Free Speech on Campus: Protecting the Right to Disagree

Zach Greenberg 

We understand that the speech out there may be offensive and hateful and controversial, but we don’t have free speech to talk about the weather or to say two plus two equals four, right? We have it to say things people may not like. And these faculty members, these universities, they should be the most free to express themselves. They should be the ones that are out there sharing their expertise, talking about politics, being the beacons of light on their campuses for these values and to see them lose their jobs for expressing themselves. It really sends a profound chilling effect across all of higher ed that people see this and they say, oh, if I speak out, I’m next, I’m going to get in trouble. And that’s really corrosive to this culture of free speech, where you have people self-censoring upon seeing people lose their jobs and being punished for their expression.

Scott D. Schneider 

Hello and welcome to Campus Docket, a Volt podcast about the legal challenges reshaping higher education. I’m Scott Schneider, attorney and adjunct professor at the University of Texas School of Law, and I’m joined by Eric Kelderman, senior writer at The Chronicle of Higher Education. Each episode will unpack the key legal developments that matter to higher ed leaders, from student rights and faculty contracts to DEI, lawsuits and government oversight. Campus Docket is produced by volt, the go to news source for higher ed leaders and decision makers. Remember to visit Volt at voltedu.com and subscribe to Campus Docket on Apple Podcasts, Spotify, or wherever you get your podcasts to make sure you never miss an episode. Let’s get into this week’s show.

Eric Kelderman 

Welcome to Campus Docket, everyone. I’m Eric Kelderman, senior writer at The Chronicle of Higher Education. I’m joined, as always, by the inimitable Scott Schneider from Austin, Texas.

Scott D. Schneider 

I don’t even know what that means, Eric. I don’t know what that… yeah.

Eric Kelderman 

It means you can’t be replicated. You can’t be imitated in any way. You’re one of a kind. But anybody who knows you knows that. 

So normally, we would start our episode with an update on sort of the newest developments in higher education legal issues. But really today is going to be a special issue. We’re going to dedicate our entire discussion to focus on the very recent events that have happened, the really tragic events around the murder of activist Charlie Kirk and its impact on campus free speech, and sort of the bigger trends that are occurring in that topic. Joining us today is Zach Greenberg, who runs the Faculty Legal Defense Fund at the Foundation for Individual Rights and Expression, a group that was started with the express purpose of advocating for free speech on campus and really protecting perspectives across the political spectrum. So welcome, Zach.

Zach Greenberg 

Thank you for having me. It’s an honor.

Eric Kelderman 

Glad to have you here. You didn’t know this. But before we get into the heart of the discussion we have what Scott and I like to do, what we call an icebreaker, and this is completely unrelated to anything. Well, as far as we know, it’s going to be unrelated to anything we’re going to talk about today. And I don’t know if you’re a movie guy, it doesn’t really matter, but what’s a movie that if you had to watch one movie over and over again for the rest of your life, what would it be?

Zach Greenberg 

That’s such a difficult question. I would have to say the original Matrix. It absolutely blew my mind when I first saw it. I was like ten years old and it still holds up even today. Those graphics, the story, philosophy professors still talk about it during their classes. I love it.

Eric Kelderman 

Yeah. I’m gonna guess. I think I know Scott’s answer for this.

Scott D. Schneider 

Go ahead.

Eric Kelderman 

I think it’s The Big Lebowski, is it not?

Scott D. Schneider 

I love that movie so much.

Zach Greenberg 

That’s a great movie.

Scott D. Schneider 

The movie cracks me. I can watch it a hundred times. I always pick up something a little different and I probably have watched it a hundred times. It is so funny. The acting is so great. There’s some plot there, and then there’s an ethos, man, that you can apply to your life, but that movie kills me. And there are lines like, we go, we do a bowling night Wednesday nights, here in Austin, me and my wife. And it’s like heavily inspired by that movie. I love that movie so much. Yeah, you got me on that one.

Eric Kelderman Yeah, well, I just knew that because we’ve actually talked about this casually between ourselves before. So that’s our minor ambush. I would say for me, it’s a tough call. There’s a lot of favorite movies, I think in the vein of Scott’s answer, I think I would go with the Blues Brothers. A little more old school, but you really can’t beat that. The musical performances. You know, some of the original Saturday Night Live characters, Carrie Fisher. Hard to beat, really.

Scott D. Schneider Anything with Ray Charles in it is excellent.

Eric Kelderman Yeah. The scene with Ray Charles as the music store guy, who reacts to a theft in his shop is brilliant. So, so, so much great stuff there and like Scott, like lines that, that just pop up in your head at an opportune times. I would say with Zach, in Zach’s line, I would think, you know, I mean, the original Star Wars, of course, really seminal movie for me when I was, you know, middle school age or whatever, I guess, 1979, I think.

Scott D. Schneider Yeah. Zach was around back then, man.

Zach Greenberg The original? I can’t say I was. I was gonna say, you guys love your comedies. If we are doing comedies, I have to say, Dodgeball is my number one​​ up there. I know that with iconic lines, right? Dodgeball, can’t beat it. But yeah, Star Wars, you know, I’ve seen most of the Star Wars. They’re good.

