Prepared remarks: Free Speech, Radical Listening, and our Democratic Republic (March 22, 2024)

The National Association of College and University Attorneys (NACUA) General Counsel Institute March 22, 2024

It is an honor to address you today. I recognize we are living in a challenging time for universities. Universities, at their best, teach students to become engaged citizens who can lead and advance the highest ideals of our democratic republic. Over the last year, we have heard increasing concerns that our universities are failing to do just that, along with criticisms of their commitment to free speech, attacks on diversity, equity, and inclusion initiatives, and basic questions about how to disagree without being disagreeable.

To face these threats, we need to promote what Carol Gilligan calls a spirit of “radical listening.” This involves a deep commitment to respectful exchange of ideas while also embracing the things that make us different from each other. Inclusion, after all, starts with empathy. And empathy, I would suggest, is exactly what we need to heal our democratic republic. With more empathy and listening, and less judgment and demonization, we can—and must—rebuild and renew what it means to live in a democratic republic.

Free Speech and Counter-speech

Let me begin with Justice Louis Brandeis. He famously wrote, in Whitney v. California, that “[i]f there be time to expose through discussion, the falsehoods and fallacies . . . the remedy to be applied is more speech, not enforced silence.” Over time, Brandeis’ dictum became known as the “counter-speech doctrine.”

For college campuses, the concept of creating room for peaceful protest and counter-speech is a critical guidepost on the road to establishing free speech norms. One example of this principle can be seen in how Colorado College managed a protest last spring when former U.S. Representative Liz Cheney spoke at her alma matter’s graduation. A number of students who objected to Cheney’s policies turned their chairs around when she spoke. While not necessarily the ideal form of peaceful protest, or counter-speech, this action made their views known while allowing her to communicate hers. For students who could engage in both real listening and express their viewpoints, they honored what Colorado College President Song Richardson had in mind in introducing Cheney—that Colorado College sought to teach “you how to think critically, to welcome different perspectives, to see and understand different viewpoints, to challenge and debate each other and the ideas with which you may disagree.”[1]

A critical role played by universities is to expose students to people who are different from them – and ideas they may vehemently disagree with. That’s why Colorado Mesa University (CMU) President John Marshall envisions the CMU campus as one where students wearing a Black Lives Matter t-shirt can be welcomed alongside those wearing a MAGA hat. But more than just being welcomed, CMU seeks to foster an environment where both students feel empowered to sit in the front row and not self-sensor—i.e., both feeling free to ask hard questions and volunteer opinions that may be unpopular without being dismissed or denigrated. On campuses like CMU that are committed to democratic pluralism, this environment can take the form of a “teach-in,” which can be a powerful way to walk this walk and advance First Amendment values.

For universities, a perennial challenge is how to ensure that speakers are given a chance to be heard even when some—perhaps many—students disagree with them. At my alma mater, Swarthmore College, a previously scheduled speaker on Israeli security policy, Barak Mendelsohn, spoke after the October 7^th massacre and was disrupted from his talk by those seeking to drown him out. As one student reported in the school newspaper, “the actions of the protestors tried to make it so there was no possibility of listening or thinking about what Mendelsohn said.”[2] This behavior is antithetical to democratic citizenship. As that same Swarthmore student, who agreed with the protestors’ position but not their tactics, put it: “working to silence someone is never an avenue towards justice.”[3]  That lesson applies equally whether it is an Israeli speaker, a Palestinian speaker, or someone without a position on the conflict.

