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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak: The Free Speech Podcast, where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am your host, Nico Perrino.

Those who follow free speech and academic freedom issues in higher education know that the University of Chicago has long been a leader on both issues. In 2015, the university issued its report of the Committee on Freedom of Expression, which promises all members of the university community the broadest possible latitude to speak, write, listen, challenge, and learn. And since 2015, a version of that report has been adopted by something like 111 other schools.

More recently, however, another report from the university has gained in popularity. This one dates back to 1967 and states that the university’s mission is the discovery, improvement, and dissemination of knowledge, and that in order to sustain this mission, the university must remain neutral on social and political issues that do not threaten the very mission of the university and its values of free inquiry.

By our latest count, 25 other colleges and universities have adopted a similar policy on institutional neutrality, many since the events of October 7th of last year. But the University of Chicago’s thinking on free speech and academic freedom go beyond that of its two most widely known policies. Indeed, apparently there’s a whole canon about free speech and academic freedom and the University of Chicago’s thinking about the two values.

That’s why today I’m very pleased to be joined by Tony Banout and Tom Ginsburg, editors of the newly published book titled The Chicago Canon on Free Inquiry and Expression. Tony is the inaugural executive director of the Forum on Free Inquiry and Expression at the University of Chicago Law School. For over a decade, he served as the senior vice president of Interfaith America.

And he currently serves as a board member of Heterodox Academy. Tony, welcome onto the show.

Tony Banout: Thank you so much, Nico. Excited to be having this conversation with you all.

Nico Perrino: And his co-editor on this excellent book is Professor Tom Ginsburg. Professor Ginsburg is a founding faculty director of the aforementioned forum and is the Leo Spitz Distinguished Service Professor of International Law. He is also the co-director of the Comparative Constitutions Project, an effort to gather and analyze the constitutions of all independent nation-states since 1789. Professor Ginsburg, welcome onto the show.

Tom Ginsburg: Thanks so much, Tony. Great. Thanks so much, Nico. Great to be here, and nice to see you, Tony.

Tony Banout: Always nice to see you, Tom.

Nico Perrino: What inspired you to put together this book, The Chicago Canon? And when did you start working on it? Tony, maybe I’ll start with you.

Tony Banout: Yes, I mean, for me, it started when I decided to take this position. So, I was appointed to this role a year ago in April. Having had a relationship with the University of Chicago, I did my doctorate here, I’ve been involved in issues of viewpoint diversity, ideological diversity, moral, philosophical, worldview difference, and how to constructively engage difference. And within the civic space, free speech as a fundamental right.

And when I started in April of ‘23, I had been in conversation with Tom and other folks here at the university for a few months. And this idea, I wish I could say that this idea was mine, but Tom had been thinking about this, and for me, it became a way to dive deeply into the tradition.

So, I obviously, like most people who are involved or adjacent to higher ed, knew about the Chicago Principles and Kalven, which you mentioned in your intro. But there were so many pieces and depth and nuance to the broader conversation here, rooted really in the university’s founding, which I’m sure we’ll talk about, that became an opportunity for me to learn and more richly understand.

And so it was really kind of an ideal way for me to begin to fully acclimate into this role as Executive Director of the Forum for Free Inquiry and Expression. Which I’ll just say quickly, by the way, Nico, the forum itself is not housed at the law school. So, I actually don’t have a formal affiliation with the law school.

Nico Perrino: Okay.

Tony Banout: And I would say that to illustrate the idea that we are equally relevant across the university for all departments, for the college, and the value, of course, of free inquiry and expression is fundamental to the university as a whole.

So, while I work closely with Tom, and of course, colleagues at the law school and the other divisions, this is across the university’s ecosystem.

Nico Perrino: Professor Ginsburg, were these documents that are in this book consolidated prior to your putting together this book? Like how did the University of Chicago articulate its values and disseminate them prior to this book?

Tom Ginsburg: You mentioned the Kalven Report of ‘67. There’s one on hiring, what we call the Shils Report from 1970, and then a couple that were written in the era of Bob Zimmer, our late president.

And those are sort of ad hoc things. They’re put together by particular committees, taxed with particular projects. The way I first saw them come together was actually in the law school, where we’ve been orienting our students now for probably a decade. When they come in, our incoming students, we want to orient them to our tradition of free expression. So, we give them the major reports, and then we give them usually like a scenario to wrestle with. “How would you handle it if this X or Y thing arose?” And that’s been a wonderful thing to educate the students and to educate ourselves.

And it’s very much in the spirit of wrestling with these reports. They’re not like given on the sixth day or something. We kind of try to struggle with them, and they’re just reports. Their application is in specific cases. So, then Tom Miles, the dean of the law school, and I were working on a kind of case and materials around the report when I took on the role at the Forum.

Nico Perrino: Yes. So, in your introduction, you write, “We assert that the University of Chicago is founded on, has operated through, and continues to extend a tradition of free inquiry and expression.” And if you go back to President William Rainey Harper’s speech in 1902, he said that the principle of complete freedom of speech on all subjects has been from the beginning regarded as fundamental in the University of Chicago.

Was this unique for a university in the early part of the 20th century or the latter part of the 19th century? The University of Chicago was founded in 1890, and I think reading through these documents, it’s clear that this value of freedom of expression was core to the university’s founding, even then.

Tom Ginsburg: Yes. I think we were just really lucky in that we are in some sense an embodiment of the progressive era in which we were founded. You know, Harvard and Yale and these other schools were founded for very different purposes, much more as very elite institutions. But the ideas that were crystallizing and what became known as the progressive era included a commitment to science and service of society.

The idea that the university was a democratic space, where it didn’t matter who your parents were, or in our case what race or gender you were, you could be admitted and do your best. And it’s an era in which we see a whole bunch of things crystallize, including, by the way, the idea of academic freedom, which one might associate with John Dewey, who was one of our early professors, who goes on to found the American Association of University Professors. And I would add the First Amendment because legal scholars will tell you that the First Amendment didn’t really mean that much in a legal sense until the 1920s and 1930s.

