It’s Time for Progressives to Recommit to Academic Freedom

In November, a group of over 20 law school faculty at Harvard and other schools aptly described “a disturbing pattern of interpretative uncharity exhibited toward pro-Palestinian activists” being used to justify this repression. They noted that university administrators have been too quick to “treat[] protest speech as hate speech, seemingly regardless of the speakers’ intentions or declared positions.”

There is growing acknowledgment that this campus speech regime is broken. To fix it, progressive students should first admit that it is a regime we helped create.

In 2017, when I was a student at Pomona College, my classmates physically barricaded and shut down a speaking event with author Heather Mac Donald, whose core argument was that Black people are safer with more police around. Pomona College President David Oxtoby denounced the disruption as an affront to “the discovery of truth, the collaborative development of knowledge and the betterment of society.” My classmates objected: Mac Donald had not come to debate “mere difference of opinion,” some of them wrote in an open letter, “but the right of Black people to exist.”

Last November, at the Harvard Law Review, a similar argument was used—but this time, against us progressives. Some editors who pleaded against publication claimed that Eghbariah’s essay questioned Israel’s—and by extension, Jews’—very right to exist. Like my Pomona classmates’ attack on Mac Donald’s ideas, this was far from a fair characterization of Eghbariah’s work. But they urged us to listen to them, and their claims of harm, just as we would listen to students of color claiming a piece was racist. How could we deny their experience? How could we publish something that made them feel unsafe?

The language of safety has been used at schools across the country to shut down pro-Palestinian speech. When the University of Southern California canceled its commencement speaker for being critical of Israel, the school cited its “legal obligation” to “protect students and keep our campus community safe.” USC invoked the same justification to call the LAPD in riot gear to stop a day of yoga, kite-making, and Kaddish reading. When members of Congress called on Columbia University to crack down on peaceful protesters, they cited the need to “ensure the safety and security of all” students.

Of course, universities have an obligation to keep students safe from violence (and, on very rare occasions, protests have turned violent, though many of those incidents stemmed from the presence of police). But progressive students have broadened the meaning of student “safety”: from the absence of physical violence to the absence of emotional distress. We equated conservatives like Ben Shapiro speaking on campus with actual violence and demanded that universities “prioritize the safety of our community” by deplatforming them. Now, universities are heeding our demand—only to shut down our own voices.

How did we get here? For most of the last century, the commitment to free inquiry and expression was an important principle of the progressive cause. During the 1910s and ’20s, the state imprisoned progressives for giving speeches against World War I or teaching evolution in schools. Harvard expelled students found “guilty” of homosexual activity through what has come to be known as the “Secret Court.” In the 1950s, universities fired around 100 faculty for alleged communist sympathies. Two decades later, schools called police on students protesting the Vietnam war, leading to the murder of four unarmed Kent State University students by the Ohio National Guard.

During these years, progressives articulated the importance of academic freedom. We maintained that silencing disagreement undermines the collective pursuit of truth and progress that is core to being “progressive,” because it limits our opportunities to hear unexpected ideas that challenge our beliefs.

Then, over the last several decades, a new generation of progressives lost sight of this commitment. We detailed the ways in which words can hurt us: rekindling our traumas, making us feel like second-class citizens, and interfering with our ability to learn. These observations were important and valid. But we took them a step further, arguing that because speech is harmful, we need to prohibit it—whether by law, by universal rules, or by social sanction.

In response, universities adopted hate speech codes. Those codes were often interpreted expansively to punish conservative scholars. And when universities didn’t go far enough, progressive students resorted to direct action.

Data has since captured our disproportionate willingness to shut down speech we deem harmful. Most recently, a survey conducted last year asked students whether “shouting down a speaker to prevent them from speaking on campus” was acceptable. A majority of “very liberal” students answered it was “always” or “sometimes” acceptable. Only 17 percent of “very conservative” students felt the same way.

To be sure, many progressive students are reclaiming the value of academic freedom, sometimes in coalition with students from across the aisle. A couple of months ago, the presidents of Harvard Law School’s American Constitutional Society and Federalist Society—respectively, our largest progressive and conservative student organizations—expressed their “shared belief that freedom of expression must lie at the core of Harvard Law School’s pursuit of truth and justice.”

But these alliances have been limited by a deep skepticism from both progressives and conservatives: that the other side cares about academic freedom only when it suits their narrow, political ends.

One of the principal challenges informing this skepticism is that, aside from direct state censorship, it can be hard to agree on what counts as suppression. When students shout down a scholar’s presentation, is that a transgression of the presenter’s right to speak, or a realization of students’ right to speak in response? When law firms rescind offers from students accused of blaming Israel for October 7, is that a threat to students’ freedom of speech, or an employer’s sensible effort to create a hospitable working environment? When a law journal revokes a work of controversial scholarship, is that a breach of academic freedom, or a proper exercise of the journal’s editorial responsibility?

The answers to these questions often vary based on whether one agrees with the speech at issue. That’s why an abstract commitment to academic freedom is not enough to protect it. Progressives must articulate a broad vision of what it means to be free to pursue ideas. We can all agree that it means being free from threats of state prosecution or university sanction. But it should also mean being free from softer pressures that chill the pursuit of ideas, yet which progressive students have embraced in recent years: pressures from future employers, student-driven climates of intolerance, and of course, the discriminatory application of editorial procedures.

Consider an incident from two years ago at the Emory Law Journal. The journal solicited a collection of essays commemorating professor Michael Perry, who retired last year. One of these invited articles, written by University of San Diego law professor Larry Alexander, challenged Perry’s views about discrimination law. The third part of the piece disputed the existence of systemic racism and advanced theoretical arguments against reparations.

