Tom Ginsburg is the Leo Spitz Distinguished Service Professor of International Law at the University of Chicago Law School and has been the faculty director of the Chicago Forum for Free Inquiry and Expression since its launch in 2023. The Chicago Forum recently received an anonymous $100 million donation. The Maroon sat down with Ginsburg to discuss his hopes for the Forum and his thoughts on campus speech.
Note: This interview has been edited for clarity and brevity.
Chicago Maroon: At a very basic level, how do you define free expression?
Tom Ginsburg: Let me say what it is not. Free expression is not that anyone can say anything, anytime, without constraint. That’s a naive view of what it is, and in particular, in a university, we have all kinds of constraints on speech. In the broader constitutional order, free expression basically stands for the idea that the government cannot constrain a speaker from expressing any idea. But of course, you can be constrained by your company, your business, your colleagues, social pressure…. Constraints happen a lot in the real world, notwithstanding our very broad protection for free speech in this country. So that’s kind of the background condition against which American universities operate. And I do think, in an academic context, free speech stands for something a little bit different. Free speech stands for our willingness to challenge each other’s ideas, which is essential for the production of knowledge.
CM: What’s the distinction between free inquiry and free expression?
TG: So we’re the Forum [of] Free Inquiry and Expression, and the reason we use that as the name is because, in [an] academic context, we’re not expressing things just for the heck of it. We’re expressing things towards inquiry. The purpose of the university is to discover knowledge and to help people learn how to inquire… so our free expression policies should be subservient to that. In some sense, they should be towards the purpose of the university as a place for knowledge and discovery, and that’s why we put inquiry first.
I say inquiry before expression because expression is subordinate to inquiry. So I’ll give you [an] example of the kind of constraint we have. I am a law professor. I can’t go into my classroom and… teach molecular engineering. If I was doing that, the University could fire me because I’m not doing the job which I was hired to do, and I wouldn’t be able to say, “Oh, I have free speech. I get to say whatever I want in the classroom. I have academic freedom.” No, that’s not how it works.
It’s also the case that even though we have free speech in the University, a student can’t just get up in the middle of a classroom and start giving a speech [because] there’s all kinds of structure, and those structures are there because we have a purpose, and that purpose is learning and teaching.
CM: Could you explain how the Forum was founded and what your role is?
TG: So first of all, I’m a scholar of democracy around the world, mainly outside the United States. That’s my expertise. And I work on constitutions all over the world. And when you work on constitutional democracy, you come to appreciate that free expression and free speech are essential to the definition of democracy. Really, you can’t have a democracy unless people can criticize the government freely and such.
So that’s just been something I’ve been interested in, and I’ve been a little bit concerned about the United States in the last few years—the state of our democracy, the state of free expression, and such. The president of the University came to me, Paul Alivisatos. The Forum is his creation.
And I said yes immediately because when the president asks you to do something, usually you should say yes. And also because I think it was an interesting opportunity to think about how to advance our tradition of free expression at this university in the 21st century.
CM: What was your reaction when you learned about the recent $100 million donation?
TG: I was very pleased. And it’s an anonymous donation, which I think is extraordinary. Most people with that amount of money… they want credit. So it’s an extraordinary individual who was giving the money, basically because the person wanted to honor our long tradition and to help us go forward. And it’s for all of us. There’s no strings on the gift. It’s just for free expression.
CM: How do you hope to put this money to use?
TG: We’ve been giving grants to researchers all around the University for research that’s in related areas. We had an event this last summer, a pilot event we called the Academic Freedom Institute, where we brought people from 20-something universities to the University of Chicago for a three-day workshop on academic freedom and free expression in the university.
The purpose was not so much to be missionaries but to show that we ourselves don’t always have the answers. We’re wrestling with these things, you know, and it was helpful for administrators from other schools to learn how our people were wrestling with the ideas. We also talked about the history of academic freedom. So that’s something.