Before then, it really wasn’t used to strike state laws very much. And so there’s a kind of sense in which all these things came together around that era, and our early leaders wrestled with them and adopted, as you said, from the very beginning, this idea of freedom of speech as a kind of fundamental constitutional principle, I would say.

Nico Perrino: Well, what does that actually mean in the university context? Because you write in your introduction that, “It is important to note that in a university context, speech is highly constrained at every turn. We evaluate the speech of students to assign grades. Faculty are required to stay within the bounds of their subject and possibly their discipline, and disruptive conduct is not allowed. These constraints are critical,” you continue, “to maintaining the institution of open inquiry itself. And thus, speech here is subordinate to the primary mission of a university, which is discovery and inquiry.”

So, how do we look at freedom of speech in the university context, given that, as you note, and I think everyone would agree, there are contexts within a university where speech is highly constrained?

Tom Ginsburg: We use the term free speech, and it has a very strong cultural resonance in the United States of America, but it typically means the absence of constraint. I can say whatever I want, but the government can’t punish me. And obviously, that meaning doesn’t make much sense in a university context, for the reasons you articulated.

What we really mean, or what we really need to maximize, is people’s willingness and ability to challenge each other on their ideas, so that those ideas are sharpened and improved through open debate. And there’s so many forces that sort of work against that – cultural, institutional, sometimes legal – that that’s really the kind of speech we’re talking about, from my point of view.

Tony Banout: Yes, yes, I mean, I totally agree. I think what’s fundamental is that we prize intellectual challenge.

And you have to have free expression in order to have that challenge manifest. And that means that we’re in a climate, we seek to cultivate an environment in which assumptions that all of us have are open to inquiry and challenge, and we’re therefore able to develop better ideas.

And I think what we’re trying to get out of that passage you read, Nico, is that that’s a very different purpose than the First Amendment limitations, which are structured on limitations on government from impinging on the right of citizens to say what they wish from a viewpoint-neutral place. The government ought not be getting in the business of adjudicating which viewpoints are superior and which are allowed and which are not allowed. For science and knowledge and discovery to advance, obviously, you do need to judge good ideas and truth from not so good ideas and things that are false, right?

So, there’s that academic mission and valence that’s important. But I’ll just quickly add, like, that’s the seminar, the laboratory, the classroom, and then there’s also the policies that govern the quad, and the more public spaces on campus. So, you know, universities are both of those things, and those things coexist in one environment.

And then we start to talk about the rights and privileges students have to freely express their viewpoints. On the quad, we’re talking about a different kind of thing where, by and large, administrators, those with power ought to also have some sense of viewpoint neutrality when they choose to moderate. Of course, there’s time, place, manner restrictions, etcetera, etcetera. But just acknowledge that you have those two very different spaces on residential college campuses.

Nico Perrino: One of the first essays is actually a speech that’s delivered by Robert M. Hutchins. And the title is, “What Is a University?” And there’s this great line that he begins with. He says, “A university is a community of scholars. It is not a kindergarten. It is not a club. It is not a reform school. It is not a political party. It is not an agency of propaganda. A university is a community of scholars.” So, what does that actually mean, then?

Tom Ginsburg: From my perspective, it means that our mission is scholarship, and our mission is discovery. When we’re making hiring decisions, we shouldn’t hire people on the basis of their politics or that they’re a nice person to hang out with. Those decisions have to be made on the merits of scholarship. It also means that the role of the university itself, and this is really important and kind of hard to understand in our era, it’s almost like it’s conceived of as being just very minimal.

The university doesn’t really have a voice to speak out on issues of the day. The university is simply a place where we hire the best people, and we let them do their thing and let them speak out as much as they want. And so it’s kind of just a very thin conception of what the institution in fact is, and that’s hard for people to kind of understand in an era where universities are giant corporations and they’re, you know, billion-dollar operations.

But I think there’s something that’s important in that ideal, that we should strive to be a place where we’re in conversation with each other towards improving knowledge and towards teaching young people how to inquire. I think that’s really the core of it, and what a community of scholars means to me.

Nico Perrino: It sort of speaks to the idea that’s in the Kalven Report, which is that report on institutional neutrality, in which the report says that the university is the host and sponsor of critics.

It is not itself the critic. And you write in your introductions that schools for the propagation of special points of view might exist, but they could not be called universities. I want to position the University of Chicago in opposition to, potentially, other points of view or other universities that might have existed when it was founded in 1890.

I mean, what was the alternative point of view? I think we all have this conception of a college or university as being a truth-seeking institution. Harvard, of course, has its motto, which is “Veritas,” truth. But has that always been the case, that this is what a college or university is or was? Tony, do you have any thoughts there?

Tony Banout: Yes, I mean, I think what we’re trying to get at with that passage is if you go back to Harvard’s history in the 17th century, it was expressly to develop clergymen, right, and to train people in that vocation.

Not every university needs to be a secular research institution or a place where research is prized, and there is validity to sectarian institutions that are tied to particular faith traditions. Catholic institutions, for example, who seek to also instill certain values and prize at least a respect of those values and an understanding of those values. I think that’s distinct from the University of Chicago’s approach and tradition. And so I think that that’s the contrast at least I had in mind, in trying to draw that out.

Tom Ginsburg: If the university is merely a community of scholars and not speaking out on the issues of the day, then that sort of allows the individual to speak out.

And I think that when they crafted sort of the predecessor to the Kalven Report – because the idea actually goes back to 1899, it’s much older than Kalven itself – when they were crafting that, I think what they had in mind is they were getting some criticism from donors and others about individual professors who were saying X or Y. You know, the unions are good, the unions are bad.

And it was almost like a defensive move for the university administration to say, “Hey, we’re just a community of scholars. We don’t take that position. That individual professor, they want to say that, that’s fine.” And that’s an important corollary because in World War I, professors were getting fired all over the country for opposing the war. And that never happened here because of this kind of idea about what they were doing.

