Does President Eisgruber Get Free Speech Right? Part II: How he rigs the game with a groundbreaking First Amendment case.

Tal Fortgang '17

The following is the second in a multi-part review of Princeton President Christopher Eisgruber’s recent book, Terms of Respect: How Colleges Get Free Speech Right. You can read Part I here.

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.”

Sullivan: A Curious Choice

Sullivan “set the stage for the arguments about free speech that roil America and its college campuses today,” Eisgruber writes. How? It was a case that “emerged from the campaign for civil rights in the American South.” As Eisgruber describes, a pro-civil rights organization published an advertisement in the New York Times pleading for donations that would benefit protesting students against the brutalizing powers-that-be. “The advertisement contained serious errors,” Eisgruber admits, and Sullivan, the police commissioner of Montgomery, Alabama, sued the Times for libel. His reputation would be tarnished by New York Times readers’ impression of him as a tyrant, based at least in part on the errors in the ad. The law was on his side. Prior to Sullivan, Eisgruber explains, “if somebody sued you for libel, it did not matter how careful you had been or how innocent your intentions were; you had to pay damages unless you could prove that your statements were true or…had not harmed the plaintiff’s reputation.” Initially, the police commissioner won. The law of defamation supported his position, and had since time immemorial. Under normal circumstances, absent intervening legislation, that settles the matter.

Lucky for the New York Times, writes Eisgruber, “the Supreme Court rewrote the law of free speech.” After centuries of Americans living under settled law—150-plus years since the First Amendment’s ratification—the nine unelected justices of the Supreme Court “created a new and powerful restriction on libel law.” They invented the standard of “actual malice.” Only if the defendant acted with “reckless disregard for the truth,” could a libel suit prevail. Justice William Brennan explained why he would lead this brazen act of judicial legislation, which Eisgruber returns to repeatedly with unwavering applause: because the Constitution stands for “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Eisgruber lionizes the Court’s decision to choose “a standard sufficiently powerful that civil rights activists…would feel free to criticize Southern public officials vigorously without fearing adverse rulings from local judges hostile to the activists and the court itself.” What’s more, the Court took the “rare and radical” step of “appl[ying] the [new] standard to the facts” rather than remanding a case to the trial court for the admission of evidence, cross-examination, and a jury decision regarding the facts. Not this time: “The justices apparently did not trust the Alabama courts to make determinations of their own.”

Calling this a thumb on the scale of a favored party is an understatement. Eisgruber celebrates that the Supreme Court rigged the game. The police commissioner should have won, so the Court rewrote the law. He might have still won had he gotten a fair trial under the new standard, so the Court deprived him of a trial. The Court chose a new rule to mediate between the First Amendment and the centuries-old doctrine of libel out of thin air in order to impose social change upon American society. It completely usurped states, legislatures, the Executive Branch, and the common law—probably the most anti-democratic act a court can undertake. And it did so under the dubious justification that our Constitution demands unfettered public discourse, a proposition undermined by the admission that the Court was changing the law. The First Amendment, to the Court and now to an approving Eisgruber, serves as an abstract endorsement of wide-open speech so long as it advances the cause of equality—even as actual First Amendment doctrine had to be overruled, indeed turned upside-down, to bring that abstraction down to the level of law. 

Sullivan is a massively controversial case, and not because it came out in the civil rights activists’ favor. Multiple federal judges have signaled that the Supreme Court should consider taking another libel case so it can overturn Sullivan and restore defamation law to its last legitimately changed state. In this regard, Sullivan is an excellent symbol of outcome-based judging in the mid-20th century. The Court rewrote multiple areas of American law—from the law of religion to criminal procedure and much in between—to fit elite liberal opinions about what outcomes would be just. It gave rise to originalism, which rejected reasoning on the basis of sweeping rhetoric about “profound national commitments” perceptible to Supreme Court justices yet belied by the way Americans actually lived. 

What Sullivan Reveals

The legal critique of Sullivan illuminates Eisgruber’s position by contrast. Most legal scholars today recognize that it is dicey and undemocratic for judges to invent new rules. After a few decades of justices based on contested moral and political reasoning, as in Sullivan, today’s Supreme Court limits its role to saying what the law is, not what it should be. Their legal reasoning illustrates by contrast the pitfalls of the Sullivan Court’s approach. Rather than posit abstract commitments—even to principles as noble as unfettered speech—today’s Court focuses on what legal terms have meant throughout American history. It does not declare that the First Amendment demands fealty to an abstract principle, as Justice Brennan did. Instead, it recognizes that the law can only be changed by elected lawmakers. So if Sullivan were before the Court today, the justices would never rewrite defamation law, and with good reason. It is not up to all institutions to effect social change at all times. For the purposes of judging, it is crucial to recognize that liberty, equality, and the rule of law sometimes tug in different directions and suggest a range of acceptable legal regimes. And it’s up to Congress to change the law, if the law is going to change. 

