No “Blank Check”: Dean Warns That Criticizing The School Or Its Leadership Is Not Protected At Harvard

Authored by Jonathan Turley,

In my book out this week, The Indispensable Right: Free Speech in an Age of Rage, I write about the anti-free speech movement that has swept over higher education and how administrators and faculty hold a view of free speech as harmful. Now Harvard is again at the heart of a free speech fight after Lawrence Bobo, the Dean of Social Science, rejected views of free speech as a “blank check” and said that criticizing university leaders like himself or school policies are now viewed as “outside the bounds of acceptable professional conduct.”

Bobo warns that public criticism of the school could “cross a line into sanctionable violations.”

In his opinion editorial in the Harvard Crimson, Bobo declares:

“A faculty member’s right to free speech does not amount to a blank check to engage in behaviors that plainly incite external actors — be it the media, alumni, donors, federal agencies, or the government — to intervene in Harvard’s affairs. Along with freedom of expression and the protection of tenure comes a responsibility to exercise good professional judgment and to refrain from conscious action that would seriously harm the University and its independence.”

The column adopts every jingoistic rationale used by anti-free speech critics today, including the invocation of the Holmes “crowded theater” analogy:

“But many faculty at Harvard enjoy an external stature that also opens to them much broader platforms for potential advocacy. Figures such as Raj Chetty ’00, Henry Louis Gates Jr., Jill Lepore, or Steven A. Pinker have well-earned notoriety that reaches far beyond the academy.

Would it simply be an ordinary act of free speech for those faculty to repeatedly denounce the University, its students, fellow faculty, or leadership? The truth is that free speech has limits — it’s why you can’t escape sanction for shouting “fire” in a crowded theater.”

First and foremost, the ability of faculty to speak out on public disputes should not depend on whether you are more popular or visible.

However, it is the theater analogy that is most galling.

I have an entire chapter in The Indispensable Right that addresses the fallacies surrounding this line out of the Holmes opinion. It is arguably the most damaging single line ever written by a Supreme Court justice in the area of free speech.

I have previously written about the irony of liberals adopting the analogy, which was used to crack down on socialists and dissenters on the left.

One of the most telling moments came in a congressional hearing when I warned of the dangers of repeating the abuses of prior periods like the Red Scare, when censorship and blacklisting were the norm. In response, Rep. Dan Goldman, D-New York, invoked Oliver Wendell Holmes’ view that free speech does not give a person the right to yell fire in a crowded theater. In other words, citizens had to be silenced because their views are dangerous to others.

When I attempted to point out that the line came from a case justifying the imprisonment of socialists for their political viewpoints, Goldman cut me off and “reclaimed his time.”

Other Democrats have used the line as a mantra, despite its origins in one of our most abusive anti-free speech periods during which the government targeted political dissidents on the left.

Dean Bobo is now the latest academic to embrace the theater rationale to justify the silencing of dissent. At Harvard, he is suggesting that the entire university is now a crowded theater and criticizing the university leadership is a cry of “Fire.” It is that easy.

By punishing criticism of the school’s leadership and policies, Bobo believes that they can look “forward to calmer times” on campus. It is precisely the type of artificial silence that academics have been enforcing against conservatives, libertarians, and dissenters for years. It is the approach that reduced our schools to an academic echo chamber.

The reference to Professor Steven Pinker is particularly ironic. As we have previously discussed, Pinker was targeted for exercising free speech. In past controversies, most Harvard faculty members have been conspicuously silent as colleagues were targeted by cancel campaigns. It was the same at other universities.

As faculties effectively purged their ranks of conservative or Republican members, the silence was deafening.

Others either supported such campaigns or justified them. Notably, over 75 percent of the Harvard faculty identify as “liberal” or “very liberal.”

Then the Gaza protests began and some of these same faculty found themselves the targets of mobs. Suddenly, free speech became an urgent matter to address. Fortunately for these liberal professors, the free speech community is used to opportunistic allies. Where “fair weather friends” are often ridiculed, free speech relies on “foul-weather friends,” those who suddenly see the need to protect a diversity of opinions when they feel threatened.

Bobo’s arguments are consistent with years of rationales for silencing or investigating dissenting faculty for years. It violates the very foundation for academia in free speech and academic freedom. The university is free to punish students or faculty for unlawful conduct. However, when it comes to their viewpoints, there should be a bright line of protection.

Of course, this criticism is likely to trigger another common fallacy used to rationalize speech controls: as a private university Harvard is not subject to the First Amendment and thus this is not a true free speech issue.

As discussed previously, free speech values go beyond the First Amendment whether it is a controversy on social media or campuses. For years, anti-free-speech figures have dismissed free speech objections to social media or academic censorship by stressing that the First Amendment applies only to the government, not private companies or institutions. The distinction was always a dishonest effort to evade the implications of speech controls, whether implemented by the government or corporations.

The First Amendment was never the exclusive definition of free speech. Free speech is viewed by many of us as a human right; the First Amendment only deals with one source for limiting it. Free speech can be undermined by private corporations as well as government agencies. This threat is even greater when politicians openly use corporations and universities to achieve indirectly what they cannot achieve directly.

Dean Bobo’s desire for “calmer times” would come at too high a price for free speech as well as Harvard.