Nadine Strossen is no stranger to controversy. For 18 years she served as president of the American Civil Liberties Union, and now lectures at law schools on the Constitution and human rights. Philanthropy spoke with Strossen to learn about her most recent book, Hate: Why We Should Resist It With Free Speech, Not Censorship.
Philanthropy: How do you describe your professional work?
Strossen: I’m a crusader for human rights and civil liberties.
Philanthropy: What are some of the things drawing people today to things like bans on unwanted speech?
Strossen: Censorship is instinctively appealing. What’s the point in allowing people to express an idea we think is obnoxious or dangerous? Opinion surveys show that large percentages of people support censoring any idea they consider offensive. The downside is captured in the title of a book written years ago by journalist Nat Hentoff: Free Speech for Me—But Not for Thee: How the American Left and Right Relentlessly Censor Each Other. I believe that censoring will do more harm than good, both in eroding basic liberties and in terms of countering bad ideas in public life.
Philanthropy: Why don’t bans on unwanted speech work?
Strossen: Censorship is both ineffective and counterproductive. Ineffective because there’s no way we can completely eliminate all of the targeted ideas. People will find camouflaged ways to express themselves. And even if we do succeed in silencing somebody by removing them from social media, or even prosecuting them, as happens in other countries, experience shows that the unintended effect is to draw attention and sympathy to the speaker and his or her ideas. You create free-speech martyrs.
A grim example is from the Weimar Republic in Germany, while Hitler rose to power. Many people think, “Oh, if only we had censored their hateful antisemitic speech, we could have prevented the Holocaust.” Well, in fact, Germany, at that time, had very strict anti-hate-speech laws which were strictly enforced. And the Nazis who were prosecuted and convicted under those laws loved it. Those trials became a big propaganda platform for them, and they got attention and sympathy that they otherwise never would have.
Philanthropy: In the U.S., the major front for free-speech infringement is college campuses. Can you give us some examples of what’s going on?
Strossen: Unfortunately, there are so many examples. One I found particularly disturbing took place not long ago at Georgetown Law School. It was supposed to be a panel about immigration policy organized by a pro-immigration organization. The organizer was in the Obama administration and takes a liberal attitude toward immigration policies, and she had invited another speaker to debate her, a former official in ICE, the Immigration and Customs Enforcement agency. He tried to speak multiple times but there was persistent disruption. He and the organizer, Doris Meissner, repeatedly said to the protestors, “We’ve heard your message. Now please let us proceed. You’ll have a chance to ask questions.” But they kept shouting to prevent him from speaking. They were also holding up a huge banner in front of the stage that said, “Hate is not welcome here.” They were equating policy positions they disliked with hatred, which is itself troubling. The speaker tried multiple times but ultimately gave up.
What I found really distressing was that there was no official attempt to protect the rights of the speaker or of the audience. It was clear that the vast majority of the audience wanted to hear the speaker, because every time the moderator would say, “Please let him speak,” there was huge applause from the audience. But the university did not peacefully escort the disruptive protestors out of the venue, as they should have.
That failure to protect free-speech rights and enforce clear violations of the code of conduct on that campus is especially worrisome, because this was at a law school. If there is any educational venue where you would expect students and faculty members and the campus community to understand the importance of being exposed to arguments you disagree with—in order, among other things, to understand them and be able to develop your own arguments and refutations—you would expect that would be at a law school. Particularly one in our nation’s capital, where a lot of graduates will go into government and public-policy positions. That this goes on unpunished is extremely concerning.
Philanthropy: How do you recommend our donor readers talk with college administrators and presidents about efforts to curtail speech on campus?
Strossen: There are a lot of wonderful resources available on line. Look at FIRE, the Foundation for Individual Rights in Education. PEN is an organization at the intersection of journalism, literature, and free speech and in the past few years has been doing wonderful work on campus. Another good, newer organization is Heterodox Academy. All of these groups are focused on creating climates that are conducive to robust, vigorous free speech.
That depends not only on avoiding censorial policies, but also on building respect for the exercise of free speech. Developing a positive culture is at least as important as avoiding negative rules. In the United States, fortunately, we have very strong First Amendment free-speech protections that are supported and enforced by the Supreme Court. Despite ideological differences among the justices they by and large all strongly support free speech, including for offensive and hateful and other controversial arguments. Our current problem is really a cultural one, where some people are trying to shut down others through peer pressure, through ostracizing, through cancel culture, through shaming. Causing many other people to engage in self-censorship. We have to counteract that.
In the same way many campuses have initiatives to foster identity diversity, there needs to be an at-least equivalent push to instill a diversity of ideas—wider tolerance for what people can believe, and more willingness to engage with different ideas. In the way we want you to engage with people of different races and ethnicities and religions, it’s equally important to engage with people who have different ideas. That can be done in ways similar to the initiatives that have been undertaken to further identity diversity. Hold programs at orientation, assign readings, set up administrative offices to support intellectual diversity—so it becomes something that is talked about from the beginning to the end of your campus involvement.
I’ve studied some examples. Purdue University, under the leadership of Mitch Daniels, has a wonderful orientation program that involves skits that were designed by and are participated in by students themselves, where they act out situations that other students can relate to about engaging peacefully with ideas they find obnoxious.
And just as there is now methodical promotion of identity diversity in curricular matters, universities should do the same with respect to ideological diversity. Make sure course syllabi and broader curricula expose students to a range of perspectives.
Colleges should also require students to learn to debate. Studies have shown that people who have experience with debating tend to be more openminded than those who don’t. Learning how to think critically is important. You can’t be effectively trained as a lawyer, for instance, unless you have been taught to advocate all plausible perspectives on every issue.
