Does President Eisgruber get Free Speech Right? Part IV: How Princeton’s President Dodges his Civil Rights Obligations

Tal Fortgang
‘17

The following is the fourth 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, Part II here, and Part III here.

This series, reviewing Princeton President Christopher Eisgruber’s Terms of Respect began by acknowledging what the book gets right. Eisgruber distinguishes free speech as a moral principle from the First Amendment as a legal doctrine, and he is correct to resist the crude view that any campus speech regulation constitutes censorship. That is a reasonable starting point. Part II is where things get uncomfortable for him. By tracing his admiring use of New York Times v. Sullivan — a case in which the Supreme Court rewrote First Amendment doctrine to protect civil rights activism — Part II showed that his framework is not as neutral as it seems. Speech earns protection, in Eisgruber’s view, not by meeting consistent standards but by its relationship to favored equality claims. The result is a system in which the Black Justice League can violate campus rules without consequence while disruptions of conservative speakers are reframed as desirable exercises of free expression.

Part III pressed the charge further. Eisgruber’s deeper move, I argued, is revisionist: he recategorizes campus speech controversies as debates about equality rather than as what they are — incidents of intimidation, coercion, and institutional capture. His treatment of the 2015 Christakis episode at Yale is the clearest example. Sustained, vulgar harassment of a professor transmogrifies, in his telling, into “impassioned speech about racial justice.” Taken together, the three parts establish that what Eisgruber has written is not a principled theory of campus speech but a post-hoc rationalization for outcomes he prefers. 

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. 

I don’t make the law. Do I enforce it?

Universities like Princeton, which receive federal support, do not paint their speech policies onto a blank canvas. A constellation of rules already conditions continued government support on universities’ balancing free-speech concerns with civil rights law. Title VI of the Civil Rights Act forbids institutions receiving federal funding from allowing severe and pervasive discrimination on the basis of race, ethnicity, or national origin. The Department of Education’s Office for Civil Rights, and federal courts and other adjudicative bodies have, over the decades, elaborated what that statute requires in practice — including requirements about tolerable expressive conduct.

This matters enormously for Eisgruber’s argument, and he largely ignores it. Terms of Respect proceeds as though universities are the primary architects of the balance between speech and equality, free to reason their way toward a thoughtful equilibrium. But the federal government, through decisions of all three branches, has already drawn that balance, at least in part, in ways that do not always map neatly onto Eisgruber’s preferred framework. The substantive equality that must coexist with free expression on a federally funded campus involves shutting down expression that makes campus inhospitable to any racial, ethnic, and national-origin group, even if the expression couches itself in terms of equality or speaking truth to power. Whether such expression occurs civilly may matter—uncivil speech can reveal hostility—but content may be just as probative. 

For instance, Eisgruber suggests that there is an “unpleasant choice” between “censor[ing] hateful speech” and “compromis[ing] equality” when “powerful adults try to suppress student speech…as when donors and legislators demanded that college administrators censor slogans chanted by pro-Palestinian protesters.” He cites a New York Times article titled “Campus Crackdowns Have Chilling Effect on Pro-Palestinian Speech,” previewing the conflation of censorship and chilling effects that pervades Eisgruber’s analysis. The article cites a few examples of suppressed student speech: at Brandeis, “a pro-Palestinian student group was barred for statements made by its national chapter” (which violated campus anti-harassment rules); “Administrators at the University of Vermont canceled an in-person event in late October featuring the Palestinian poet Mohammed el-Kurd.” 

It is not obvious that those were the right moves. But given that the student group in question called the October 7, 2023 terror attacks in Israel “a historic win for Palestinian resistance” and the poet has repeatedly accused Israelis of having “an unquenchable thirst for Palestinian blood,” making disparaging comments about Jews’ physical traits, and harvesting and eating Palestinians’ organs, it’s not obvious that they were wrong either. A pattern of paying for such individuals to have a platform at your university could conceivably leave universities liable for fomenting a hostile environment for Israelis and Jews. 

On Princeton’s own campus, students waving Hezbollah flags might be protected speech—Eisgruber calls it “highly offensive” but protected by “the anticensorship principle” —or it might be discriminatory harassment (or even material support for terrorism if coordinated with proscribed groups). Being Israeli is a protected characteristic; if Princeton consistently allows hostility against it, by permitting terrorist flags, disruptions, trespassing, and chants that Israelis have long considered threatening, even expressive conduct can lead to legal liability. 

How the law and the commitment to freedom of speech interact here is not immediately clear; much depends on the particular facts of each case and the jurisdiction in which the case is brought. These are genuinely difficult legal questions. What is clear: Eisgruber needs to give us an account of how his vision is at least compatible with his civil right obligation. Otherwise it is just a dodge.  

Of course, Eisgruber is free to say that he believes one should not censor anti-Israel speech as long as it is civil and advances a liberal notion of equality. What he might have to conclude, though, is that his preferred speech-and-equality regime is incompatible with civil rights law because the law understands equality differently. But if Eisgruber wants support for Hezbollah and celebrations of murdering people on the basis of their national origin relegated to the realm of speech worthy of stigma, not censorship, his gripe is with the civil rights regime he lauds throughout this book. 

If it strikes the reader as unusual that civil rights law presents a challenge to Eisgruber’s approach rather than a boon, that is likely because the notion of equality and the substantive commitments it represents are contested. The deeper problem this illustrates is that Eisgruber borrows the moral prestige of civil rights while ignoring or even undermining its substantive commitments. He appeals to Sullivan, to the movement-era origins of robust First Amendment doctrine, to the ideal of equality as the animating purpose of expressive freedom. Yet our civil rights statutes require a kind of colorblindness, not rewriting rules to benefit favored groups and viewpoints, as the Supreme Court did in Sullivan and as Eisgruber does by making excuses for student agitators. 

The kind of equality that must coexist with free expression at a federally funded university is not a floating philosophical concept to be defined anew by each college president. Yet Eisgruber merely asserts that he, and our free-speech regime, stand for equality, without defining what that term means or even grappling with the fact that it could be contested. For a book whose argument revolves around the compatibility of that ideal with freedom of speech, that is a massive evasion. 

The Chilling Quagmire

Eisgruber is interested in the chilling effects, or informal prior restraints on speech. At times, chilling effects figure prominently in his analysis of whether speech is regulated properly, or whether unwarranted censorship has crept in. Indeed, in his celebration of Sullivan he applauds the Supreme Court landing on “a standard sufficiently powerful that civil rights activists…would feel free to criticize Southern public officials vigorously without fearing adverse rulings.” In other words, the best standard for free speech that fosters equality is an absence of prior restraints, whether formal or informal—chilling effects of various policies and social facts belonging to the latter category. 

He invokes the concept with evident sympathy to defend the Princeton student who years ago wrote an op-ed criticizing the Tigertones’ performance of “Kiss The Girl” from “The Little Mermaid,” and especially the group singling out audience members for some prep-school debauchery. National press seized on the author’s use of the phrase “toxic masculinity” and connection of an a cappella group’s song choices to what Eisgruber calls “college campuses with sexual assault problems.” She “became the target of anonymous threatening online posts.” 

Did anything untoward occur here? If so, what was it? Eisgruber takes an unusual approach to making sense of this episode. 

Newspapers were trying to impose their own civility norms by shaming a feminist student for using the term ‘toxic masculinity.’ The student became the target of anonymous threatening online posts. Such bullying does violate the anticensorship principle — it responds to disagreements with the threat of unlawful force rather than reason — but it came not from the on-campus writer but from her off-campus critics.

In microcosm of the book’s argument, the Princeton student has got things right; it’s the rest of the nation that needs to learn an important lesson. The passage is worth unpacking, because it does several things at once.

First, it condemns newspapers for trying to impose civility norms through public shaming. That is a strange condemnation indeed. Eisgruber elsewhere celebrates “censorious speech,” (not a heckler’s veto but fierce criticism) because “the remedy for your bad speech may be better speech that is harshly critical of you.” Indeed, “social censure is different from censorship,” Eisgruber writes. “It is one way of enforcing…’civility rules’: social norms that enable people with different identities and viewpoints to interact respectfully and constructively.” So, why weren’t the critics’ arguments “legitimate contests about the meaning of respect and the terms of the civility rules” that govern the campus? Eisgruber admits that the critics were trying to impose civility norms—but won’t tell us why their contribution to the raucous contest is illegitimate. 