Eric Kelderman So anyway. Well, we’re gonna get into now the real reason we’re here to talk about today. And as we’re sitting here, we’re just two weeks, really, just two weeks after the assassination of right wing activist Charlie Kirk, the founder of Turning Point USA, an organization with chapters at high schools and colleges across the country. And I imagine their number is going to grow in the next year or so, sort of sparked by his really untimely and tragic death. Kirk was killed on the campus of Utah Valley State University, though not by a student, but the fallout has included the firing or suspension of dozens of faculty, staff, faculty and staff at other institutions over comments they’ve made about the murder and in particular, statements that either seem to support the killing or criticize his work promoting conservative causes. So The Chronicle is tracking this. More than two dozen faculty now, some fourteen staff and three students have been punished by institutions for their words. And I think it’s clear this pattern is unlikely to end anytime soon. But I guess most troubling, this is just one of the many ways that free speech is under threat at campuses. As as probably all of our listeners know, a faculty member was fired at Texas A&M just a few weeks ago after a student questioned whether the faculty member was able to discuss the topic of gender identity. Another situation that’s just popped up in Texas is Angelo State campus in the Texas Tech system has somehow, I don’t know how this is legal, has barred all classroom discussion of transgender topics. I don’t know how you do that. I guess we’ll discuss that. First of all, you know, for both of you, really, is there anything, anything at all that would be, that’s legal or constitutional in these situations that are evolving?

Zach Greenberg 

It seems like a pretty clear First Amendment free speech violation to me. Public universities firing their professors, expelling their students for what they say, what they believe. That’s why we have free speech. We have this crucial, fundamental right to talk about political issues, including issues that may offend others. Charlie Kirk’s assassination. It’s a political event. It’s been the news for the last two weeks. It’s been in every newspaper in America. And it’s something that at a college campus, people should be the most free to talk about. We should be protecting these rights to the fullest possible extent under the law. But we’re seeing the opposite now. We’re seeing professors and students and even other employees across the nation being punished for simply expressing their viewpoints on this public figure. And that’s, that’s a real shame.

Eric Kelderman 

Yeah. You know, faculty have an interesting, I think, legal situation when it comes to free speech in the workplace, right? Very confusing. A Supreme Court case named Garcetti. That sort of leaves the question of faculty free speech open. And let’s just be clear here, right. The standard for violating First Amendment is really a very high bar. You need to say something that’s clearly meant to threaten someone with physical harm. There’s no exceptions for hate speech, right? But if you’re a faculty member and you’re in a classroom and you say something like, gee, I’m really glad this happened, or I can’t wait for more of this to occur or something like that. If you’re in the classroom, is there a gray line there, at a public institution, what authority does the institution have in that case?

Zach Greenberg 

Yeah, I try to simplify it as best as I can. So like you alluded to, when professors speak in their private capacities off hours by posting on social media, going to political rallies, they can speak on public issues. They can be a private citizen and still have their First Amendment rights. When they’re speaking in their faculty role teaching, research, debating on public issues in class. Academic freedom protects their right to fulfill their job functions. And so, as long as their speech is pedagogically relevant, as long as they’re talking about these topics in a way that relates to their course or subject matter to their students, they’re protected by academic freedom, which the court has said is a special concern to the First Amendment. It’s why we have this essential right on college campuses for faculty members to discuss ideas and fulfill their jobs. So it’s really a matter of what the faculty member is saying and how it relates to their class.

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Eric Kelderman 

Scott, you’ve got a front row seat to this in Austin. Some of the most really stunning developments on this topic. And you deal with these administrators all the time. I’m wondering, is this well understood, or do you think administrators are simply reacting to the political pressure of the moment and saying, you know what, we’re going to take this action. It might not be legal, but we’re going to roll the dice because, you know, it’s better for us in the short term at least.

