constitutional----
    Senator Isakson. I appreciate you volunteering that. I'll 
ask you this. The University of Chicago is a private 
institution--is that correct--and not a public?
    Dr. Zimmer. That's correct.
    Senator Isakson. As a private institution, you would 
exercise it that way. What about as a public institution?
    Dr. Zimmer. Well, again, as a public institution, I would 
seek counsel from my general counsel on what our constraints 
are.
    Ms. Strossen. On a public institution, that would 
absolutely be protected speech. As Thomas Jefferson said, 
dissent is the highest form of patriotism, so I happen to 
believe not only that it's constitutionally protected, but that 
it's actually consistent with our Nation's other values.
    Senator Isakson. You rallied my----
    Dr. Stanger. Am I allowed to just jump in, or how does one 
get a word in?
    Senator Isakson. Absolutely.
    Dr. Stanger. I'm not a lawyer, but I just did want to add 
something to this discussion, knowing something about the Civil 
Rights Movement, and it's always puzzled me about this debate 
we're having about the NFL, that people don't recognize that 
taking a knee is a sign of respect, not disrespect. I think 
that's very important to keep in mind when we view the actions 
of those players.
    Ms. Strossen. But we would defend it even if it were 
disrespectful.
    Dr. Stanger. That's taking it to the next level, but yes.
    Senator Isakson. A public institution.
    Dr. Stanger. Yes.
    Senator Isakson. Well, that answer was very, very helpful, 
and I appreciate it. I've enjoyed the panel immensely. Thank 
you for what you've done.
    I yield back, Mr. Chairman.
    The Chairman. Thank you, Senator Isakson.
    Senator Hassan.

                      Statement of Senator Hassan

    Senator Hassan. Thank you, Mr. Chair and Ranking Member 
Murray, and I, too, want to add my thanks to both of you for 
the work on the bipartisan healthcare bill and continue to be 
committed to working on with all of you.
    To our panelists, thank you for being here this morning and 
for this very important discussion.
    You know, I come from a state that has a long tradition of 
very vigorous political discourse, first in the Nation primary 
and a citizen legislature of 424 members. If you ever hung out 
with the New Hampshire legislature, you would hear a range of 
views that can be quite extraordinary.
    One of the things we also do well in New Hampshire is try 
to moderate and facilitate discussions of opposing views. The 
University of New Hampshire's Carsey School of Public Policy is 
home to a program called New Hampshire Listens, which is a 
civic engagement program, and really tries to take some of our 
most difficult issues and foster civic dialog. I would hold 
that out as an important example of a best practice for a 
public University system.
    But I wanted to direct my question mostly today, Mr. Cohen, 
to you. In your testimony, you note that the First Amendment is 
a bedrock principle of our diverse democracy, and I couldn't 
agree more. You also lay out much of the judge made law around 
the First Amendment that protects speech on college campuses, 
and you make clear that the law strongly protects controversial 
speakers, as I believe we all agree it should.
    Courts have also recognized that the First Amendment has 
important constraints. The classic example we all know is that 
you can't shout ``fire'' in a crowded building.
    A Federal lawsuit recently filed in Virginia alleges that 
Richard Spencer and others conspired to incite violence in 
Charlottesville at the so-called Unite the Right Rally. 
According to the complaint, these co-conspirators told each 
other to come to Charlottesville to, quote, ``conquer the 
street'' and, quote, ``defend civilization from the Jew and his 
dark skinned allies.'' They said they were ready to ``crack 
skulls''--that's a quote--and traded advice on the legality of 
running down counter protestors with cars, and we all know a 
car later drove into a crowd of counter protestors, killing a 
young woman, Heather Heyer, and injuring dozens of others. The 
lawsuit states that many organizers and rally goers celebrated 
this death as, quote, ``more than justified,'' close quote, and 
one predicted, quote, ``a lot more people are going to die 
before we're done here,'' close quote.
    Just last week, one of the white supremacists in 
Charlottesville, one who described Heyer's death as justified, 
was arrested and charged with attempted murder for his role in 
a shooting at the University of Florida after the speech by 
Richard Spencer. He and two other Spencer supporters taunted a 
small group of counter protestors waiting at a bus stop with 
Nazi salutes and Hitler chants.
    After yelling, quote, ``I'm going to kill them,'' unquote, 
one of Spencer's supporters fired a shot at the counter 
protestors. Thankfully, no one was killed at the event, but, 
obviously, it could have happened.
    My question is: When does protected speech cross the line 
into an unprotected incitement to violence? Can't we agree that 
a University has a responsibility to protect its students from 
this kind of planned violence?
    Mr. Cohen. You know, the situation that you described 
that's described in the lawsuit tells you something about the 
atmosphere on a number of college campuses. I think--I've read 
the complaint in that particular lawsuit. I think it will be 
difficult perhaps to prove some of the allegations, to be 
honest.
    Clearly, incitement has a very precise legal meaning under 
the Constitution, incitement to imminent lawless activity. 
There could be evidence of that, merely, you know, talk bravado 
in advance, probably not enough. Celebrating someone's demise 
in that ugly way, clearly not enough. The Supreme Court has 
said that in the Rankin decision. These issues, I think, are 
extraordinarily complex.
    The issue that you described where we have people 
intimidating others, harassing others--that's clearly not 
protected speech. Efforts to provoke a fight, intending to 
provoke a fight, is also not protected speech. There are 
limits, but all of these decisions, all these questions, as 
Professor Strossen, I'm sure, would say are intensely factually 
specific, and that's the challenge in a situation like 
Charlottesville to disentangle it.
    Senator Hassan. It's a challenge for University 
administrators who obviously have an obligation to protect the 
safety and lives of their students.
    Mr. Cohen. Could I make one point about that? The 
University of Virginia and Charlottesville is in a particular 
quandary because of Virginia's open carry law. They could not 
stop people at a public demonstration from brandishing weapons. 
That's a law that's in effect in more than 30 states, and it 
truly, truly hamstrings municipalities and counties from 
ensuring safety at public demonstrations.
    Senator Hassan. Well, thank you.
    Mr. Chair, I see that I'm out of time. I do have a question 
that I'll submit for the record to Ms. Strossen, because I am 
concerned about some of the way you characterize some 
psychological research about the impacts of hate speech on 
people. I don't think hate is a good thing, and I don't think 
hate speech helps people.
    Ms. Strossen. Do I have an opportunity to respond to that 
at some point?
    The Chairman. Well, I think so. Sure. We'll allow time for 
that.
    Ms. Strossen. Okay. As you know, Senator Hassan, I was 
quoting respected social psychologists and also political 
activists, starting with former President Barack Obama and 
continuing with somebody who's very respected by college 
students, Van Jones, who was speaking, in fact, at the 
University of Chicago. From their different expertise and 
different perspectives and experience, they concur that given 
the sad reality that Senator Murray started talking about, the 
prevalence of hateful attitudes and speech and conduct, it is 
disempowering to these students to shelter them and shield 
them, because it is going to undermine their resilience and 
their ability to effectively respond.
    I think we all agree that we're looking in the long run for 
how are they going to be most effective in a world where hate 
is a reality and hate groups are a reality.
    Senator Hassan. Mr. Chair--and I see other witnesses want 
to respond. I do know I'm out of time.
    I would suggest to you that telling people who are the 
victims of hate speech or who might have been traumatized by 
combination in their past of hate speech and physical violence 
how they should feel and whether it empowers them is 
inappropriate. There's a lot of research that you didn't cite 
that indicates exactly the opposite of what you did. Again, I 
know we're out of time, but I just think that people are their 
own best judges of whether this is----
    Ms. Strossen. That's exactly why every person that I cited 
is a minority person who was speaking from an experience of 
having been subjected to hate speech.
    The Chairman. Thank you, Senator Hassan.
    Senator Warren.

                      Statement of Senator Warren

    Senator Warren. Thank you, Mr. Chairman, and thank you for 
holding this hearing today, you and Ranking Member Murray. I 
appreciate your doing this.
    I think we all agree that free speech is not some kind of 
left versus right issue. It doesn't work that way. I want to 
see if I can ask a question from a little bit different 
perspective.
    Mr. Cohen, you run the Southern Poverty Law Center, which 
tracks American hate groups and extremists, and one of those 
extremists is Charles Murray. We talked a little about him this 
morning, you know, a man who wears a fancy suit and peddles 
racist junk science about how white men are, biologically 
speaking, intellectually superior to everyone else.