In principle, campus policies should distinguish between peaceful protest—like the one at Colorado College—and behavior that substantially disrupts those who have a right to be heard—like what happened at Swarthmore College. First Amendment standards traditionally do just that, providing for reasonable “time, place, and manner” restrictions that are applied neutrally. Consequences for violating these norms can prevent individuals from undermining open discourse or engaging in harassment of those with different views. As Swarthmore President Val Smith put it after the events discussed above: “Intimidating and harassing individuals for expressing their beliefs is not a form of peaceful dissent. [. . .] Speech that makes individuals with opposing views feel threatened is not a form of peaceful dissent.”[4]

I recognize that a formidable challenge for campuses is to enforce norms that allow for both free speech and an environment where students feel safe. Nonetheless, I agree with Harvard University Professor Danielle Allen, who emphasized that this challenge can and must be met.[5] An appropriate policy would start with a commitment to learning and to accountability, meaning a willful violation carries consequences. I am not suggesting that the development or enforcement of such a policy is easy; I am suggesting, however, it is essential.

An appropriate starting point for campuses is that students’ methods of protest must not threaten other members of the university community. Importantly, such a policy would distinguish between harmful behavior targeted at a single person as opposed to making broad policy statements that can met with counter-speech—even if such statements are offensive or wrong. The answer to such broad statements, as Brandeis taught, is more speech, not silencing of speech.

Rigorous Intellectual Inquiry

In addition to ensuring that proper policies are in place, another critical goal for universities is to develop a campus culture devoted to rigorous intellectual inquiry and dialogue. When students learn and become comfortable with this type of rigorous discourse, they will be better equipped to navigate challenging ideas that they encounter on campus and beyond.

In the classroom, professors, teachers, and instructors can advance the norm of rigorous inquiry by emphasizing an important three-part process for discourse and decision-making—dialogue; debate; and deliberation. In kicking off Colorado State University’s Year of Democracy, I was able to learn this process from Professor Martín Carcasson, who leads its Center for Public Deliberation.[6]

The concept of dialogue starts with asking questions and listening. We can all be better citizens, friends, and colleagues by operating under the assumption that “all truth is partial” (a concept I will return to shortly). This concept means that no individual can see all truth and all the various viewpoints of that truth. Consequently, the best path towards greater visibility on the whole truth is dialogue. And that type of dialogue—where people genuinely listen to one another—builds trust.

Once people build trust and understanding, it is important to engage in rigorous debate that builds on that foundation. Educators, for example, can model and encourage rigorous debate by challenging students who make arguments that appear to lack intellectual rigor. And, ideally, students learn to challenge one another respectfully, proceeding from dialogue to respectful debate.

I recognize that dialogue is not always easy, and there are times when people refuse to recognize others’ humanity. In terms of demonstrating a commitment to true dialogue when it is hard, Colorado State Representative Briana Titone, the first transgender lawmaker in Colorado’s history, is a true role model. After an antitransgender bill was advanced in the Colorado State House through hateful rhetoric about the rights of transgender individuals to exist, Titone stated “I believe in respect for people, despite our differences. Yesterday, I felt disrespected and diminished.”[7] After her speech, the Republican minority leader came up to her and said that he wanted to make sure that future debates were more respectful.[8]

Finally, we must take seriously the role of deliberation. One of the painful dynamics we are seeing is that people increasingly make decisions and adopt viewpoints based on reflexive judgments—without the benefit of deliberation. If one starts from a place of judgment, rather than curiosity, it is easy to demonize others based on limited information and arrive at views with limited information. And, unfortunately, social media makes this all too easy to do, as algorithms sort people by their viewpoint and feed them content that reinforces what they already believe.

Civic engagement starts with dialogue and debate and allows for reflective deliberation. That means citizens evaluate their views through careful analysis and generate a thoughtful conclusion. That process is what makes our jury system so effective.[9] In praise of this model, CSU Professor Martín Carcasson and Melissa Milios Davis concluded that “[b]y intentionally creating spaces where diverse groups of local people can engage with one another as people—not as algorithm-curated voting blocs—genuine conversations about common challenges can spark empathy, understanding and solutions.”[10]