Nico Perrino: Has the University of Chicago ever fallen down on that commitment? Has it ever abdicated it in your study, Tony?

Tony Banout: I think leadership here is the first to say that we don’t always fulfill our highest values. I’m not sure that that’s possible for any human institution. I think it’s utopian to expect that any institution is perfect in fulfilling its chief value, in all cases, all the time, right? So, that’s, I think, part of the contrast we try to get through in presenting these texts, these speeches, these reports, as a living tradition. A tradition is a conversation and a struggle about how you live core values. And of course, you know, like any human institution, it hasn’t been perfect.

So, we can get into some specifics, but there are instances in which the university has made statements that seem to contradict the spirit of Kalven. And the spirit of Kalven, not the letter and law of Kalven because Kalven is a principle.

And that’s part of the conversation here. And part of, like, should we have done that? Why should we have done it? Is it defensible? Was it a misstep? We’re not always gonna get it right. But we, I think, have been clear on what the north star is, and that’s part of why I really love the Harper speech from 1902, that sets out the idea that there’s free speech, and it’s unfettered. And the notion that it’s preferable and desirable for the university, in the words he used then, to appear as a non-disputant on issues of public concern.

Nico Perrino: The report of the Committee on Freedom of Expression that came out in 2015, I kind of want to start there. We’ve already started talking a little bit about institutional neutrality, but the value of institutional neutrality flows from the free expression values of the university, or at least is justified based on the need of the university to inculcate a culture of open inquiry and free expression.

And the report from 2015 says, “Because the university is committed to free and open inquiry in all matters, it guarantees all members of the university community the broadest possible latitude to speak, write, listen, challenge, and learn.”

And the next sentence, I think, is the crux of so much of our college free speech debates right now. It goes on to say, “Except insofar as limitations on that freedom are necessary to the functioning of the university, the University of Chicago fully respects and supports the freedom of all members of the university community to discuss any problem that presents itself.” What are the limitations on freedom that are necessary to a functioning university, Professor Ginsburg?

Tom Ginsburg: Well, obviously, there’s time, place, and manners. So, you can discuss any question you want substantively, but that doesn’t mean that you can show up in my law class and start talking about nuclear physics or something like that, right?

It also has to do with protest, which is, of course, an American tradition on university campuses, and we do, I think, facilitate protests. One of the reports says that we recognize protest as part of what happens on university campuses. But obviously, there’s limitations, and a protest that tried to shut down our hospital or something like that to protest a faraway war, that would be something that was interfering with the core function of the university, and thus could be limited.

But substantively, it suggests that there’s literally no question that’s off limits. And what I think that really means is that questions that are unsettled academically can be discussed.

But it’s not like we’re gonna have a conference on phrenology or something like that because if someone wants to – well, I mean, if someone wanted to do it, and they were a serious person, I guess we would maybe let that happen. But the point is that many questions in science are already settled.

And so, of course, you could have a creation science event or something like that, but we’re under no obligation to make sure that kind of thing happens all the time. We try to stay at the cutting edge of science, and that’s where the role of challenge is so important. So, just because you can say anything and can discuss everything doesn’t mean you should, and that’s just regulated by norms.

Tony Banout: Those norms seem to me to be governing the purely – if I could use that word, purely – spaces of academic inquiry. The scholarly conferences, seminars, the classrooms.

One of the animating reasons that the late President Bob Zimmer assembled this committee, chaired by Jeff Stone, to develop what became known as the Chicago Principles was the increasing tide of speaker disinvitations in 2013-2014. And so I think like an ancillary space to the academic space is, you know, the college Republicans want to invite XYZ speakers. The college Democrats want to invite XYZ speakers. The university, you know, a faculty member wants to invite Steve Bannon, as happened here in 2016.

We don’t disinvite. And that is not necessarily – I think the norms that are operative in that are not necessarily the adjudication and inquiry around, you know, is phrenology debunked? Or is it worth rethinking? They have the right to hear from Steve Bannon, and we want a climate in which we’re not gonna isolate or say some things that are off the table in terms of what speakers can come here.

And he didn’t end up coming. But if and when a speaker comes, that speaker ought to be challenged and interrogated. And if you’re so moved, protest is also a part of the tradition of free expression. But you can’t prevent the speaker from actually speaking because that would impinge on the privileges of the speaker, and it would prevent your community, your co-citizens at the university, other members of the university, from actually hearing what that speaker has to say. So, again, I think it’s useful to draw the distinction between the different spaces within the university in which these things unfold.

Nico Perrino: There is a lot of confusion surrounding what is protected protest and what is not. We find that there are students who occupy buildings and who complain that that’s a violation of their free expression rights when they’re removed from those buildings.

Or who set up encampments that last weeks and occur overnight and say that when those encampments are removed, that that’s a violation of their free expression rights. Does the University of Chicago have a position on those two sorts of protests? Do they see them encompassing the value of free expression that’s protected under the Chicago Principles?

Tony Banout: I mean, I think if they were protected, in all cases, you’d have building occupations that could continue indefinitely and encampments that could continue.

Nico Perrino: Yes, sure.

Tony Banout: I don’t think there’s a formalized statement as to, you know, the relationship of building occupations to free speech rights. But clearly, the university has policies around not allowing building occupation, those who want to do a sit-in to continue the occupation overnight, and there’s all kinds of wise safety reasons for that.

And so I’m not convinced by the argument that ending a building occupation is a violation of expressive rights. The expressive components of that activity are not the crux of it. They’re incidental to it. The crux of it is, you are endangering other people and potentially preventing the building from operating and its intended use by continuing to conduct a sit-in. Tom, I think you want to get in here, too.

Tom Ginsburg: Yes. Because I think it’s a tricky thing. So, the way we generally – as I understand it because we’re not administrators, but the way I understand it from the Dean of Students last year, she treated the grassy space, the central quadrangle, as kind of a public forum in which people could show up, even without permits in advance, and do various things. It turns out camping was not part of the rules, and so that was a violation. But they came down very hard on occupying a building. They wouldn’t let them do that at all.

