Mimesis Law
23 March 2019

Cross: Greg Lukianoff, Lighting The First Amendment FIRE On Campus

Mar. 9, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Greg Lukianiff, President of FIRE, the Foundation for Individual Rights in Education.

Q. You went to American University and studied print journalism, which must have looked like a great bet in mid-1990s. Did you go in with the intention of becoming a reporter? What made you decide that journalism was where you wanted to be? By the mid-90s, the internet was becoming a serious thing. Did you realize that print journalism might go the way of the dinosaurs? Did you have a Plan B at the time?

A. First of all, Scott, thanks for asking me to take part in the series. I’m a fan of your defense of due process both on and off campus. I also appreciate you accommodating my schedule. Not only am I on the road for FIRE business the majority of the time now, I also have a 3-month-old (our first!) which takes up the rest of my so-called “free time.”

BenLukianoff

Now to answer your questions.

I remember when I was in high school saying to my brother that I was torn between doing something related to international relations and going into journalism. Both my parents are foreign-born, and at the time my dad was an interpreter for the Geneva arms convention. He instilled in me a sense that the only real work is international work. At the same time, I wanted to write, and I had tremendous admiration for journalists.

When I told my brother about this dilemma about what to study, he asked me “why not do a double major and study both?” I think I might’ve been a junior in high school, but that decided it— after all, my big bro had said it was a good idea. I would double major in international relations and journalism, and hopefully end up as some kind of international journalist. When I did an online search of which schools offered both of these majors (on a very primitive school computer that was bad even by the standards of 1990), the only school that came up, literally, was American University. It was the only school I visited, and they gave me a great financial aid package, so I went there.

As an undergraduate, I was very interested in the future of electronic journalism and news, particularly after the passage of the absurdly unconstitutional Communications Decency Act of 1996. Becoming an activist who opposed that ludicrous law is the thing that really cemented my decision to go to law school and specialize in First Amendment law. The Communications Decency Act, by the way, was the topic of the first major Supreme Court decision regarding freedom of speech on the Internet, Reno v. ACLU, in 1997.

Q. As a writer/columnist for the American University student newspaper, The Eagle, it’s only natural that you would develop a healthy respect for a free press. Yet, there’s no shortage of reporters today who seem oblivious to the fact that their ability to express their thoughts relies on the First Amendment. Did your interest in the First Amendment arise from your being a student reporter? What made you realize the importance of the right to a free press? When you were writing for the Eagle, what was the climate for free speech and press at American?

A. I came into my undergrad career at American with a healthy respect for freedom of speech. After all, my family had to flee both the Nazis and the Communists, so I have a long family history of valuing freedom of speech. Furthermore, I grew up in a neighborhood with a lot of other first-generation kids, and since we didn’t have a common family culture, the rule was generally that you were allowed to say whatever you wanted, but you would suffer the natural consequences of what you said. In other words, speak your mind, but you might get punched if you’re a jerk. Thankfully, there was much, much more speaking than punching.

Although I already had been raised with this respect for freedom of speech, I, like so many other people, got really excited about freedom of the press and free speech by being a student journalist. My most formative experience was as an editor at the student newspaper watching people come in and use every possible excuse for why I shouldn’t run that article, why that reporter should be fired, why we should censor the paper in general. That experience made me realize that if you’re going to have a free society, you need to have a very strong blanket rule of freedom of speech. People learn very quickly how to use every exception to the rule of free speech to their advantage.

I remain utterly mystified by the fact that some journalists are not very strong on the First Amendment. This seems insane to me, but I’ve run into it time and time again. I think it can only happen when journalists feel so plugged into the power structure that they can’t even imagine the power of censorship being turned on them.

Note that the second article I ever wrote for The Huffington Post, called “New York Times Disappoints,” was about this very topic; I was dumbfounded by Times columnist Joseph Berger’s insistence that the problem of censorship on college campuses really wasn’t that widespread or serious. As I wrote at the time:

I don’t know which is worse: that Berger uses the single example of Vassar College’s handling of a controversial article as a tool to refute the idea that there is a serious censorship problem on campus, or that he chose to praise the outcome of a case in which the school did, in fact, punish a student publication for what would be clearly protected speech outside Vassar’s gates.

Q. Though you started on the East Coast, you chose Stanford for law school. Was there a reason why you decided to go to the left coast? Why law school? Did you decide that reporting wasn’t your thing, or did you realize that the future for print reporting was getting bleak? When you chose law instead of journalism, was it an extension of your interest in the First Amendment or did you just want to be a Stanford law grad and get filthy rich?

