Education

Speech for All

(Will Burgess/Reuters)
A conversation with Geoffrey R. Stone, the free-speech prof at Chicago

Editor’s Note: The below is an expanded version of a piece published in the February 10, 2020, issue of National Review. For a Q&A podcast between Mr. Nordlinger and Professor Stone, go here.

Chicago

Before I left home, I told a friend in Chicago that I was coming to town. I said that I would see an important professor at the University of Chicago. My friend replied, “Is there any other kind there?”

This particular professor is Geoffrey R. Stone, of the law school. He is a champion of free speech, on campus and elsewhere. Indeed, he is the guiding spirit behind the Chicago Statement, which articulates the Chicago Principles, which address free speech at this university. The principles were published in January 2015 and soon got famous. Some 70 colleges and universities have now adopted them for themselves.

In November, I spoke with Mitch Daniels, the president of Purdue. (He is also a former governor of Indiana, and a Reagan conservative.) He said that he “xeroxed” the Chicago Principles as soon as he saw them. He praised Geof Stone as a “lion of the Left” who, nonetheless, defends free speech, for all.

That word “nonetheless” is a fighting word. Conservatives will find it appropriate, because they are used to being stifled and bullied on campus. Many on the left will say, “What do you mean? It’s we who have fought for free speech throughout American history, and you who have so often been the stiflers and bullies.”

Sitting in his office — which has a wonderful neon sign, showing the phrase “Free Speech!” within a mouth — I ask Stone whether it is odd to be admired and praised by conservatives. He says it is. He believes that conservatives are free-speech champions of convenience: When it is they who need protection, they are all for speech; otherwise, not so much. I ask him whether he will allow that people in general, whatever their views, tend to be more interested in their own free speech than in others’. He will allow it, yes.

Stone was born in 1946, in New York City (the Bronx). He went to high school on Long Island. For college, he went to the University of Pennsylvania, and, specifically, to its Wharton School. Same graduating class as Donald Trump — 1968. Stone was not aware of the future president.

Stone, Trump, and a lot of other graduates were looking to avoid the draft. Stone toyed with the idea of a Ph.D. program, but his two roommates were going to law school. Maybe that would be all right? Stone did not actually know a lawyer, and neither did his family. But “there were a couple of good lawyer TV shows in those days,” he says.

The young man applied to the leading law schools and was accepted by all of them. He chose Chicago. Why? He had never been to the Midwest and knew next to nothing about this university — but his girlfriend was transferring to Northwestern (in Evanston, Ill., just north of the city). The night before he was to drive out from New York, she called him, to break up with him.

No matter. He fell in love with the law school and with the law. “More than half a century later, I’m still here,” he says.

He did leave the city to go to Washington, D.C., where he clerked for a Court of Appeals judge, J. Skelly Wright, and then a Supreme Court justice, William J. Brennan. I ask him about Brennan, of whom he has very warm memories. He was “good-natured, kind, thoughtful, friendly,” says Stone. “I never met anyone who didn’t like Bill Brennan.”

Moreover, says Stone, the justice “had a very clear understanding of his judicial philosophy and was very influential within the Court, partly because he knew how to find common ground. He knew how to persuade without being controversial or conflictual.” He was “just an absolutely lovely person.”

(Conservatives have made their case against Brennan many times, and will again. It doesn’t kill us, I trust, to hear from the man’s admirers now and then.)

Young Stone also got to know another justice, Thurgood Marshall, whose chambers were next to Brennan’s. And Stone played on the “highest court in the land” — i.e., the basketball court on the top floor of the Supreme Court building. Among the other players was Justice White — “Whizzer” White, the former NFL star — who was then in his mid 50s.

How about other clerks, in Stone’s year at the Court? One was Lee Bollinger, who worked for Chief Justice Burger. He is now president of Columbia University. Another was Bob Barnett, who clerked for White, and has long been a big lawyer in D.C. A third was J. Harvie Wilkinson, who clerked for Justice Powell, and is now on the Fourth Circuit.

Geof Stone has known most of the Supreme Court justices of his time, including Antonin Scalia. The two taught on the same faculty, at Chicago, before Scalia joined the Court. I spot a photo of the late justice in Stone’s office. There is also a special deck of cards. Scalia was part of a regular poker game with his law-school colleagues, including Stone. The game goes on. After Scalia died in 2016, Stone had decks of cards printed up with Scalia’s picture on the back of each card. These are the cards that the players now use.

“Was he a good poker player?” I ask Stone. “He was an idiosyncratic one,” Stone answers.