Scott D. Schneider 

Yeah. I’ll give you my perspective, which I’m kind of interested. I always love talking to the folks at FIRE. You know, I go back, I don’t remember exactly when this was, but there was a case out in Oklahoma I want to say maybe, I don’t know, 5-10 years ago. There was a young man who said something inappropriate, I think it was racially inappropriate. And the president of the university came in and disciplined him. And it was sort of the same language that you heard from Pam Bondi about there’s a difference between free speech and hate speech. I think one of the things that FIRE has done a really good job of holding the line on, in that case in Oklahoma and up to now, is pointing out there’s no hate speech exception to the First Amendment. I mean, that gives the government too much latitude to basically label things that they disagree with as hate speech and not cover it. And so there is no exception along those lines. I think the part that in Texas, it’s been stark, you just had a couple of years ago, the governor, Greg Abbott, right down the street from me right now, really emphasize the importance of allowing robust speech on college campuses. And it was at that point the kind of motivating factor was there was these de-platforming campaigns or, you know, shouting people down who were kind of there, you know, on the right politically coming to campuses. And the reflex was really to say, hey, no, the First Amendment is exceptionally important. And then to sort of watch this pivot in real time where anytime we’re talking about young people and students, I’ll speak for myself. When I was young, and I still make a lot of mistakes, but probably when I was 18 to 21. Yeah, I probably did a whole heck of a lot of things. Thank the Lord. You know, there wasn’t a video camera holding on me at that point. I’m glad I grew up in that time. But to watch, the Texas governor, Governor Abbott, come out and, on social media highlight a student’s speech and say, hey, you need to expel this kid, kind of plays into what I’ve seen going on for probably the last 10 to 15 years, which is outside of FIRE, there isn’t a consistent defense of the importance of First Amendment and free speech rights. It’s very, you know, culture-war-ends-oriented as opposed to principled. And, there are things that people say on college campuses, but it’s left and right that over the course of my career, it’s kind of a yucky way of saying this, but they should have the right to come out and say it. And so it’s a long way of saying, yeah, I’ve watched what happened obviously over the last couple of weeks and I’m alarmed, I was alarmed. I know FIRE for years has done this report card and it was more like really, I think, focused on the way in which campuses were enforcing anti-harassment policies and deplatforming and all that, which was this criticism from the left, and my hope is, we can get back to kind of a principled way of dealing with these issues that doesn’t get. I’ve been reading a lot the last couple of weeks about moral panics, and that’s what this really felt like, you know? So, I mean, that’s a long winded answer to your question. I mean, over the last couple of weeks, watching what happened and then fielding a ton of calls behind kind of orchestrated social media campaigns to go after folks for what they said and that it was offensive. And, you know, lumping all of that together. And then there was just this mass kind of and really trying with our private institutions and public institution clients to kind of work through. How do we resolve these? And a lot of that is obviously, you know, Zach did a good job of outlining the law, but a lot of this has to be part of the DNA of institutions of higher education. I think for me, it’s like really clear. And Zach hit on this, and this is the Garcetti piece, is classroom instruction, pedagogical, anything we’re talking about that’s connected to the course and that is controversial, man, that is really entitled to, it should be entitled to, and this is memorialized in case law, really heightened protection under the First Amendment. I think where it gets thorny is and you talked about Garcetti. I mean, Garcetti has these balancing factors and all that sort of stuff around disruption to the institution. Those are more nuanced legal questions. But then you go into the school and you’re asking the question as a matter of principle, what are we and what do we value here? And, do we want to be a place where all of our employees on issues of public concern, are comfortable basically expressing themselves? And if the answer to that is no, that’s a remarkable turn of events. And look, I say this all the time. I’m Gen X, so I find a lot of the culture war stuff insufferable. The thing I give FIRE credit for is like everybody’s saying, oh wow, I think you may have framed it this way, Eric, as this is like a new issue or it’s particularly bad now. No, I just think who’s the target at this point and who’s, there’s been a change  of sides. This has been going on, it feels like, for the last 15 to 20 years. And I’ll let Zach speak to that.

Zach Greenberg 

Absolutely. And I appreciate your kind words about our mission to be a neutral, non-partisan defender of free speech on all sides. It’s protected. We defend it. No excuses. No apologies there. And I think your commentary really hit on what the First Amendment protects. It limits the consequences that can be imposed and who can impose them. It prevents the government from punishing you based on what you say. You can’t be thrown in jail for expressing yourself, or you can’t be fired as a public employee for speaking online. But free speech is a bolder, older concept, right? It is a series of cultural values about not demonizing those we disagree with, engaging with opposing views, and this latest cancel culture campaign with Charlie Kirk. It is very reminiscent of what happened after the George Floyd murder, just five years ago, where you had a social media firestorm of trying to get people fired from their jobs, expelled from campus for criticizing George Floyd or Black Lives Matter or DEI, or really any of these series of liberal ideas. And it really goes to show that as a society, we need to have an appreciation for free speech as a cultural value. This value lives in our hearts and minds. And if that’s extinguished, no law is going to save it. So it’s really the notion that we shouldn’t cancel people for expressing themselves about Charlie Kirk. And we understand that the speech out there may be offensive and hateful and controversial, but we don’t have free speech to talk about the weather or to say two plus two equals four, right? We have it to say things people may not like. If I go out there and say, Charlie Kirk was a good guy, all right, maybe it’s controversial, but if I’m out there, you know, spewing hatred about Charlie Kirk, that’s going to attract some attention. And these faculty members, these universities, they should be the most free to express themselves. They should be the ones that are out there sharing their expertise, talking about politics, being the beacons of light on their campuses for these values. And to see them lose their jobs for expressing themselves, really sends a profound chilling effect across all of higher ed that people see this and they say, oh, if I speak out, I’m next, I’m going to get in trouble. And that’s really corrosive to this culture of free speech, where you have people self-censoring upon seeing people lose their jobs and being punished for their expression. So beyond the First Amendment, we try to espouse a series of values about free speech and really convince people, persuade people why we have this right. And what’s happening in Texas is a perfect example of why we have this. Because, we know that the situation was switched as it was five years ago. It’d be the exact same thing happening to conservatives, perhaps. And so the cycle has to stop somewhere, right? We have to at some point say, we’re not going to fire people based on what they say on the political arena. We have to just say stop, free speech is more important. Try to become a more tolerant society instead of keep going down this road, because the next time somebody famous dies, you’re going to have a big outpouring of support or criticism of them. It’s going to be the same thing happening where people fired from their jobs, students expelled from college campuses, and then it has to stop somewhere.

Scott D. Schneider 

Hey, can I riff on this and maybe complicate things? Because now I’m going to be sympathetic to administrators. You ready?

Zach Greenberg 

Yeah. Go for it.