And, you know, I think that’s probably the line I would draw if I was boss. I do think that we shouldn’t simply say that all time, place, and manner restrictions are okay. Right? Because time, place, and manner restrictions can be more or less supportive and facilitative of campus speech.

And I think my position would be, yes, we have to have reasonable ones. It strikes me as reasonable to say you can’t occupy a building. But we also don’t want to – we should have a constraint on those restrictions, and in a university setting, we should try to facilitate speech. There are a lot of things, and I’m sure your organization is tracking them, a lot of time, place, and manner restrictions that really do limit the kinds of reasonable speech that could happen on campus. Protest. Freedom of assembly is under, in my view, grave threat. And so I do think that’s an important sort of asterisk on the time, place, manner idea.

Nico Perrino: We did see it playing out in real time. For example, at UCLA, either earlier this year or last year, I think it was earlier this year, you had an encampment that turned into a violent melee in the middle of the night, and there were no police on hand or even available to help break it up. And so one of the justifications that colleges and universities will have for time, place, and manner restrictions that limit overnight camping is that they cannot actually secure the campus overnight with the necessary resources, and can’t do so indefinitely in particular. And UCLA, I guess, what happened there was the result of that.

But then at the same time, to the extent you allow for overnight camping as a form of protest, as my alma mater, Indiana University, did during the first Gulf War, and then decide now, okay, now we’re looking at the Israeli-Palestinian conflict.

We don’t want overnight camping in Dunn Meadow, which is a traditional kind of forum for expression. Then you get into the realm of viewpoint discrimination. This is a public college or university, where it seems like they have one standard for one type of protest and another standard for another type of protest. Those are the sorts of situations where ��ݮ��ƵAPP����, our organization, might get involved.

But generally, we’ve looked at reasonable time, place, and manner restrictions that do limit overnight camping as being restrictions or limitations that a college or university can put in place to speak, again, to what the Chicago Principles say, reasonable limitations to allow for the functioning of the university.

But you have to be careful anytime you’re resting on security justifications for speech limitations because that’s how you get into situations where a college or university will charge excessive security fees for a controversial speaker to appear on campus, and that effectively functions as a tax on speech. The more controversial your speech is, the more costly it’s going to be to bring.

And particularly at a public college or university, we filed a couple lawsuits on this respect. It’s held to be a violation of the First Amendment. But Tom, you were gonna say something?

Tom Ginsburg: Well, yes, I was gonna say from my point of view, security justifications, we use them a lot, and I think it also goes hand in hand with the safety-ism of our era. And I guess I’d rather not rely on that. The way I think about it is that you have the rights of people to speak, the rights of listeners. You have the rights of other people to speak in a shared space. If you want free speech, you have to respect the counter-protesting speech and such.

So, I view this as like a competing rights framework, which comes out of my field of comparative constitutional law. I think it’s a little better than each side invoking safety and security, which is what happened at UCLA because you had outside protesters coming in. And so both, and at the same time, as I understand it, those encampments were preventing people from going to the library unless they said they weren’t a Zionist and stuff.

So, there’s like a lot of blame to go around, but you know, without knowing the facts. I do think the other thing I wanted to say, since you’re an alumnus of Indiana, is it’s a perfect illustration of the temptation towards passing neutral, in air quotes, “time, place, and manner restrictions” to deal with behavior you don’t like. Because as I understand it, what they did is they said there will be no expressive activity on campus between the hours of 11:00 p.m. and 7:00 a.m. And what’s that? Expressive activity is, you know, you and I having a conversation, or me wearing a Mickey Mouse T-shirt or something.

And their enforcement has been very uneven, so faculty at IU are very upset with that, and I think they should be. But IU is saying, “Hey, it’s just neutral.” But this is where I think we have to think about policies that really are speech facilitative, recognizing it’s gonna be messy because of, you know, people who disagree.

Nico Perrino: Well, I don’t even know how you enforce a policy like that. When I was at Indiana University, Osama bin Laden was killed.

And you might recall that Barack Obama gave his big speech announcing that, I think, late in the night, and there were kind of celebratory moments on campus celebrating the killing of Osama bin Laden. And then, of course, there are basketball games, right, at night. Indiana Hoosiers win a big basketball game there. They have a big football game this weekend against Ohio State. Like, students are gonna be on campus. They’re gonna be celebrating. That’s a form of expression.

So, I don’t even know how you enforce it in a viewpoint-neutral way. Our co-founder, Alan Charles Kors, said that speech codes depend for their very existence on the exercise of double standards. And in those cases, I could never see a college or university applying the speech code to prohibit someone celebrating a big victory from the basketball or football team, so it would necessarily result in this sort of double standard.

But let’s return to the Kalven Report now. Because as it says in the Kalven Report, “The distinctive characteristics of the university as a community is a role for the long term.

“The mission of the university is the discovery, improvement, and dissemination of knowledge, and the instrument of dissent and criticism is the individual faculty member or the individual student. The university is a home and sponsor of critics. It is not itself the critic. This positions the university as independent from political fashions, passions, and pressures.”

As the report says, we’ve seen colleges and universities over the past decade issue statements on everything from the war in Ukraine to the election of President Trump in 2016 to the Dobbs decision overturning Roe v. Wade to, famously, the events of October 7th, where I believe Harvard issued seven different statements in the wake of October 7th, sort of acting like a weather vane. They got criticism for every individual statement, so they just kept rewriting it in hopes they would get it right, with the understanding or failure to understand that trying to please everyone ends up pleasing no one. So, how has the University of Chicago actually implemented this policy?

For example, did the University of Chicago say anything after October 7th, like so many other colleges and universities did? Tony?

Tony Banout: No, I think there’s two things I would say here. First is like for me, the key way of understanding Kalven is via the title, like an articulation of the role of the university. What is the university’s proper function vis-a-vis social and political action? What is the role of the university when it comes to social and political action?

And I think what the document successfully offers and defends is that out of respect for the diversity of views, you see that time and time again, the spectrum and the diversity of views within the community, the institution itself should not do anything that seems like it enshrines in orthodoxy because that would raise the costs of then taking a dissenting view among the community of critics.

To be the home and the sponsor of critics and to allow criticism to be multi-varied and to set up an environment, not just allow. It’s not just about policy, but to cultivate and nurture an environment in which people feel comfortable exchanging different views, the institution as the powers that be should get out of the way.

So, again, there’s a lot we can say here, but Kalven has within it both an exception and an obligation clause around times in which the university first must act when its core value of truth-seeking and free expression is under threat.

And in its corporate capacity, like any large or even smaller institution, having all manner of business dealings with the community around it, running a hospital, being a property owner, negotiating contracts, it necessarily acts in these cases, right? So, I think that’s how I understand it. That’s the way I understand it. And you can see, and we might want to get into, cases in which the university did act or did speak when it felt, in most cases, the president felt key values were under threat, or our ability to function and operate was under threat.

Nico Perrino: Let me ask you about the Broyles Commission testimony in 1949. This is when Robert M. Hutchins testified in the State Assembly against, I believe, there were a number of bills that were going through the state legislature that required loyalty oaths from public school teachers and many in the civil service, mandated the firing of teachers deemed to be subversive of the state or federal government. This is the second Red Scare.

Anyone who’s familiar with the history of the academy in the United States knows this. There was a period in which many college and university faculty were brought up on suspicion of being disloyal to the United States, being communists.

And Robert M. Hutchins testified in front of the State Assembly and argued in a kind of vociferous and with a full throat for the values of academic freedom and freedom of expression. So, that was a point, right, where he’s taking a position on behalf of the university and advancing the values of free expression, academic freedom, and open inquiry. That is one of the exceptions, if I’m not mistaken, in Kalven.

Tony Banout: You could read it that way. Yes, that’s a nice reading because this is, you know, a couple decades before Kalven.

So, this isn’t the calculation that’s happening in Hutchins’ mind, but he is focusing his comments in the Broyles Commission testimony on the purpose of the university itself and the emphasis on open inquiry and free discourse as a long and arduous road, and as the way to adjudicate differences in opinion and to strive towards fulfilling the university’s mission, ultimately. And, you know, that’s where I read a full-throated defense. So, certainly that is the central animating value and purpose of the university.

Tom Ginsburg: This principle, most of us do refer to the Kalven Report, but one of the things we discovered, actually, in doing the research for this book is that it does go back to the very founding of the university. William Rainey Harper convened a body he called the Congregation, which was like all the faculty, senior faculty, senior administrators, and everyone who had had a PhD from the university.

And they adopted this thing in 1899 that said the university will not take positions on the issues of the day. So, it really is kind of constitutional to the university from the very beginning, and I think it’s important to recognize. Now, position taking has become much more popular in the last couple of decades, the virtue signaling, the Twitter-ization of everything. Everyone must speak about everything all the time now. That wasn’t true in 1910. But it has been an enduring principle since the beginning. I think it’s served us well in recent years, but that’s, of course, my particular bias.

Nico Perrino: And if you read the Kalven Report, it connects back to previous statements that the university presidents have made. It says, for example, at the bottom of, I don’t know, like the sixth paragraph, that the university is not a club, it is not a trade association, it is not a lobby, which harkens back to that previous quote from what is a university. And then, Tony, I think it really nicely articulates the point you were making, when it says there is no mechanism by which the university can really reach a collective position without inhibiting the full freedom of dissent on which it thrives.

Tony Banout: Right.

Nico Perrino: Now let’s talk about how this actually plays out in practice. Does this policy apply to all administrators? Does it apply to deans, for example, of individual academic departments? How does it function institutionally?

Tom Ginsburg: Well, it’s an interesting question because we now see a bunch of universities turning to institutional neutrality as a general policy.

And most of the time, I think they’re mostly talking about the central leadership of the university – the president, the provost, etcetera. In our tradition, it extends, very importantly, to departments. And I actually have argued that that’s actually the more critical locus of neutrality because, you know, the university president says something, he’s very far away from the action. But if I’m in a particular department that has a particular view on a controversial topic, and I’m a junior faculty member or a graduate student, I’m really gonna be constrained, and I’m gonna be discouraged from even inquiring into that particular topic.

So, I think it’s really important that this idea does extend to the departments. We also apply it to centers, academic centers. That’s maybe a little less intuitive, since often they’re collections of faculty. And, you know, I think there’s a lot of ways one could go about devising this policy.

But we have traditionally interpreted it to be any sort of functional unit. And, again, departments, I think, are the critical one among those.

Nico Perrino: Is it enough, though, if the purpose is to kind of inculcate these systems of institutional disconfirmation, where you have people who have multiple different ideas that are kind of clashing with one another, to just have a policy on institutional neutrality? Because if you look at the kind of Chicago School of Economics, that was definitely a point of view on economics.

And actually having it perhaps function in the broader discussion surrounding economic theory with other scholars at different universities, maybe there was a value for having this kind of school of thought, much in the same way you get at like George Mason, for example, that’s associated with sort of economics or sort of law. So, how do you think of institutional neutrality, kind of playing with the way that different departments can develop an intellectual school of thought?

Tony Banout: Yes, I mean, I think to your very first question, or the first nuance that you put out, policy is never sufficient. Like, culture is really where the rubber meets the road. What do people actually do? And do they feel empowered or have the reinforcement? Or do they actually dissent and challenge and interrogate one another?

And I would say, you know, I’m not an economist. I’m not sitting too far from the econ department right now. But the seminar room in the econ department was kind of known, and there are many stories of it being a robust place of exchange and challenge, actually. And even, you know, Tom can speak more of this because I think Coase had an appointment at the law school as well. But there's these stories of, like, epic clashes around things, where people really change their minds.

So, I don’t find that as fundamentally incompatible with a school of thought emerging, like a set of theories and approaches in which a group of scholars have by and large adopted, so long as that school of thought is not immunized from challenge. I mean, that’s really kind of where the rubber meets the road.

And I think, you know, if you fast forward several decades from Coase’s story with Friedman, you have things happening in econ now that I think profoundly challenge the notion of the individual as an agent of perfect rational choice. And the entire school of behavioral science and behavioral economics is also now very prominent at Chicago and very distinct from that neoliberal, more classical approach.

So, you know, I think these things can go hand in hand. Neutrality is not to say that a group of scholars coalesce around a certain theoretical approach. What’s important is that you can still challenge the assumptions behind that approach, and maybe new things grow out of those challenges.

Nico Perrino: Professor Ginsburg, did you have anything to add on that?

Tom Ginsburg: Sure. I mean, I think disciplines are self-reinforcing, and so part of the idea here is that, you know, the decisions on hiring would be made by people already in the department, and they might have a view, and that could lead to the emergence of a school. Again, as Tony said, it’s in debate with other ones. I mean, I admit, we haven’t hired a lot of Marxists, I’m sure, in the econ department. But I don’t see that as being incompatible.

I did want to say something else because the way you framed it was really great. Like, is institutional neutrality enough? And clearly, the answer is no. I mean, keeping the institution out of the way, the center out of the way is just a sort of baseline condition. But one of the missions of our forum, actually, is to provide opportunities for students to engage with each other, and that doesn’t happen on its own. You’ve got to construct environments to do that. It’s not free speech in that sense.

It requires the affirmative building of opportunities for people and an ethos and a culture, as Tony put it, of challenging each other. So, clearly, institutional neutrality is not enough. No one, I don’t think anyone would ever say it is. But to us, it’s a kind of essential first step.

Tony Banout: Yes, I’d analogize that, and I’m not sure, Nico, if you and folks at ��ݮ��ƵAPP���� would have an opinion on this. But free speech and free expression is not enough. It’s like the necessary precondition. It’s important to protect. But it’s by no means a panacea. You know, it should be exercised responsibly. People ought to feel like they don’t need to self-censor, right? And they ought to genuinely, in good faith, interrogate one another.

Nico Perrino: Yes, well, that’s one of the challenges. For example, if you believe in this concept of cancel culture and think it’s gone too far. The participation in a cancel culture, which I would define generally as kind of joining a group of people to call for punishment of some sort of speaker for their protected speech.

You know, in the private context, this might mean calling up their employer and petitioning them to lose their job. That’s protected speech. That’s protected speech. You have the right to do it, but it could still erode a culture of free expression. It could create orthodoxy and conformity that would undermine the small liberal values that you’re seeking to advance in defending free expression.

That’s why ��ݮ��ƵAPP���� always says we adopt a position of institutional neutrality on the content of the speech that we defend. We are not like other free expression organizations. We don’t condemn the speaker before we issue a full-throated defense of the speech, except in positions where the speaker is attacking the value of free expression. We will condemn their attack on the value of free expression, say it’s misguided or wrongheaded, at the same time that we will issue a robust defense of their right to condemn free expression, which sounds a lot like the Kalven Report and its exceptions, right?

The Kalven Report allows for the university to go out there and defend the values of free and open inquiry. More exceptions that I want to discuss. It says there’s a “heavy presumption against the university taking collective action or expressing opinions on the political and social issues of the day.”

And then there’s this other clause, “or modifying its corporate activities to foster social or political values, however compelling and appealing they may be.” This is a place where there’s a lot of debate as to the application of Kalven and institutional neutrality because you have students at, I’d say hundreds of colleges and universities across the country, demanding that their university divest of investments in places like Israel, for example. To me, that strikes me as a corporate activity that shouldn’t be manipulated to advance a political end. But I’m curious, I have two folks here who have studied the Kalven Report and its history.

Do you see it the same way? Is it wrong for people to say that that’s not something that a university should do under the principles of Kalven?

Tom Ginsburg: Maybe I can speak first. I think that this was one of the demands which led to the creation of the Kalven Committee. So, in some sense, the committee was really speaking directly to that, even though they don’t say that much about investment per se.

But I think it’s actually kind of a difficult thing, slightly difficult conceptually because we have an investment policy, we have an endowment, you’ve got to invest it in something. Is there a neutral investment policy? I think what we mean by that, when we say we want a neutral policy, is we mean that we want some technocrats who are well-paid to manage our money to do it to maximize the returns. But I don’t know that we should rest heavily on the idea that that is somehow neutral. You’re investing in one thing and not another. So, there’s always choices that have to be made.

My defense of – I’m not a fan of divestment in general, partly because I favor delegating the decisions to technocrats who know what they’re doing rather than bringing it into the realm of shared governance among faculty who have no expertise in all that. And I think it would ultimately be not the best use of our time to debate which concerns out there in the world, in a very bad, bloody world, where there’s lots of things to be morally horrified by, in which investments are made. I just don’t think it’s a good use of our time to sit around with each other and debate what the best investment policy is. None of us know a darn thing about it.

So, that’s my particular view on it, but it’s much more of a pragmatic argument than a core theoretical one. The core theoretical claim for neutrality as a constitutional principle goes to the issue of fostering the maximum debate about issues in an academic setting.

Nico Perrino: Would this affect a college or university administrator’s ability to speak in their personal capacity? Is it realistic to distinguish between what they might say in their professional capacity and their personal capacity? You cite this example in the book, I’m not sure if it’s in the introduction, or in one of the introductions to the Kalven Report, in which University of Chicago President Howard Levy described the Vietnam War as, quote, “an outrage.” I forget if that was him stating in his personal capacity. I think that was the suggestion and the justification. But how do you see that issue of personal versus professional?

Tony Banout: I see it as a fascinating question, one, and that line of Levy from his inaugural address, I think it was 1968, really sticks out. So, this is just after the Kalven Report.

Nico Perrino: A year later, yes.

Tony Banout: And he doesn’t preface it by saying, “I am now speaking in my personal capacity,” right?