Perhaps his suggestion is that because critics triggered anonymous online posts, they should have refrained from criticizing the student. This is not a workable principle; it is a policy that massively chills speech. If speech liable to whip up anonymous others on the internet does not warrant protection on campus, Eisgruber has buried an elephant in a mousehole, because all speech is liable to do that. Campus speech would be dead (the original op-ed included), and that principle would dwarf every other argument he makes in his book. Luckily for us, if not Eisgruber, this is not what he suggests. Rather, he clearly condemns the “off-campus critics” – not the pile-on commenters -- for “bullying” the student. That doesn’t help Eisgruber avoid the charge that he simply favors some speech based on its content, since he has admitted that the critics are part of the contest over civility yet still violative of some unarticulated standard. When does criticism become bullying? Apparently when it targets left-liberal students advancing left-liberal social goals. Rigging the game over and over, Eisgruber can’t help but view dissenting opinions as beyond the pale.  

It’s also worth noting that Eisgruber takes a harder line on the status of anonymous online threats than he is willing to take on the conduct of campus protesters who trespass, shout down invited speakers, and occupy administrative buildings. Those activities, which are themselves rule violations, receive considerably more sympathetic treatment in his account, even though they don’t share the basic characteristics of contesting civility norms through speech. 

But most tellingly, the passage reveals a deeply asymmetric sensitivity to chilling effects. When an anonymous off-campus mob threatens a feminist student, Eisgruber calls it a form of censorship — informal but real, serious enough to warrant condemnation. 

But when the dominant ideological culture of an elite university systematically marginalizes dissenting views, Eisgruber evinces no comparable concern. Were there chilling effects when a mob of students berated Nicholas Christakis, or did students who agreed with the Christakises feel equally comfortable sharing their views moving forward? When anti-Woodrow-Wilson demonstrators at Princeton wrote in the Washington Post that Princeton’s reverence for Wilson was “spitting in their faces,” did that chill pro-Wilson speech? Evidently Eisgruber thinks not—he can’t even conceive of the possibility: “None of these disputes,” he writes regarding those demonstrators and their opponents, “can be adjudicated by…referring to the value of free speech.” Yet a perfectly analogous argument over a different Princeton student’s op-ed can. 

The idea that institutionalized orthodoxies can chill speech seems to Eisgruber inconceivable. “Some opinions will inevitably be more popular than others,” he observes, but that “is not in any sense a violation of free speech or the anti-censorship principle.” It’s a correct observation unevenly applied.  Eisgruber suffers from a remarkable blind spot for informal chilling effects when they don’t hamper his “side.” 

“There is no free speech violation when students declare, via protest or otherwise, that they do not want racists, sexists, antisemites or homophobes invited to their campuses,” he writes. Of course, the students might just tar every speaker they don’t like as some kind of bigot—not to mention their fellow students who invited the speaker. And having an “ideologically homogenous faculty dominated by ACLU liberals” has no effect on the rigor of intellectual discourse because academics are intellectually honest and give credence to opposing positions. (In the same paragraph, Eisgruber, a former constitutional law professor, grossly mischaracterizes constitutional originalism.) He does not ask whether ideological homogeneity among professors, administrators, and students has other effects, such as discouraging dissenters from speaking up because they know they will be seen as unenlightened at best, racist-sexist-homophobic at worst. Instead, he affirms that “political diversity” does not matter much because “all scholars worth their salt” are able “to raise claims or points that reflect perspectives different from their own.” 

That’s not just an incomplete answer to the informal-chilling challenge; it’s a position that would scandalize the man who lamented the Supreme Court’s decision in Student for Fair Admissions v. Harvard as “unwelcome and disappointing” because “diversity benefits learning and scholarship by broadening the range of questions, perspectives, and experiences brought to bear on important topics throughout the University.” That was Eisgruber, too. And: “we have an obligation to attract exceptional people of every background and enable them to flourish on our campus.” 

Do those statements chill anti-affirmative-action speech at Princeton? I suppose that question is now moot, since Eisgruber apparently doesn’t believe it applies where scholars are “worth their salt.” Or perhaps he thinks racial diversity broadens the range of perspectives at a university but political diversity, somehow, doesn’t. 

It’s an inconsistent, incoherent mess -- another casualty of Eisgruber’s ill-conceived attempt to fashion ad hoc principles to reverse-engineer a standard by which universities are succeeding, and the American people are projecting their own misbegotten ways onto the righteous academy.  

