Harvard Law Professor Cass Sunstein Delivers Free Speech Lecture on Constitution Day

By Marisa Warman Hirschfield ‘27

“Universities should follow the First Amendment, period. That’s it. That’s the framework.”

Legal scholar Cass R. Sunstein shared this message with over a hundred people in McCosh 50 during his “Free Speech On Campus” lecture. The James Madison Program hosted Sunstein, a Harvard law professor, on September 17th in celebration of Constitution Day. Attendees received a free copy of Sunstein’s 2023 book How to Interpret the Constitution upon entering. Adults comprised most of the audience with some undergraduate students scattered throughout the lecture hall. I attended in my capacity as a ’24-’25 Writing Fellow for Princetonians for Free Speech, an alumni group that offers many opportunities for student involvement.

Sunstein emphasized that the First Amendment is a solid foundation to underpin universities’ free speech policies. “Building a building from the ground up is really hard and people are going to disagree about how many doors and how many windows. To say, ‘we are following the first Amendment’ makes life far more manageable.”  

He maintained that his proposition is not as simple as free speech absolutism. Universities occasionally must enforce content-neutral restrictions if speech impedes upon their educational mission. Some of these restrictions, he explained, are simple and unobjectionable. Universities need not tolerate speech that is unprotected by the First Amendment. Speech must pass the “clear-and-present-danger test”–that is, if speech is likely to incite imminent lawless action, it should not be allowed on college campuses.

There are also gray areas. Whether speech poses a threat to a university's educational mission can be equivocal. According to Sunstein, this is where First Amendment law is least developed.

“There are going to be hard cases where the educational mission will be arguably, but only arguably, incompatible with certain forms of humiliating, degrading, or frightening speech. Reasonable people can differ there.”

He shared an example: “If a math professor believes that men are better than women at math and that women can’t handle the subject, there’s a good argument that he can be directed not to say that in class, on the grounds that if he does so, he will not be able to do his job.”

Despite restrictions being necessary on occasion, Sunstein underscored that “free speech should get the benefit of the reasonable doubt.” As arsenals of democracy, Sunstein argued, “America’s universities should permit members of their communities to say things that are jarring, disruptive, disturbing or, to some, enraging. The best response to errors and offensive and horrifying speech is more speech, not punishment.”

Sunstein’s speech lasted an hour and was followed by a Q&A segment, facilitated by Robert George, Director of the James Madison Program.

Sunstein left his audience with a final wish: “Freedom ought to ring on public streets, in public parts, and on campus. What universities don’t need is the unanimity of the graveyard. They need noisy and teeming pluralism, the teeming pluralism of living communities that are trying to figure out what’s true.”

Marisa Warman Hirschfeld ’27 studies History and Creative Writing and is a Princetonians for Free Speech Writing Fellow