Scott D. Schneider 

I’ll go back to like, the 1960s, there’s a famous case in the Fifth Circuit, which is, I think it’s Dixon versus Alabama Board of Education. And, the short version of that case is you had at that point, Black students who were protesting segregation by sitting in at drugstore counters that were reserved for whites only. And at that point, the state legislature and various prominent people put pressure on the president, who is a very well regarded, thoughtful president, Dr. Trenholm, I think, was his name, to expel the students. And this is like, from my vantage point, I differentiate like kind of the hot, obnoxious takes on social media, which of the things that I worry about protecting the expression of, they’re not high on my list. With this, which is like core speech about a matter of ethical and public concern. And the short version was that the president of the university, I think, was threatened with if you don’t expel them, you lose funding. And he did. And the end result was you ended up with a pretty significant decision from the Fifth Circuit Court of Appeals that said, before you expel, students have property interests in continuing as a student, and you need to respect due process rights. And by the way, I bring that story up to go. Some of this is not new. I mean, this was sixty years ago. And it’s part and parcel, I think, of kind of the evolution of kind of the state involvement in public education and private education. I mean, we see this playing itself out now. Like number one, it’s not new. Number two, what is the advice to administrators who are going, yeah, FIRE, this is wonderful. We get it. First Amendment, great. But I worry about my fiduciary obligations to the broader community here, and the political pressure that is being borne, brought to bear on this institution by these actors.

Zach Greenberg 

No, you’re exactly right. We have seen administrators, even recently, the University of South Dakota, for example, being threatened with funding loss from their institutions if they don’t violate the First Amendment rights of their students and their professors. It puts them in a really tough spot. And our response to that would be that every single time an administrator or president accedes to the demands of a cancel culture campaign, they fire the professor, they expel the student, they violate the First Amendment. That will only lead to more pressure. Because they know they’re malleable, right? They’re not going to sign a principle if you ask and they say yes. Behavior that’s rewarded, gets repeated. However, we’ve seen that when the presidents and the chancellors of the administrators do send a principle when they resist and say, no, we’re not going to violate our students rights, we’re going to stand up for free speech. That can lead to a decrease in pressure and demands, it can kind of create that bulwark of strength with the administration being principled and being part of a free speech culture. And so it’s really a matter of incentives, right? And these mobs, these movements out there to get people fired and get people punished. They thrive off that. They thrive off people seeing to their demands. And if they say no, if they remain principle, they can really stop them in their tracks, which is the goal when it comes to free speech in the First Amendment.

Eric Kelderman

And this goes back to my question about whether administrators are simply trading short term benefits for really long term consequences. I wonder about sort of the debate on campus. When you think about, for instance, the Texas A&M faculty member who was doing the course on children’s books, when you think about the issue at Angelo State and others, it can’t be that college administrators are that, I guess, unschooled on the First Amendment, right? Is there really a misunderstanding about what it is the Constitution protects and what it doesn’t protect?

Zach Greenberg 

I think there is some misunderstanding there. We’ve seen college administrators say to us that hate speech can be prosecuted. The faculty members have no protection, when they speak during class, that students can be expelled for mocking or derogatory speech to public universities. I think there definitely is a misunderstanding there. And one of our goals is to educate them. We have free modules, we have training classes. Everything FIRE does is free per our charitable mission. But we understand these aren’t really easy principles and many times they’re countermajoritarian. You’re telling them to do things that are unpopular, to not expel the student, to uphold their right to be racist and offensive, for example. So, we want to explain to them what the First Amendment protects and also why the speech is protected and what values that they can put forth as institution to allow them to resist the kind of pressure and have a more open society and a more tolerant campus, and that can be difficult. It’s kind of a multi, multi step process. Of course, if some administrators who know the First Amendment does and just don’t care, maybe to them it’s about dollars and cents. It’s about getting their funding. They have other values they want to put over the First Amendment despite being legal obligation they have to fight for. And that’s very frustrating as well. And our goal is to change hearts and minds. To convince them that this is important. This is a matter of the law and the Constitution, and it’s really a matter of what is university about, what is the purpose of your school? Is it to make money? Is it to cater to the demands of the mob, the politics, the public opinion, or is it to create a free marketplace of ideas to actually learn and educate their students?

Scott D. Schneider 

Can I riff on this for a second too? One of the things I’ve had to say over the last couple of years to clients is this is my understanding of the law on a variety of different topics, but I’ve sometimes been surprised at the way in which decisions issued by federal courts have come out on these issues. And I’m kind of curious. I don’t know all the litigation that you all are involved in, but can you give us some flavor for that? And is there any sense that our kind of understanding of what the rules of engagement are around the First Amendment are, in some degree, a flux?

Zach Greenberg 

Yeah, we think that a lot of law is pretty well settled when it comes to faculty rights, when it comes to student rights of free speech. And a lot of this is applying settled law to new concepts. For example, we have a lawsuit in California right now challenging these DEI requirements, requiring that the faculty members there have to ascribe to diversity, equity and inclusion viewpoints are to get hired and get promoted. Simplifying it a bit, and the same rule that prevents the government from forcing school children to stand up during class and salute the flag and say the Pledge of Allegiance. You know, the right against compelled speech applies in 2025 to faculty members, who don’t have to agree to these contested political viewpoints in order to get a job and to be a functioning member of their college campuses. So and we do believe that the law when it comes to these issues is well settled, but it has to be applied to these new areas of study. And the anti-trans rules at Angelo State is a perfect example of this. A lot of the rules about academic freedom originated when the government was trying to purge these universities of suspected communists, during the Red Scare. Decades and decades and decades ago. And now you have the government trying to say that you can’t teach trans lectures. You can’t talk about these topics during class, you can’t have professors who are espousing these viewpoints. And the same exact principle applies whether you’re talking about suspected communists or patriotism or DEI or transient topic you want to talk about. It’s really a matter of preserving the academic freedom of the lecturer to teach their classes, even if they may say things and have political views that are controversial or offensive.