But it’s clear that he is. And I think if you read that entire address, he is making the case for propriety, the moral reasons for what we now call institutional neutrality, which I think is really important because he’s saying it is right and proper for the university not to get involved, but there’s reasons for that. It’s not an evasion. And the words of the Kalven Report also talk about this not out of cowardice or lack of spine.

And often the detractors will say there’s no such thing as neutrality. Neutrality is a cop-out. It can be used as a cop-out. But I think more to your question, Nico, I think in the ensuing decades, the level of optic on identifying a leader, president or dean, as sort of like irrevocably intertwined with the institution that they represent has only increased.

And the many, many modes available to us for communication have skyrocketed. Taking to Twitter, what you put on your website, you know, just the level of coverage and interaction with news we’re having. So, I think it’s much more complicated now than it was in Levy’s day. But it doesn’t seem to me that – it seems to me a president could say, “Hey, look, I’m speaking only for myself now when I say this. I’m a human being who has views like every other human being, and my view on XYZ controversial matters is this.” I think it’s a fraught terrain to get into because the question then arises, well, how do you lead this institution that ought not have a view on XYZ controversial matter?

And there’s instances of presidents who do this now, obviously.

Nico Perrino: Yes. When I think of the presidents testifying in Congress last year, two of the three of them, this is the presidents of MIT, University of Pennsylvania, and Harvard, raked over the coals, I think of the challenge of trying to stick to a position of institutional neutrality when you’re put in that sort of environment, the eyes of the world on you, Congress on you.

And I was thinking of that testimony when I read this passage from your guys’ introduction. “Hutchins” – this is the former University of Chicago president – “Hutchins made a remarkable statement near the end of his tenure responding to a question in a meeting of the faculty council. He said, ‘We always take the position of trying to formulate educational policy, determine standards, and select our staff, then let the public relationships fall where they may.’”

Continuing, “‘I have no doubt that the position of the University of Chicago over the last 50 years has cost the university money, but whether it has not brought the university money is another question. It would be difficult to say financially whether the university has gained or lost as a result of the positions it has taken on its educational policy and academic standards and academic freedom.

‘My belief is the best way to approach these questions is to approach them from the standpoint of the academic interests of the university, rather than consider what the public or the board of trustees might feel about them. We don’t want to change the kind of institution we have because another might be more attractive to people with money.’”

It made me think also, I mean, you got that $100 million grant for the forum, so the commitment to free speech and academic freedom has also brought in money. But it speaks to this need that a leader has to – or this requirement that a leader has to have, if it’s going to lead a mission-based university, to sometimes be unpopular.

I think catering to too many constituencies is what can get you into the situation that Claudine Gay found herself in when she wrote and rewrote seven different statements. But that’s hard when you’re called before Congress to testify on a hot-button social or political issue. It’s not easy to do the Hutchins things when he goes in front of the Broyles Commission, for example. It’s going to cost the university money. It’s maybe easier for Harvard or for University of Chicago do than Indiana University because it’s a private institution.

But how do you all see that dynamic playing out? Does being a college president require a bit of a backbone, and insulating yourself from the constant pressures that come from the outside and even inside?

Tom Ginsburg: Well, first of all, I’d say that Hutchins did cost us because one of his first acts was to get rid of the football team. He said football has no place at a university.

Nico Perrino: And it was a great football team, if I recall.

Tom Ginsburg: It was great, exactly.

Nico Perrino: One of the best.

Tom Ginsburg: Yes, exactly. And the Big Ten schools are raking in money from TV contracts that we don’t have. So, I think I would like to take the emphasis away from the individual president and more to the culture. Like if you’re coming in as the president of University of Chicago, you would be a fool to sacrifice our 120-year-old tradition and culture to make a statement on the issues of the day.

When I think back to those presidents on the hot seat and how difficult their position was, the reason it was difficult is because they had been used to making statements all the time for particular groups when bad things happened. And, you know, they really lost their jobs not necessarily for their answers so much as for their hypocrisy there. What they said was probably correct as a matter of First Amendment law, at least to the extent that universities are trying to mimic that.

So, there was a sense of hypocrisy. In terms of trying to take off your university president hat and speak personally, my former boss, Mike Schill, who’s president of Northwestern University, tried to do that. And I think, with retrospect, I’m not sure that worked because, of course, why would anyone listen to you in your personal capacity? It’s sort of trying to have your cake and eat it too.

At the end of the day, this was a hugely divisive issue on campus. It’s one that divides American society. And, you know, I think many of the earlier controversies are one in which an overwhelming majority of the campus community had a shared position. So, it doesn’t take a lot of courage to speak up. I sometimes say when I talk with university presidents, when I ask this, I say, you know, what really takes courage is to be quiet, to keep your mouth shut in fraught times. That’s hard.

Writing a bland statement, that’s not too difficult. They’re pretty good at that. So, that’s my opinion.

Nico Perrino: To close up here, I want to talk about another speech that you all flagged for me in going through the book. This is a speech by the late Robert Zimmer in October of 2017. The title of the speech is “Liberal Arts Free Expression and the Demosthenes-Feynman Trap.”

And the trap that he’s speaking to there is perhaps most easily encapsulated by Richard Feynman, a Nobel laureate theoretical physicist, who’s paraphrasing something that the great Athenian orator Demosthenes says. And he said, “The first principle is that you must not fool yourself, and you are the easiest person to fool.” The idea here, as you state in the introduction, is to overcome the delusions of confirmation bias. A community of discursive partners is an absolute necessity.

And President Zimmer says this, which I think does a good job of encapsulating his overall argument. “Because education can help liberate us from the Demosthenes-Feynman trap, and because this trap is defined by an easy and comfortable state, it follows that an effective education is in fact intrinsically uncomfortable at times. Without discomfort and the challenge that stimulates it, there is no escape for thought being submerged by an ongoing state of self-deception. The argument for avoiding discomfort, therefore, is an argument against liberal arts education itself and against the empowerment that such education brings.”