Philanthropy: In your book you say that counter-speech is the most effective way to curb bad thinking. What is counter-speech?
Strossen: Counter-speech is a term used by lawyers and judges—effectively any use of our free-speech rights to counter or rebut ideas one disagrees with. It can be done in literally an infinite variety of ways. When a hateful idea comes along you can ignore it, right? Rather than draw attention to people through disruptive protests, sometimes the best strategy is just to walk away.
You can also debate. You can support ideas or people who are being disparaged. You can use education and accurate information to counter false rhetoric. Some creative people use satire and humor. You can organize your own counter-events that affirm the ideas you support. People are constantly complaining about how social media makes it much easier to disseminate bad ideas, but social media also makes it much easier to disseminate counter-speech.
On a one-to-one basis, many patient people engage in discussions that ultimately turn others away from hateful ideas. These engagements don’t demonize or ostracize, but rather create bonds, encourage discussion, and build up trusting relationships. There are many moving stories of people who have been convinced away from false or dangerous or extremist ideas.
Philanthropy: Do you consider private giving a form of free speech?
Strossen: Absolutely. And, much more importantly, so does the U.S. Supreme Court! In philanthropy, as well as in campaign contributions, what the court has held is that whether it’s on behalf of charitable assistance, some social-justice movement, a policy cause, a political candidate, a publishing platform, whatever, if the government says, “You may only spend X amount of money, and not more than that,” it is limiting your ability to convey your message effectively.
Philanthropy: Do you think donors have a right to be private or anonymous in their giving?
Strossen: Absolutely. And the Supreme Court supported this, interestingly enough, in a case that involved a corporation. Corporations include not just businesses but also nonprofits and other groups where individuals band together. But some critics dislike corporations and ask why they should have free speech, why they should they have the right to spend money in support of their ideas. The Supreme Court, though, has recognized both of those rights, and the right of incorporated groups to do their work anonymously. This came together in a historic case in 1958, involving a corporation some people considered disreputable—the NAACP. Like most other social-justice organizations, like most public-interest organizations all across the ideological spectrum, the NAACP is organized as a not-for-profit corporation.
Back in 1958, Southern governments were upset with the NAACP’s crusade against racial segregation, and they used whatever tools they could to try to stop the NAACP. One of their most potent threats was to require the NAACP to turn over lists of its members and donors. The Supreme Court recognized that if people had to reveal their identities, they would be exposed to hostility from critics, and many of them would have to end their support of the NAACP. If the court had not protected donor anonymity, NAACP and its civil-rights causes would have been completely undermined if not destroyed.
Philanthropy: Are there social movements today on which forced donor disclosure could have the same effect?
Strossen: Absolutely. Anything that might be considered—or made—controversial. If your employer, or your customers, or your clients, or your friends can be made through public disclosure and agitation to feel your private giving goes to an unworthy cause, there will be an enormous “chilling effect,” as the courts call it. This can really impinge free-speech rights.
Understanding the importance of privacy and anonymity goes way back. Famously, The Federalist Papers advocating for our Constitution were written anonymously, as were the anti-federalist papers on the other side, because people feared they would be attacked and ostracized in various ways if their identity was revealed. If we truly want people to robustly practice free speech without fear of various kinds of retaliation—not only from government but from opposing community members—then we have to guarantee anonymity. There are many recent examples of people’s businesses and reputations being destroyed, of persons getting fired or not admitted into restaurants or social groups, of individuals being harassed, attacked, made miserable. It’s not just a matter of having courage; a lot of people can’t afford to risk losing their livelihoods.
Philanthropy: There is increasing pressure in both philanthropy and the for-profit corporate world to mandate the identity composition of boards. California recently passed a law that mandates a certain percentage of women on corporate boards. California has also considered “greenlining” laws that would control giving to particular causes and groups. What are your thoughts on this?
Strossen: Both practices strike me as unconstitutional, as unwarranted government intervention in private-sector activity. I would oppose those kinds of demands in the corporate sphere, and even more strongly in the philanthropic sphere. We’re talking freedom of association here, whether it’s a for-profit or not-for-profit entity. The whole identity and mission of philanthropy is bound up in particular ideas, and when you interfere with the members and leaders, you interfere with the mission—that’s completely inconsistent with fundamental Constitutional freedoms.
Philanthropy: One argument in your book is that when speech rights are curtailed, even on behalf of a vulnerable population, the vulnerable end up suffering for it.
Strossen: Yes. If you allow restrictions on speech where there are sharp differences in viewpoint, then of course over time it’s predictable those who are likeliest to be silenced are marginalized groups. That is exactly the pattern that we’ve seen throughout history and around the world.
It seems ironic to me that those who support censoring hate speech usually start with the premise that there is overwhelming oppression built into our society—systemic injustice. Well, if they are right, the last thing they should want is to hand over to our government more discretionary powers to discriminate.
Philanthropy: There was a hearing on Capitol Hill last year titled “How the Tax Code Subsidizes Hate,” asking if “hate groups” should have their charitable status revoked.
Strossen: One person’s hate group is somebody else’s love group. Black Lives Matter has been labeled a hate group. The Southern Poverty Law Center has labeled as hate groups people who just have a different perspective from the Southern Poverty Law Center.
One organization I’m very familiar with is the Alliance Defending Freedom. ADF has been on the opposite side of the ACLU in many cases, and we could not disagree more strongly on some key issues. But I oppose their being labeled as a hate group. The idea of the IRS having the power to label hate groups is really frightening. It’s giving the government the power to suppress citizen action on the basis of ideological agreement or disagreement, which is really, really frightening.
