OCTOBER 10, 2021
IT IS DISAPPOINTING when a provocative new book by a prominent legal scholar with impeccable credentials fails to sustain its arguments. In How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart, Jamal Greene, the Dwight Professor of Law at Columbia Law School, a graduate of Harvard College and Yale Law School, and a former law clerk to US Supreme Court Justice John Paul Stevens, complains that “[r]ights have gone viral.” He argues that the “common but unrecognized problem in American law” is that “in striving to take rights seriously, we take them too literally.” As someone who is concerned that too little, rather than too much, protection of fundamental rights is the problem, I was intrigued by Greene’s title and eager to see what I could learn from him.
Greene claims that over the course of American history, and especially in the 1960s and 1970s, there has been a “proliferation of competing rights” — a “mushrooming of rights” — that he disparagingly calls “rightsism,” something to be avoided like sexism, racism, and ableism. He’s fond of saying that we suffer from a “fetish” over rights. We’re under a “spell of rights.” We are suffering from an “obsession with rights.”
He argues that “rightsism” gives “unelected” judges “much more power than they deserve in a democracy,” prompting them to take “absolute” positions, which fail to balance competing rights. He proposes that instead of either “minimizing” rights or “discriminating” among rights, we should “mediate” rights. Instead of “declaring” rights, courts should “reconcile” them. In fact, Greene argues that courts should play a lesser role; they should defer to “state and local political bodies: juries, churches, families, and legislatures.” And in doing so, we should look to other countries as better models.
Admittedly, Greene ends his book by assuring us that his proposals are “invitations, not manifestos, in the spirit of humility to which we all should aspire.” Likewise, in her gracious foreword, historian Jill Lepore invites readers to explore what Greene means and “then decide whether you agree.” I accepted Greene’s invitation and welcomed Lepore’s advice. And with all humility, I have concluded that Greene is wrong about How Rights Went Wrong.
The Bill of Rights Was Intended to Protect the Rights of the People from Political Majorities
The problems begin with Greene’s historical analysis. He argues that “[e]arly Americans believed deeply in ‘rights,’ but within Founding-era political thought, the institutions best suited to reconcile the competing demands of rights were not courts but rather state and local political bodies: juries, churches, families, and legislatures.”
The Framers of the U.S. Constitution cared deeply about rights, but not in the way most Americans do today. The men who wrote rights into the Constitution did not view rights as a shield for individuals against the oppressive laws of their communities. Rather, rights were freedoms that enabled a productive life. Communities made laws in order to protect these rights. The Bill of Rights, the Constitution’s iconic collection of original rights, is best understood less as a charter of individual liberty than as a paean to self-government.
But Greene’s entire premise is belied by the history of the Bill of Rights. That history begins with George Mason, a Virginia statesman and delegate to the Constitutional Convention. In September 1787, Mason explained why he refused to sign the Constitution as drafted. First and foremost, he stated,
There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declarations of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of the common law.
In particular, there “is no declaration of any kind, for preserving the liberty of the press, or the trial by jury in civil causes; nor against the danger of standing armies in time of peace.”
Mason feared that without a bill of rights, senators could “accomplish what usurpations they please upon the rights and liberties of the people.” Elsewhere he expressed grave concern that the general powers exercised by members of Congress could undermine “the people for their rights.” In conclusion, he expressed his fear that without a bill of rights, the “government will set out a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.”
On September 12, 1787, during the waning days of the Constitutional Convention, Mason proposed a bill of rights. This would be a list of rights belonging to the people that government could not violate. Clearly Mason was far more concerned that the executive and legislative branches posed a threat to individual rights than Greene is willing to acknowledge.
And Mason was certainly not the only one concerned about the lack of protection for individual rights. The Bill of Rights Institute offers a useful summary. In short: In early 1787, when he was preparing for the Constitutional Convention, James Madison wrote “Vices of the Political System.” This essay outlined the defects of the existing Articles of Confederation. For Madison, a core problem with the Articles was that majorities in the states passed laws violating the rights of minorities. These are the very same majorities — the very same legislative bodies and assemblies — that Greene claims the Founders trusted to protect individual rights. Madison had witnessed the oppression of religious dissenters in his home state. As a result, he became the main booster for the Virginia Statute for Religious Freedom. At the Convention, he pushed for many constitutional principles we take for granted today, including separation of powers, checks and balances, federalism, and bicameralism, all of which would protect individual liberties.