Barack Obama has not been a Supreme Court justice. While campaigning for president in Iowa the other week, Joe Biden was asked whether he would nominate Obama to the Court. “If he’d take it, yes,” Biden replied. In any event, Stone hired Obama at Chicago Law School. (Stone was then dean.) Obama had just graduated from Harvard Law School. He was recommended by Michael McConnell, who was then on the Chicago faculty. (McConnell was later a Court of Appeals judge, and now teaches at Stanford Law. He is a famous judicial conservative, by the way.) Obama had edited a piece by McConnell at the Harvard Law Review.

Stone interviewed him for a fellowship. He (Stone) was a little late coming to the interview, so Obama spent some time talking to his secretary. The lady saw clear political potential. After Obama left, she remarked to Stone, “You know, I think he will be governor of Illinois someday!” Later on, Stone would kid her, “You were wrong.”

Geoffrey Stone was dean of the law school from 1987 to 1994. From 1994 to 2002, he was provost of the university. Today, he is the Edward H. Levi Distinguished Service Professor. He has written many books, including this one from 2017, which may catch one’s attention: Sex and the Constitution.

A side note: Ed Levi was a big figure at Chicago, and in American law. He earned his undergraduate and law degrees at Chicago. He taught at the law school, was dean, was provost, was president. Then he served as U.S. attorney general under Ford. Among his students was Robert Bork, who also earned both degrees — undergraduate and law — at Chicago. (He went on to teach at Yale.) Bork told me several stories about Levi, whom he admired. Apparently, Levi was exciting — downright exciting — in the classroom. He once claimed to Bork that he had just been a charlatan — a performer — but that can be taken with salt.

In 2009, I met another dean of Chicago Law. A former dean. He was Phil Neal, who had come to a National Review event in the city — at the John Hancock Center. I had a most remarkable conversation with him. Among other things, I learned that he had gone to Harvard College in the Class of 1940. Another member of that class was John Kennedy. They served on the Union Committee together. In a race for student council, Neal beat him, badly. It would prove the only race JFK ever lost.

Neal went on to clerk for Justice Robert Jackson, incidentally. At that NR event, he and I talked about the difference between the old liberalism — pre-McGovern, you might say — and the new. Neal belonged to the old, which made him a “conservative,” pretty much. Of course, the term “conservative” has recently undergone a big shift.

What would Neal be called today? Who knows? Anyway, I was tickled to meet him, as we say in my native Midwest . . .

Like all conservatives, I can tell a hundred horror stories about life on campus: its censoriousness, its restrictiveness, its illiberalism. Indulge me in two memories, one rather distant, one from just five years ago.

In 1983, Jeane Kirkpatrick had to leave a stage at the University of California, Berkeley. She was then the U.S. ambassador to the United Nations, and was a veteran political-science professor. The students would not let her finish her speech. (She eventually returned and did.) Jesse Choper, dean of the campus’s law school, said, “You children should be ashamed of yourselves.” Later, Kirkpatrick said, “I have not seen a group so interested in denying free speech and discussion.”

In 2015, I went to Brown University to report on an underground forum there. Students had established this forum in order to have free and open conversations. It was too difficult above ground. (Obviously, the students were ready to have the broader world know about their forum. They gave me the story — wanting to call attention to the measure they had been forced to take.)

Geof Stone says that, generally speaking, Chicago is a place where students, of all opinions, feel free to speak their minds. He has had lots of conservative students in his classes. Conservatives have long been attracted to Chicago Law, in large part because the school has a reputation for law-and-economics. (This turns conservatives on, for reasons we could explore another time.)

I have a bit of student testimony confirming that the University of Chicago is a place where students of all stripes feel free to speak their minds. We can grant, I think, that Chicago is a more serious institution than a great many others across the fruited plain. If a U of C student claimed to be “triggered” and asked for a “safe space,” chances are he would not get very far. Snowflakes are for wintertime.

(It duly snows during my visit, I might note.)

Chicago may be an exceptional place, but Professor Stone is well aware of conditions elsewhere. He knows about the shoutings down and the disinvitations and all the rest of it. Furthermore, he is concerned about the “chilling effect” that is a natural part of illiberal campuses. This does not refer to the weather. It means that, if a person has seen others punished for speaking out, he will keep his mouth shut.

The person does not have to be censored. He does it to himself.

Several years ago, there was a rash of incidents that were bad news for free speech. In 2014, for instance, Rutgers University invited Condoleezza Rice, the former secretary of state, to give its commencement address. She accepted. But protests against the invitation were so severe and hysterical, she begged off.

The president at Chicago, Robert Zimmer, surveyed the national scene and decided to form a committee: the Committee on Freedom of Expression at the University of Chicago. He asked Professor Stone to chair it. From it came the Chicago Statement, with its principles.