Scott D. Schneider 

One of the obviously hot button issues prior to Charlie Kirk and frankly, prior to the administration taking power, was the post-October 7th protests on college campuses. And you’re kind of seeing, what I think is one of the interesting legal issues where, okay, give us some guardrails here, which is the tension between, on the one hand, providing space for protest and on the other hand, our institutional obligations under Title VI or Title IX or Title VII to avoid maintaining an environment that discriminates on the basis of race or national origin or sex. And by the way, I mean, these aren’t new issues. This has gone on for 20 years. I remember being chagrined because Catherine Lehmann came out and said, oh, the line is really clear and there is no tension between the two. I’ve always said, well, yeah, there is some tension between the two and I’m kind of curious on that your take. I mean, you know, having a space where controversial, offensive things are said, protests, things we disagree with, and our twin obligation to maintain an environment where students feel comfortable. Jewish students, for instance, at UCLA, I’ll pick on them, feel comfortable participating in their educational environment. 

Eric Kelderman 

And can I just toss in aside? Which is a lot of this comes down to the fact that it’s very hard to control 18 to 22 year olds when they decide to throw up an encampment on your quad, right? I mean, we’re dealing with an age and a perspective of youth that is, by its nature, often very rebellious, with campuses, where we’ve recruited people who are very empowered, the best and the brightest in some cases, who feel free to speak out, who know their rights, that seems to complicate the issue as well.

Zach Greenberg 

It does. Yeah. You’re exactly right. And Scott’s got a really great point about there can be some tension here between the First Amendment, robust protection for offensive speech and then federal civil rights rules about harassment and discrimination. And we believe that. You know, the answer here is in the case law, right? And that we have a very high bar for punishing harassment, discrimination in order to have a robust protection for free speech about political issues. We don’t want students getting in trouble for discussing Israel-Palestine or even historical things, like whether the US should drop bombs on Japan during World War two, right? These are talking about issues regarding violence and destruction and mayhem, but it’s really about political speech and academic speech in that regard. And, for example, under the Davis standard, the Supreme Court, peer harassment is conduct that is so severe, pervasive and objectively offensive that deters a student and excludes them from their education because of repeated racial slurs, unwanted touching. And this excludes things like one off insults and ridicule, because students in the eyes of the law are adults, right? They are expected to comport themselves with an understanding that offensive speech exists in our society, and we don’t want students to again be getting in trouble for making fun of each other. But when the sandwich gets conflated, for example, my alma mater, Syracuse University, at one point considered harassment to be sending offensive emails. That’s a problem, right? That’s a misunderstanding of free speech and what it means. Then you have students out there reporting each other for having a conversation about the political issues online. And so, having the universities understand where the line is and how to draw it informed by case law, informed by the First Amendment, that’s really important because if the policies aren’t clear, the students aren’t going to know what to say and what not to say. And that that kind of vagueness and uncertainty creates a chilling effect that we’re seeing now on college campuses. Our most recent survey found that many, many college students are very afraid to discuss things like Israel-Palestine because of university policies, because of unclear statements about free speech and because they’re being censored, they’re being punished for coming out on either side of this issue.

Scott D. Schneider 

Hey, can I switch gears on you? This is one of my favorite stories, and I think one of Eric’s colleagues, Jack Stripling, had some podcast on this. But, Joe Gao, I’m going to throw a curveball at you.

Zach Greenberg 

Love Joe Gao. Go for it.

Scott D. Schneider 

No comment. Just to set this up for folks, my understanding is while he was the president, he did some pornographic videos under the name Sexy Happy Couple. It was not on my YouTube stream, which honestly, right now, like the algorithm on YouTube, it gives me Norm MacDonald jokes and tons of Billy Strings videos.

Zach Greenberg 

Interesting.

Scott D. Schneider 

So that one never popped up for me. But here’s kind of, you know, his defense was, yeah, I was doing, you know, pornography as the president. And that’s a free speech issue. And the university’s, I guess response is, well, there are guardrails under Garcetti in terms of does this create disruption, all of that? Does this undermine your ability to effectively lead this campus? I guess so. That issue, but also some of the, and I’m having a hard time thinking of any off the top of my head, sort of egregious personal social media posts put out by professors or people on the payroll and the disruption, how do you all wrestle with that? Or what are your thoughts on those issues?