Radical Listening and Inclusion

I want to shift now to address the connection between radical listening and inclusion. The ability to listen to different viewpoints, show up as our authentic selves, and treat everyone in an inclusive fashion is hard, particularly in our digital age. The dynamics of our digital age, driven by algorithms that drive us into echo-chambers, seek to inflame passions and limit real listening. As philosopher Micah Goodman explains, the dynamic of confirmation basis—meaning that people look for evidence that confirms what they already believe—is exacerbated by social media. As he put it:

Confirmation bias affects most people, and social-media companies effectively exploit it to capture our attention. How does this all work? When an algorithm sifts through information and decides what to push into our news feeds and what to leave out, it employs only one criterion: Which posts have the greatest chance of keeping us glued to our screens? Since people prefer their own opinions, the algorithms show them posts reflecting positions similar to those they already hold, thus keeping them for longer in front of their screens and extracting more valuable minutes of their attention.[11]

Goodman then asks a critical question of our age: “What kind of culture would strengthen the muscles that digital technology is atrophying — including the key one that helps us listen to ideas we disagree with?”

One answer to Goodman’s question is the concept that “all truth is partial,” which elevates the principle that more than one view can be right. Capturing this concept, the Danish physicist and philosopher Niels Bohr once famously related, for example, that “a great truth is a truth whose opposite is also a great truth.” Regardless how one arrives at the concept, the goal is to embrace a commitment to what psychologist Carol Gilligan has called “radical listening.”[12]

Radical listening relates to the maxim that the late U.S. Senator Howard Baker made famous: “you might be right.”[13] By acknowledging that another person might be right, and we might be wrong, we open ourselves up to radical listening and the potential to change our mind. Professor Gilligan’s project of radical listening encourages individuals to start from a place of curiosity and learning, not judgment.[14] This is hard, as many professionals are trained to quickly take in information, categorize it, and make a judgment based on our values. As Goodman explains, radical listening calls on us to not ask “why we think the other person is wrong, [but instead] ask why [they] think [they] are right.”[15] Stated differently, radical listening calls on us to lead with empathy, not judgment.[16]

Listening radically to those with diverse views does not just make democratic self-governance work, it helps businesses thrive. For students preparing not only for citizenship, but for the workplace, the experience of working on diverse teams to solve problems is important and impactful. Indeed, diverse teams outperform homogenous ones and we often learn the most from confronting different opinions.

Being committed to empathy and to inclusion go hand-in-hand. I recognize that we live at a moment when some depict efforts to promote diversity, equity, and inclusion as problematic. I disagree. DEI, properly understood, is about empathy for others, true inclusion, and equal opportunity for all. This concept is hard-wired to what Harvard Business School professor Amy Edmondson has preached as critical to enabling diverse teams to succeed—psychological safety among teams. As one commentator put it, “psychological safety is a shared belief held by members of a team that it’s OK to take risks, to express their ideas and concerns, to speak up with questions, and to admit mistakes—all without fear of negative consequences.”[17]

To build a safe and inclusive environment, everyone needs to belong. To that end, I have regularly emphasized how hate against any group must be viewed as hate against all groups.[18] The flip side of this point is that inclusion means that we must work to ensure and safeguard a place of belonging for everyone. It’s often easy to overlook how many individuals come from a range of backgrounds—religions like Islam, Judaism, and the Church of Jesus Christ of Latter-day Saints; those with disabilities; veterans with post-traumatic stress disorder; members of the LGBTQ+ community; and those with conservative political viewpoints, just to name a few groups—who may not feel a sense of belonging or may feel excluded in environments that do not welcome them to show up as their authentic selves. For all organizations this is a call to action—and inclusion.

When I think about inclusion, I start from a premise that we should seek to create space for all views to be welcomed and withhold making judgments about others. The truth is that we rarely know the extent of others’ lived experience. Someone may present themselves in a manner that does not reveal the trauma, challenges, and adversity they have overcome. By starting from a place of empathy and genuine interest in getting to know others, we can engage and include them. DEI efforts, as I see it, provide important tools to address the challenges caused by lack of understanding. At one conversation about DEI at our office, for example, we discussed the importance of being humble and willing to ask a basic question—“how should I pronounce your name?”—rather than assuming a pronunciation or being afraid to ask.