    Am I correct that you vehemently disagree with his views?
    Mr. Cohen. Completely, Senator.
    Senator Warren. Good. Me, too, and as someone who worked as 
an academic researcher for decades, I think that spouting fake 
science is extremely corrosive to public policy and should be 
called out in public at every possible opportunity. We've got 
that much. Let's go to the next part.
    Mr. Cohen, do you believe that powerful institutions of 
higher learning should ban people like Charles Murray from 
speaking in public if those institutions or their students or 
you or I don't like what those speakers have to say?
    Mr. Cohen. Just as simply, absolutely not, Senator.
    Senator Warren. Why not?
    Mr. Cohen. Well, look, we make progress as a country by 
having ideas tested, by having critical thought applied to 
ideas that are expressed in every realm of life. The Supreme 
Court has recognized the importance of robust debate. It's a 
bedrock principle of our country, and we would be much worse 
off if University presidents, students, or anyone could sensor 
the speech of others simply because they disagree.
    Senator Warren. I agree with you. In fact, I think it's 
dangerous to suppress speech. First, suppression can backfire. 
Instead of shutting up individuals with disgusting views, it 
becomes a launching pad to national attention. Bigots and white 
supremacists can make themselves out to be First Amendment 
martyrs----
    Mr. Cohen. Absolutely.
    Senator Warren.---- and grow their audiences. Second, 
suppression suggests weakness. It makes us sound afraid, like 
we're afraid that we can't defeat evil ideas with good ideas, 
and I just don't believe that's true. I believe in free speech, 
but let's be clear. Free speech doesn't mean the speaker is 
entitled to an audience. Free speech is not about shutting up 
or remaining silent while someone demeans women or demeans 
people of color or anybody else.
    Students can critique. They can make their voices heard, 
and they can be very powerful when they do. Free speech means 
more speech.
    Professor Stanger, you moderated an event with Mr. Murray 
at Middlebury College where you teach. You were physically 
attacked. Would you agree with me that acts of violence are not 
protected by the First Amendment?
    Dr. Stanger. I absolutely would agree with you, Senator 
Warren, on that point. But I would disagree with you, 
respectfully, on your characterization of Charles Murray's 
work, and maybe I might say a little bit about the Middlebury 
context, which would illuminate some things for us here today.
    Charles Murray was invited by a student group to speak on 
campus, and then the Political Science Department co-sponsored 
the talk. We did so because we're almost all Democrats, and we 
thought it was important for our students to engage with views 
that are influential in the Republican Party. What proceeded to 
happen was that another department on Middlebury's campus, 
Sociology-Anthropology, sought to sensor the Political Science 
Department.
    In my view, this is solved very simply by a Treaty of 
Westphalia between departments. I mean, let's let--if one 
department thinks----
    Senator Warren. Let me just say, Dr. Stanger, I appreciate 
this. But in a limited amount of time, getting into 
interdepartmental rivalries from the academic world----
    Dr. Stanger. Sure. But let me just----
    Senator Warren. ----I would actually prefer to spend our 
time on the Middle East, because it will be easier to solve.
    [Laughter.]
    Dr. Stanger. This is true. This is true. But may I make one 
more point, though, that's important? I think it's important.
    The Chairman. I'll give you----
    Dr. Stanger. Please.
    The Chairman. I'll give you time, Senator Warren.
    Dr. Stanger. Is that Okay? It'll take 10 seconds.
    The Chairman. Senator Warren ran for the Senate in order to 
escape interdepartmental rivalries.
    [Laughter.]
    Dr. Stanger. I understand that sentiment completely, 
Senator Warren.
    Senator Warren. I wanted to come to a place that was more 
collegiate.
    [Laughter.]
    The Chairman. That's right. You should have time to--
Senator Warren, I'll give you some extra time to finish your 
discussion.
    Dr. Stanger. The point I just wanted to add that's relevant 
to this is that no faculty member, to my view, would ever agree 
for their department to co-sponsor a talk by Richard Spencer. 
We're really talking about apples and oranges here, and there's 
a public-private distinction here that needs to be made. At 
these public universities, I think we're seeing these 
provocateurs seeking to set up talks that don't really have 
faculty sponsorship. Let the faculty lead, and I think we'll go 
in the right direction.