Zach Greenberg 

Yeah, address the issues in turn. Before I get to Joe Gao, you’re right in that if there are social media posts that show an unfitness to teach or an intention to discriminate or harass their students, that could be grounds for discipline for the professor. A professor’s out there saying that, you know, I hate all Black people. For example, they’re not as smart as white people. I’m not going to grade them the same way. The university can probably step in and say, look, you seem unable to fulfill your duties under the professional standards we have here. You’re not going to teach anymore. That could probably be grounds for discipline. And the question is, at what point does simply offensive speech cross over that line into an unfitness to teach? And we believe this determination should be made by faculty members. It shouldn’t be an academic determination. Professors shouldn’t get fired for their political ideas and viewpoints, but what they do in their private time. Leading, of course, someone like Joe Gao, chancellor of University of Wisconsin for years and years and years, was a chancellor. He was there for a while and all the time he was making porn with his wife and other porn stars under a pseudonym. He published books about this. When people found out about it, they fired him from a chancellor and also as a tenured professor of communications. Because, according to the university, his hobby was disruptive and disgusting and outrageous and caused the university to lose donors and students wouldn’t go there anymore. FIRE made the case, we made the point to the university that professors should not be fired for what they do in their private time unless it is actually disruptive. When those students were involved, there was no indication the university was financially struggling. Students weren’t going there. And in a larger point, do you want to create a society where we’re digging into people’s private lives and trying to figure out offensive things about them that can get them fired? I’m sure that any of us out there working our jobs, we would not want to disclose to our employers everything we do off hours. Joe Gao obviously didn’t associate his pornography with this institution. Again, there was no communication or association between the university and his activities, was very much a separate life he was living. In fact, he was doing this for years. No one even noticed. It is good proof that this did not affect his job at all. He was a successful chancellor. He was a professor. And in pornography, of course, expressed off hours is protected by the First Amendment. And that goes back decades. It’s no different than being part of a political movement or having a hobby that may be offensive or controversial. He wasn’t out there killing anybody. It’s not like he’s part of a criminal organization. He didn’t commit any crimes. It was simply the offensiveness taken by the University Board of Regents to his speech.

Eric Kelderman 

Plus, he was always in a great mood.

Zach Greenberg 

He was, he was. They named beers after him in Wisconsin. There was a whole movement to get him back. It really divides the people, right? Whether you can fire someone for doing porn off hours.

Scott D. Schneider 

I’ve never met the fella. I’ve never seen his work. And I’m going to keep it that way.

Zach Greenberg 

Wait for the algorithm to pick that up. It’s going to be sending your ads.

Scott D. Schneider 

It’s listening to me now. I’m just going to have nothing but Happy Couple videos.

Zach Greenberg 

Yeah.

Eric Kelderman 

One other, I think, just sort of jumping back to the present a little bit. One other sort of challenging feature for us right now is the White House, through its executive orders, through to the statements of the president and the Education secretary and others, I think, causing some confusion about the limits of the First Amendment. The limits of the First Amendment provides on puts on the government. The Texas A&M, the student who was challenging the children’s book faculty member, said, well, the president has put out an executive order saying that this is illegal. How much are we going to have to deal with that in the next decade? This confusion about the role of the government and the authority of the administration to impact First Amendment. And by the way, during Trump’s first administration, there were several times when he challenged universities to uphold the First Amendment, threaten grant funding over those issues. It seems like that’s just something else that’s in the air that’s making this very difficult at the moment.

Zach Greenberg 

Yeah. It’s, it’s pretty startling to see, you know, the attorney general say that hate speech is not protected, to say that on air that it got to people for saying hate speech to Trump, to have executive orders out there saying they’re going to punish flag burning. Again, another form of speech by the First Amendment on the Supreme Court precedent. Yeah, it’s, it shows a real misunderstanding of free speech and what it protects and why it’s important. And I feel that we’re just at the tip of the iceberg when it comes to these kind of things. And we’re very grateful to live in a nation where the president can’t sign away by executive order, our free speech rights, First Amendment constitutions approved all the land. It does not make any exception for any president or any law out there. And this is a great example of why it doesn’t do that, because then you’ll have it become a political football, where it goes back and forth between liberals and conservatives, Democrats and Republicans. There’s piece that I don’t like, can be punished. You can see what happens to other nations out there when free speech becomes this kind of political, malleable principle and not a settled area of constitutional law.

Eric Kelderman 

I think you just said that we’re just seen the tip of the iceberg here, that tells me that things are going to get maybe worse before they get better. What’s, I guess, what’s the way out? Is there any hope for us? I know you guys are involved in some trainings. There are several groups out there that are trying to, you know, improve campus climate for constructive dialogues, civil discourse, things like that. But I have a hard time seeing how we get out of this anytime soon. I’d like to hear your thoughts on that. Zach and Scott.

Scott D. Schneider 

Can I  jump in quickly to that? Because you said something and what I’ve said is we need to return to norms. And yeah, one of the things, I’ll be more optimistic. Obviously, when Pam Bondi said what she said, and by the way, again, like we have this tendency, I think to, to go, this is some remarkable thing that she said. And no politician before her, there are tons of politicians before her who said exactly the same thing. The thing I was comforted by was, even though they were on the same political side, there were a number of politicians who came out and said, no, and thought leaders on the right who said, no. That to me was comforting. And you mentioned the first Trump administration, and I just want to focus on the students part of this because, you know, I think the public employee part of this is complicated. Yes, you have speech rights, but, you know, what does that mean in the context of being an employee, a public employee, and Pickering and Connick and all those cases, put some guardrails on that. But one of the things I thought and look, I think the Trump administration took heat on this, was the focus in the Title IX regs on students should have due process. And by the way, not just for public students. This should be a ubiquitous part of higher education when it comes to Title IX. And it was about, you know, I know the politics, I mean, but from a due process perspective, I can’t think of a set of federal regulations that provided more protection in the way for students than what was promulgated in the first Trump administration. To watch what’s happened since then, some of which is rhetorical, but in practice, man, that concerns me. And I would love to start seeing what you saw in reaction to Pam Bondi coming from the right going, no, no, no. I would like to see that around due process issues and you see inklings. I think the hope is like reasonable people who aren’t culture war partisans actually insisting that we get back to norms. And that’s again, that’s why I have so much respect. I quibble sometimes with FIRE’s interpretation of case law, but as a matter of principle, regardless of whose ox is being gored, they are consistent. And we need more institutions like that. Zach, I teed you up. 

Zach Greenberg 

Thank you. I appreciate the kind words and we completely agree that due process is incredibly important, especially on college campuses in our society. And like free speech, it’s a countermajoritarian principle that we’re trying to convince people why we should give people accused of rape a hearing and notice, and an attorney to defend themselves. It can be a difficult point to make, kind of like why we defend people. Why racists should have the right to speak. And I think your point is well taken about depends on whose ox is being gored here. It’s about the universal principle that everyone deserves their day in court or a chance to defend themselves, because innocence is always a defense to any crime. And when it comes to due process, at least during the Title IX context of movement of why this is important, that even the alleged victims of of Title IX misconduct want to be able to participate in the hearings. And so you’re right, it’s just incredibly important in all contexts to preserve the right to due process. And that gives people who are accused of this really heinous misconduct a chance to defend themselves. Like free speech, it can become a political football in a way. It can be something that, depending on who’s in office or who’s in charge, people tend to discount in order to prosecute whatever they want to prosecute. But the point that we make is that this is not about unduly favoring the accused or burdening the accuser. It’s not about making sure that rape victims have to go through more hurdles to get justice. It’s ensuring that the outcomes of these proceedings are based on facts that ensure that there’s legitimacy here when it comes to the disciplinary proceedings that are happening on our college campuses and in our society. And this is for the benefit of everybody, from the accused, the accuser, the general public, the donors, the administrators. Ensuring that the actual outcomes are fair and accurate is in all of our interests. And to do that, history has shown, the best way we can do that is by giving both sides a chance to speak and defend themselves, and to get lawyers in there to fight for their behalf and to really have that clash of ideas, that clash of viewpoints and perhaps factual determinations in the hearing. And the reality is that a criminal justice system in our university disciplinary proceedings, you know, they can be biased and they can be skewed. The best way to address the fact that we’re all human beings are inherently flawed is to provide due process. Which is why, although we are a free speech group, we’ve tried to make the point as well that if we’re going to have fundamental fairness in college campuses, it has to start with the basics. Notice, hearing, opportunity to be heard and an unbiased tribunal. That’s what we ask for.

Scott D. Schneider 

Again, I bring up the Dixon case and, it was a very different Fifth circuit in the 1960s and 70s. One of the most consequential constitutional decisions of that era, at least in the context of higher education. And so how this plays out. I mean, some of it, I think, is having partisans on the right who like the end result saying, no, we’re not comfortable with this. And if you can’t do it as a matter of principle, recognizing that the president won’t be the president forever. And would you like AOC, for instance, to have this sort of power? But some of this will be decided by courts. And I imagine there’s some cases where we’ll see, hey, are there some guardrails here? But man, at some point and again, I just give you all, all the credit in the world. We’ve got to get back to just basic norms. And regardless of which side prevails or whatever in the culture war that we believe in will apply principles here. The fundamental principles that I know you all value. And this is I think what is I don’t want to get too patriotic just but makes America this wonderful at times enormously frustrating and fractious place is this ability to to speak on issues that are controversial, certainly without state’s punishment.

Zach Greenberg 

Absolutely. We’re a nation of three hundred million people, right? There’s not going to agree on anything, from our favorite sports teams to issues of increasing importance. And this notion we have to have some tolerance towards each other, be able to express our viewpoints. That is distinctly American. And I think you can look at what’s happening across the world, not only in like totalitarian dictatorships like North Korea, but also places like Europe and Asia and Africa, when you don’t have free speech, you can see the results. You can see how the people are treated. You can see the power the government has. You can see how societies react to not being able to speak freely. And that’s not what I want in America.

Eric Kelderman 

Well, I think, Zach, you’re maybe more optimistic about the future at this point. I think this is one of those situations where higher education is a small part of a much, much bigger trend. And I’m not sure I see a way out. Our politics has become a zero sum game. Compromise in legislatures at any level now has become anathema to process. And I don’t see how you can have a functioning democracy without at least some level of compromise. Scott’s mentioned this several times about the, you know, the dysfunction in Congress.

Scott D. Schneider

The last piece, I am actually optimistic. I think developments sometimes are very counterintuitive. And again, I just I use the same John Dixon case as an example of that. The one thing I will say is, what has become abundantly clear to me is that social media is corrosive in a sense. I mean, in two ways. It really tends to incentivize kind of the extreme views, you don’t get many measured takes. The other part of this, you can create campaigns. And we’ve seen this for the last ten years now to put pressure on institutions to do things that if they had the benefit of time and space and trying to make sure they made the right decision, they wouldn’t do. And I think that the flip of that is what you learn and Zach said this early on, is if you hold the line, one thing I’ve learned about social media is people have the attention span of gnats. They move on to something else. And I do think part of what will change is that when administrators who I mean historically have been very sensitive to any sort of criticism, start realizing that fact, this too. I think Charlie Kirk, I watched this interview, you know, said what was his favorite quote, this too shall pass. And I go, when it comes to these social media led, I don’t know, I’m trying to be charitable, but, campaigns, if you hold the line on principle, eventually they move on to something else. And so anyway, I’ll leave with that optimistic note.