A painful dynamic at issue in our society today is that, rather than develop diverse and inclusive teams, many people retreat to their corners and comfort zones. This situation can, in effect, bake “confirmation bias” into the cake of our campuses. In short, this is the equivalent of our social media (or cable news) bubbles coming to campus. We might recognize that true inclusion is hard and takes purposeful engagement.

Like confirmation bias, another common bias is that people are comfortable with others who are familiar to them—affinity bias or proximity bias, if you will. For example, when a CEO is looking for someone to mentor, or to whom to give a career advancing assignment, that CEO may well turn to someone who is familiar. To overcome, or to interrupt, that bias takes an affirmative group effort. And all too often organizations are not committed to making that effort. In a recent survey, for example, one major HR firm concluded that around 90% of white males reported gaining access to career-making assignments whereas around only 50% of Black women did.[19]

For college campuses, diversity is important for both students and faculty. When our campuses are more diverse, there is more opportunity to become familiar with those who are different from us and to exercise radical listening. And we cannot assume that inclusion will automatically take root; like developing a culture of intellectual curiosity, developing an inclusive culture requires work.

Respectful Engagement

The final point I want to discuss, which flows from the points above, is that respectful engagement is an important element of democratic citizenship. Governing, at its essence, requires listening, learning, and compromise. That means to tolerate demonization, judgment, and shaming is to reject governing.[20]

President Lincoln understood well the dangers of demonization and the importance of our nation’s commitment to e pluribus unum—out of many, we are one. In his Second Inaugural Address, he famously concluded by stating, “With malice toward none with charity for all with firmness in the right as God gives us to see the right let us strive on to finish the work we are in to bind up the nation’s wounds . . . and cherish a just and lasting peace among ourselves and with all nations.” That same spirit animated his vision for our nation’s land grant colleges. As CSU President Amy Parsons explained, those colleges “created a mighty tool to rebuild a country torn apart by the Civil War, strengthen the economy, unify communities, and bolster our ability to compete in the world.”[21] And President Parsons sees that vision as relevant as ever, working towards “an environment that is rich in diverse views, more conversation, and increased learning and participation.”

In my own life, I had the experience of working for Justice Ruth Bader Ginsburg and witnessed her relationship with Justice Antonin Scalia.[22] They were close friends; and their friendship was not despite their differences, but because of them. Their model of respectful engagement and dialogue underscores how “steel sharpens steel.” Or, in the words of Justice Ginsburg, when Justice Scalia gave her an early copy of his dissent in the Virginia Military Institute (VMI) case, “it ruined her weekend, but made the opinion stronger.”[23] This case ruled that VMI could not exclude women and that doing so represented the reliance on an unconstitutional bias against women.

Describing his own ethos for respectful engagement, Scalia put it differently:

I attack ideas. I don’t attack people. Some very good people have some very bad ideas. And if you can’t separate the two, you gotta get another day job.[24]

Taking a cue from Justices Ginsburg and Scalia, our Department launched the Ginsburg-Scalia initiative. We held two conferences exploring their constructive relationship and its lessons.[25] And we developed a statewide initiative, working with former Colorado Secretary of State Wayne Williams, promoting this norm and partnering with Unify America, a cross-partisan non-profit organization that aims to “replace political fighting with collaborative problem-solving.”[26]

In talking about the Supreme Court after the death of Justice Scalia, when the Court had four members of the more liberal wing and four members of the more conservative wing, Justice Elena Kagan was wistful about how this dynamic drove listening, reflection, and compromise.  As she put it, such a dynamic “forces compromise when you don’t think compromise is possible.”[27]  She went further, explaining that this situation forced the members of the court “to have a conversation that was useful and valuable.” For us as leaders and citizens, one challenge in our current environment is to develop norms, institutions, and situations that enable useful and valuable conversations driven by radical listening.