Madison and his friend Thomas Jefferson, who was in Paris at the time, wrote to each other extensively over several months. Jefferson was not happy about the absence of a bill of rights in the Constitution. “[A] bill of rights is what the people are entitled to against every government on earth,” Jefferson wrote. At first Madison equivocated, suggesting that bills of rights were mere “parchment barriers” that zealous majorities violated regardless of written protections. In Federalist No. 10, Madison — sounding a lot like Greene — originally claimed that a large republic would have many competing — “mediating” — factions that would naturally stop a majority from curtailing the rights of minorities.
Madison did not keep this view. He was worried about the Anti-Federalists, who were calling for major structural changes. Anti-Federalists complained so vehemently about the absence of a bill of rights that Madison promised that if the Constitution were ratified, he would personally sponsor the adoption of a bill of rights, particularly an amendment protecting the liberty of conscience. The Constitution was indeed ratified, Madison was elected to the First Congress, and he kept his promise.
Newly elected Representative Madison became the champion of a bill of rights. The Bill of Rights would “expressly declare the great rights of mankind secured under this constitution.” On December 15, 1791, with Madison’s guidance, the first 10 amendments were ratified, fulfilling his goal.
This review of the words and deeds of prominent Founders simply cannot be reconciled with Greene’s claim that the “men who wrote rights into the Constitution did not view rights as a shield for individuals against the oppressive laws of their communities” or that the Bill of Rights should not be viewed as “a charter of individual liberty.”
It Is the Duty of the Courts to Protect the Constitutional Rights of Minorities, Dissenters, and the Oppressed Against Majoritarian Preferences of the Legislature or the Executive
Greene argues that we are wrong to insist that it is “the peculiar province of a judge to uphold the constitutional rights of minorities, dissenters, and the oppressed against the majoritarian preferences of the legislature or the executive.” According to Greene, “this vision of rights has no basis in the Founding era.” He argues instead that the “Founders’ vision of rights recognized that the capacity to identify and enforce the rights of the people rested with the people themselves: local citizens acting through legislatures and local assemblies; through juries; through militias, churches, and families.”
In fact, Greene, who clerked for a Supreme Court justice, goes out of his way to categorically disparage judges for “their narrow professional training.” He argues that to “give a judge the primary role in adjudicating rights disputes is, therefore, to subject rights recognition and enforcement to the limits of their professional training.”
Not only are his arguments historically inaccurate; they exhibit a baffling blindness to the prejudices and obviously partisan politics of legislatures.
The Constitution is unquestionably flawed and limited. But its genius, reinforced by the Bill of Rights and the Civil War amendments, is the very opposite of what Greene proposes. History had taught the Founders why the constitutional rights of minorities, dissenters, and the oppressed needed to be protected against the majoritarian preferences of the legislature and the executive. And the Founders knew that as a last resort it would be the judges who would serve as a check and balance to ensure that the other two branches of government did not violate the Constitution.
From their own experience and study of history, the Founders understood that an independent judiciary was crucial for American democracy. The nonprofit Protect Democracy offers a catalog of grievances the Founders had that propelled the Declaration of Independence. Among the list was the charge that the King had “obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers,” making “Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries.” Both John Adams and Alexander Hamilton highlighted the importance of judicial independence, with Hamilton saying that there was “no motive which induced me to put my life at hazard through our revolutionary war” more than the “defence of the independence of the judiciary.”
During the debate over the Constitution’s ratification, the authors of The Federalist Papers insisted that the federal judiciary should not be beholden to the other branches. Hamilton warned that “from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office.” Madison wrote that this would allow judicial decisions to “be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality.” Consequently, Article III of the Constitution provides clear guarantees of independence to the courts.
In attempting to diminish the role of judges, Greene argues that “[l]egislatures and juries are not so limited” and “[each] of the provisions of the Bill of Rights — whether about freedom of speech, the right to bear arms, or the right to a jury trial — is best viewed as protecting self-governance, not individual liberty from the majority.”
But again he ignores history — and now the actual words of the Bill of Rights itself — in order to maintain his premise. Most of the amendments speak consistently about individual liberty, the rights of “persons” and “the people.” Thus, for example, the amendments refer to “the right of the people peaceably to assemble” (First); “the right of the people to keep and bear Arms” (Second) and the right of “the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” (Fourth). (Greene also stumbles when he claims that the Fourth Amendment’s command that a search not be “unreasonable” is “a classic jury question.” In fact, it is judges, not juries, who determine whether searches and seizures are reasonable.)