Zach Greenberg 

I think I share your optimism a lot. You know, this too shall pass, right? And even more than that, beyond that, America is a very reactionary society and culture, right? Something happens in one way, pendulum swings the other way. And I think we’re right now in a pretty dark time for free speech. But if you look at survey results of Gen Z, right, they’re a little more tolerant than millennials who are maybe not tolerant as their parents. But I think the next generation after that might be a little more tolerant. And as generations move up in society, become the leaders of tomorrow, perhaps they will take a different view of free speech than what we’re seeing right now. So I’m a little optimistic in that regard. I do think social media, despite its corrosive effects, is a force for good, allowing people to really have that digital public square to express themselves. But yeah, it is definitely darkest before the dawn. Um, today’s day and age, hopefully Charlie Kirk’s assassination will wake people up into why we have always condemned political violence and respect the people who go to college campuses and talk with students about free speech. We’ll see if that bears. I think it’s going to be a bit of a watershed moment that we’re going to see the effects of for years and years from now. But we’re definitely living through it in this day and age. Scott, I appreciate the perspective and I appreciate you fighting the good fight out there and being a friend of FIRE. It’s good to know that people like you are out there and that we’re, you know, trying to make America a better place for free speech.

Scott D. Schneider 

Well, we’re only friends today, but at some point, I’ll totally disagree with you.

Zach Greenberg 

I hope you do. That’s what free speech is about, right? Having a disagreement. You know, you’re Cowboys. I’m Eagles. We could still come together and talk about football.

Eric Kelderman 

Scott is not a Cowboys fan.

Zach Greenberg 

You’re not a Cowboys fan?

Scott D. Schneider That was truly offensive. And now I think you should be banned from this podcast.

Zach Greenberg That’s fair, that’s fair.

Scott D. Schneider 

I’m from New Orleans, man. I am and will always be, even though we are probably the worst team in the league, right? I did get my one Super Bowl and that’s frankly, it was more than I ever dreamed of getting. And it was a wonderful experience.

Zach Greenberg 

Drew Brees, a private place in our hearts.

Scott D. Schneider 

I love, I miss and love my dad. But Drew Brees as far as men I love, he is number two.

Eric Kelderman 

The way we like to wrap up our show is talk about something we’re looking forward to. Completely unrelated to our discussion today. So Zach, what’s something coming up in your life that you’re hopeful about that you’re looking forward to?

Zach Greenberg 

Sure. So every year I celebrate my birthday, December second. Um, and we have a soup themed party. People have to come dressed up as or bring their favorite soup. And there’s competitions. There’s awards. There’s. I think we had like nineteen soups last year. And it’s something I look forward to, especially as it gets pretty cold in Philadelphia. We do it every year and this year is no exception.

Eric Kelderman 

Impressive. I like that idea a lot. I like that idea. Scott, what do you got?

Scott D. Schneider 

I’m actually deeply disturbed again by that.

Zach Greenberg 

Not a fan of soup. You don’t like it?

Scott D. Schneider 

I’m not a soup fan.

Zach Greenberg 

That’s understandable. Okay.

Scott D. Schneider Yeah, no kidding. If you want to invite me, I’ll come up with something creative.

Zach Greenberg 

Yeah.

Scott D. Schneider 

My daughter, my 25 year old daughter, is coming this weekend. Actually, in about three hours. Hours and we’re going to Levitation Festival in Austin, Texas, which is, ACL is next weekend. This is what ACL was probably thirty years ago. I know I always talk about going to see music, but it’s my thing. But it’s all these psych bands and rock bands, so it’ll be great. TV On The Radio will be there. Mastodon, Eric’s big Mastodon fan. Pavement, some, some really weird… Like, one of my favorite bands right now is Frankie and the Witch Fingers, so I’ll get to see them live tomorrow.

Zach Greenberg

That’s rad. 

Eric Kelderman 

Good, good. 

Scott D. Schneider 

It is rad.

Eric Kelderman 

That’s awesome.

Scott D. Schneider

What about you, big guy?

Eric Kelderman 

Well, it’s a ways out yet, but in about three weeks, my son is going to get married. 

Zach Greenberg

Wow. 

Eric Kelderman 

So we are in the home stretch. He and his fiance live in Glover Park here in Washington, DC. And it’s going to be a great event. Going to be out in Virginia, out in Leesburg at a farm somewhere. And we’re gonna, It’d be a whole party and really, really looking forward to that. So that’ll be momentous. Big occasion.

Zach Greenberg 

Great ime for a wedding and that early fall or late summer.

Eric Kelderman 

Yeah.

Zach Greenberg 

That’s great.

Eric Kelderman 

Hopefully not super rainy, but yeah. If it’s not raining, the weather should be terrific. So especially in this area. Well thanks, guys.

Scott D. Schneider 

There you go. Well, look, thanks for tuning in to Campus Docket. You’ll find links to everything we discussed today, including related cases, articles, and a full transcript and the show notes on voltedu.com. Be sure to follow Campus Docket wherever you get your podcasts. And while you’re there, check out Trusted Voices and Higher Voltage, two more podcasts in the Volt lineup that look at higher ed through different lenses. On behalf of the Volt team and my friend Eric Kelderman, thanks again for listening. We’ll see you next time.