And just adding my own thought here, it’s also sort of an argument against a trend that we’ve seen in higher education over the past decade and a half, largely I feel like led, but in many ways encouraged and facilitated by administrators, to seek comfort and safety.

Back in 2014, 2013, you started to see a trend where colleges and universities, responding to student demands in many cases, were disinviting speakers from campus. The students were demanding trigger warnings or microaggression, policing. And ��ݮ��ƵAPP����, throughout much of our history, has argued vociferously for what we call the strong student model. That is the idea that students are not too weak to live with freedom, that they are not too weak to hear ideas and arguments that might strike at their core beliefs.

And then we were put in a weird position halfway through our history where students were kind of making the argument that they were too weak to live with this freedom of expression. And in reading the speech from Zimmer, I happen to think that he made the most eloquent case against the sort of safety-ism that was a thread through college and university educations for about a decade, and I think is sort of on its way out.

But I’d be interested to hear your guys’ perspective on President Zimmer’s speech, why you included it in the document, and what, if anything, it says about the current moment. Tony?

Tony Banout: Yes, I mean, I think it is an elegant statement about the very purpose of liberal arts education. That’s why we included it. To liberate each of us from our own blind spots and implicit assumptions, which it’s perfectly human to have that. And the technical term for this is homophily. Like we tend to associate with people who agree with us and who are like us, and then we tend towards creating spaces in which confirmation bias is rampant. And the whole point of a good education is to develop the habits of mind and the skills to challenge your own assumptions and thinking so that you can grow, which is inherently uncomfortable.

And it ought to be said, that’s uncomfortable for everyone, not just for certain groups. It’s uncomfortable for everyone. So, I think what Zimmer is so good on in that speech is emphasizing that if you diminish free expression, you diminish the quality of education, you diminish what you’re all about, right? And that is too high a cost to assume.

Nico Perrino: By way of closing, I want to ask whether the principles articulated in this book, the Chicago Canon on Free Inquiry and Expression, can be applicable beyond a university environment. And I know, Professor Ginsburg, you’ve written a piece, “Kalven for Corporations: Should For-Profit Corporations Adopt Public Statement Policies?” ��ݮ��ƵAPP����, we’re a not-profit corporation, but we’re also a corporation. We’ve more or less adopted a position akin to Kalven. What are your thoughts? How might these principles be applied beyond the schoolhouse gates?

Tom Ginsburg: Yes, it’s a great question. The principle of Kalven, the shorthand for it is institutional neutrality. The institution should be neutral. And that’s a controversial thing to say in 2024. There’s whole swaths of universities that don’t believe neutrality is even a worthy ideal, much less an achievable one. And it might not, in fact, be achievable.

But the way I think about it is that institutions have purposes, and institutions are under grave attack from multiple fronts right now. Institutional neutrality, to me, means that the institution should pursue the purpose for which it was set up, if there is a purpose and you can identify it. And so that implies that there might be something to this in other contexts. Obviously, you know, higher education has a distinct culture and purpose of inquiry, which requires very broad swath of opinion.

And I’m not, wouldn’t say corporations have that same thing at all. But, you know, it might be that some modified version would apply there. We don’t say that all corporations should have a policy of neutrality. We do think that it would help corporate leadership to have principles and values which guide when they’re gonna speak and when they’re not. Because otherwise it’s just crisis management, and you get yourself in into big trouble. Disney Corporation went through something with the so-called “don’t say gay” law down in Florida, where they’re just twisting and turning and made no one happy. So, having some kind of policy in that realm might be good.

We also think some of these things should apply to the pre-collegiate educational sphere, again, with appropriate modifications. So, there may be some other contexts, and we’re now really thinking about that. It’s something we want to do with the forum, we want to explore.

Nico Perrino: Yes. Well, what are the next steps with the forum, Tony?

Tony Banout: So, you mentioned the generous philanthropic contribution we received, which does not mean that there’s $100 million in the safe under Tom’s desk.

It does mean that we have some capital that will function as an endowment that will allow us year over year to grow our team and our programming. And we’re concerned, first and foremost, about cultivating a culture in which, in the University of Chicago, in which free inquiry and expression can be productive and healthy.

Productive towards what? Healthy vis-a-vis what measure or what bar? Towards our ultimate mission. “The discovery, the improvement, the dissemination of knowledge,” to use the words of Kalven. To go back to Zimmer and the Demosthenes-Feynman Trap, to help students be educated and therefore develop the habits of mind that are essential. The “how to think” that is critical for being a liberal education that is worth that name. And so we’re looking at U Chicago.

We’ve also had folks from other campuses here for something we call the Academic Freedom Institute over the summer that we think we can scale up, and so we can share the tradition more broadly with other faculty and administrative leaders. And we hope to be, in short order, enabling fellowships for folks that can be here, whether as postdocs or junior and senior scholars, to develop a line of inquiry and share their thinking with the university community. A line of inquiry that might not be finding a lot of hospitable-ness otherwise. Or to engage challenges to academic freedom and free expression head-on directly. So, that’s what’s on the near horizon for us.

Nico Perrino: Well, we wish you the best of luck in that project, and when those fellowships do become advertised, let us know. We’ll push them out to our networks.

The book is The Chicago Canon on Free Inquiry and Expression, edited by Tony Banout and Tom Ginsburg. I am Nico Perrino, and this podcast is recorded and edited by a rotating roster of my ��ݮ��ƵAPP���� colleagues, including Aaron Reese and Chris Maltby, and co-produced by my colleague Sam Li. You can learn more about So To Speak by visiting our YouTube channel or Substack page, both of which feature video versions of this conversation.

You can also follow us on X by searching for the handle @freespeechtalk, and we are on Facebook. Feedback can be sent to sotospeak@thefire.org. Again, that is sotospeak@thefire.org. And please, if you enjoyed this episode or any other episode, please consider leaving us a review on Apple Podcasts or Spotify. Reviews help us attract new listeners to the show. And until next time, thanks again for listening.