A. For years, people had been telling me that “I ought to be a lawyer.” I always took it as an insult. And honestly, I think it was mostly intended as one. I discovered in law school that people were saying that to me because they thought I liked to argue. I then realized that I don’t particularly like to argue just for the hell of it, I just have strong opinions. In fact, law school taught me that people who can’t turn off the drive to argue every point just for the hell of it kind of drive me nuts.

I went to law school specifically to do First Amendment law. I also ended up doing better on the LSAT than expected, so it all kind of came together.

And why Stanford? Well, first of all, because it’s not on the East Coast. Since my parents are both immigrants, I felt this duty to see more of the world, so I really wanted to look beyond the East Coast for school. I also had heard so many horror stories about law school that I placed a lot of importance on the “happiness rankings” released by the Princeton Review back in 1996. Stanford had one of the happiest student bodies of any law school, and it was on the West Coast, so it was my dream school.

I never really had aspirations of being a “filthy rich” Stanford law grad working in a big law firm. Nonprofits have always been more up my alley (hell, I’ve worked in them for something like 90% of my career). Even though my dad had a good job by the time I started college, we were broke for most of my childhood, so the big law firm salaries sounded cool and all, but even a nonprofit salary sounded pretty good to me. And there were so many horror stories about how miserable people were at big law firms.

And, I actually did work at a New York law firm in the summer after my first year of law school, the summer of 1998, and found the law firm experience awful. They made me an offer at the end of the summer for when I graduated in 2000, and I honestly could not understand why. I wasn’t a particularly good summer associate, and I was really open about the fact that I didn’t like the firm in particular or the experience in general. Looking back on it, I think they made me an offer because they thought I was some kind of “badass” who wasn’t afraid to tell them what I thought. That wasn’t the case though— I just really didn’t like them and had no interest in the work.

But the main reason I opted to do nonprofit work is that I really wanted to do First Amendment law, and that is mostly the kind of thing you do at a nonprofit rather than a big firm.

Q. In law school, you “focused” on the First Amendment. What exactly does that mean? Were you that kid who was brilliant in one tiny niche of law, and didn’t care at all about the rest of it? Wasn’t there any other practice area that captured your interest, say, criminal law, perhaps?

A. “Focused” on the First Amendment means I took every single class Stanford offered on the First Amendment, and when I ran out of those, I did six additional independent study credits on the early origins of the prior restraint doctrine through the print licensing system of Tudor England. You know you have found your true calling when you explain to your friends the research you are incredibly excited to do and one of them asks, “My God, who is making you do that?!” Well, I was making me do that.

I loved criminal law my first year. Stanford has a famously tough, but respected Intro to Crim Law professor. His lectures are so abstract and difficult to understand that his class is lovingly referred to as “space law,” but it was one of my favorite classes in my first semester.

The only other major interest of mine in law school was human rights law. We didn’t offer too many classes in it, but I spent my second summer in Prague working for a program that helped refugees during the Kosovo crisis. Tough at times, of course, but I liked it a lot more than being a summer associate.

Q. During law school, you interned for a year at the ACLU. You described yourself back then as a “pro-choice liberal.” What influence did working at the ACLU have on young Greg? There was a time when the ACLU was at the forefront of free speech, such as the Skokie case. Is that still its focus? Some contend that the ACLU has substantially softened its free speech position relative to other positions, like hate speech and discrimination. And are you still the liberal you were back then?

A. FIRE has worked with the ACLU on free speech cases quite a bit over the years. ACLU state chapters and FIRE have worked together to defend a student who was unfairly charged with racial harassment for reading a book at work that celebrated the defeat of the Ku Klux Klan, to challenge an email policy that unduly restricted political expression, to challenge the punishment of a conservative student newspaper for publishing a satirical Christmas carol about affirmative action, to coordinate litigation on behalf of students who were banned from protesting in favor of concealed carry legislation, and to repeal and replace unconstitutional speech code policies. FIRE, the ACLU, and NCAC worked together in 2013 to urge the Kansas Board of Regents to rescind its policy restricting the use of social media by faculty and staff at public colleges and universities across the state. We joined forces again in 2014 to write a joint letter to the University of Colorado Boulder urging the university to reinstate a course that the university had cancelled because it included a lecture on prostitution that made some students “uncomfortable.” And ACLU attorney Carol Sobel helped FIRE win our first victory of our Speech Code Litigation Project (the predecessor to our Stand Up For Speech Litigation Project), successfully challenging two campus speech zone policies.

