Expert defends free speech rights, ‘content neutral’ policies

Universities may legally apply "content neutral" time, place and manner policies to campus protests, a First Amendment expert and former American Civil Liberties Union president said April 29 at a Freedom of Expression theme year event taking place in Willard Straight Hall, not far from a multiday encampment on the Arts Quad.

"The fact that something is speech doesn't mean that it is immune from restrictions," said Nadine Strossen, the John Marshall Harlan II Professor of Law Emerita at New York Law School, who led the ACLU from 1991 to 2008. "There are permissible limits on expressive conduct as well as more literal speech."

Strossen, a senior fellow with the Foundation for Individual Rights and Education (FIRE) and author of the 2023 book "Free Speech: What Everyone Needs to Know," joined Provost Michael I. Kotlikoff and a panel of undergraduate leaders in Cornell Cinema for a livestreamed conversation titled "Current Free Speech Controversies." Student panelists were Talia Dror '25, Patrick Kuehl '24, Rodge Reschini '24 and J.P. Swenson '25.

Engaging with the student panelists, Strossen said she worries about young people suppressing themselves around each other to avoid conflict.

"[Students] are afraid of discussing some of the most important issues," she said. "Not only in classrooms, but in dormitories and student cafeterias, other places where students would informally have conversations."

Kotlikoff opened by noting that Strossen recommended that he invite conservative media personality Ann Coulter '84 back to campus this semester, more than a year after hecklers prevented her from delivering a 2022 talk.

"I so strongly defend freedom of speech and viewpoint diversity, and especially on university campuses, particularly such a major university as Cornell, which from its founding has proclaimed and demonstrated commitment to diversity in all respects - in terms of identity but also in terms of ideas," Strossen said. "You are endorsing the neutral values of the importance of a diversity of perspectives and engagement across difference."

Kuehl, a senior in the College of Agriculture and Life Sciences and president of the Student Assembly, asked about distinctions between freedom of speech and freedom of expression, specifically concerning encampments that have been erected on campuses across the country by pro-Palestinian activists. Strossen said the Supreme Court has extended First Amendment protections to nonverbal conduct, but cited a 1982 case in which the court upheld restrictions on a National Mall encampment (defended by the ACLU) due to concerns about public health, public safety, and the diversion of law enforcement and other resources from other pressing needs.

Swenson, a junior in the ILR School, asked about free speech rights protecting calls for genocide, which Cornell has said would violate university policy. Strossen said that just because a university does not censor a message doesn't mean it should do nothing, citing Louis Brandeis' 1927 Supreme Court decision arguing that "the fitting remedy for evil counsels is good ones."

"A university that does not censor a particular message could certainly censure it, criticize it, say it is inconsistent with university values," she said. Alternatively, she said, universities must weigh whether to maintain neutrality on pressing public policy issues, so community members aren't afraid to speak out against perceived institutional orthodoxy.

Dror, an ILR School junior and member of Cornellians for Israel, asked if the university had an obligation to punish people who create an intimidating environment for Jewish students. Strossen said only if the speech poses an emergency by causing or threatening imminent, specific harm - stressing that violence is not protected speech.

"Government, or in this case, the university, may never punish speech, restrict it, regulate it, so forth, solely because of disagreement with, disapproval of, even loathing of the idea," Strossen said. "Try to divorce the legal principle from the particular odious expression that's involved in any particular case and understand that giving license to that kind of advocacy is really important for anti-racist, antiwar advocacy as well."

Reschini, a senior in the College of Arts and Sciences and president of Cornell Republicans, said universities, including Cornell, haven't done enough to create an environment in which conservative students can express their views without fear. Strossen said it's a concern she has shared and that should be addressed - maybe even before students apply to universities like Cornell, in materials making clear that they will be exposed to diverse ideas, some of which they might find offensive, as a core part of their experience.

"That is nota bug, that is a feature," Strossen said. "If you're coming here looking to be coddled and comforted and have your own ideas parroted back at you … this is not the place for you."

Strossen cited concerns about a FIRE survey that found self-censorship among students prevalent on college campuses across the nation. Kotlikoff added that he'd seen similar data in which first-year students at a different university said they feared intimidation from peers more than from instructors, suggesting universities must think more about how to ensure that incoming students understand the democratic principles needed to foster open discussions.

Kotlikoff closed by thanking the students for their critical and thoughtful questions, and Strossen for her strong defense of viewpoint diversity and "for coming back to Cornell and engaging in this conversation with us at a critical time."