Every one of you here has the opportunity to develop complementary initiatives to promote and model respectful engagement. We can all, moreover, resist the pressure not to be friends with or listen to those with different views—and, indeed, we can lean into friendships with those from different backgrounds or different points of view. In doing so, we can honor our nation’s tradition of respectful engagement exemplified by a range of leaders. One of my heroes in this regard is the late U.S. Senator Bob Dole.[28] Senator Dole’s former press secretary put it beautifully: Senator Dole “leavened his fighting spirit with humility, humor, and respect. If that made him weak, American politics would be stronger with more weakness.”[29] On a similar note, Arthur Brooks invoked the Dalai Lama’s teaching as a tonic to rising polarization, calling on individuals to withhold anger and judgment and replace it with loving kindness, seeing everyone as worthy of dignity and respect.[30]

The Senate of Bob Dole enjoyed real engagement and friendships across party lines, including that of Senators Ted Kennedy and Orin Hatch. Thankfully, at the state level, we still can maintain such friendships and develop public policy through respectful engagement. Former Colorado House Minority Leader Hugh McKean, of blessed memory, was a well-respected practitioner of this form of politics. At his memorial service, former House Speaker Alec Garnett spoke about how Hugh engaged him on a piece of legislation—Colorado’s red flag law. Even though Hugh disagreed with the legislation and would later rail against it, he worked with Garnett to improve it and, after it passed, they shared a good joke and a laugh together. Hugh McKean did not demonize others. He hugged them, literally.[31] Notably, both Hugh and Alec listened radically, and with empathy for one another, to not let their differences divide them and to serve Colorado.

As a demonstration of our Department’s commitment to fostering respectful engagement, we organized a Unify Colorado Challenge, pairing Coloradans across the state with others from different communities and different philosophical orientations. They engaged in a reflective dialogue and, to the surprise of some, they respected one another, enjoyed the experience, and found a considerable amount of common ground. We made a documentary from this experience and we prepared it for use in civic education.[32] This is only one important start in how we invest in civic education and develop the critical virtues necessary to practice democratic citizenship.

* * *

I recognize that we live in a time of rising demonization and polarization. One of the great questions for our universities—and our educational system more broadly—is how we can foster norms that develop critical virtues like empathy, radical listening, and humility for students, faculty, and the greater community. Fred Rogers (of the beloved children’s television series, Mister Rogers’ Neighborhood), was a great teacher of these virtues and was described by Tom Junod as taking the following view about public discourse:

Fred was a man with a vision, and his vision was of the public square, a place full of strangers, transformed by love and kindness into something like a neighborhood. That vision depended on civility, on strangers feeling welcome in the public square, and so civility couldn’t be debatable. It couldn’t be subject to politics but rather had to be the very basis of politics, along with everything else worthwhile.[33]

For us to remain a great democratic republic, heeding this lesson is essential. As university general counsels, you play a critical role in helping to craft policies and cultures that strengthen and protect those norms. Thank you all for taking that work seriously.

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[1] https://gazette.com/news/education/colorado-college-alum-liz-cheney-delivers-commencement-speech-graduates-turn-chairs-away-from-stage-in/article_32e7fc22-fd89-11ed-92a8-f7214a714b08.html

[2] https://swarthmorephoenix.com/2023/10/26/our-protests-should-be-more-thoughtful/

[3] https://billlawrenceonline.com/swarthmore-protest-silences-israeli-speaker

[4] https://www.swarthmore.edu/presidents-office/diverse-views-and-common-values

[5] Danielle Allen, We’ve Lost Our Way on Campus. Here’s How We Can Find Our Way Back (December 10, 2023), https://www.washingtonpost.com/opinions/2023/12/10/antisemitism-campus-culture-harvard-penn-mit-hearing-path-forward/

[6] For more information on this program, see https://cpd.colostate.edu/.

