Report of the Committee on Freedom of Expression at Yale
Table of Contents
III. Of Ways and Means
December 23, 1974
To the Fellows of the Yale Corporation:
The following report is the result of the findings and deliberations of a committee appointed last September by President Kingman Brewster, Jr. The President was responding in part to a resolution adopted by the Yale College Faculty on May 2, 1974, requesting him “to appoint a faculty commission to examine the condition of free expression, peaceful dissent, mutual respect and tolerance at Yale, to draft recommendations for any measures it may deem necessary for the maintenance of those principles, and to report to the faculties of the University early next term.” Guided by the Rules of Governance adopted in 1970, the President appointed a committee of thirteen consisting of five faculty members, two members of the administration, three graduate students, two undergraduates, and one member of the Yale alumni. Their names, with one exception, will be found at the end of the report.
In efforts to fulfill its assignment the committee not only reviewed the record of the past decade but also sought to inform itself about attitudes and opinions of all members of the University community who wished to make their views known. Repeated invitations in the press brought in numerous written statements, many of them thoughtful and informative. The committee also held advertised public as well as private hearings and recorded hours of testimony and advice.
It is gratifying to report that the committee found strong support for the maintenance and defense of freedom of expression among those whose views were received. A smaller number held reservations of various kinds about how much freedom should be tolerated. Some felt that freedom of speech was too dangerous, or that enjoyment of free speech should await the establishment of equality or the liberation of the oppressed. Only one appeared willing to advocate censorship and suppression of unpopular speakers.
How well the views last mentioned are represented in the dissenting statement of one member of the committee it is impossible to say. At least it serves as some indication of the difficulties the University might face in implementing the principles supported by the committee. Printed exactly as delivered, the dissenting member’s statement was only received after the committee had finished its deliberations, completed the writing of its report, and disbanded for the holidays. The committee was therefore unable to comment on the faithfulness with which its views are represented, the scrupulousness with which its words are quoted, or the accuracy of factual allegations.
From the beginning of its investigations the committee has been aware that Yale’s problems are shared by sister institutions at home and abroad. Correspondence with some of them has reinforced the impression that a movement which in its inception in California a decade ago proudly invoked the name of Free Speech has in latter days showed signs of repudiating its original commitment. While this investigation is confined to the experience at Yale, it has been the hope of the committee that its statement might inspire in other universities a rededication to the principles asserted in this report.
The Secretary of the University has kindly agreed to make available to those requesting them the full texts of the President’s baccalaureate address of May 19, 1974 and the public statements of the Yale Corporation that have been quoted in this report.
C. Vann Woodward
And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter.
John Milton, Areopagitica, 1644
If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.
Oliver Wendell Holmes, Jr., U.S. v. Schwimmer, 1928
The primary function of a university is to discover and disseminate knowledge by means of research and teaching. To fulfill this function a free interchange of ideas is necessary not only within its walls but with the world beyond as well. It follows that the university must do everything possible to ensure within it the fullest degree of intellectual freedom. The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable. To curtail free expression strikes twice at intellectual freedom, for whoever deprives another of the right to state unpopular views necessarily also deprives others of the right to listen to those views.
We take a chance, as the First Amendment takes a chance, when we commit ourselves to the idea that the results of free expression are to the general benefit in the long run, however unpleasant they may appear at the time. The validity of such a belief cannot be demonstrated conclusively. It is a belief of recent historical development, even within universities, one embodied in American constitutional doctrine but not widely shared outside the academic world, and denied in theory and in practice by much of the world most of the time.
Because few other institutions in our society have the same central function, few assign such high priority to freedom of expression. Few are expected to. Because no other kind of institution combines the discovery and dissemination of basic knowledge with teaching, none confronts quite the same problems as a university.
For if a university is a place for knowledge, it is also a special kind of small society. Yet it is not primarily a fellowship, a club, a circle of friends, a replica of the civil society outside it. Without sacrificing its central purpose, it cannot make its primary and dominant value the fostering of friendship, solidarity, harmony, civility, or mutual respect. To be sure, these are important values; other institutions may properly assign them the highest, and not merely a subordinate priority; and a good university will seek and may in some significant measure attain these ends. But it will never let these values, important as they are, override its central purpose. We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox. Free speech is a barrier to the tyranny of authoritarian or even majority opinion as to the rightness or wrongness of particular doctrines or thoughts.
If the priority assigned to free expression by the nature of a university is to be maintained in practice, clearly the responsibility for maintaining that priority rests with its members. By voluntarily taking up membership in a university and thereby asserting a claim to its rights and privileges, members also acknowledge the existence of certain obligations upon themselves and their fellows. Above all, every member of the university has an obligation to permit free expression in the university. No member has a right to prevent such expression. Every official of the university, moreover, has a special obligation to foster free expression and to ensure that it is not obstructed.
The strength of these obligations, and the willingness to respect and comply with them, probably depend less on the expectation of punishment for violation than they do on the presence of a widely shared belief in the primacy of free expression. Nonetheless, we believe that the positive obligation to protect and respect free expression shared by all members of the university should be enforced by appropriate formal sanctions, because obstruction of such expression threatens the central function of the university. We further believe that such sanctions should be made explicit, so that potential violators will be aware of the consequences of their intended acts.
In addition to the university’s primary obligation to protect free expression there are also ethical responsibilities assumed by each member of the university community, along with the right to enjoy free expression. Though these are much more difficult to state clearly, they are of great importance. If freedom of expression is to serve its purpose, and thus the purpose of the university, it should seek to enhance understanding. Shock, hurt, and anger are not consequences to be weighed lightly. No member of the community with a decent respect for others should use, or encourage others to use, slurs and epithets intended to discredit another’s race, ethnic group, religion, or sex. It may sometimes be necessary in a university for civility and mutual respect to be superseded by the need to guarantee free expression. The values superseded are nevertheless important, and every member of the university community should consider them in exercising the fundamental right to free expression.
We have considered the opposing argument that behavior which violates these social and ethical considerations should be made subject to formal sanctions, and the argument that such behavior entitles others to prevent speech they might regard as offensive. Our conviction that the central purpose of the university is to foster the free access of knowledge compels us to reject both of these arguments. They assert a right to prevent free expression. They rest upon the assumption that speech can be suppressed by anyone who deems it false or offensive. They deny what Justice Holmes termed ”freedom for the thought that we hate.” They make the majority, or any willful minority, the arbiters of truth for all. If expression may be prevented, censored or punished, because of its content or because of the motives attributed to those who promote it, then it is no longer free. It will be subordinated to other values that we believe to be of lower priority in a university.
The conclusions we draw, then, are these: even when some members of the university community fail to meet their social and ethical responsibilities, the paramount obligation of the university is to protect their right to free expression. This obligation can and should be en forced by appropriate formal sanctions. If the university’s overriding commitment to free expression is to be sustained, secondary social and ethical responsibilities must be left to the informal processes of suasion, example, and argument.
Part of the Committee’s charge was to assess the condition of freedom of expression at Yale. This requires some search of the University’s record, good, bad, and indifferent, in defending its principles. The full history is too long and complicated to unfold here, but there are more reasons for concentrating on the recent past than lack of space and time. It is not clear, for one thing, how early in its history Yale’s commitment to these principles became firm. Nor is it clear how much is to be gained by comparing in this respect the old Yale with the new Yale of recent years.
While the old Yale laid valid claim to being a national institution with representatives in its student body and faculty from all parts of the country and many parts of the world, in significant ways it was more homogeneous than the new Yale. One consequence of that homogeneity was the absence of some divisions that would plague the future. Changes in policies of recruitment, admission, and grants of assistance replaced the relative homogeneity of old Yale with the heterogeneity of new Yale. The decade of the sixties brought larger delegations of classes, races, and ethnic groups that had been underrepresented before or not present at all. The new groups were more self-conscious as minorities and others were more conscious of them. Reactions ranged from insensitivity for minority points of view to paternalistic solicitude for minority welfare and feelings. And sometimes insensitivity and solicitude commingled.