We also want to have fellowships. So you can imagine that would include everyone from a scholar who’s writing a book on free expression or someone looking at the neurobiology of it, to someone who’s a dissident in another country who is being punished for their free expression. We might have some of those people here too. So we have to ramp up a fellowship program. We also want to expand orientation so that every person who comes into the University, including faculty, students, [and] staff… get[s] exposed to our tradition of free expression.
CM: How have the [pro-Palestine] protests of the past year intersected with your work?
TG: [When] you have protests, that’s a slightly different form of speech…. The Strauss report actually says that protest is part of a university culture. We should have some protest. But from my point of view, [there] obviously have to be limits on the kind of actions you can take.
At the end of the day, [the encampment] was disbanded. And I know there are people, or some people, [who were] really angry about it on both sides of the issue, but at the end of the day, it was disbanded peacefully, and I consider that a kind of cooperative act between the protesters and the University administration. They might not characterize [it] like that, but they were cooperating in a performance about what protest is like, and this is very different from what happened in some other universities.
I do think it would be helpful in our orientations to tell students how to protest, what things they can do, and what they can’t. Obviously, you can, in our university, put up signs in the quad. You get permission to do that. You can have demonstrations when events arise, but you can’t desecrate the Henry Moore sculpture. That’s not allowed, and if you do that, you’re going to be punished, and you shouldn’t be surprised by that. That’s just basic, but one of the things we do in the Law School is we have had sometimes controversial speakers, and we said, “This is what you can do: You can stand with your posters that are insulting the speaker, but you just can’t block the view of anyone who wants to see him.” [So] we can channel protest in a healthy direction in which everyone can express their anger in situations, but without disrupting the ability of those who want to hear from being able to do so.
CM: What do you see as the most significant contemporary threats to free expression?
TG: The biggest thing is, can free expression survive the age of social media? And I think the answer is yes. But social media has created a lot of challenges. It creates a culture of insult. I’m talking specifically about Twitter here. Twitter, to me, is a highly problematic form of social media because it’s not really free speech. It’s owned by one guy who regularly censors things that he doesn’t like, and I happen to disagree with his view, so I don’t spend much time on Twitter. But I do think Twitter has been a challenge for our democracy because it creates a kind of a culture of anger and a culture of censorship. I think that’s really a bad side of social media. On the good side, social media allows all kinds of democratization of communication channels. And one of our speakers at our launch, Josh Cohen, used the analogy [of] the printing press. You know, the printing press was invented, and they started making Bibles. But it took a few decades before people really worked out how to use that technology. And then they created mass literature and pamphlets and all kinds of political discourse. And in some sense, his analogy is that we’re just in the early years of trying to figure out social media. We don’t really understand what its power is and how to use it responsibly, in some sense.
Now, the challenge in universities is a different one. We’re under pressure from all kinds of sides, and one of them, of course, is the state, the government. You have state legislatures now passing bills that restrict what universities can do, who they can hire, and things like this. And I think that’s generally not helpful. [There’s] I think 14 bills in various states that are trying to limit DEI in particular. The Indiana bill is a free speech bill, but it requires the evaluation of state professors and state universities on the basis of their ability to foster discussion in the classroom. I’m just not sure that the state is very helpful. So that’s a major challenge.
Second challenge, of course, there’s always a challenge from donors. But I think, to be honest, at the University of Chicago, I think we’ve had 100-something years of dealing with this. Very early on in the University’s history, there was a challenge from donors, and the response of the University President, William Raymond Harper, was to say, look, if a professor says something you don’t like, that’s not us speaking, that’s just the professor speaking in their own capacity, and it’s not our problem. We are a community of scholars, and we don’t speak ourselves.
CM: Are you concerned about academic or intellectual self-censorship based on social or career-related pressure?