    Senator Warren. Let me just see if I can pull this back, 
though, to the point about what happens with free speech, 
whether it gets any special protection. The notion that I just 
want to underline here is that the people who attacked you get 
no special protection. Neither does the Charlottesville white 
supremacist who murdered a woman there, or the three white 
supremacists who tried to shoot people at the University of 
Florida last week. They will go to jail.
    Free speech is not about violence. It is not about silence. 
What I'm concerned about is that right now, it is all too easy 
for all of us to avoid hearing anything that we don't already 
agree with, and that is an enormous threat to our democracy.
    I know that powerful people want us divided, that foreign 
governments are pouring gasoline on that fire, flooding 
Facebook and Twitter with angry messages designed to stir up 
lingering resentments. The President of the United States is 
pouring even more gasoline on that fire, attacking our free 
press as a, quote, ``enemy of the people,'' and even 
threatening to use the awesome power of the government to shut 
down press outlets for reporting that he doesn't agree with.
    I don't care what your politics are. All of us who believe 
in America and its freedoms need to work harder to put out that 
fire, and we start by making sure that powerful institutions 
and individuals don't shut down speech they don't like, and 
that includes universities, and it definitely includes the 
President of the United States.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Warren.
    Senator Kaine.

                       Statement of Senator Kaine

    Senator Kaine. Thank you, Mr. Chairman, and thanks to the 
witnesses. I was at a classified hearing on Niger, and I 
apologize that I didn't hear your statements.
    This matters a lot to me, because Virginia was subject to a 
horrible act of violence on the 12th of August. White 
supremacists largely from outside of our state came to the 
University of Virginia in Charlottesville to perpetrate not 
just bigotry and hatred, but violence and murder. They chanted 
slogans like ``blood in the soil'' and ``Jews will not replace 
us'' next to synagogues and the Hillel Foundation on campus. 
They chanted other horrible racist comments. One from southern 
Ohio used a vehicle to kill a beautiful 32-year-old paralegal, 
injuring 19 others.
    Two state troopers who weren't supposed to be working that 
day but needed to work that day to try to protect people were 
killed when their helicopter crashed. I knew both well. One was 
my helicopter pilot every time I flew as Governor of Virginia, 
Jay Cullen. The other, Berke Bates, was a member of Governor 
McAuliffe's security detail. They wouldn't have been working 
that day had white supremacists, confederates, and neo-Nazis 
not tried to inflame violence in Charlottesville.
    In the aftermath, many of these individuals have not 
condemned these actions but even celebrated the death of 
Heather Heyer, the paralegal, one calling her a disgusting 
Communist, one of the organizers of Unite the Right Rally. I 
share Senator Warren's belief strongly that colleges should be 
a place of robust speech and disagreement. We don't need to 
protect young people from free speech. We need to expose them 
to different ideas and have them exercise their critical 
faculties to make their decision about what they think is right 
and wrong. But I think we cannot use the banner of protecting 
free speech to allow people to terrorize folks.
    I want to put in the record, if I can, Mr. Chair, a sermon 
that was delivered by a friend of mine, Jake Rubin, who is the 
Hillel minister at UVA. He's a rabbi, and for the Holy Days 
commemoration this year, he delivered a sermon about the anti-
semitism and the violence that was on display and the 
connection between Jews and their experience of anti-semitism 
and other minorities who are targeted.
    Senator Kaine. I have another friend in Charlottesville 
whose daughter was struck in the face by a white supremacist 
wearing a leaded glove and was injured pretty badly. He has 
been arrested and has been extradited from Indiana back to 
Charlottesville to face criminal charges, as should be the 
case.
    I'm sure you got asked this question. But I know trying to 
draw a line between protecting free speech, but then 
universities--and I know we have the president of the 
University of Chicago--I think they have a significant 
responsibility to protect their campuses from violence. When 
individuals are coming in who either intentionally--or there's 
a reasonable probability that their activities could lead to 
violence, could lead to people being terrorized--I think that 
universities need to take action to try to protect their 
communities, not from the speech but from violence that can 
naturally occur from these.