The new heterogeneity did not prevent the forging of a strongly held consensus on certain issues. One of them was civil rights, and especially the rights of black people. Another was opposition to the Vietnam War and a multitude of policies associated with it. Yale shared in full the spirit of political activism and radical protest that swept the major campuses in the sixties. Storms of controversy and crises of confrontation broke over the campus with a force comparable to that which crippled some of the country’s strongest universities. Yale was generally regarded as exceptionally fortunate in its ability to weather the years of crisis. Some thought the University led a charmed life, and while President Brewster had numerous critics, others attributed Yale’s comparative stability to the quality of leadership provided by his administration. A complete account of those years, even a full study of free speech during the sixties would contain much in which Yale could take pride. Placed in the context of failures elsewhere, the failures at home – and they are serious enough to cause concern – would loom less large.
The University’s commitment to the principle of freedom of expression was put to severe tests during the years of campus upheaval. It should be noted, however, that the main incidents of equivocation and failure with which this report is concerned did not coincide with the years of storm and stress. The first incident, that of the invitation to Governor George C. Wallace, occurred in 1963, before the full onset of the critical period. The others came in 1972, after the tumult had subsided, and in 1974, a year of relative tranquillity. The latter incidents are those involving General William Westmoreland, Secretary of State William Rogers, and Professor William Shockley. Only the last of them culminated in actions that physically prevented a speaker from being heard when he appeared before an audience. The other scheduled speakers did not actually appear before an audience for various reasons, including the withdrawal of an invitation, decisions by invitees not to appear, and threats of disruption and possible violence. But failure or equivocation in defense of free speech was fairly attributable to the University community in some degree in at least three and possibly all four incidents.
It should be recalled that the record of the University includes successes as well as failures, and that the successes in defense of principle were not all on the side of speakers who supported the University consensus on the war and racial issues. In spite of prevailing hostility to their views on the part of a large campus majority, General Curtis LeMay, Governor Ronald Reagan, Senator Barry Goldwater, and Professor Richard Herrnstein were invited, received, and heard during these years.
The first of the failures came in the fall of 1963 when the Political Union invited Governor George C. Wallace of Alabama to speak at Yale. He was only one of several political figures, including Senator George McGovern and Representative Robert A. Taft, Jr., who were scheduled for appearances in the fall term, but Wallace stood out as the most controversial. He accepted the invitation. At the height of the civil rights crusade, the Governor was regarded as the very symbol of reactionary intransigence, the national champion of segregation. In the previous spring he was the central figure in a series of bloody racial confrontations in his state. Then on September 15, shortly after the Political Union invitation, four black children were killed and some twenty others were injured in the bombing of a church in Birmingham. The Governor did not condemn the bombing as forthrightly as many thought he should. In these circumstances Mr. Brewster, then Provost of the University, asked the officers of the Political Union to consider withdrawing their invitation. When the Union complied, he justified his request in view of “the damage which Governor Wallace’s appearance would do to the confidence of the New Haven community in Yale and the feelings of the New Haven Negro population.” He expressed gratitude for a decision “in the interest of law and order as well as town-gown relations.”1
Reactions to the decision contrast strikingly with the responses to comparable incidents during the next decade. “We are shocked by the Provost’s statement,” declared an editorial in the Yale Daily News in the issue quoting it. “The more we consider Yale’s treatment of the invitation to Governor Wallace, the more painful it all becomes,” said an editorial three days later, adding that “This kind of action simply does not belong in this great academic community. The pressures of time must not dull our allegiance to such a basic duty of a free University.” One inference drawn by the News from the Provost’s pronouncements on the Wallace incident was that in the administration’s view, “the threat of disorder and poor taste” was on the whole “more important than any issue of free speech involved.” It quoted the opinion of Zachariah Chafee, Jr., an eminent constitutional scholar, that “We are more especially called upon to maintain the principles of free discussion in case of unpopular sentiments or persons, as in no other case will any effort to maintain them be needed.”
The News reported that “feeling among faculty members and students” with regard to the withdrawal of the invitation “appears almost overwhelmingly negative.” In addition to the criticisms by faculty members and administrative officers. The News quoted an editorial of the New York Herald-Tribune calling it “highly unfortunate that the threat of disorder should cast a shadow on the tradition of free speech at Yale” which “deserves a stronger defense from all concerned.” The Boston Herald, according to the News, called the University action “a disservice to the cause of civil rights and liberties.”
A sequel to the episode was a second invitation to Wallace by Law School groups. Commenting on this action, Provost Brewster said, “Yale will not stand in the way of an appearance by Governor Wallace even though the administration has told the sponsors that it is both offensive and unwise at this time.” He left “the ultimate responsibility to the students,” and added that “While we regret that decision of the law students, we will do our best to help them conduct an orderly and dignified meeting and will expect this same spirit in the Yale community.” This expectation was never put to the test, however, since Wallace did not accept the new invitation.
In the ensuing years of political activism, radical protest. violent dissent, and confrontation, Mr. Brewster, now President, gave repeated public assurances of the University’s commitment to “the risk of real freedom,” which “has been vindicated at Yale for 264 years.” One of the risks was irresponsibility, but “the capacity for responsibility which emerges from exposure to irresponsibility is far stronger, far tougher, far more impressive than the kind of responsibility which is either coerced by restraint or moulded by paternalism.” He drew the line against “compromise on the basic proposition that forcible coercion and violent intimidation are unacceptable means of persuasion…as long as channels of communication and the chance of reasoned argument are available.”
In the worst of the crises in the activist years, that centering on May Day, 1970, freedom of speech never had freer rein. It will be recalled that May Day, 1970, came the day after President Nixon announced the invasion of Cambodia. Even before the invasion, waves of protest were already sweeping over the nation’s universities. Sit-ins, classroom disruptions and violence were the domestic disorder of the day. In New Haven, resentment was also fueled by the Black Panther trial that drew nationwide attention.
May Day became a symbolic day of protest, and New Haven became a symbolic focus for the protesters. Thousands of militant demonstrators were heading for New Haven and the University to join many local sympathizers. Together with local and national authorities, the Yale administration made plans to meet the crisis. President Brewster urged that all protest be peaceful, and that disruptive acts be avoided. The University gates were thrown open to outside demonstrators and many were provided with food and lodging. Revolutionary Black Panthers and their supporters spoke freely to huge crowds at Woolsey Hall, Battell Chapel, Ingalls Rink, and Dwight Hall, as well as on the New Haven Green. It was reported that Jerry Rubin urged at Woolsey Hall that “Yale University be closed down forever” and preached “a permanent revolution.” Panthers declared they intended to “turn Yale into a police state,” and “create peace by destroying the people who don’t want peace.” They urged students to “pick up your guns” and “to kill pigs.” Orators hurled revolutionary threats, insults, and obscenities at the faculty, the administration, the Corporation, and the University and all they stood for and vowed they would “burn it all down.”