The journal’s editors sent the piece back to Alexander with that section cut out, writing in a memo that “as a prudential matter, the refutation of the presence of systemic racism might be a highly controversial viewpoint.” After Alexander refused to implement the change, the journal’s executive board told them that they would not be able to publish the piece as it was, at least in part because they found his “words hurtful and unnecessarily divisive.”

I’ve read Alexander’s article. I strongly disagree with virtually all of its claims. But I also think the Emory Law Journal should have published it. By killing the article, the journal’s editors risked broadcasting the same message as the Harvard Law Review: that controversial views aren’t welcome.

Andrew Koppelman, a politically liberal law professor at Northwestern University who also disagreed fervently with Alexander’s claims, felt the same way about the journal’s decision. He was slated to be published in the issue alongside Alexander. But after editors pulled his colleague’s piece, he withdrew in an act of protest.

Of course, law journals’ student editors choose what to publish all the time, and often privilege their own political views in the process. Even if editors aspire to be balanced, it’s difficult to separate intuitions about the quality of a piece from political agreement. As one of the Emory Law Journal’s executive editors commented on the episode, “A decision to not publish is in itself a statement, an act of speech.” But scholars who are invited to write a piece of their own choosing have rights that go beyond scholars who submit their pieces into the ether, much the same way that an invited speaker has more speech rights than a mere passerby.

As is standard practice when the Harvard Law Review solicits an essay, I did not tell Eghbariah what to argue when I asked him to write a piece for us. As long as he met deadlines and corrected mistakes, he could expect that his piece would be published. This academic freedom that we afford to our solicited authors checks our biases as student editors: It allows our authors to make arguments that we might not have chosen if they had been submitted to us outright. In this way, our solicitation process is a kind of codified humility that helps us all inch closer towards the truth, imperfect as we are.

At the Harvard Law Review, and perhaps also at Emory, our editorial conventions were breached, and our commitment to academic freedom lapsed. But more recently, editors at the Columbia Law Review saw through the smoke. After the flagship publication released an article by Eghbariah—the same scholar that the Harvard Law Review censored in November—the journal’s board of directors took down its entire website. (Unlike the student staff of the journal, the board is made up of faculty and alumni, and it has conventionally abstained from intervening directly in the journal’s editorial decisions.) The New York Times and other outlets picked up the story, and student editors threatened a strike. Three days later, the website was back online.

The board justified its intervention on the basis that Eghbariah’s article had been edited through a “secretive process,” in which only about 50 to 60 out of 100 or so staffers of the journal knew about the piece. (Around 30 worked on it more directly.) The journal’s leadership, in turn, defended that arrangement as necessary to avoid the piece’s being leaked to the public in advance—which editors believed could have “prevent[ed] the piece from being ultimately published, perhaps due to possible intimidation”—and accused the board of censorship. The board, apparently untroubled by these concerns, explained that they were only taking down the website temporarily to give student editors who had not yet read the piece time to do so before it was published.

But to what end? The fact that “only” 30 staffers worked on the piece was far from unusual, contrary to the board’s assertion. I think there is only one meaningful answer, which the board hinted at in a letter it sent to editors of the journal to excuse the publication delay: “Whatever your views of this piece, it will clearly be controversial and potentially have an impact on all associated with the Review.” As Koppelman remarked in The Chronicle of Higher Education, “That sounds a lot like a claim that the full membership ought to have had the opportunity to capitulate to anticipated pressure.”

Regardless, student editors rightly recognized the impropriety of the board’s intervention—so much so that, even after the website was reinstated, they went on strike and demanded that the board guarantee journal editors’ independence. In a post on its official social media page, the Columbia Law Review duly observed that “editorial independence and academic freedom” are “the cornerstones of meaningful scholarship.”

Why did things turn out differently at Columbia? From what editors have told me, like at Harvard, some were concerned about their career and reputational prospects. Some squabbled over procedural improprieties.

But unlike at Harvard, no Columbia editors openly accused Eghbariah’s article of being antisemitic. Unlike at Harvard, no Columbia editors asserted that publishing Eghbariah’s piece would be personally hurtful to them. Unlike at Harvard, no Columbia editors gave their peers an ultimatum: Nix the piece, or else proclaim to your Jewish friends—and to Jews around the world—how little you care about them.

Though no one can say for sure, it’s conceivable that such claims, had they been made at Columbia, could have guaranteed Eghbariah the same outcome he suffered at Harvard. It’s one thing to defend academic freedom in the abstract. It’s another to choose a stranger’s abstract right to publication—or the even more intangible “pursuit of truth”—over the heartfelt cries of your friends.

But that’s why principles like academic freedom matter: not to make the easy decisions, but to navigate the hard ones. If we want a place in academia for Eghbariah’s critical scholarship—telling the story of Palestinian subjugation, and dissenting against the prevailing view of international law—then we must also make a place for Alexander’s. If we continue silencing speech that offends us, we will end up with neither. Soon, there will be no one left to challenge the status quo of ideas.

As the free speech recession intensifies throughout the democratic world, the censorship of pro-Palestinian speech at universities is waking up progressives like me to the weight of our commitments. We are discovering just how much our choices can fuel—or resist—a growing culture of censorship. In his censored Harvard Law Review essay, Eghbariah wrote that Palestine is often “the exception that reveals the rule.” The rule of academic freedom is that it only exists to the extent we are willing to protect it.