    I wonder what your thoughts are about whether the costs of 
that protection have to be borne by students and taxpayers or 
whether they have to be borne by those who would try to come to 
campuses and foment that kind of activity. That would be a 
question for anyone.
    Ms. Strossen. Well, the U.S. Supreme Court has actually 
held in a case in which the ACLU was defending freedom of 
speech for a controversial speaker--it happened to be a white 
nationalist in Georgia--and the Supreme Court held that--and 
this was part of a series, the most recent of a series of 
holdings--that government may not fob off onto speakers the 
costs of providing security, because that's like imposing a tax 
or a penalty on free speech, and, in particular, government may 
not impose differential costs, depending on how controversial 
the speech is.
    But, Senator Kaine, as Richard Cohen and I were talking 
about beforehand, we both see this as a very serious problem, 
because there are a lot of schools that cannot literally afford 
the enormous costs that have been borne by Berkeley, for 
example, or the University of Chicago. As educators, I 
certainly would not want to cut faculty salaries or raise 
student tuition, in all seriousness, in order to have to deal 
with this.
    Senator Kaine. Ms. Strossen, can I ask this? I know you're 
an expert on this. In that Forsyth, the Nationalist Movement 
case, is it a very unequivocal ruling that no matter what the 
likelihood of violence is--we're not talking about speech. 
We're talking about--if you could make a prediction that 
certain kinds of speech are not just likely, but guaranteed to 
produce violent----
    Ms. Strossen. Oh, absolutely, and that----
    Senator Kaine. The Supreme Court didn't say in that case 
that you couldn't charge for necessary security.
    Ms. Strossen. Oh, no, no, no. That's been the law--that has 
been the law forever, even when the Supreme Court very strongly 
protected freedom of speech by rejecting--see, in this country, 
we used to say any speech that has a bad tendency, that might 
at some point in the future lead to something harmful. That was 
what was used to shut down abolitionist speech and civil rights 
speech and anti-war speech, because--anything that was 
unpopular.
    In 1969, in a case involving the Ku Klux Klan, the Supreme 
Court unanimously held that you can punish speech because you 
fear it might induce violence if, but only if, the speaker 
intentionally incited imminent violence that was likely to 
happen imminently, and that standard was very important for the 
Civil Rights Movement, because many of their speakers were 
being shut down and punished and even incarcerated because of 
the fear--oh, well, that might lead to violence--in these 
communities that were hostile.
    Senator Kaine. If it's violent and it's so predictable and 
imminent that you can fairly make that----
    Ms. Strossen. Government has an obligation to----
    Senator Kaine. You don't base it on the content of the 
speech. You base it on the high likelihood of it producing 
violence.
    Ms. Strossen. Exactly. You look at the context.
    Senator Kaine. Dr. Zimmer, if I could ask you to comment on 
this--I really appreciated the statement that you put out at 
the University of Chicago following the tragedy in 
Charlottesville, because it was a powerful statement and it 
spoke to the anti-semitism of this.
    The Charlottesville thing was sort of advertised as about 
statues. That didn't have anything to do with ``blood in the 
soil.'' That didn't have anything to do with ``Jews will not 
replace us.'' This was a very significant anti-Semitic, neo-
Nazi effort by individuals who came very prepared for violence 
from around the country, and I appreciated the statement you 
put out.
    Talk about how--because you're pro-free speech in the way a 
University president should be, but if you could--Mr. Chairman, 
I'm over my time, I recognize--but I'd love to hear you talk 
about how you grapple with this question of speech that is 
likely to lead to violence.
    Dr. Zimmer. Again, we have both the advantage and 
disadvantage of being private, and so we don't particularly 
need to act precisely on the basis of the First Amendment in 
every situation. But for us, because we had taken such a clear 
position on free expression and its importance, we felt it was 
very important for us to recognize these acts for what they 
were, and it simply became very difficult to think about people 
standing with weapons and Nazi symbols in front of a synagogue 
or a similar situation with symbols of the Ku Klux Klan, again, 
a weaponized group of people--to think about this as expression 
that was not threatening. I mean, what is the message that is 
being delivered.
    We made a very strong statement against it for that reason. 