Protecting the Consensus

Eisgruber is so disgusted with the accusation that students are “crybullies” that he disputes the charge in a way that ends up undermining his own argument about the vitality of campus debate. He has a ready answer for critics of campus “snowflakes,” or the idea that students are afraid of hearing disagreement. Students who disrupt speakers or refuse to extend platforms to controversial voices are not afraid of ideas they disagree with. Rather, they are exercising power, asserting themselves, demanding recognition of their standing as equal members of the academic community. This is a saving construction only if you already agree with those students. Whether an overwhelming assertion of power to protect regnant civility norms is worthy of celebration or is stifling orthodoxy depends on whether you believe the power they are asserting is warranted.

Consider how this squares with Eisgruber’s inspiration in Sullivan. What Eisgruber admired about that case was precisely that it liberated the relatively powerless from the legal weapons of the powerful. It allowed people to speak truth to power and advance equality without fear of ruinous liability. Yet “when students aggressively demand that they be protected from slights and offenses,” to ice out the Christakises and even the Ben Shapiros of the world, Eisgruber finds that admirable too: “They are exercising free speech rights rather than shirking them.” 

What gives? When are powerful people enforcing orthodoxies entitled to have speech rules that reinforce and protect their preferred norms? Admitting that students are not afraid of new ideas but unwilling to hear challenges to their social or moral views may save them from the accusation of immaturity, but it undermines Eisgruber’s broader defense of student activism and universities’ ideological homogeneity. This is no theory of free speech. It merely shows how the “civility norms” framework is yet another cop-out; when the good guys enforce it it’s good, when the bad guys do it it’s evil. And on a practical level, it derogates judgments about approved dissent to students, who are free to enforce them by any means necessary, backed by faculty and administrators who have every incentive to preserve their ideological echo chamber. 

Chilling effects, understood properly, are the mechanism by which this self-reinforcing consensus of acceptable opinion operates at scale. They occur not when formal rules prohibit certain speech but when the informal consensus of an institution has rendered certain positions radioactive. That is a description of the contemporary elite university, and an honest account of chilling effects would require Eisgruber to ask whether institutions like Princeton have created environments in which viewpoints held by significant numbers of Americans are treated, in practice, as beneath the threshold of serious engagement. Terms of Respect never poses, much less reckons with, that question. No wonder Eisgruber finds it shocking that Americans think universities have gone awry—and that it has something to do with the freedom of speech.

The Unstated Argument

The defense of the university Eisgruber lands on, once the apparatus of principled reasoning is set aside and the obfuscation is stripped away, is that the right people are winning. The good guys, the forces of equality, buoyed by systematic privilege and protection from professors and administrators, are prevailing. If some conservative speakers find the environment inhospitable, that is the natural consequence of their positions being unpopular with an educated and morally serious community. If some dissenting views are chilled, they are chilled by the weight of evidence and argument against them.

That argument might be defensible on its own terms. What it cannot do is pose as a neutral theory of expressive freedom. What Terms of Respect delivers is a post-hoc rationalization for a campus culture Eisgruber finds congenial, dressed in the borrowed authority of civil rights law and high principle. The equality it invokes is an ideological program that the law does not endorse and the Constitution does not require. That program is beginning to crack. 

It revealed its hollow core in 2023, when university leaders who never met an offhand student comment they didn’t wish to hale into kangaroo court adverted to free-speech arguments when pressed about clear civil-rights violations. Proponents of the Eisgruberian view that free speech means giving activist groups free rein, they had been sufficiently dominant on campuses to avoid confronting what it would mean to apply their stated logic consistently and across the aisle. That their free-speech-defense muscles had atrophied so badly was telling. They were confused by the question of how university get free speech right; by the looks of Eisgruber’s effort, apparently the best one mustered yet, they still are. 

As ever, the problem is not that our finest academics are antisemites, unintelligent (they are neither), or prone to misspeaking. It is that they are so deep in an ideological echo chamber they are incapable of seeing how their Jenga tower of principle collapses after pulling out a single block of substantive commitment to progressive outcomes. Their blind spots, double standards, and evasions are everywhere—and they all point in the same direction. 

That is the central failure of Terms of Respect: it is fundamentally dishonest about its own premises, giving it the patina of rising above partisanship while actually only making sense among ideologues that already share Eisgruber’s assumptions. The final part of this series will examine how Eisgruber draws on the dishonesty and obfuscations to castigate a nation for “weaponizing” claims of free speech, when really the nation should be learning from universities’ enlightened approach to speech, truth, and power. 

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