‘It Does Get Tiresome’: What an ACLU Lawyer Thinks About the Endless Free-Speech Debate

There is no shortage of opinions on the state of free speech on college campuses today. Observers lamenting the sorry state of the First Amendment at colleges — or those who attack those criticisms as overblown — often share one thing in common: They don’t work with college students.

That’s not the case for Emerson Sykes, a senior staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, focusing on First Amendment free-speech protections. Sykes developed a series of workshops for student activists on the topic of the First Amendment to “provide a lot of space for students to ask hard questions about the implications of having robust protections for free speech,” he said.

The Chronicle spoke with Sykes about the importance of protecting Black student activists’ free-speech rights, the debate over critical race theory, and a much-discussed New York Times opinion essay on campus free speech.

This interview has been edited for length and clarity.

What are the largest freedom-of-speech issues right now on campuses?

I’m sure you’ve seen coverage of the fact that there are these bills that have been introduced all over the country trying in various forms to limit how we talk about and teach about, particularly, race, sex, and gender identity. So these laws have passed in nine or 10 states at this point, but they’ve been introduced in dozens more places, and we’ve seen action on the local level in lots and lots and lots of districts and schools. So we have filed what was the first constitutional challenge to one of these laws.

In some ways, it’s a new trend, which is sort of a recent sort of talking point that has sort of taken off, this idea that, quote-unquote, critical race theory can be a bucket where we sort of pour all of our racial anxieties. But at the same time, it’s a very old discussion about who we are as a country and how we talk about our history and our culture. So we think that this is a vitally important and a huge priority in terms of protecting the right of teachers to not be subject to vague laws, the right of professors and students in universities to enjoy the special protections for academic freedom that exist there, for students to also have the right to receive information, the right to receive an education without partisan or political interference with no relationship to any sort of educational purpose.

What these legislators are trying to do is limit education and curtail and chill how we address difficult topics. And the intended impact is clear — they want people to avoid the topics altogether. And so we think that this is a grave threat to the academic freedom and to the First Amendment, as well as to racial justice. And we’ve seen also how very these measures have targeted LGBTQ issues as well.

What do you feel like has been ignored in conversations about free speech on campus?

Courtesy of ACLU

I think there’s good reason to think a lot about professors and their academic freedom. There’s good reason to think about the tough decisions that deans and other administrators have to make in terms of what they allow and don’t allow on campus and how they react in these situations. But I think that what I wanted to focus on was the student leaders who are going to be at the forefront of the decision making, when and if these types of situations develop on campus.

So what we prioritize doing is providing them with the basic information about where the lines are and how how these things are analyzed, both in courts and also more generally in principles of academic freedom and free speech, just so they sort of are oriented in the debate and oriented in the dialogue around what these key terms and key ideas mean.

How do you respond to criticisms that the ACLU has backed away from free speech on campus? I’m sure you read that New York Times piece about this, and how the Foundation for Individual Rights in Education has grown in prominence on campuses.

Very few of those criticisms talk about the actual cases that we do take. And I think if you look at the work that we do — vigorously fight for the First Amendment — it includes lots of cases that are directly in line with our other organizational goals of achieving racial justice and rights for LGBTQ people and immigrants and women. And all of the different issue areas that we work on, there is, if not perfect alignment, certainly reinforcing priorities with other work that we do the vast majority of the time. But I think, you know, we are still willing to take those cases.

I think those people who say that we have lost the willingness to do so … they tend to not actually be looking at the workload and the cases that we actually do. Another thing is that they might have a very specific idea of what a free-speech case can and should look like. And so the idea that we don’t do campus-speech work when, as I just mentioned, we filed the first federal lawsuit on one of the most important academic freedom in campus speech issues indisputably of our time — for then people to try to write articles saying the ACLU doesn’t care about campus speech is personally infuriating.

One thing I’ll say about FIRE is, FIRE has a very narrow issue focus. They work only on higher education. And they have a specific team devoted to defending faculty who are facing disciplinary hearings. So to the extent that that is what people are talking about when they say they want to see activity on campus speech, it is true that FIRE does a lot of work on that; they have a lot of resources devoted to that. We work with FIRE a lot, if not directly together, in coordination — we co-sign briefs. That happens routinely as well. So this is not sort of an either-or situation by any stretch of the imagination. And I would say we are doing our darndest in all 50 states to fight on lots and lots and lots of fronts to defend the principles of free speech on college campuses in lots of different ways that are often ignored by our critics.

Do you ever get tired of talking about this? Like, do you ever feel like you’re shouting into a void? And we just keep having the same conversation again and again? And if so, how do you recover from that?

I think there is a way in which this is an ongoing thing that flares up regularly and can feel cyclical. I do think it changes each time. I think that there are new ways of working on these issues and new approaches and new audiences that need to be reached with new messages. But I don’t deny that it does get tiresome to see the same article written every few months. I think that what inspires you and what gives me energy is continuing to work with student activists who are tireless and persistent and passionate about trying to improve the world around them. And so when I’m low on energy or low on patience, I try to just sort of remember that when we empower young folks to just speak their minds and to question assumptions, we’re all better off for it.

I understand you have talked to Black student activists about their free-speech rights. What do these discussions look like? What is important for students to know about their rights?

We try to provide a place for open dialog, but we are also very clear about our own perceptions and ideas and beliefs about free speech and its importance. I’m quite upfront with the idea that I’m trying to convince them of the importance of free-speech rights to their own activism. Free speech will not solve all of our problems. I think there are ways in which free speech has been co-opted and branded and discussed in ways that are really alienating to a lot of people. There are ways in which free speech, I think, is a sort of third-rail phrase that sort of riles up emotions in lots of ways. But I think, given the time and space to discuss what it means to limit institutional authority to regulate the speech of their members, I think it becomes clear to anyone who is working to challenge the prevailing norms and prevailing wisdom that the space to challenge authority is critically important. And that’s not to say that everything is otherwise equal. I’m not overly naïve in that way, but I know that without strict policing of the lines of institutional authority to regulate dissent, you don’t have any chance of having social progress or social justice.

I’m curious what you thought of that New York Times opinion essay criticizing the cycle of self-censorship that the student believes that students are engaged in on college campuses. How much of a concern is self-censorship really on college campuses?

It reminded me in some ways of the self-censorship that I engaged in as a Black student in mostly white institutions. And it sort of reminded me of the idea that self-censorship is around social norms and what is acceptable socially in terms of ideas.

My primary entry point into this work was people being locked up for criticizing the government. What my work is primarily focused on is government censorship of private speech. So that is, I will say, my priority. That’s not to say that there are not free-speech principles involved in making sure that people are not chilled from dissenting from social norms. We see that in lots of areas of our work. But I do think it’s sort of in a different category when you’re talking about feeling uncomfortable or anticipating that an idea might provoke an unfriendly response. In general, I think the lines shift in terms of what is socially acceptable to say. The thing that it made me think of is the inevitability of self-censorship in the shifting lines. And then also the need, and this is something we cover a lot in the student workshops as well, but the need for all sides to remember that people are capable of changing their minds. Even on big issues.