We would not have weapons on our campus. If a speaker wanted to 
come and said, ``You know what? I want to have six people 
standing in back of me with semi-automatic weapons,'' we would 
say, ``Sorry, we don't have semi-automatic weapons on our 
campus. If somebody has invited you, you can come, you can 
speak, you can answer questions. We're not going to pass 
judgment on what it is you're saying, but you cannot stand 
there with weapons that carry an implicit threat.''
    If I could just add one example that I think is interesting 
about the cost issue that you raised. After the Charlie Hebdo 
incident in France, a woman from Charlie Hebdo made her first 
speaking appearance at the University of Chicago, and the 
security concerns, for obvious reasons, were extremely high.
    That was an example that, in fact, where we made a 
conscious decision. It was too important for--and this person 
had been invited by a student group to be able to speak. Again, 
we paid the cost of that security. Part of the issue is you 
start seeing these things on every side, and the cost issue is 
a complex issue that I don't think we've got actually fully 
figured out yet, to tell you the truth.
    Senator Kaine. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Kaine.
    Thank you to each of the four of you. We have votes in a 
few minutes, so we're going to conclude the hearing. What I'm 
thinking as I was listening to your terrific testimony is that 
we're dealing with a problem here with more--by more speech, 
because your appearance here today will be noticed and seen by 
lots of people on college campuses and people who watch CSPAN 
and who think about these issues, who might not have thought 
about them in as clear a way as they might, having now heard 
what you have to say.
    I also think it is true that we've seen a reaction--Ms. 
Strossen made this point--where more speech--and some of you--
Dr. Stanger, I think you--all four of you, really, are 
responsible for this--that you've spoken out from your various 
perches in life and have been noticed by the rest of the 
country, and you've had an impact. I mean, more campuses have 
adopted the Chicago Principles. In a variety of ways, each of 
you have done that. That's encouraging that in our country we 
see these issues taken more seriously.
    Also, I think the hearing reminds us of what was said in 
exchange with one senator and you, which is that we live 
increasingly in a country where we tend to get our information 
from people who already agree with us, or we with them, and we 
don't, as Senator Howard Baker used to say, consider that the 
other fellow--or today, he might say the other fellow or the 
other woman--might be right. That's what he always said--the 
other fellow might be right.
    We don't have as much diversity of information--real 
diversity of information as we should have, and I suppose 
college education and maybe especially a liberal arts education 
is a real antidote to that. It makes universities even more 
important as places where students are exposed to different 
points of view.
    As I mentioned, in my case, when I was at the Kennedy 
School at Harvard, it was good to have a dean who understood 
that most people there weren't Republicans, and he worked hard 
to get some there, so at least you could actually meet one, you 
know, while you were going to graduate school.
    I like the ``good morning--what evidence do you have for 
it'' line. I'm going to remember that. I would conclude by 
saying I think you noticed on this panel that this panel of 22 
or 23 Senators--you could not find many more diverse views than 
you can find around this table. But I think on this issue, we 
listened very carefully to you, and it wasn't--as Senator 
Warren said to me as she left, this is not a left-right thing 
for us, and you presented your testimony in that way.
    The one thing I would just conclude with in my own view--I 
hope that the U.S. Congress won't do what it often is tempted 
to do, which is to think that we've flown to Washington from 
our homes and have suddenly become wise enough to tell 6,000 
colleges and universities exactly what to do, and that either a 
free speech mandate, which some advocate, or a free speech 
code, which other advocate, imposed from Washington on 6,000 
colleges and universities is a bad idea.
    We have a free speech mandate in the United States 
Constitution, and it's up to college--we have University 
presidents and board members and faculty members and 
communities who ought to be able to do what you're doing and 
argue this out and try to respect everyone's rights as we move 
ahead.
    Thank you again for you attendance and excellent testimony. 
I wish every Senator could have heard it, and I know many 
Americans will benefit from it.
    The hearing record will remain open for 10 business days. 
Members may submit additional information and questions to our 
witnesses for the record within that time if they would like. 
The next scheduled hearing before this Committee will be on 
Tuesday, October 31st, at 2:30, entitled ``Implementation of 
the 21st Century Cures Act: Achieving the Promise of Health 
Information Technology.''
    Thank you for being here today. The Committee will stand 
adjourned.
    [Whereupon, at 11:46 a.m., the hearing was adjourned.]

                                 [all]