In the May Day crisis there was, of course, no feasible way of ”withdrawing” invitations to fifteen or twenty thousands of uninvited guests and scores of willing speakers. Nor did speakers and demonstrators of local origin stand on ceremony or await invitations. They spoke – often, without inhibition, and with free use of University facilities. Gratification over this triumph of uninhibited free speech, however, was dimmed for those who recalled that the Wallace speech had been discouraged “in the interest of law and order as well as town-gown relations.” Yet while the Black Panther demonstrations and speeches could hardly have been prevented in any event, they were perceived as being, and might well have been, more of a threat to law and order and town-gown relations than the appearance of George Wallace would have been in 1963. These disparities led some to conclude that this particular defense of free speech was less a triumph of principle than of pragmatic considerations. In all fairness, however, the perspective of time lends credence to the contemporaneous impression that in the extremely difficult circumstances of May Day the administration had maneuvered skillfully in its efforts to maintain peace without sacrifice of principle. Under conditions graver than those in which other universities had foundered or were simultaneously foundering, the strategy of tolerance and restraint succeeded.
Two years later, April 4, 1972, General William Westmoreland, Chief of Staff of the United States Army, was scheduled to speak at the invitation of the Yale Political Union to an audience limited to its members. Because of the large crowd anticipated, the Law School auditorium was selected. Before General Westmoreland’s appearance the Yale Daily News carried a story about plans of anti-Vietnam War off-campus organizations to disrupt or prevent his speech. General Westmoreland arrived and was dining with his hosts when he was informed that hundreds of people, some students, but mainly Vietnam veterans from outside the city had packed the halls outside the Law School auditorium and were trying to force their way in past a barrier manned by the campus police. The campus police said they could not assure the general that the crowd could be restrained, and even if it were restrained, that he would not be subject to disruption and abusive language. So informed, he accepted the advice of his security aide to cancel the speech. Campus police then removed their barrier and those outside pushed into the auditorium and occupied its stage. The only students on the stage in a picture taken at that time were officers of the Political Union – the rest were outsiders. The announcement of the general’s decision by the President of the Union was drowned out by shouted obscenities. Police discovered fresh paint spilled on the floor after the meeting ended.
Reactions to this gross violation of established principle differed markedly from campus responses to the milder discouragements of free speech in the Wallace affair. Faculty criticism was not nearly so vocal this time. Instead of shock and indignation, such as the Yale Daily News had expressed over the withdrawal of the Wallace invitation, the News editorial of April 6 laconically said, “We hope General Westmoreland enjoyed his dinner at Mary’s last night…” It was obvious, declared the editor, that “the demonstrators did not stop the general” because “he made no attempt to speak.” He added that he could not condone the crowd’s violence. In a public statement President Brewster laid the blame upon General Westmoreland as well as on the demonstrators. While declaring that he was “disappointed” that the anti-war sentiment of demonstrators “overcame their concern for freedom of speech,” the President was “doubly disappointed by General Westmoreland’s decision to cancel his appearance” in view of administrative assurances “that he would be adequately protected in his right to be heard.”
The President’s statement was followed shortly by one from the Yale Corporation. While not repeating the assignment of blame to General Westmoreland, the Corporation extenuated the failure to protect freedom of speech in part on the grounds that “the location of the building made it impossible to deal adequately” with the disruptors, and that “the most threatening behavior was by people who had no Yale connection.” They nevertheless affirmed that “the University must vindicate its commitment to freedom of speech, whether the threat comes from insiders or from outsiders” and that they were “determined to assure that any authorized meeting, performance, or speech scheduled at Yale shall be allowed to proceed without disruption.” The campus police had been unable to identify any student offenders and no disciplinary action was taken. They did identify some non-students, but since no acts of violence had occurred and the only ground for legal proceedings against them was trespassing, no charges were filed. The chief of the campus police said that “an unsuitable auditorium and an insufficient number of policemen” were “the major factors contributing to the refusal of General William Westmoreland to speak.”
Secretary of State William Rogers had also agreed to appear before the Yale Political Union on April 20 to accept the A. Whitney Griswold Award for international statesmanship. At the auditorium seized by the Westmoreland disruptors, reference to the Secretary’s visit had been greeted according to the News by the threat, “He’ll get chased away, too.” A spokesman of one of the groups that organized the demonstration against the general was quoted as announcing more than a week before the Secretary of State was to appear that plans were laid for “the most severe possible action” ’ against Rogers. The Secretary of State postponed his visit until May 15.
On May 12, the day after some student violence protesting Marine recruiters on campus, in which several students were arrested, President Brewster issued a statement saying that “in the aftermath of General Westmoreland’s decision not to attempt to speak in the face of threatened disruption, it is absolutely essential for Yale to vindicate its commitment to freedom of speech.” While he said that he “would expect and even understand peaceful demonstration and picketing” against Rogers, any member of the University “who engages in violent or coercive action which interferes with the rights of others, including Secretary Rogers…will be subject to severe discipline.” He specified suspension and expulsion. Unlawful conduct of non-members of the University would be prosecuted. One spokesman for the planned disruption was quoted in the News as professing to be wholly undeterred by this announcement. But the hope of the administration to vindicate the University’s commitment of free speech was disappointed when Secretary Rogers cancelled his appointment because of “pressing engagements.”
In the meantime the administration was informed shortly before the event that the student branch of Lux et Veritas, an alumni organization, had invited Professor Richard Herrnstein of Harvard to speak at Yale on May 1. For some time Herrnstein had been subject to severe harassment on the Harvard Yard because of his views on the genetic transmission of human intelligence. Under threat of violence, his scheduled appearances at two other universities had been cancelled. Pointing out that May 1 was a provocative date, an administrative spokesman asked the inviters to select another. They refused, and declared the date to be a pure coincidence. Officers of their parent organization offered to call off the speech if requested, but no such request was made. Anticipating trouble at Yale, an officer of the administration assigned Sprague Hall, believed to be the most secure against disruption, for the speech. He also met with representatives of minority groups most concerned, told them the University was obliged to protect free speech, and gained their pledge of cooperation. The speech was delivered as scheduled without interference of any kind. In this instance the administration policies proclaimed before Secretary Rogers’ planned visit were put to the test, and the principle of free discussion was observed and upheld by the entire University community.
Two years later, however, in the affair of Professor William Shockley, the Stanford University physicist, the University community failed to live up to the principle. For the first time in memory a speaker tried to speak at a scheduled appearance at Yale and was prevented from doing so by organized disruption. This time the opposition to the invitation and the determination to disrupt the speech came largely from within the University and was open, determined, and menacing from the start. It was also clear from the start that the opposition focused on Shockley, regardless of whom he debated, on his views of genetic inferiority and his proposal of voluntary sterilization as a solution.
The suggestion for the debate originally had come from Roy Innis, the black chairman of the Congress of Racial Equality, who proposed that he face Shockley before the Yale Political Union on national television after the fashion of the preceding Buckley-Weicker debate. In deciding whether to issue the invitation, the Union had before it the failure of Harvard (and other places) and the success of Princeton in resisting the prevention of a Shockley appearance. Well before the decision for the debate was reached, threats to prevent it were announced. Pronouncing the basic issue one of “free speech and unimpeded academic freedom,” the Executive Board of the Union, after prolonged debate, decided on January 21, 1974, by a vote of 6 to 3 to invite Shockley and Innis and also voted against televising the debate. A News editorial seconded the invitation as “reaffirming the individual’s right of public speech.”
Shortly after the decision, officers of the Black Law Students and the Black Students Alliance at Yale joined with a graduate student and a medical student in a statement carried in the News of January 28: “We hereby serve notice that we vehemently oppose the Shockley Innis debate and will exert all necessary efforts to prevent its occurrence.” They urged members of the Political Union to override their Board’s decision and withdraw the invitation.