TG: I think that’s a huge problem…. There’s a survey that was conducted by FIRE in 2022 or 2023, and I actually replicated it. I can’t give you a copy, but I did this exact same survey for our faculty because I wanted a baseline when we were launching the Forum. And one of the things that [the survey] showed is that our faculty were less willing to self-censor in the classroom than the national average by a significant amount. So that’s good, but I think it is a pervasive problem in the culture.
And I even hear from my junior colleagues, “Oh, I might not want to say that; it might get [me] canceled.” Even senior colleagues. That’s bad. We have to be willing to let people express themselves and not treat everything as if it’s an existential challenge. We’ve got to be able to have discussions and trust each other that we’re going to kind of keep it in the discussion room, if you will. So that’s a big challenge.
CM: What advice would you give to students who want to foster a culture of free inquiry on campus?
TG: First of all, the Forum has a mailing list. We’re going to be doing a lot of events. We have a student advisory board that we just put together, and we’re eager to engage with students through the board or on it. We’re also going to, probably, in the winter or spring, announce funds for student activities that advance free expression. So if you and your friends in the dorm want to start a debate club or something like that, you can get money from us to do that.
[But] it doesn’t have to be through us. Ideally, we want this stuff to be going on everywhere. And of course, the free expression issues are very different in biological sciences as they are in anthropology and stuff. So we need it to be really widely distributed throughout the school. But I think the most important thing students can do is speak your mind and be willing to make arguments that you might not even agree with, just for the opportunity to make the argument. That kind of playing around with the ideas as distinct from your own position is a really healthy thing. And I think it’s up to us, [and] also the University, to provide opportunities for that as well.
Matthew G. Andersson, 96, Booth MBA / Nov 1, 2024 at 10:43 pm
Yale University’s new president, and former Texas provost Maurie McInnis, this week announced new leadership guidance on institutional expression, by articulating an equally important element of it: restraint, or silence (see “Yale leaders advised to refrain from statements on issues of public significance”). In this way, she has precisely incorporated University of Chicago professor George J. Stigler’s professional position on the abuse of both institutional office, and academic freedom, as unqualified speech rights. Stigler’s concern extended to both necessary institutional neutrality, and faculty expression that seeks to publicly confuse ideological partisanship as subject expertise (e.g, the Forum). Stigler’s celebrated opinion on speech discipline, can be read in the James G. Martin Center for Academic Renewal, “The University of Chicago Isn’t Living Up to Its Principles.” The genius of Stigler’s discipline vis-à-vis free speech, otherwise comes from its clarity of thought: He does not make a case for self-censorship or suppression of speech, but rather for speech leadership that provides an important model for students: discretionary control does not vacate a speech right but is merely one manifestation of it. Stigler perceived that this serves the rights of students—their right to free thought and self-learning, outside faculty ideological influence, which can itself be a form of suppression given the institutional setting in which students weigh obedience and cooperation (e.g. through a sanctioned “forum”). Among the difficulties otherwise, of any university speech policy, is the absence of substantive diversification in hiring across the academy, administration and staff, which inherently biases inquiry motivations, cognitive framing, and behavior. Law schools are among the most ideologically consolidated in this regard, but they are interestingly, the least relevant platforms to understanding free expression, or even speech law. The Slavic Languages department provides a better free speech forum from its dissident literature and culture, which underscores that actual free speech is not free. “Forums” are merely bounded conversation venues by convention and consensus, and promote behavioral compliance through institutional reinforcement, while underscoring former UChicago Committee member Saul Bellow’s “social backflow” argument: the Forum, like the IOP, trades on synthetic contention and intellectual distraction. Former UChicago professor Bertrand de Jouvenel explored some of these problems in “Sovereignty.”
Jamie Burke / Oct 31, 2024 at 3:46 pm
Who donated $100 million to a law professor/”scholar” whose specialty is free speech? I hope that this money is for legitimate purposes. It is highly unusual for any professor to get paid this kind of money for this kind of work.
Tom Ginsburg / Nov 6, 2024 at 3:53 pm
I’m the law professor, and I don’t get a dime of the money. It is a donation to the whole university to honor our 120-year history of wrestling with free expression. And the spending will be widely distributed.