[7] https://www.washingtonpost.com/dc-md-va/2023/05/05/colorado-brianna-titone-trans-issues/

[8] Id.

[9] For a discussion of how the jury provides a model of deliberative decision-making, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=934838.

[10] https://coloradosun.com/2024/01/28/opinion-reimagining-the-public-square-civil-discourse/

[11] https://sapirjournal.org/technology/2023/12/the-talmudic-cure-for-our-technology-sickness/

[12] https://psycnet.apa.org/fulltext/2021-84531-001.html

[13] A podcast by the same name is worth listening to, including an episode with Harvard Professor Danielle Allen.

[14] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5383569/

[15] https://sapirjournal.org/technology/2023/12/the-talmudic-cure-for-our-technology-sickness/

[16] https://cl.cobar.org/departments/leading-with-empathy/

[17] https://hbr.org/2023/02/what-is-psychological-safety

[18]For my recent remarks on this topic, see https://coag.gov/blog-post/rise-challenge-antisemitism-babi-yar-remembrance-9-27-23/

[19] https://coag.gov/blog-post/remarks-talk-national-organization-lawyers-education-associations-10-5-2323/.

[20] Jonathan Rauch’s discussion on point is excellent. See https://www.nationalaffairs.com/publications/detail/rethinking-polarization

[21] https://magazine.csusystem.edu/2024/01/03/a-laboratory-for-democracy/

[22] I have previously written about that experience. https://coloradosun.com/2020/09/23/phil-weiser-ruth-bader-ginsburg-supreme-court-opinion/

[23] https://www.supremecourt.gov/publicinfo/speeches/remarks%20for%20the%20second%20circuit%20judicial%20conference%20may%2025%202016.pdf.

[24] https://www.supremecourt.gov/publicinfo/speeches/remarks%20for%20the%20second%20circuit%20judicial%20conference%20may%2025%202016.pdf.

[25] https://coag.gov/blog-post/the-ginsburg-scalia-initiative; https://gazette.com/denver-gazette/perspective-2-colorado-politicians-want-to-heal-the-divided-states-of-america/article_7705c2cc-a637-11ec-ab1d-f716dc77cc04.html;

[26] https://gazette.com/denver-gazette/perspective-2-colorado-politicians-want-to-heal-the-divided-states-of-america/article_7705c2cc-a637-11ec-ab1d-f716dc77cc04.html

[27] https://www.nytimes.com/2024/02/12/us/kagan-trump-colorado.html

[28] Others have bemoaned the approach of former House Speaker Newt Gingrich. Former Congressman Peter Smith explained that:

 

About three weeks after his election as whip, Mr. Gingrich called me into his office. He asked whether I was having dinner with Democrats. I was, I said: A colleague from Tennessee and I were hosting fellow freshman members for dinner regularly to share experiences. Mr. Gingrich demanded that I stop; he didn’t want Republicans consorting with Democrats.

 

https://www.nytimes.com/2022/09/22/opinion/moderate-republicans-gingrich-trump-new-england.html

[29] https://www.nytimes.com/2021/12/05/opinion/politics/bob-dole-death.html

[30] Arthur Brooks, Love Your Enemies: How Decent People Can Save America from the Culture of Contempt (Broadside Books 2019).

[31] For a recounting of McKean at his memorial service, see https://www.cpr.org/2022/11/10/hugh-mckean-memorial-service/; https://coloradosun.com/2022/11/10/hugh-mckean-colorado-legislature-memorial/.

[32] https://coag.gov/ginsburgscalia.

[33] Tom Junod, My Friend Mister Rogers, Atlantic (Dec. 2019), https://www.theatlantic.com/magazine/archive/2019/12/what-would-mister-rogers-do/600772.