Eisgruber’s approach to these issues is a throwback to mid-20th century judicial misadventures. His recap of Sullivan gives the impression that it was a heroic act of judicial courage that also shows the essential compatibility between the fight for equality and wide-open free speech. To a certain extent, that point is well-taken. Some degree of free speech is necessary to challenge entrenched power. But that is not the same as linking free speech to advancing equality, such that speaking truth to power without the equality justification would fail to merit the same protections. His position amounts to the claim that certain forms of speech deserve extra special protection if they speak Sullivan’s language. Just as the Court invented historical commitments incongruous with actual American cultural commitments to favor a cause it considered just, Eisgruber believes he can and should invent parallel commitments that cast favored movements as part of a raucous, wide-open debate over the meaning of dignity and equality, and unfavored movements as violations of civility norms. We can say it plainly: He is rigging the game.

Bad Law Makes Bad Policy

Indeed, understanding Eisgruber’s reliance on Sullivan actually explains his behavior much of the time. The best theory for Eisgruber’s handling of campus affairs, and his characterization of controversies’ root causes, is that he believes in a degree and quality of speech conducive to a substantively left-wing view of equality. 

As noted in the previous installment of this review, Eisgruber describes perfectly why he had to come down hard against the demonstrators from the Black Justice League who took advantage of his kindness in letting them occupy his office, violating campus rules several times over, and behaving in ways completely incompatible with the kind of civility rules Eisgruber champions. Yet he did not discipline the group at all. Similar paralysis followed the takeover of Clio Hall by activists later reprimanded by a judge for mistaking a “political manifesto” for an apology. It struck again after a student group bragged about pulling a fire alarm on an event featuring Israeli diplomats. What can explain this vast gulf between Eisgruber’s rhetoric and his consistent inertia?

Sullivan, and Eisgruber’s love for it, explains it. Sullivan rewrote the rules to advance the civil rights movement, and Eisgruber thinks he is following in its footsteps. The Black Justice League couched its demands in terms of racial equality, and later protest groups used the same high-minded language about equality and justice. These superficial similarities left Eisgruber in a bind: admit that some movements that claim the mantle of equality cannot be reconciled with a properly calibrated speech code or punish the rule-breakers—implicitly rejecting their posited inheritance of the civil rights mantle. 

Believing that generally left-liberal social movements continue Sullivan’s cause, Eisgruber had to pull a Sullivan of his own. He did not just rule in favor of the groups whose speech he found sympathetic by letting them off the hook each time they violated campus rules. He concocted a clever standard that would justify doing so repeatedly by couching substantive preferences in neutral-sounding language. The demonstrators, like he, were for equality—and who could be against equality? But equality is a contested concept. To some, for instance, it means applying rules equally. To others it means giving preferential treatment to groups with a history of suffering oppression. A free speech standard that is broad but limited to genuine civil speech treats that argument neutrally. But what Eisgruber offers only appears neutral. It incorporates Eisgruber’s preferred understanding of what fighting for equality really means—and at some point that means treating equally civil speech unequally based on its content. 

If you were confused by the chasm between stated principles and those applied, Eisgruber’s own explanation of how First Amendment jurisprudence informs current campus debates should help make sense of the matter. When he says that free speech and equality have to coexist—and that civility rules inform and reinforce the relationship between the two—he takes a substantively left-wing view of equality and what it takes to sustain it. 

Whose Idea of Equality Counts?

What really gives the game away is that Eisgruber does not extend Sullivan’s forgiving approach to speech to those with whom he disagrees politically. While whitewashing these demonstrators because they are engaged in an argument “about the meaning of respect and, ultimately, what it means to treat people as equals,” he make excuses for college students who try to shout down conservative speakers: “If college students are more agitated about outside speakers these days, it is partly because a variety of right-wing organizations are riling them up,” he writes, naming “conservative polemicists” like “Milo Yiannapolous and Ben Shapiro.” 

Shapiro is a mainstream right-wing figure, and naming him alongside a genuine troll is certainly a tell about Eisgruber’s susceptibility to outgroup-homogeneity bias—failing to perceive differences among those who are dissimilar to you—and where he believes the outer bounds of acceptable discourse lie. “We should want students to be engaged, not docile,” when figures like Shapiro come to campus. Demonstrations against them are “exercises of free speech, not interferences with it.” Pulling fire alarms is no mere protest, though, and one leaves this exercise in victim-blaming thinking that Eisgruber is simply willing to shoehorn his view of what is an exercise of free speech into preexisting categories about what kind of political speech is worth protecting. That’s not taking a cue from the First Amendment, but from Sullivan, which distorted, exaggerated, perhaps even outright fabricated our nation’s relation to speech. And it cannot be justified as speaking truth to power, since it rigs the game in favor of the ideological preferences of the vast majority of college students, administrators, and as Terms of Respect reveals, leading university presidents.   

As we will see in coming installments, this distortion colors Eisgruber’s view of the nature of campus disagreement. Even seemingly neutral insights about the nature of free-speech debates—which Eisgruber presents as profound and nuanced—end up reducing to ideological preferences and evasions of genuinely difficult legal and social questions.

Tal Fortgang ’17 is a Legal Policy Fellow at the Manhattan Institute, a regular contributor to PFS and a contributing writer at The Dispatch.