The University administration received delegations of objecting students and conferred with officials of the Union, but at this stage adopted a hands-off policy. Several student organizations however, did bring pressure on the Union. The Chairman of the Progressive Labor Party, according to the News, dismissed freedom of speech as “a nice abstract idea to enable people like Shockley to spread racism.’” An open letter from an organization of Puerto Rican students to the Union called the debate “an insult to the Third World Community.” Other News stories reported that concerned members of the Asian American Student Association declared that it “must not be tolerated,” and a spokesman of the Chicano students did not think Shockley would “be given the opportunity to speak.” Catholic, Protestant, and Jewish Chaplains of the Yale Religious Ministry urged cancellation. Voices were also raised in support of the invitation. Some contended that opposition to the invitation was not the same as opposition to the principle of free speech. The Political Union held a referendum of its whole membership, and by a vote of 200 to 190 on February 17 recommended that the Board rescind its invitation, which it did.
Immediately after this action the student branch of Lux et Veritas, which had invited Herrnstein two years before, announced its intention to invite Shockley and another speaker to Yale. The administration thereupon abandoned its hands-off policy and intervened with two unprecedented statements published on February 18, one by the Yale Corporation and another by President Brewster, both calling in question the motives of the Lux et Veritas inviters and the views of the proposed speaker. In words which regrettably failed to give proper emphasis to the primacy of free expression, the Corporation statement declared that “This is apparently done in order to test whether Yale’s belief in free speech can stand up against such provocation. The entire community is being used. The sponsors have tried this sort of thing before and the Yale community did not rise to the bait.” The unspecified reference to “this sort of thing” was to the Herrnstein speech of May 1, 1972.
The President added a personal statement that “the use of free speech as a game, the lack of sensitivity to others, the lack of consideration for the community, and the lack of responsible concern for the University as an institution seem to me reprehensible.” Both statements asserted continued support of the principles of free speech, but both expressed reservations about the Shockley invitation if, as the President put it, “provocation rather than understanding is accepted as the basis for inviting speakers to a campus.” He recommended a boycott of the event as “the best way to show one’s scorn and distaste.” Complaining that “intimidation by the Yale Corporation and President Brewster hampers free and open discussion at Yale,” Lux et Veritas decided not to invite the speakers.
In spite of these official discouragements, a third student organization, the Calliopean Society, renewed the invitations to Shockley and Innis. It soon gave up, according to the News, because of “insufficient funds’ ” and “threats emanating from members of the Yale community” that were described as “more than rhetorical.” In March another invitation was extended to Shockley by the newly reconstituted Yale chapter of Young Americans for Freedom (YAF), who also invited William Rusher, publisher of the National Review, to debate him. The subject of the debate later accepted by YAF, and one cause of offense to others, was, “Resolved: That society has a moral obligation to diagnose and treat tragic racial IQ inferiority.” A politically conservative group, YAF stated that it regarded Shockley as a liberal and said its members sought refutation of his doctrines of state genetic control through Rusher’s arguments.
For the debate, which was to take place on April 15, the administration assigned room 114 in Strathcona Hall. On April 12 the Yale Daily News ran a front page story telling in detail how “student protest now threatens to disrupt the event itself.” Several protest organizations, not all of them endorsing disruptive tactics, were cited and quoted. The tactic that later proved to be the most effectively used to disrupt the debate was that attributed to the Ad Hoc Committee to Stop Shockley, namely to drown out all speakers with noise. Other groups planned to picket the debate outside the hall. The administration took some steps to discourage disruption. On the evening of April 13, at a meeting called by students and attended by about 100 people invited from the sponsoring and objecting groups, University Secretary Henry Chauncey, Jr., repeated the warning President Brewster had spelled out in the face of threatened disruption of a speech by Secretary of State Rogers in May 1972. On the day of the debate the News repeated these warnings of “severe discipline” against students using “violent or coercive action.”
At the hour appointed, the speakers and their hosts arrived at 114 Strathcona Hall to debate. When YAF officers could not make themselves heard. Secretary Chauncey took the platform to repeat his warning and was shouted down. The speakers were not permitted to say an audible word They were drowned out by derisive applause, insults chanted at Shockley, and shouted obscenities. No more than a third of the audience seemed to participate in the disruption. Chauncey sought to quiet the disrupters and warn them of disciplinary penalties, but without effect. “Racist Chauncey, go home!” became part of the chanting. After an hour and fifteen minutes Chauncey closed the meeting. The disruption of the speakers had been a complete success and the University’s defense of principle had ended in total failure.
Response to this worst of the failures indicated further deterioration in the commitment to freedom of speech and the understanding of its importance in some quarters. Few faculty members spoke out. Far from echoing the old indignation called forth by the Wallace episode of 1963, the editorial voice of the college paper divided the blame, according the disrupters only a small share, citing repression elsewhere as justification for disrupting a speaker at Yale, stressing the unacceptability of the views of one of the debaters, deploring the invitations. And paraphrasing the statement of the Yale Corporation against the Lux et Veritas proposed invitation to shift the blame for the whole affair to the administration. Referring to the Corporation statement that “The entire community is being used,” the editorial declared that “By sanctioning this particular debate, the University administration, and in particular Secretary Henry Chauncey, Jr., have allowed the community to be used in a way much more foul.” President Brewster reminded the University that disrupters “were warned about the disciplinary consequences of their persistence in preventing others from listening to Mr. Shockley.” He added that “it makes me sick that even a small minority of Yale students would choose storm trooper tactics in preference to freedom of speech.” The President was to elaborate his reactions in a baccalaureate address discussed below.
Information on the disruption and those who participated was collected by Dean Horace Taft and laid before the Yale College Executive Committee2, which had responsibility for administering discipline to offenders against college rules. This committee heard charges against the alleged disrupters. Its deliberations took more than fifty hours, and its findings were awaited with interest. Judging from its statement released on May 10, the committee shared the ambivalence expressed by the News editorial and the President’s address of the week following. The statement declared that “the circumstances of this particular disruption” justified leniency to the offenders. Among these circumstances were “lack of adequate planning” in arrangements for the debate, the fact that “only a small fraction” of the disrupters were identified, that the subject of the debate, was perceived by some as “both insulting and provocative,” and that “frustration” was felt by those “ ‘who had worked several months” to prevent the invitation to Shockley. In view of the above considerations, while twelve students were found guilty and suspended for the following fall term, the Executive Committee ruled that they would be considered for readmission in the fall if they would express “ ‘willingness to abide by the conditions of General Conduct” in the Undergraduate Regulations. Eleven did so apply and were readmitted in the fall under no penalty save disciplinary probation for one semester. The twelfth student did not apply for readmission. A medical student was also identified as an offender. He appeared before an ad hoc disciplinary board convened by the Dean of Students of the Medical School, which suspended him and then in the same action reinstated him for the summer term.
Members of some of the twelve faculties of the University and a number of students expressed dismay and concern over the disruption of the Shockley-Rusher debate in public letters and speeches. At a meeting of one of the faculties, that of Yale College on May 2, 1974, a resolution was passed to “reaffirm its adherence to the principles set forth in the Undergraduate Regulations” and to ask the President to appoint a committee to examine the condition of those principles and recommend measures deemed necessary to maintain them. It was partly in response to this resolution that the President eventually appointed the committee that submits this report.
In his baccalaureate address on May 19 the President did not assert the primacy of free expression over competing values. Instead he included “the invitation as well as the disruption in his disapproval. He suggested that the disease that afflicts us is “a combination of arrogant insensitivity, and paranoid intolerance,” with gradations in both categories. He saw some of the first affliction “in the invitation which finally brought Shockley to Yale,” and declared that in its extreme form insensitivity could become “the true fanaticism of a Lenin or a Hitler.” He said that signs of both insensitivity and “paranoid intolerance” were evident among the disrupters.
* * *
This committee’s account has revealed instances of faltering, uncertainty, and failure in the defense of principle on the part of various elements in the University community. Within the community has appeared from time to time a willingness to compromise standards, to give priority to peace and order and amicable relations over the principle of free speech when it threatens these other values. Elements within the University community have shown since the time of the Wallace incident signs of declining commitment to the defense of freedom of expression in the University.