The Fifth Amendment guarantees that no “person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury”; nor “shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The Ninth Amendment declares that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And the 10th Amendment declares that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In this last amendment, Greene ambiguously claims the term “the people” does not mean “an aggregation of disparate individuals holding rights against the government,” but only “the community in its collective capacity.” Whatever he means by that, he cites no historical or legal authority for this claim in his text or footnotes.
Greene goes on to claim that the “jury sits at the heart of the Bill of Rights,” which “brim[s] with jury protections.” But in reality there are only three references to juries in the Bill of Rights: the Sixth Amendment guarantees “the accused” the right “to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” The Seventh Amendment provides that “[in] suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” The third reference is to the grand jury in the Fifth Amendment, quoted above. That’s it for juries.
Legislatures Are Prone to Make Political Decisions Favored By the Majority at the Expense of the Minority
In addition to the serious problems surrounding Greene’s reliance on a flawed historical analysis, he never fully explains why he prefers conflicts over rights to be resolved by “legislatures, juries, churches, and families” rather than by courts. At times, he lets down his guard and acknowledges that these institutions, particularly legislatures, have a history not only of failing to protect constitutional rights but of being the incubator for the very violation of those rights. Thus, he firmly declares that we cannot trust a government that “racially segregates its citizens or jails them for opposing a war or sympathizing with the Communist Party.” But this statement contradicts his essential premise. It is impossible to reconcile these views with an author who bases his entire book on the premise that it is not “the peculiar province of a judge to uphold the constitutional rights of minorities, dissenters, and the oppressed against the majoritarian preferences of the legislature or the executive.”
A very good example of the serious damage state legislatures have done when it comes to protecting individual rights, and why infringements of minority rights deserve the protection of the courts, is the controversy over laws requiring public school students to salute the American flag. Compulsory flag pledge laws adopted by several state legislatures were motivated by patriotic ardor in wartime America as far back as the Spanish-American War. The issue eventually came to a head in the Gobitis case.
Walter Gobitas (his name was misspelled in the court case), a Jehovah’s Witness, lived in Minersville, Pennsylvania, a predominantly Roman Catholic town. Based on his religious beliefs, he told his children not to pledge allegiance at school. The children were teased and taunted. His daughter Lillian was forced to give up her status as class president. A local Catholic church started a boycott of the Gobitas family store. The school board expelled the children, without any recourse. School boards, legislatures, churches — the very institutions Greene trusts so much — didn’t “mediate” or “reconcile” the issue of religious rights; they absolutely denied them.
Gobitas sued the school board. At trial, the school superintendent — the sort of local official Greene believes should be primarily responsible for protecting individual rights — scoffed at the children’s religious beliefs, claiming that dissent would demoralize others and threaten American values. District Judge Albert B. Maris later found that the school board’s requirement for children to salute the flag was not constitutional, as it violated the free exercise of religious beliefs. In 1939, the Third Circuit of the US Court of Appeals unanimously affirmed the district court decision.
The school board appealed to the Supreme Court. On June 3, 1940, the Supreme Court, with only one dissent, reversed the lower courts and upheld the mandatory flag salute. Justice Felix Frankfurter, writing for the majority, ruled that the school district’s interest in creating “national unity” was enough to justify requiring students to salute the flag. In words Greene himself might have written, Frankfurter held that to achieve national unity the “legislature [had] the right to select appropriate means for its attainment.” The flag helped solidify national unity and could be used “to promote in the minds of children who attend the common schools an attachment to the institutions of their country.”
The lone dissenter, Justice Harlan Fiske Stone, wrote that the “guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them. […] The very essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say…”
Following the Supreme Court’s decision, there was a wave of violence against Jehovah’s Witnesses across the country, including in Kennebunkport, Maine; Litchfield, Illinois; and Rawlins, Wyoming. The ACLU documented nearly 1,500 Witnesses were physically attacked in more than 300 communities nationwide. When asked by reporters why so many Witnesses were fleeing his city, one Southern sheriff simply replied: “They’re traitors; the Supreme Court says so. Ain’t you heard?”
On January 9, 1942, the West Virginia State Board of Education — the kind of local institution where Greene would lodge the primary duty of protecting constitutional rights — ordered the salute to the flag to become “a regular part of the program of activities in the public schools,” and that all staff and students “shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with accordingly.”
When Marie and Gathie Barnett, Jehovah’s Witnesses attending Slip Hill Grade School near Charleston, West Virginia, refused to salute the flag on religious grounds, they were expelled. The Barnetts filed suit in federal court for themselves and others similarly situated. They won. The school district appealed to the Supreme Court, relying extensively on Frankfurter’s Gobitis opinion.
