When States Try to Take Away Americans’ Freedom of Thought
Universities have always been a home for the world’s great arguments. Professors and students are supposed to debate the issues of the moment, gaining understanding of the other side’s views, refining and strengthening their positions, and learning how to solve problems. Argument thrives in a culture of openness, and maintaining that culture ought to be paramount for universities, as well as any institution that wants to shape public policy or debate.
There are many ways to stifle a culture of openness; in recent years, both the far left and the far right have shown a willingness to win arguments by silencing the other side. But the threat that Americans should be most concerned about is any attempt by government to limit the freedom of individuals to express their views or to dictate what they say.
That is what happened when Nathan Thrall, a writer on Israeli-Palestinian issues, was invited by the University of Arkansas to speak on the subject last year, and an ideological barrier imposed by the state government prevented him from joining that debate. Mr. Thrall, like everyone else who enters a business relationship to an arm of the Arkansas government, was required by state law, as stipulated by the contract for his speaking fee, to sign a pledge that he would not boycott Israel. He refused to do so, calling the requirement “McCarthyist” and an affront to his free-speech rights.
This meant that he was unable to share his perspective, informed by years of experience writing about the relationship between Israelis and Palestinians, at a time when students have a desperate need to understand the causes and effects of the war between Israel and Hamas in Gaza. The campus has lost many other speakers for the same reason, and students say they are missing out on the chance to hear a variety of voices.
“As the conflict rages in the Middle East and we attempt to make sense of it, we find our ability to listen to and learn from multiple perspectives and foster an informed conversation radically curtailed by the university’s interpretation of the statute,” one group of students and teachers wrote in a petition to remove the pledge.
The Arkansas regulation is part of a disturbing trend by state governments to silence speakers on subjects including race, gender, slavery and American history. The measures they have imposed restrict both academic freedom — the freedom to explore ideas and pursue research independently, without interference by the state — and freedom of expression more broadly.
Americans may disagree about boycotts as a matter of policy. (This editorial board doesn’t support boycotting Israel.) But as an act of protest, support for the boycott, divestment and sanctions movement falls clearly within the realm of free expression protected by the First Amendment. Arkansas and more than two dozen other stateshave enacted laws that prohibit state contractors from engaging in a boycott. These laws are abridging the speech of those individuals, groups and companies, and so represent a violation of their constitutional rights. In 1982, the Supreme Court unanimously agreed that nonviolent political boycotts were protected speech and could not be prohibited by government officials.
Several federal judges have made that point about the laws targeting Israel boycotts, and a few states have weakened their laws as a result.
“The certification that one is not engaged in a boycott of Israel is no different than requiring a person to espouse certain political beliefs or to engage in certain political associations,” wrote a U.S. District judge, Mark Cohen in 2021, striking down an anti-boycott statute in Georgia. “The Supreme Court has found similar requirements to be unconstitutional on their face.”
Unfortunately, the federal appeals court based in Atlanta chose not to overturn the Georgia statute last June, relying in part on a 2022 decision by another appeals courtthat the Arkansas anti-boycott statute was constitutional. That ruling was based on an unusually convoluted logic that said the law was intended to regulate commercial activity, not speech.
In fact, the law is entirely about religion and politics, not commerce, as its lead sponsor, State Senator Bart Hester, made clear to The Times last year, and it was clearly intended to restrict speech. Mr. Hester said he was glad the law blocked Mr. Thrall’s appearance. “Keeping someone who wants to come speak on behalf of terrorists off our college campuses is a win,” he said.
Last February, the Supreme Court declined to review the Arkansas ruling, leaving the anti-boycott law in place. The court has not explicitly ruled that anti-boycott laws are constitutional; in the absence of such a ruling, courts should strike down these laws as an unconstitutional use of state power to silence individuals and an infringement on free expression.
States are interfering with the right to speak and teach freely on other issues as well. At least 10 states are considering laws that impose severe restrictions on a teacher’s right to speak to students about the importance of diversity and inclusion, following in the footsteps of Florida’s “Stop WOKE” law. That law, which was signed by Gov. Ron DeSantis in 2022 and was expanded last year, makes it illegal for educators to say out loud in the classroom that they support the principles of affirmative action, or that American history is full of racist episodes, or that systemic racism has played a role in the institutions and economy of the country.
A U.S. district judge based in Tallahassee, Mark Walker, struck down the key provisions of the law as “positively dystopian” and unconstitutional as applied to higher education. “Striking at the heart of ‘open-mindedness and critical inquiry,’ the State of Florida has taken over the ‘marketplace of ideas’ to suppress disfavored viewpoints and limit where professors may shine their light,” he wrote, adding, “The First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark.”
A federal appeals court has agreed with Judge Walker, blocking enforcement of the law, but that hasn’t stopped other states from trying the same thing, hoping to get a different reaction from their federal courts.
Often, conservative lawmakers are responding to similar impulses on the left, which is more likely to use the tools of media, entertainment and academia rather than the law to shape public discussion. So while a vast majority of these current efforts come from lawmakers on the right, Americans should be as wary of efforts on the left to control what people can think or debate.
California’s community college system recently decided to dictate to its professors a set of anti-racist principles to teach to their students. The college system leadership said that the instructors — all state employees — would be judged on whether they acknowledge “that cultural and social identities are diverse, fluid and intersectional,” and would have to demonstrate “an ongoing awareness and recognition of racial, social and cultural identities with fluency regarding their relevance in creating structures of oppression and marginalization.”
Recruiting a diverse staff of educators and giving students an opportunity to learn about a wide range of cultures and societies are important goals. And some universities, such as the State University of New York, have adopted policies that allow much more freedom to students and administrators to fulfill those goals as they see fit. But as a recent PEN America report put it, referring to diversity, equity and inclusion efforts, “There is a difference between protecting a school’s or faculty member’s right to include D.E.I. programming, and mandating that they do so, especially in higher education.” The report called the California mandate “one of the most censorious educational gag orders we have seen.”
Some higher education institutions have required new employees to sign statements supporting their personal commitments to D.E.I. principles, a litmus test that could have the effect of creating a uniform campus culture without a variety of viewpoints. One 2021 survey found that 19 percent of college jobs required these statements. Last year, The Times wrote about a noted psychology professor (and affirmative-action supporter) who lost a chance to teach at U.C.L.A. because he disagreed with the usefulness of required diversity statements, calling them “value signaling.”
At Ohio State University, several departments would not hire professors unless they “demonstrated commitments and leadership in contribution to diversity, equity and inclusion through research, teaching, mentoring, and/or outreach and engagement.” After protests by free-speech groups, including the Foundation for Individual Rights and Expression, Ohio State said it would stop requiring these statements.
It would be easy to dismiss all of these rules and restrictions as a political tit for tat. But Americans should recognize what is happening as an escalation. Years of policing speech on college campuses, in the name of sensitivity, are now having unintended consequences. There is an “an imbalance around free speech on college campuses,” as the Harvard professor Ryan Enos told Michelle Goldberg of The Times. Many who point this out “are not doing it to stand up for free speech; they’re just doing it because they want to shut down speech they disagree with.”
The censoriousness at the heart of all these policies ought to concern all Americans.
The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom."