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A five part book review: Does President Eisgruber get free speech right?
What the series has not yet addressed, however, are the genuinely difficult legal and cultural questions that Terms of Respect has evaded. By seemingly resolving tensions between speech and equality, and reframing what appears to be a free-speech debate as an ongoing push-and-pull about civility norms, Eisgruber avoids discussing ways in which our laws, norms, and culture already treat, and sometimes curtail, expressive freedom, and how universities can apply their obligations and stated commitments faithfully. Relatedly, he relies upon an underexplored approach to chilling effects, the phenomenon recognized in First Amendment doctrine that certain policies or social realities are suspect because they place an informal prior restraint on expression. Eisgruber’s unequal concern with chilling effects — sometimes equating it with censorship, sometimes overlooking it entirely – demonstrates an incomplete theory of how universities get free speech right.
Now we can get to the heart of the book. Eisgruber’s novel approach to campus free speech issues builds on this foundation, to argue that campus free speech issues aren’t really campus issues, and aren’t really about free speech. Rather, campuses reflect national divisions in microcosm, and the division is not about speech and its discontents, but about “the meaning of respect and, ultimately, what it means to treat people as equals.” He ultimately concludes that while speech has to foster constructive dialogue and truth-seeking, the controversies making waves are about the terms on which that constructive dialogue occurs—which is a good thing, as Eisgruber and his critics alike agree—and that universities are closer to being models (albeit imperfect ones) than sources of the problem. It’s this surprising take that gives Terms of Respect its punch and has made Eisgruber a minor folk hero among academia’s defenders.
Princeton President Christopher Eisgruber made his name in the academy as a constitutional law professor. Since he is now the president of a pacesetting Ivy League institution, he is also at the forefront of the free-speech wars. It’s understandable, given those two pieces of information, that Eisgruber would seek to enlighten readers of Terms of Respect by analyzing the relationship between constitutional law—particularly the First Amendment’s protection of the freedom of speech--and campus speech-related controversies. It’s expected, even.
Yet Eisgruber manages to surprise his readers with his understanding of the relationship between the law of speech and contemporary controversies. The First Amendment was ratified in 1791, but Eisgruber takes his cues from the 1960s. “The American doctrine of free speech as we know it today emerged in the 1960s,” he writes. “Until 1964, the United States Supreme Court had a lackluster track record in free speech cases.” It was then that the Court decided New York Times v. Sullivan, a First Amendment case that shows, in Eisgruber’s view, “the important historical and conceptual links between free speech and the American struggle for racial equality.”
“When it comes to getting free speech right,” writes Princeton University President Christopher Eisgruber in the introduction to Terms of Respect, “America’s young people deserve higher marks than they get.” This is a central contention of Eisgruber’s new book, and it is, as those young people say, big – if true.
It also begs the question twice over, in the way that is all but inevitable when we talk about higher education and speech, two goods contemporarily treated as goods of themselves, if not the highest goods. Whether Eisgruber’s contention is correct depends on what is meant by free speech, then again on what is meant by getting it right.