On June 14, 1943 — Flag Day — in West Virginia State Board of Education v. Barnette, the Court overruled Gobitis in a 6-3 decision delivered by Justice Robert H. Jackson, and held that it was unconstitutional for public schools to compel students to salute the flag. It held that the flag salute as “a form of utterance” and “a primitive but effective means of communicating ideas” was covered by the First Amendment. Jackson wrote that any “compulsory unification of opinion” was contrary to the values affirmed in the First Amendment. In powerful words that succinctly explain why individual rights cannot be left to the prejudices and biases of legislatures, juries, churches, and families, Justice Jackson wrote:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly may not be submitted to vote; they depend on no elections.
Greene briefly mentions the Barnette decision in passing but never comes to grips with the fact that eventually it was the courts who protected fundamental First Amendment rights, in the face of concerted legislative efforts to punish a religious minority for exercising those rights — a religious minority powerless to wield political power and helpless in the face of the unrestrained mob.
Today, from Voting Rights to Abortion to Public Education to Transgender Rights, State Legislatures Are Enacting Laws that Restrict, Rather than Protect, Constitutional Rights
Sadly, the battles fought on behalf of the Gobitas and Barnette children are not a thing of the past. Today we see examples everywhere confirming that Greene’s abiding trust in the benevolence of legislatures to “mediate” the protection of fundamental rights is misplaced.
Take voting rights. According to the Brennan Center for Justice, as of October 2021, 19 state legislatures have enacted 33 new laws that restrict access to the right to vote. Overall, lawmakers have introduced at least 425 restrictive bills in 49 states in the 2021 legislative session.
The Brennan Center warns that “Americans’ access to the vote is in unprecedented peril.” In a “backlash to 2020’s historic voter turnout and unprecedented vote-by-mail usage, state lawmakers have imposed a variety of significant restrictions on both mail voting and in-person voting,” the Brennan Center reports. “Florida, Georgia, and Iowa have each used single omnibus bills, which incorporate many restrictions, to undertake a full-fledged assault on voting.”
These laws will also “shorten the time frame for voters to request a mail ballot”; “make it more difficult for voters to automatically receive their ballot or ballot application”; “make it more difficult for voters to deliver their mail ballots”; “restrict assistance to voters in returning their mail ballots”; “limit the availability of mail ballot drop boxes”; “impose stricter signature requirements for mail voting”; “impose stricter or new voter ID laws for mail voting”; “make in-person voting more difficult”; “impose new or harsher voter ID requirements for in-person voting”; “make faulty voter roll purges more likely”; and “limit the availability of polling places.” So much for state legislatures serving as the protectors of fundamental rights.
Fortunately, the courts exist to block laws that violate the Constitution. In June, the Justice Department sued the State of Georgia, the Georgia Secretary of State, and the Georgia State Election Board under Section 2 of the Voting Rights Act. The federal government is mounting the challenge because the “right of all eligible citizens to vote is the central pillar of our democracy, the right from which all other rights ultimately flow,” said Attorney General Merrick Garland. “This lawsuit is the first step of many we are taking to ensure that all eligible voters can cast a vote; that all lawful votes are counted; and that every voter has access to accurate information.”
The DOJ contends that “several provisions of Senate Bill 202 were adopted with the purpose of denying or abridging the right to vote on account of race.” The “lawsuit alleges that the cumulative and discriminatory effect of these laws — particularly on Black voters — was known to lawmakers and that lawmakers adopted the law despite this.”
“The right to vote is one of the most central rights in our democracy and protecting the right to vote for all Americans is at the core of the Civil Rights Division’s mission,” said Assistant Attorney General Kristen Clarke for Justice Department’s Civil Rights Division. “The Department of Justice will use all the tools it has available to ensure that each eligible citizen can register, cast a ballot, and have that ballot counted free from racial discrimination.” According to Clarke, laws adopted by state legislatures “with a racially motivated purpose, like Georgia Senate Bill 202, simply have no place in democracy today.”
Likewise, when it comes to a woman’s constitutional right to an abortion, according to Kristin Ford, national communications director for NARAL Pro-Choice America, this year alone more than 60 bills have been introduced or passed in state legislatures to restrict abortion.
Meanwhile, state legislatures are also actively passing laws to restrict the teaching of American history, including topics regarding racism and sexism that may make one feel “discomfort, guilt, anguish, or any other form of psychological distress.” These states claim that talking about race is inherently “divisive”; systemic racism is not real; we should be “colorblind” when solving issues of race; and white people will feel like “victims” if we talk about race or address systemic racism in any meaningful way. Such laws are already on the books in Arizona, Oklahoma, Texas, Arkansas, Tennessee, Idaho, and Iowa, and have been introduced or are pending in 13 more states.
Elsewhere, 33 states have introduced at least 117 bills that aim to curb the rights of transgender people across the country. The ACLU said these laws would “send a terrible and heartbreaking message” to transgender youth across the country. According to data from the Human Rights Campaign, one of the nation’s largest LGBTQ advocacy groups, the 117 bills are the highest number the organization has recorded since it began tracking anti-LGBTQ legislation more than 15 years ago.
The list goes on and on. This is what happens if we leave it to “state and local political bodies,” including churches, families and legislatures, to “mediate” rights.
Of course, our courts are hardly perfect. Last July, the conservative majority on the Supreme Court, by a vote of 6 to 3, upheld two voter restrictions enacted by the Arizona legislature. Nonetheless, the courts continue to serve as a crucial check and balance on the legislative and executive branches.
When It Comes to Freedom of Expression, We Need More Speech, Not Less
In the last section of his book, Greene devotes separate chapters to disability rights, affirmative action, and campus speech. For me, the last of these raised the most serious problems.
Greene has a maddening tendency to rail against court decisions protecting the free speech rights of students at public colleges and universities and then to turn around and embrace the notion that higher education should be a laboratory for learning new ideas and confronting controversy. He ends up encouraging colleges to adopt new speech codes, which are supposed to “mediate” these competing interests, but he fails to suggest what a constitutionally permissible version of such a code would even look like.
In 2017, Cameron Padgett, a Georgia State University graduate student, rented an auditorium at Auburn University, a public school (and thus subject to the First Amendment), for a speech to be given by Richard Spencer. Greene characterizes Padgett as “a segregationist who describes himself as a white ‘identitarian’” and Spencer as “the neo-Nazi propagandist and fellow ‘identitarian’ who coined the term ‘alt-right.’” The university “initially agreed to allow Spencer to speak but then canceled the event following protests.” Padgett sued and a federal judge held that Auburn violated Padgett’s First Amendment rights, citing Supreme Court precedent preventing the government — in this case the public college authorities — from discriminating against a speaker based on the content or viewpoint of his speech. Surely, the judge reasoned, Auburn would not have canceled a speech promoting racial equality based on objections from racists.
Greene disagrees with the ruling. He concedes that the Supreme Court is “correct” that the reaction of a hostile audience is not a content-neutral reason to regulate speech, but he argues that the Supreme Court exhibits “general insensitivity to the nature of the government actor or the action it is performing.” He never explains what he means by the “nature” of the governmental actor or action, let alone how this “nature” would justify violating Padgett’s well-established First Amendment rights. He criticizes the federal judge for showing little interest in “Auburn’s status as a university structuring its own on-campus affairs” but he does not say how or why the university’s interest in “structuring its own on-campus affairs” should prevail over Padgett’s constitutional rights.
Greene finds solace in the fact that Spencer was not arrested but “merely” denied a live audience on a university campus, as if such a denial isn’t precisely the kind of abridgment prohibited by the First Amendment. Greene knows better than to suggest that being arrested is the only way one’s free speech rights can be violated.
After reading Greene’s book, I decided to take a look at the Auburn case and discovered that Greene’s brief summary is misleading. The judge did in fact seriously consider Auburn’s side of the case. In an admirable example of the “mediating” of competing interests, the judge found that the university’s cancellation was “not narrowly tailored to protect the right to free speech while still addressing its own security concerns.” Greene repeatedly accuses judges and free speech advocates of taking “absolutist” positions. But here and in many other examples throughout the book, a closer examination reveals that the decisions and viewpoints of those with whom Greene disagrees are the product of far more nuanced analysis than he is willing to acknowledge — or than he himself provides.
Greene also disagrees with a 1989 decision in which a federal judge struck down the University of Michigan speech code that punished on-campus speech and publications that stigmatized various groups based on race, religion, sex, and sexual orientation. A psychology student had sued on the grounds that the speech code could chill the discussion of scientific theories regarding racial and sex differences. The court held that it was unconstitutional for a public university to impose “an antidiscrimination policy which had the effect of prohibiting certain speech because it disagreed with the ideas or messages sought to be conveyed.”
Greene accuses the court of failing to “acknowledge that a university might have different rights or immunities based on its status as an education institution.” He appears baffled by the fact that the judge, citing the seminal 1957 Supreme Court decision in Sweezy v. New Hampshire, would actually hold that a “university had a greater obligation than other public institutions to permit ‘the free and unfettered interplay of competing views,’ which the judge said ‘is essential to the institution’s educational mission.’” Greene italicizes the word “obligation” to show just how appalled he is.
He calls the Michigan decision, and a similar 1991 decision regarding the University of Wisconsin, “tragic” and “profoundly, dangerously wrong.” He condemns these courts and all those that have consistently invalidated speech codes at Central Michigan, Northern Kentucky, Shippensburg, Texas Tech, Temple, Tarrant County College, University of the Virgin Islands, and San Francisco State University. If academic freedom means anything, he bemoans, “it’s that it isn’t for an agent of the state, including a judge, to dictate to a university what is or is not essential to its educational mission.”
Greene has it backward. The “agents of the state” in these cases are the public colleges and universities that are dictating restrictions on free speech on their campuses based on the content and viewpoints of the ideas and messages being communicated. It is judges who are applying long-standing Supreme Court precedent, such as Sweezy, to assess the constitutionality of those restrictions. Greene claims that all these decisions for the last 30 years have misunderstood Sweezy, because Sweezy isn’t about the free speech rights of students. Again, he is not correct.
In Sweezy, the Supreme Court overturned the contempt conviction of an economics professor who was jailed for refusing to answer questions about his associations before a McCarthy-era subversive activities inquiry. Chief Justice Earl Warren wrote that “[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” What’s important about the Sweezy decision is that the Court included students among those who are protected by fundamental principles of academic freedom, contrary to the impression left by Greene.
He ends his chapter on campus free speech with a section headed “Solutions.” Unfortunately, he offers none. Instead, he doubles down on his claim that it is wrong to view “the university green as the quintessential public square.” He declares that the “purpose of a university is not to provide a forum for free speech. It is to prepare students for democratic citizenship. Universities do so not by permitting speech but by curating it.” And make no mistake about it: by “curating” campus speech, he means “regulating” it. As Greene sees it, “[the] world needs curators, now more than ever.”
But then he loses his nerve (or perhaps finds the light). He admits that “part of preparing students for democratic citizenship might include letting them make mistakes we all make as we learn to be autonomous moral agents and to express ourselves. It might also include teaching students to tolerate views that are different from, even repugnant to, their own.” He adds:
To live in a pluralistic society is to be surrounded by and forced to engage with people of opposing views. Students need to learn how to speak to such people, understand their claims, compromise with them, and accept their right to ground policy in divergent beliefs. To the extent college students remain in filter bubbles in which they engage only with like-minded friends and colleagues, there is much to be said for a school deciding to puncture that bubble for learning’s sake.
Where has this newly outspoken defender of rights been for the last 243 pages?
And how about the judges Greene has disparaged throughout his book? Now he assures us he’s not suggesting “the abdication of judicial review.” In fact, “[c]ourts could still play a role in this space not by deciding whether they agree with the balance public universities have struck, but by assessing whether a particular school has been reasonable in its own striking of that balance.” Assuming “reasonable” is measured against the Constitution, I readily agree.
But now, having expressed the competing principles which college administrators, faculty, students, alumni, and the wider community have been grappling with for decades, Greene blinks: “The hard part is learning to separate the wheat from the chaff.” “The line-drawing problems are legion,” and “administrators making these judgments can be ill-informed or biased.” His solution? “The costs and benefits of curating speech point in different directions on different campuses with different histories and in different contexts.” That’s it. Work it out.
Fortunately, others have done the heavy lifting. Erwin Chemerinsky and Howard Gillman in their book, and Sigal R. Ben-Porath in hers, each entitled Free Speech on Campus, do a much better job in examining these knotty issues and offering concrete solutions.
Greene ends his book on an ironic note. He declares that constitutional law should stop “being about judges peering into law books and dictionaries, and [start] being about the rest of us.” And to support his point, he approvingly begins his very last paragraph with a quotation from … a judge. Chief Justice John Marshall wrote in 1819: “We must never forget, that it is a constitution we are expounding.” Greene then adds, “Its high calling is to bring us together, into more perfect union. It’s about time it lived up to its name.”
Not quite. The Constitution has lived up to its name. It’s about time that we do our part to protect the rights it guarantees.