Stone et al. quote august figures from the university’s past. Robert Maynard Hutchins, who led the university from 1929 to 1951, said that Chicago students “should have freedom to discuss any problem that presents itself.” The “cure” for objectionable ideas, he said, “lies through open discussion rather than through inhibition.”

Another president, Hanna Holborn Gray (1978 to 1993), said that “education should not be intended to make people comfortable, it is meant to make them think.” She continued, “Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgment, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom.”

On a website, the university has a timeline of free-speech events, so to speak, in the institution’s history. I was interested to see that Ed Banfield — Edward C. Banfield, the great (conservative) political scientist — was shouted down in 1974. Banfield was then teaching at the University of Pennsylvania, and he had been invited to speak back at Chicago. I say “back” because he had done his graduate studies there. He was a native son, if you will. When Banfield left the U of C, Leo Strauss, no less, paid tribute to him. You can read Strauss’s remarks here.

After Banfield was shouted down — and others were similarly harassed — President Levi acted to stop this menace, as the timeline explains.

In their Chicago Statement, Geoffrey Stone et al. write, “Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.”

The Chicago drafters never intended their statement to be adopted by others — it was for their university only. But that’s the way it happened.

Talking with Stone about the freedom of speech and its limits — and there are some, of course — I tell him a story. Rather, I make a confession. A few years ago, I heard my colleague David French make a speech about free speech, on campus in particular. Afterward, I said to him, “Maybe I’m a bad civil libertarian, but I just don’t think that Nazi and Communist groups have a right to form on campus. In the broader society, yes, but not on campus. University administrators should be able to forbid it.” David said, “You’re not just a bad civil libertarian, you’re not a civil libertarian at all.”

Stone chuckles. He then says, “The fundamental point is that free speech as a principle is about distrust of the wisdom of those who would decide what you can say and what you can hear and what you can’t say or hear. And I don’t trust anyone to make that decision for our society or for my university.”

He further says, “Many institutions today, if given the power to suppress speech, would probably prohibit Trump supporters from speaking on their campuses. I don’t want that. But they would say, ‘Those are horrible ideas, those people are terrible,’ right?”

Right.

My impression is that the advocates of free speech are gaining ground and that the stiflers and bullies are back on their heels — on the defensive. Does Stone agree? He says that the number of free-speech offenses on campus is way down. There have been fewer violations, fewer curbings. There are several reasons for this, he says — some good, some bad.

Here’s a bad one: Students who invite controversial speakers to campus pay a steep price for it, in social-media condemnation, etc. Not many like to be a pariah. So they stop issuing controversial invitations.

Here’s another bad one: Controversial speakers may figure, “Who needs it?” They just stay away.

Here’s a good one: Maybe the stiflers and bullies are a little bit ashamed of their stifling and bullying. Or, if they’re not ashamed, they see that their tactics are backfiring. They draw attention to the ideas and speakers they hate, instead of diminishing those ideas and speakers. Maybe they should try a little benign neglect. Maybe they are.

Minority views are always vulnerable. Today, the Left is in the saddle — certainly on campus — lording it over others. (This is my view, apart from Stone’s.) But whoever is in the saddle, you have to beware of him. Ideally, liberal-democratic principles are in the saddle. Stone notes that a lot of students on the left felt they had to keep their mouths shut during the McCarthy era. He also notes that, if you supported the Vietnam War, you probably felt the same.

At some point in our conversation, I tell him a story, a personal one. When I was in college, I had a dear professor, an older woman, with whom I felt I could talk. I told her about my interest in conservatism. And I quoted William Safire to her: “I have to go down to the corner newsstand to buy a Hustler magazine, to have something respectable to hide my National Review in.” She laughed and said, “You know, when I was in college, we had to do that with our Nation magazines.” (The Nation is on the left, as you know.)

We understood each other.

Before we part, I ask Geoffrey Stone for a kind of final statement — a last word — and he says this:

“I think, particularly at the current moment, nationally, we need to learn to listen to each other. I think that social media, cable news, have had a terrible effect on our democracy; that people more than ever before, on both sides, hear only the people who reinforce their views. And that’s antithetical to the very premise of how a democracy is supposed to function.

“Democracy is about being open-minded and listening to and trying to understand opposing positions, and I think we are now living at a time when that just does not exist, and that worries me greatly.

“You have to learn to be open-minded, and to listen to people you disagree with, try to put yourself in their shoes, understand why they feel the way they do, see the world through other people’s perspectives, and then talk to them about it, and try to reason, instead of just automatically dismissing everything people say when they disagree with you, and never listening to the other side.

“I think we’re in a serious moment in our history right now where that core, essential value of how a democracy functions is at risk.”

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