Long before the assassination of Charlie Kirk on September 10, before the suspension and then reinstatement of comedian Jimmy Kimmel; before the Federal Communications Commission Chairman Brendan Carr’s mafia-like (“we can do this the easy way or the hard way”) threat to Kimmel’s broadcast network, ABC; and even well before the return of Donald Trump to the White House in January — the United States faced a deepening crisis of free expression.
Progressives frame this purely as a right-wing MAGA conspiracy to silence critics of Trump and right-wing orthodoxies. The right wants to frame it as a necessary war on left-wing, “woke” campus cancel culture run amok. But in reality, threats to free expression have been coming from multiple directions of intolerance and closed mindedness — and only a rededication to the founding principles of liberal democracy can pull us out of our dangerous downward spiral.
In one crucial respect, there is no symmetry of threat. Since he first became President in 2017, and much more so since his return to the office in January, Donald Trump has posed an unprecedented challenge to freedom of expression and democracy in the United States.
No American president has so explicitly, regularly and ominously threatened specific journalists, publishers, broadcasters, universities, lawyers, students, protestors and even his own former staffers with punishment for exercising their First Amendment rights. And these threats have had chilling consequences. CBS and ABC agreed to large payments of about $15 million each to settle what were widely seen as frivolous lawsuits that Mr. Trump was likely to lose in court. Nine national law firms agreed to offer Trump a total of nearly a billion dollars in pro bono legal work as penance for the sins of representing or employing his critics, and having diversity, equity and inclusion policies.
Universities have been subjected to — or have agreed to pay — staggering financial penalties in response to many alleged violations, including harboring antisemitism and stifling the speech of conservatives. Many universities have a lot to answer for the latter two counts. But so does the Trump Administration for attacking only speech it doesn’t like. In May, following the arrest or detention of several foreign students for speaking out on behalf of the Palestinian cause, a law professor called the campaign “the gravest assault on freedom of speech at least since the McCarthy era, and I think in many respects the nation’s history.”
If they are to honor their mission of advancing knowledge, truth and critical thinking, universities — and not just their presidents and trustees, but their faculty and students — must do much introspection. One moment of truth for Stanford came in March 2023, when a group of Stanford Law School students shouted down a federal judge, Kyle Duncan, who had been invited to speak by the school’s conservative Federalist Society. The protestors so objected to the conservative judge’s views on social issues (regarding the rights of women, immigrants and LGBTQ+ people) that they prevented him from speaking for nearly an hour.
The obligation, they insisted, was not to challenge and debate his views, but to “Stand up, fight back!” and shout him down. This pathetic and indefensible spectacle was later made worse by the students’ efforts to humiliate the Law School Dean, Jenny Martinez (now Provost), who immediately denounced the obstruction and apologized to the judge.
In a powerfully reasoned letter to the Stanford Law School Community on March 22, 2023, Dean Martinez eloquently reaffirmed the vital role of free speech for all in higher education and why disruption of it cannot be tolerated. She quoted the University of Chicago’s 1967 Kalven Report, which argued that to fulfill its mission of providing “enduring challenges to social values, policies, practices, and institutions,” “a university must sustain an extraordinary environment of freedom of inquiry,” “maintain an independence from political fashions, passions, and pressures,” and “encourage the widest diversity of views within its own community.”
What Dean Martinez then urged of law students is no less important for every Stanford undergraduate: if you want to be an effective advocate for your client or your cause, it won’t help you to be shielded from — or worse, censor — views you find obnoxious. “Naming perceived harm,” she wrote, “exploring it, and debating solutions with people who disagree about the nature and fact of the harm or the correct solution are the very essence of legal work” — and, I would add, democratic citizenship.
Later in 2023, free expression at Stanford confronted much worse convulsions following the October 7 Hamas massacre of Israeli civilians, and Israel’s subsequent military response. For Stanford and many other campuses, the 2023-24 school year was traumatic, filled with intolerance, bigotry and anti-intellectual disruption. In its extensive research and interviews, Stanford’s Sub-Committee on Antisemitism and Anti-Israeli Bias, which I co-chaired, found an inseparable link between fighting these forms of bias and upholding larger values of pluralism, tolerance and freedom of expression, tempered by civility and mutual respect for difference. The University can and must enforce reasonable time, place and manner restrictions on expression, in part to protect the rights of others to speak, work and study.
But, we argued in our May 31, 2024 report, the substantive answer to speech we don’t like cannot be censorship. Instead, we need more speech, better speech, education and thoughtful engagement. We need to promote intellectual diversity and political pluralism, and, our report insisted, we must strive “to create a culture where disagreement can be expressed without devolving into personal animus, political intolerance, or social exclusion.” Creating this culture, and thus student capacities for robust but civil discourse, is now the work of several initiatives at Stanford, including the first-year COLLEGE program, ePluribus and the Stanford Civics Initiative. COLLEGE calls this mission, “developing the skills that empower and enable us to live together.” For ePluribus, and the wide array of courses and programs aggregated on the Stanford Democracy Hub, open and constructive dialogue go hand in hand with civic engagement and the renewal of democracy.
To live together, we must resolve to hear one another out. The growing pace of social and political violence underscores what is at stake. As the free speech advocate Greg Lukianoff wrote recently, “equating words with violence erases the bright line liberal societies drew after centuries of bloodshed. Advocacy, even vile advocacy, remains protected unless it is intended and likely to produce imminent lawless action.” These First Amendment principles, he continues, “are the safety valves of pluralism. Blur them, and real violence become more, not less, likely.”
At this dangerous time, our democracy depends on all of us, but especially its future leaders, developing the skill and summoning what Lukianoff calls “the ordinary civic courage” to talk to people with whom you deeply disagree. That can’t be done in the staccato bursts of social media. It requires the patience and respect to listen, and the discipline and acuity to mobilize a better argument.
Larry Diamond is senior fellow at the Hoover Institution and the Freeman Spogli Institute for International Studies.