During law school, I was thrilled to get a position interning at the ACLU of Northern California. I got to work with some great lawyers on some great cases. As for critiquing the ACLU’s general stance on free speech, as a general policy, FIRE doesn’t take on other non-profits unless they have attacked us in some way. I can’t think of anything more wasteful than squabbling between non-profits, particularly when you have successfully partnered together on numerous occasions. As for what other free speech experts are saying, check out Ron Collins’s recent piece on the ACLU’s 2016 workplan. As we are announcing today, Ron and FIRE are working together to start a huge online First Amendment library that will be officially launching this Fall.

As for whether I am still a liberal, I always explain that growing up I was taught that being a liberal meant being aggressively pro-free speech and due process, with a healthy suspicion of power. On those things I have not changed at all, but I do fear the world has changed around me.

Q. After law school, you nabbed a job at Reid & Priest, where you did patent and trademark law, but you only stuck around for a year. What made you leave biglaw? Was patent and trademark law as much fun as it sounds? Was that what you wanted to do with your time, or was that where they told you to sit?  Did you get a chance to kick any butt at the Patent and Trademark Office during your brief tenure?

A. The truth is, I was working that job part time while I did two other things: writing a screenplay, and looking for a First Amendment job. Again, with my background, the hourly pay rate for a patent lawyer seemed like a ton of money to me, and it bought me time to find the right job. I love science, so I thought I would enjoy patent law, but it turns out scientific curiosity is murdered through the patenting process. So, I found it mind-numbing. That being said, that year living in San Francisco was a complete blast, and I miss it sometimes.

Q. In 2001, you went to work with FIRE, the Foundation for Individual Rights In Education. Why? How did that get on your radar? Was it just luck that you hooked up with Harvey Silverglate, or was there something happening that made you realize that free speech on campus was in jeopardy? You were legal director for your first five years with FIRE. What were you focused on? What was the reaction to FIRE’s mission on campus?

A. I got the job at FIRE primarily because of one person: Professor Kathleen Sullivan. She was Dean of Stanford Law School at the time. I aced her First Amendment class and got to know her. I obviously really admired her, but she also remembered me. So when Harvey Silverglate went looking for a legal director for FIRE, he asked Kathleen who she would recommend, and she recommended me by name. It remains the greatest compliment I’ve ever received. Harvey contacted me, and I decided to leave my awesome life in San Francisco for my dream job in Philadelphia.

And how was FIRE perceived in those early days? I’m not totally sure. I don’t think people could quite figure out what to make of us. They wanted to label us as conservatives for defending, for example, evangelical Christians, but then got to see us on television defending controversial professors like Sami Al-Arian and Ward Churchill. But, frankly, I think for the first bunch of years people didn’t try to label FIRE too much because we weren’t all that well known.

Q. In 2006, you became president of FIRE. How had free speech on campus changed since you began with FIRE? While in the early years First Amendment concerns might have been viewed as quite liberal, between speech codes, limited free speech areas and demands that hate speech be outlawed on campus, some might say that the First Amendment has grown into a conservative cause, at odds with the social justice agenda. How do you reconcile that? Can one be as empathetic as progressive politics demands, while still being a champion of free speech? What do you tell kids on campus who accuse FIRE of reflecting unwelcome conservative values?

The kind of cases we see at FIRE come in waves, sometimes in unexpected ways. For example, a lot of the post-9/11 cases of the early 2000s were instances where professors or students got in trouble for saying something unpatriotic, but we had even more cases that involved students and faculty who had made comments about how the U.S. should go after the terrorists. We had our first “free speech zone” cases in those years (starting with West Virginia University). We started our first (much smaller) litigation project, which included lawsuits against Shippensburg University, Citrus College, Texas Tech, and SUNY Brockport. We started our Guides to Student Rights on Campus series, and I co-authored the Guide to Free Speech on Campus.

And, yes, it has been strange to watch freedom of speech be dismissed by some on campus as a conservative cause, or FIRE dismissed as a conservative organization. I clearly didn’t get the memo when we decided that freedom of speech was anything other than a universal, even radical, American value. For most of FIRE’s history, when people accused us of leaning one political way or the other, we would just overwhelm them with examples of cases that we took that didn’t fit their narrative about us. We were small and had something to prove, and made sure that we educated almost all critics. At this point in time, there are some critics we don’t even bother with. If someone isn’t taking the time to even go to our website and see the kinds of cases we take and just wants to dismiss us as being politically biased, there isn’t much point in trying to engage them.

Q. As it happened, you were on the Yale campus as a senior was screaming at Housemaster Nicholas Christakis because of his wife, Erika’s, email about Halloween costumes. In fact you were the one who videotaped the “shrieking student.” Do you just randomly hang around the Yale campus in case a viral video opportunity emerges? How did you, of all people, happen to be there? What made you think, “this could make a pretty cool video”? Did you realize at the time what you were seeing, that this video would end up playing a very significant role in campus outsiders realizing just how crazy things had gotten on campus?

A. I wrote an article for The Washington Post about this experience.  And, yes, it was just a complete coincidence that I was on campus. Nicholas and Erika Christakis had invited me to talk to their students in the Silliman dorm way back in July 2015; the incidents in those videos took place in November.

When the confrontation in the courtyard took place, I was staying in the dorms and getting ready to give a lecture at those very dorms about freedom of speech that night. I showed up at what turned out to be the tail end of an apparently hour-long confrontation between Nicholas and a crowd of students. There were many other people videotaping it, including the Yale Daily News, which I believe got the entire incident on tape. But I decided to start recording myself because I wanted to make sure that I documented how Nicholas handled himself. It’s been my experience that particularly fraught culture war situations can devolve into a case of “he said/she said”, so you need documentation. Otherwise people may claim, or even possibly misremember, a narrative that fits their existing conclusions. That’s just a simple way of saying I believed that if I didn’t document the confrontation, Nicholas could find himself fired, and I wanted people to see that he conducted himself patiently and responsibly. I was not confident that other students would share their videos of what happened, so I decided to record it myself.

You can tell I am not very good at videotaping by the fact that I did not know to hold my phone in the right orientation. What’s more is I actually thought I had been taping for a good 10 minutes when I realized I had hit the pause, not the record button. If I had gotten that original footage, it would have given better context to the confrontation and shown that it was not just that one student yelling at Nicholas that he was disgusting and should lose his job.

We posted every video I took completely unedited specifically because we knew that if we didn’t, people would accuse us of selectively editing the tape. Nonetheless, a couple of people on Twitter still tried to make that claim. I had no idea the video was going to blow up as much as it did.

I would like to take the opportunity to once again condemn anybody who directed threats or intimidation at the young woman depicted in that video. Threats are not protected speech, nor should they be. Also I thought it was absolutely the wrong decision by The Daily Caller to reveal that student’s name and information in a subsequent article.

The truth is that if the Yale Daily News were to release its video of the entire incident, as I believe they should, you would see that many students were acting in a similar way towards Nicholas. The story should never be about one student, but about the consequences of even mildly critiquing a campus consensus.

We left Yale off FIRE’s list of the 10 worst colleges for freedom of speech this year because eventually, Yale’s dean did come out and support the free speech rights of both Nicholas and Erika. But I fear it was too little, too late. As I’ve said many times, if Erika and Nicholas feel that they have to leave Yale, that would reflect terribly on the environment at Yale. The administration should do everything in its power to make sure those professors stay.

Q. FIRE is deeply involved in protecting and defending free speech rights on campus, and you, together with Jonathan Haidt, wrote a significant article for The Atlantic entitled The Coddling of the American Mind. Unsurprisingly, neither students nor progressive academics responded well to the suggestion that it might not be in students’ best interests to sanitize colleges from “words, ideas, and subjects that might cause discomfort or give offense.” Are we doomed? Is there any going back to the days when students weren’t constantly offended? Are they too fragile to handle thoughts, or is this a political fashion trend that will disappear when the new hemlines come out? How much damage are they doing, and will be done, before the pendulum swings back?

A. Woof. For your final question, you asked me a doozy. I revealed what I think about the future of freedom of speech in a short book I wrote called Freedom From Speech. Even though I’m temperamentally an optimist, I’m less optimistic when it comes to the future of free speech. Simply, I believe the more comfortable and affluent society gets, the more people will be able to tailor their surroundings and choose to only associate with people they agree with.

Therefore, a side effect of prosperity and mobility is that people get less accustomed to being put in a position where they need to hear the other side out. As a result, people lose the ability to productively disagree, and they lose perspective about how horrible people can be and how many truly awful things happen every day. My dad grew up in Yugoslavia, so my childhood stories were filled with lots of horrors about villages that aren’t there anymore, bombings, etc. Maybe somewhat counter-intuitively, this historical perspective actually made me happier with the world I lived in, because I had a strong sense of how bad history can actually be.

I think we are not teaching students history well enough, and I think we are teaching them all the wrong lessons about how to engage with one another. We should be teaching students how to rationally examine their own thoughts (which was the theme of the Atlantic article). Campuses are not doing a good job of teaching students that it is a valuable experience to have people passionately disagree with you and challenge your ideas.

My sad prognosis is that I think threats to freedom of speech are going to increase, not just as other things are improving, but because other things are improving. We are going to have to be more creative about ways to train future generations to seek out constructive disagreement and to challenge their own ideas. Frankly, right now colleges are doing a lousy job of that.

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