A significant number of students and some faculty members appear to believe that when speakers are offensive to majority opinion, especially on such issues as war and race, it is permissible and even desirable to disrupt them; that there is small chance of being caught, particularly among a mass of offenders; that if caught there is a relatively good chance of not being found guilty; and that if found guilty no serious punishment is to be expected. In the only instance of massive infraction of free speech in which offenders were subject to disciplinary action, that of the Shockley case, experience lent support to some of these assumptions.
From the administration have come promptings that have at times been mixed and contradictory. It is true that in each of the crises reviewed and in many other critical situations during the troubled decade just ended President Brewster has voiced the University’s commitment to freedom of expression, “to untrammelled individual initiative in preference to conformity,” and to academic freedom generally. It is also true that the administration has never barred outright an invitation to speak; it has assigned halls on request, and has warned against disruption. In specific instances, however, statements by the President and the Corporation have been interpreted as assigning equal if not higher value to law and order, to town-gown relations, to proper motives, to the sensitivity of those who feel threatened or offended, and to majority attitudes. Some of the statements have placed blame for failure not only on the disrupters and their lawlessness, but also upon the inviters of the speakers and their motives, and on the views of the proposed speakers as well. Moreover, the University’s physical arrangements for deterring and detecting disrupters have proved inadequate. And finally, the faculty has not been as alert as it might have been to these problems.
This committee, therefore, finds a need for Yale to reaffirm a commitment to the principle of freedom of expression and its superior importance to other laudable principles and values, to the duty of all members of the University community to defend the right to speak and refrain from disruptive interference, and to the sanctions that should be imposed upon those who offend.
We agree with President Brewster’s statement in his baccalaureate address of 1974, that “the prospects and processes of punishment” and the “lust for retribution” constitute no adequate solution – though we would urge clearer definition and more vigorous enforcement of rules. Rules and their enforcement must rest upon a consensus of the whole community on the principle of freedom of expression and a genuine concern over violations. To build this consensus we make the suggestions set forth in Part III of this report.
III. Of Ways and Means
The foregoing review has persuaded this committee that the time has come to revitalize our principles, to reaffirm and renew our commitment, and to find ways and means for the effective and vigorous defense of our values. To promote these ends we propose:
First, that a program of reeducation is required. Some members of the university do not fully appreciate the value of the principle of freedom of expression. Nor is this surprising. In one of his most famous dissents, Mr. Justice Holmes spoke to the question:
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas…
Abrams v. U.S., 1919
Education in the value of free expression at Yale is the business of all sectors of the University. Much needs to be done. The first need is for effective and continuing publication of the University’s commitment to freedom of expression. At present, only two readily available documents address the subject and suggest standards of conduct: the Yale College “Undergraduate Regulations” and the “Rights and Duties of Members of the Yale Law School.” We urge that all University catalogues, as well as the faculty and staff handbooks, include explicit statements on freedom of expression and the right to dissent. And that the attention of students should be directed to these statements each year at registration. We also urge that each school – its dean, its faculty, and its students – consider the most effective ways to clarify and discuss the relation of free expression to the mission of the University. These might include addresses to entering students, discussions in informal settings such as the residential colleges, and special attention to the subject in student publications.
Second, that individuals and groups who object to a controversial speaker should understand the limits of protest in a community committed to the principles of free speech. Let us therefore be clear about those limits.
1) It is desirable that individuals and groups register in a wide-open and robust fashion their opposition to the views of a speaker with whom they disagree or whom they find offensive. When such a speaker has been invited to the campus by one group, other groups may seek to dissuade the inviters from proceeding. But it is a punishable offense against the principles of the University for the objectors to coerce others physically or to threaten violence.
2) The permissible registration of opposition includes all forms of peaceful speech, such as letters to newspaper editors, peaceful assembly, and counter-speeches in appropriate locations. Furthermore, picketing is permissible outside of a building so long as it is peaceful and does not interfere with entrance to or exit from the building or with pedestrian or vehicular traffic outside of a building. It is important to understand, however, that picketing is more than expression. It is expression joined to action. Accordingly, it is entitled to no protection when its effect is coercive.
3) There is no right to protest within a university building in such a way that any university activity is disrupted. The administration, however, may wish to permit some symbolic dissent within a building but outside the meeting room, for example, a single picket or a distributor of handbills.
4) In the room where the invited speaker is to talk, all members of the audience are under an obligation to comply with a general standard of civility. This means that any registration of dissent that materially interferes with the speaker’s right to proceed is a punishable offense. Of course a member of the audience may protest in a silent, symbolic fashion, for example, by wearing a black arm band. More active forms of protest may be tolerated such as briefly booing, clapping hands, or heckling. But any disruptive activity must stop when the chair or an appropriate university official requests silence. Failure to quit in response to a reasonable request for order is a punishable offense.
5) Nor does the content of the speech, even parts deemed defamatory or insulting, entitle any member of the audience to engage in disruption. While untruthful and defamatory speech may give rise to civil liability it is neither a justification nor an excuse for disruption, and it may not be considered in any subsequent proceeding against offenders as a mitigating factor. Nor are racial insults or other “fighting words” a valid ground for disruption or physical attack – certainly not from a voluntary audience invited but in no way compelled to be present. Only if speech advocates immediate and serious illegal action, such as burning down a library, and there is danger that the audience will proceed to follow such an exhortation, may it be stopped, and then only by an authorized university official or law enforcement officer.
6) The banning or obstruction of lawful speech can never be justified on such grounds as that the speech or the speaker is deemed irresponsible, offensive, un scholarly, or untrue.
Third, the University could be more effective in discharging its obligation to use all reasonable effort to protect free expression on campus. We submit that this obligation can be discharged most effectively in the following ways:
1) The University and its schools should retain an open and flexible system of registering campus groups, arranging for the reservation of rooms, and permitting groups freely to invite speakers.
2) It is entirely appropriate, however, for the President and other members of the administration to attempt to persuade a group not to invite a speaker who may cause serious tension on campus. This is best done by communicating directly with the inviting group. It is appropriate for the University official to explain to the group its moral obligations to other members of the community. It is important, however, for the official to make it clear that these are moral obligations for the inviters to weigh along with other considerations in deciding whether to go forward, and that a decision to go forward is one which carries no legal or disciplinary consequences nor risks of more subtle University reprisals.
3) Once an invitation is accepted and the event is publicly announced, there are high risks involved if a University official - especially the President - attempts by public or private persuasion to have the invitation rescinded. There is a risk that the public or private attempt will appear as an effort to suppress free speech, and also a risk that a public attempt will lend “legitimacy” to obstructive action by those who take offense at the speaker. Should the President or any other University official think it necessary to make such an attempt, however, it is important that he also make it plain that if his appeal is disregarded, (a) no disciplinary jeopardy will attach to the inviting group, and (b) the University will make every effort to insure that the speech takes place.
4) Generally the inviting group should be free to decide whether the speech will be open to the public. However, if the administration has reasonable cause to believe that outsiders will be disruptive, it may appropriately limit attendance to members of the University. The duty of the administration is to uphold free speech within the university community and to insure that a speaker be heard. To discharge this duty it must have the power to impose sanctions against disrupters. It has little power against outside offenders against its rules.
5) The administration’s obligation to protect freedom of expression also means that when it has reasonable cause to anticipate disruption, it may require that individuals produce University I. D. cards to gain admission. We suggest that such cards be issued to all members of the University and that they include a photograph.