Informed Student / Oct 29, 2024 at 3:26 pm
What a load of nonsense. The school sending cops to kick the shit out of nonviolent students at 3 in the morning is not a “peaceful conversation” no matter how much of a double-speaking Dialecticism freak you are.
Matthew G. Andersson, '96, Booth MBA / Oct 29, 2024 at 11:48 am
This Forum, overseen by a law professor, is a curious format in a major research university: either the entire university is, itself, a “forum,” or inquiry and expression are subject to selective, and opportunistic institutional interpretation. These kinds of “centers” are otherwise merely donor solicitation vehicles, aimed at individuals and corporations that are led to believe that they act as conduits of their special interests–and the faculty are only too eager to oblige them with this satisfaction. Students, alumnae and faculty otherwise do not need a career faculty member to act as an institutional filter or interpretive bottleneck in their flow of any university information, data, or speech. Moreover, law especially, has no coherent organization of what free speech consists of, or by what boundaries it may be circumscribed. It still rests on vague concepts such as “clear and present danger” by Holmes, for example, while law schools only opportunistically consult or ignore the Constitution. The Law School otherwise made it clear over the past four years especially, that free expression and inquiry are subject to ideological preference, political affiliation, financial favor, foundation influence, and its own institutional perpetuation. Moreover, as the Pearson Center discovered, once these forums are funded, the intentions of, and financial accountability to, the sponsors, can be easily corrupted. The Law school, and a law professor, are otherwise the least authentic or legitimate platforms for speech or expressive philosophy, as positive law sees speech through various means of authorities or permissions of the state–that is how law derives its utility, which is an illusion. For a better, more authentic ideal, see the Music department. Readers may enjoy an essay where I discuss speech, in the National Association of Scholars article, “Why Music Thrives in Our Universities.”
Bob Michaelson / Oct 28, 2024 at 11:22 pm
I’m curious what Mr. Ginsburg has to say about the inaccuracies and omissions in the UoC’s official “History of Commitment to Free Expression.” For example, under “Edward Bemis and the Resolution on Freedom of Speech” it presents Harper’s statement “Any statement to the effect that The University has in any way restricted the liberty of its professors in the declaration of their opinions, or in the performance of their duties as free citizens, I declare to be absolutely false” as incontrovertibly factual. However, John Boyer, in his “History of the University of Chicago,” says (page 519, footnote 349) “Subsequent scholarship on the Bemis case has found Harper’s motives and actions at best confused and at worst duplicitous.”
Another instance of the UofC administration trampling free speech was the case of Felix Browder, a brilliant mathematician who the UofC Math Department wanted to hire in 1955, but as pointed out by Saunders Mac Lane, Kimpton’s administration declined because Browder’s father had at one time been head of the Communist Party of the U.S. Mac Lane further notes that “there are other instances of the intellectual ineptitude of the Kimpton administration.” (Mac Lane’s account may be found in his essay “Mathematics at the University of Chicago: a brief history.”)
I would add that I think that there are other instances of intellectual ineptitude by several other, much more recent, UofC administrations.
Tom Ginsburg / Oct 30, 2024 at 10:00 am
This is an excellent comment. I recently edited a book called the Chicago Canon on Free Inquiry and Expression, which consists of many of the great statements on the topic by our leaders. It led me to read more into the history. Lived experience, then and now, is often at odds with grand statements of principle, even though those are surely important too. For example, the University always admitted African-Americans, but had segregated dorms for many decades in the mid 20th century; early classes were majority female but later ones were not. I think on the free expression side, we do very well in terms of not constraining faculty, but we have a long way to go in terms of creating an environment in which students can share their views robustly and without fear. That is something I hope the Forum can make a start on.
Jamie Burke / Oct 31, 2024 at 3:49 pm
Don’t you wonder who had enough money to anonymously give $100m to a mere law professor? What about his ties to Iran?