6) Much can be done to forestall disruption if sufficient notice is given of the impending event. The administration and others can meet with protesting groups, make clear the University’s obligations to free expression, and indicate forms of dissent that do not interfere with the right to listen. The inviting group can work closely with the administration to devise the time, place, and arrangements for admitting the audience (if there are any limits on who may attend) that will best promote order.
7) When the administration has reasonable cause to anticipate disruption, it should designate a particular hall as one best suited to protect a speaker from disruption and make that hall as secure as is reasonably possible. Effective arrangements for identifying offenders such as the use of cameras can serve as a deterrant.
8) A group inviting a speaker may close the meeting to the press. It also may invite the press. In either case, the administration should cooperate.
If a group wishes to arrange for television coverage, it should discuss the matter with an appropriate University official. Television should be permitted if the inviting group desires, unless the President or a person designated by him determines that the presence of television will itself make it substantially more likely that serious disruption will occur. If such a determination is made, it is the obligation of the administration to forbid television and to declare that the presence of television increases the risk of thwarting free expression and puts individuals and the property of the University at high risk.
9) The administration’s responsibility for assuring free expression imposes further obligations: it must act firmly when a speech is disrupted or when disruption is attempted; it must undertake to identify disrupters, and it must make known its intentions to do so beforehand.
These obligations can be discharged in two ways. One, the administration may call the city police and the criminal law. This is undesirable except where deemed absolutely necessary to protect individuals and property, for police presence can itself lead to injury and violence. Two, the administration can make clear in advance that serious sanctions will be imposed upon those who transgress the limits of legitimate protest and engage in disruption. It is plain, however, that if sanctions are to work as a deterrent to subsequent disruption, they must be imposed whenever disruption occurs. They must be imposed and not suspended. They must stick.
10) Disruption of a speech is a very serious offense against the entire University and may appropriately result in suspension or expulsion. Accordingly, one who is alleged to have committed such an offense should be tried before the University-Wide Tribunal. The Tribunal’s jurisdiction should vest upon complaint by the President or Provost. The collective assent of the deans should not be required in cases of this sort.
We believe that the procedures established in the charter of the University-Wide Tribunal and the sanctions that the Tribunal may impose are well suited to so serious an offense as the disruption of free expression.
Steven A. Benner, Yale College, 1975
Elias Clark, Master of Silliman College, Lafayette S. Foster Professor of Law
James P. Comer, Associate Professor of Psychiatry, Associate Dean of the Medical School
Lloyd N. Cutler, Visiting Lecturer in Law, Chairman Yale Development Board
Robert A. Dahl, Sterling Professor of Political Science
Marjorie B. Garber, Associate Professor of English
Walter R. Rieman, Yale College, 1977
Philip J. Sirlin, Princeton, 1973, Graduate Student in Economics
Elisabeth McC. Thomas, Dean Pierson College, Assistant Dean of Yale College
Hillel Weinberg, State University of N.Y., Buffalo, 1973, Graduate Student in Political Science
Harry H. Wellington, Edward J. Phelps Professor of Law
C. Vann Woodward, Sterling Professor of History (Chairman)
It is with sincere regret that I find myself unable to join the Majority Report. I am forced to admit, however, that I thought its statement of principles too facile and simplistic, its historical section full of value judgements, and its recommendations vague and expedient.
The Majority’s theory is a simple one: a university’s primary purpose is to discover and disseminate knowledge; free expression is necessary to achieve this purpose; therefore free expression should always supersede any other values which might conflict with it. I would challenge this theory on several fronts.
A. The Majority view is based on a positivist belief that science is a mode of inquiry by which man comes to learn incontrovertible truths, by means of which people can manipulate others so as to bring the maximum amount of “efficiency” to the social order. In contradistinction to this view, philosophers and social scientists have been telling us for years that all knowledge is relative, the result of social conditioning. External psychological, social, and historical conditions predetermine our thoughts, depriving individual people of their rational autonomy. For example, Freud attacks the autonomy of our moral beliefs about sex, and McLuhan speaks of the formative influence of the media on our most basic conceptions of the world. And many social sciences model their research on the basis that a person’s feelings, thoughts, and actions are dependent variables. Therefore how are we to believe that the reasons we give for what we believe or think are reasons at all, if the real reasons are outside of us? Thus, the notion that free expression strains our ideas through a firing line of rational dialogue is too simplistic: even after this process, we might remain pre-conditioned in some sense.
Karl Mannheim develops the concept of ideology as another means by which an individual’s social situation systematically distorts his way of thinking, thereby limiting the attainment of “objectivity” even if free speech is allowed. Mannheim concludes that knowledge is not a purely rational and disinterested theoretical enterprise, where praxis has no influence on theory. Instead, power relationships enter into our language and the theoretical structures by which we understand and appropriate our everyday experience. And technocratic thought forbids a discussion of ends – norms and values – in our political decision-making, so we have no telos – or general goal—- for society, no system of ethics determined by all men and women in society, free from domination by ideology or technocracy. Until we have such a telos, free speech might be simply unrealizable because the neutrality of a purely rational interchange of ideas and arguments is impossible. Even if this extreme conclusion is not warranted, at the very least, before free speech can become a possibility, it will require liberation from and increased self-consciousness of the social and irrational factors that condition knowledge and pre-form the meanings and structures of language. Education, the “sociology of knowledge,” and anti-ideological actions are in order to the extent that they can help achieve the “mental space” necessary for undominated discussion of options.
Marcuse would agree with J.S. Mill and the Majority that “the telos of tolerance is truth,” i.e. that we tolerate free speech because it furthers truth. But Marcuse goes on to argue that this implies that specific limitations of tolerance are justifiable if they further the pursuit of truth. Marcuse identifies such “truth” with the liberation of the oppressed and the achievement of true equality, (an identification which should not be too difficult for us all to agree with), so he is willing to justify censorship by the oppressed in order to further their own liberation. The “continued existence” of “the small and powerless minorities which struggle against the false consciousness and its beneficiaries” is “more important than the preservation of abused rights and liberties which grant constitutional powers to those who oppress these minorities.” So if the elimination of oppression is a rational goal for society (and I think it is), and therefore also a rational goal towards which the exercise of free speech ought to be teleologically directed, then the extent to which free speech helps us reach this “truth” gives us a rational criterion for delimiting the extent to which free speech is to be tolerated. If democratic, undominated discussion within the community so determines, we may prohibit the malicious advocacy of racist or imperialist ideas. As Rev. William Sloane Coffin pointed out: “Unless social justice is established in a country, civil liberties, which always concern intellectuals more than does social justice, look like luxuries. The point is that the three ideals of the French revolution – liberty, equality, fraternity, cannot be separated. We have to deal with equality first.”
From a political perspective, “rights” do not exist in the abstract, and the only concrete right to free speech is one which is backed up (usually with definite limitations} by those in power over a given community. Thus, because of the degree to which free speech is undermined by power relationships and ideological coloring, we should recognize that holding up a pure model of “free speech” to dissident oppressed groups (as the Majority does) often serves the cause of oppression more than that of free speech.
B. Even if “truth” were not colored by ideology and power relations, it is not clear that a “free marketplace of ideas” would discover this ”truth” at all, much less discover it most efficiently. Fundamental to the Majority’s argument is the notion that good ideas will beat out bad ideas in such a free marketplace, as the passage from Areopagitica (Part I) indicates and as the portion of the Holmes quote (at the beginning of Part III) which was conveniently excised from the final draft affirms: “The ultimate good desired is better reached by free trade in ideas – … the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Such a market, like any other market, would require atomistic perfect competitors in order to most efficiently achieve the “truth.” Yet this market contains a good deal of monopoly power, which can dominate the market and drive out weaker, albeit “true,’” ideas. This is most apparent with regard to the domination of the prevailing ideology discussed above: if the language and the prevailing structure of knowledge reflect the ideology of those in power, then the rational autonomy of the individual to think for himself is undermined, and free speech is pre-biased in favor of the prevailing ideology. But even if we liberated our consciousness of all ideological predispositions, there would still be people and classes with more political and economic power than others (including those who control the mass media and the educational institutions), and the ideas of these classes would still be in a stronger position on that “market” than the ideas of the weaker oppressed classes.
The failure of the free marketplace of ideas is implicitly accepted by the Majority, in their desire to limit the free expression of opinion by the Yale Administration and especially by the President. If we can rely on the free market of ideas to achieve truth and if, therefore, we should let anyone say anything any time, then we should not try to prevent the President of the University from saying anything he wants to say, as forcefully as he wants to say it, and as critically (of Lux et Veritas, YAF, Westmoreland, etc.) as he desires. Why, then, does the Majority insist that the President, if he deems an invitation to speak at Yale irresponsible, “Make it plain that if his appeal is disregarded no stigma will attach to the inviting group”?
Furthermore, there are other interferences with the free market of ideas at Yale, which the Majority does not find the slightest bit troublesome: the article by Dr. Spock which the Alumni Magazine refused to print; the termination of the employment of such radical faculty members as Staughton Lynd (History), Mills and McBride (Philosophy), and Resnick, Hymer, Weisskopf (Economics]; censorship by the Administration of the Yale Band; punishment of streakers.
C. Even if a free exchange of ideas were the best means of discovering truth, a University has other important purposes and values besides the discovery and dissemination of academic knowledge, and other functions besides merely research and discussion of academic theory. There are other kinds of knowledge, too, such as human knowledge. It is clearly one of Yale’s goals to teach its students how to live responsibly in our modern society, how to deal with other people in a context of mutual respect and harmony; Yale strives to acculturate people to the larger society outside the university community, and this includes the promulgation of racial harmony, religious tolerance, non-sexist attitudes, etc. Indeed, Yale has a responsibility to the rest of society which it must live up to, over and above its own interests. In addition to free expression, other moral questions must be dealt with. The Chairman of this Committee has (Daedalus, 1974) bemoaned the fact that “within the university are to be found members of faculty, student body, or administration whose concern for social welfare and minority needs outside their walls overcomes their concern for the protection of university privileges.” I believe that the university should take a stand for its ideals on erupting national issues, and not merely cloister itself within the walls of knowledge-seeking. And I believe that the university’s commitment to minority groups and to equal opportunity is at least as laudable a value as free expression.
It is not clear to me that relying, as the Majority does, on the inviting groups to exercise responsibility in this area, either through their own leadership or as a result of the “moral suasion” of fellow members of the University, is likely to lead to this kind of education and commitment. The University must play a leading role in the education of good and moral citizens, especially in light of the fact that a disproportionate number of Yale graduates will wind up in positions of power and influence in society. I have no confidence that the kind of “moral suasion” suggested by the Majority will proselytize as effectively for responsible invitations as it proselytizes for free expression. And if it does not, then the “chance” that the Majority is willing to take, – “that the results of free expression are to the general benefit in the long run, however unpleasant they may appear at the time” – will entail severe short run costs in terms of other values which the University is interested in promoting. Whereas the Majority is willing to accept these short run costs by insisting that free expression be the “paramount” priority in a university, I would try to balance the conflicting interests in each case, and weigh the values which would be sacrificed in the “short run” against the potential “long-run” knowledge which might be gained by allowing the free expression. If, for example, Hitler was invited to Yale to discuss his research into the area of Aryan racial superiority, and his policy prescription of extermination of all non-Aryans, I would have a hard time justifying allowing him to speak. Even if I were confident that his theories would, if wrong, eventually be disproved in the “long run,” I have learned from history that the “short run” costs would be overwhelming.
D. In determining the value of the knowledge which might potentially be gained in the long run, we must keep in mind that it is mainly “through research and teaching” that knowledge is discovered and disseminated, whereas people invited from outside the University to give public speeches – which is, after all, the problem which the Majority primarily addresses – further the University’s purpose in only a peripheral way, if at all. For example, it is difficult to see how William Shockley’s speech fits in to what Mr. Woodward (in the same Daedalus article] called “the traditional mission of the university … ‘a unique fusion of the quest for knowledge through scholarship and the dissemination of this knowledge through teaching.’ (Emphasis added.) The speech certainly was not intended to “discover” new knowledge, nor is it clear to whom the speech was meant to “disseminate” any idea that had not already been disseminated many times in many different (public) places. Thus, while no one would dream of denying Shockley the right to think whatever “unthinkable” thoughts he wants, nor to discuss – on his campus, in the journals, on the Cavett show, or even in small seminars at Yale – “the unmentionable,” I just cannot see why we have to feel obligated to provide a public podium for him.
A public podium, especially a forum at a prestigious university like Yale, provides sponsors and speakers with advantages not easily obtained elsewhere. The means to obtain an audience, publicity, and an auditorium are easily at hand at minimal expense. In addition, the practice at Yale has been to provide additional security forces without charge to the sponsoring group, although in some cases the expense has run to several thousand dollars. These advantages – financial, publicity, prestige – are separate and apart from a speaker’s right to think what he wants to think and to express his views. The First Amendment, let us recall, only protects against government interference with expression: it does not create an obligation to provide a forum nor to guarantee a polite reception to all ideas. That is a question of academic courtesy, not free expression. Nor should a university feel obligated to go beyond the canons of academic freedom – i.e. non-interference with faculty research and teaching – by providing a forum for unscholarly or socially harmful ideas. It might even be said that an invitation to such a public forum goes beyond mere speech, into the realm of action, and therefore need not be protected the way speech and thoughts are. This fact, coupled with the advantages which a university podium bestows upon a speaker, creates a responsibility on the part of both the university and the inviting group, to judge the expected benefits of its invitation against the possible adverse consequences, including any adverse national impact.
One important factor which must be considered before an invitation is “responsible” is the political implication. Putting aside any question of motive of the inviting group or of the speaker. Even if someone like Shockley had no desire to provoke a confrontation or to promote racism, even if he merely wanted to discuss his genetic theory and its implications, still the very nature of his policy prescriptions transpose his expression from mere speech into action. Thus, on top of the political fact that racial theories like Shockley’s will have the actual result of fanning racial hatreds (whether intended or not), Shockley’s policy recommendation – that the government offer cash incentives to low-IQ individuals who agree to have themselves sterilized – is particularly pernicious at a time when legislation has been introduced which mentions sterilization and when individuals have taken it upon themselves to forcibly sterilize young black people. Like the Hitler example above, the costs of such a racist political campaign are prohibitive, and may justifiably be opposed by political means. The problem, then, is not that the speaker’s ideas must surely be false, but that he is using vacuous questions to suggest pernicious action; not that it is wrong to permit dissemination of wrong and false ideas, but that there is something wrong in staging an event (a massively attended public lecture) which furthers his evil (political) ends. In the case of Shockley, another political implication of allowing him a forum at Yale (i.e. a place for the public discussion of current questions) is that it implicitly acknowledges that the question of inherent inferiority of blacks is an unresolved, debatable topic, an acknowledgement which the National Academy of Sciences has twice refused to make.
Another factor to be considered in determining whether an invitation is responsible is the motivation of the inviters and of the speaker. If the motivation is not to discover or disseminate knowledge, but to provoke a confrontation, to arouse the black or radical community to protest so they will be expelled from Yale, or worse yet, to incite a riot, then the invitation is irresponsible. Even the Majority’s “overriding university purpose” rationale fails to justify such a speech. There is also the question of what to do with groups which fail to adhere to the ethical considerations the Majority discusses in Part I, or groups which fail to consider these factors fairly, by giving their own interests undue weight or otherwise. I do not think that such an invitation is responsible, nor should it be condoned by the university. Reasonable individuals should be obliged not only to consider these factors, but also to act accordingly; procedural respect is insufficient without substantive respect. The Majority is afraid punishment of such irresponsible invitations would inhibit free expression or subordinate it to other values, none of which they believe to be more important than free expression. As I said earlier, I would weigh the different values to determine what an optimum policy should be in each case. (I do not think that the fact-finding problem here is as difficult as the Majority seems to think. Courts and juries always make findings of fact, including the question of motive. If juries were not capable of determining motive, most criminals could never be convicted.) As for the Majority’s problem with formal sanctions chilling free expression, I fail to see why the informal sanctions which they recommend (moral suasion) would not also chill free expression, too, though to a slightly lesser extent. Thus, extrapolating their argument for the absolute primacy of free speech above all other values, we are forced to conclude that even moral suasion should not be exercised against irresponsible invitations. The Majority is on a slippery slope and has to draw an arbitrary line between formal and informal sanctions.
If we extend the question from immoral motives to speech which is actually illegal, we find that the Majority has finessed the distinction between lawful and unlawful speech. Everyone must realize by now that the First Amendment, as interpreted by the Supreme Court, does not grant an absolute right to free expression; the right often depends upon the context of the situation. Military personnel, people in business relationships, slanderous and libelous utterances, fighting words, and pornography are not protected by the Constitution. No one may shout “fire” in a crowded theatre, nor speak in such a way as to create a clear and present danger of unlawful action. Despite these limitations on free expression for the purposes of the First Amendment, the Majority Report only mentions one limit on free expression for the purposes of Yale University: speech advocating immediate and serious illegal action. But why does the Majority make an exception here? Why not allow the speech and merely stop the advocated action? If the Majority argues that free speech should dominate all other values, then free speech must dominate the values which lie behind the outlawing of certain speech – including the value of protecting the government from speeches creating a danger of violent overthrow. Thus the Majority, too, has a line-drawing problem. If they are willing to stop speech which advocates serious illegal action, why not also stop the advocacy of serious immoral action? And why rely on university officials to determine what might be illegal action, how serious the action might be, or the likelihood that the audience will follow such exhortations? This sounds like the prior censorship the Majority seems to abhor. And if the university tries to stop such a speech but is unable to (or if the speech occurs before the Administration finds out about it, as is more likely), does the university punish the inviters? punish the disrupters? punish everyone?
The Majority says that defamatory speech does not create a right to disrupt, since civil remedies are available if the speech is proven to be illegal. But this ignores the fact, recognized by U.S. Courts, that racial minorities and other “suspect classifications” do not have the same opportunity to overturn policy by political means, due to their small numbers and relative lack of resources. Therefore the Courts apply a stricter standard of judicial scrutiny in cases which impinge upon fundamental rights of these groups. For the same reason, the Columbia Law Review’s Model Defamation Statute stated: “False representations of fact about these groups (racial and other minorities) made in support of a cause of action impede the free interchange and wise choice of ideas because the enormity and repetition of such falsehoods have been shown to increase their acceptance.” I would submit that, for similar reasons, Yale ought not to leave members of these minority groups to their civil remedies, without more. As a Dartmouth discipline committee said after Shockly was disrupted there two years ago, “A speech dealing with the slander of a racial group is not susceptible to academic discourse because verbal refutation cannot undo the damage caused by the utterance of this slander.”
E. This brings us to the question of disruption. The Majority suggests that “any disruptive activity must stop” upon a reasonable request from the chair. This standard is as arbitrary as one might devise. Besides the fact that “disruptive activity” is not defined except by vague examples (“briefly booing,” “heckling”), such a repressive scheme, leaving the determination of “reasonableness” of requests to a chair which is inevitably biased against the protestors, cannot help but chill the audience’s right to protest, dissent, and assembly. Certainly the right to assemble publicly is meaningless if it cannot involve large masses, high emotions, roughness and even turbulence. Its value has been proved on countless occasions as a technique to propagate new, minority or unconventional opinions. How can this Committee stifle this and other forms of dissent in its desire to protect calmer forms of expression? We must remember, too, that dissent and assembly are of even more crucial significance to those groups which habitually lack majority status in almost every decision-making arena. Even the Majority’s free-exchange-of-ideas theory holds that knowledge is furthered, not by lecturing to an absorptive audience, but by confronting questions and criticisms. Nor does that theory necessarily require compliance “with a general standard of civility,” as the Majority demands. Anger, passion, and disagreement further the free interchange of ideas as we grope toward an understanding of truth.
The Majority also denies that either the content of the speech or the motivation of the speaker can be a mitigating factor in subsequent proceedings against disrupters. I fail to see why, if there are mitigating circumstances which might reduce a criminal charge from first degree murder to second degree or even manslaughter, why context and motivation cannot mitigate doing violence to another’s right of expression. If someone utters “fighting words” (such as “you dirty Jew bastard”) and you hit him in the face, you are probably within your legal rights; the speaker’s irresponsibility mitigates your assault. I see no reason why university punishment should not be mitigated, too. I do not believe that the disruption which Yale has witnessed in the last few years has been either frivolous or frequent. It has been an expression of moral outrage, and emotional reaction to something that was deeply felt to be wrong, not unlike the reaction of a bunch of revolutionary farmers who lined up against the British in 1775. Therefore I have a strong gut reaction against punishing opposition, on moral grounds based on profound belief in human dignity, to “irresponsible” (but “legal”) speech, while refraining from punishing the inviters of the speech for their disregard of “mutual respect” amid “charitable relations.” Of course, the best way for Yale to eliminate disrupters would be to screen out potential disrupters during the admissions process, and this alternative is no doubt being practiced to some extent here and elsewhere. But the cost to the ethnic and ideological diversity of the student body and therefore to the quality of the University would be considerable.
The constraints of time and the fact that the Chairman has asked me to try to limit my Minority Report to five pages forbid me to enumerate all of the difficulties I have with the historical section and the policy recommendations other than what is implicit in what I have already said. However, I do want to point out two problems with the history section which are quite important.
The Majority continually refers with obvious discontent to statements by President Brewster to the effect that he recognizes the existence of additional values within the university community other than free speech. I find Mr. Brewster’s commitment highly laudable (to the extent that it is not compromised by vacillation or by regressive policies in other areas), and I am surprised that the Majority remains unsatisfied, for it seems to me that most of the President’s statements have conformed remarkably well to the inhibitions and disclaimers promulgated in Part III, Section 3, (2) and (3) of the Report.
A point which goes more deeply to the fundamental rationale of the Majority is the historical fact that the disruptions at Yale have not been stimulated by academic issues about which the Majority claims Yale has a duty to present factual, rational argument above all else, but by political issues which are a source of equally competent contention throughout American society, centering around morality, opinion and passion rather than intellectual fact. Thus, the Committee would do well to exclude these events from their definition of “academic” freedom, and decline to recommend such severe punishment for students who have felt bound by their consciences to disrupt these non-“academic” events.
In sum, I agree that free expression is an important value, which we must cherish and protect. But it is not the only value which we uphold, either in our society or in our universities. Under certain circumstances, free expression is outweighed by more pressing issues, including liberation of all oppressed people and equal opportunities for minority groups.
Kenneth J. Barnes, Harvard, 1970, Law Student and Graduate Student in Economics
1 (Yale Daily News, September 20, 1963. Subsequent quotations, unless otherwise notes, are from the News.)
2 (For its composition, jurisdiction, and procedures, see “Report on the Executive Committee of Yale College,” by a committee chaired by A. Dwight Culler, September, 1970.)