Where Academic Freedom Ends

In 1915, when the American Association of University Professors issued its seminal “Declaration of Principles on Academic Freedom and Academic Tenure,” it identified three areas in which faculty members should enjoy the protection of academic freedom: their scholarship, their teaching, and their actions as citizens. In the century since, almost all analyses of academic freedom have focused on the last category — what the report called “extramural utterances.” We have heard a lot about our rights and responsibilities as citizens, and almost nothing about our rights and responsibilities as experts.

That balance should be reversed. We have fought hard for our speech rights as citizens, but we have assumed, thoughtlessly, that those rights apply when we speak as professionals. We are left without an articulated ethical guide for our actions — and that leaves us vulnerable to academics exploiting their credentials under the guise of academic freedom.

The authors of the 1915 report acknowledged limitations on professors’ freedom in all three areas, which they implicitly viewed as a hierarchy, with research deserving the greatest protection and speech on public matters requiring the greatest care. Since intellectual progress requires open inquiry, they thought faculty members’ research should be unfettered by social convention and received opinion, so long as it conforms to the best methods of scholarship. Teaching should be largely free, although professors had to teach all sides of disputed issues fairly, and sometimes censor themselves in deference to students’ immaturity. Faculty members should have the freedom to engage in public affairs as citizens, but they needed to clearly disassociate their personal views from those of the university where they taught, and to speak in a manner consistent with the character of their profession.

That last condition proved sufficiently vague to provide cover for any college president disturbed by the unpopular political views of a faculty member. In the early 20th century, a number of professors were dismissed after expressing what at the time were viewed as radical political positions.

In most of those cases, the college presidents maintained that the professors had been fired because of character defects, not because of their controversial views. Nicholas Murray Butler, president of Columbia University, captured this logic when he wrote, in 1915, that “professors of established reputation, good judgment, and good sense rarely if ever find themselves under serious criticism from any source. Such men and women may hold whatever opinions they please, since they are in the habit of expressing themselves with discretion, moderation, good taste, and good sense.” In that calculation, being controversial meant being unprofessional.

The proviso that professors, when they act as citizens, must do so in a way consistent with the character of the profession proved particularly dangerous during the Cold War. Being a Communist was deemed “unprofessional,” because supposedly Communists gave up their freedom of thought to follow party directives. And faculty members who did not cooperate with political investigations were deemed to be rejecting the core academic value of “openness.” Hundreds of professors lost their jobs. Given that history, it is understandable that much of the discussion of academic freedom has focused on “extramural utterances,” and that faculty members have fought against restrictions in that area.

The excesses of the Cold War galvanized academics to argue that they deserved the full protection of the First Amendment. They won a key victory in the 1967 Supreme Court case Keyishian v. Board of Regents, in which Justice William Brennan Jr. declared that academic freedom “is a special concern of the First Amendment.” In 1970 the AAUP adopted a provision clarifying that standards of professional behavior should not be used to limit faculty members’ free speech.

Legally, Keyishian applies only to public colleges, but leaders of many private colleges pledged to apply its standard on their campuses. More significantly, administrators and faculty members accepted the First Amendment as the standard for all three areas covered by academic freedom.

Why this was so is not clear. Perhaps it seemed logical that professors’ professional activities should have as expansive protection as their extramural utterances. Or perhaps the late 1960s was not a propitious time to explore complex questions of professional conduct. Indeed, as faculties were deeply divided over issues such as the morality of military-sponsored research, administrations may have preferred to default to a clear external mandate. In any event, college leaders began to speak of their campuses as neutral ground, free markets in which all ideas were necessarily protected. This made campuses more tolerant of radical political views, but it also evaded important ethical questions.

It is appropriate that faculty members’ “extramural utterances” be protected by the First Amendment. When we speak as citizens, we deserve all of the rights of citizens. But what about when we speak as professionals? The First Amendment is not an appropriate model for speech norms with respect to research and teaching, because it is intentionally neutral in regard to the content of speech.

Academic freedom should ensure that faculty members can conduct their research free from restrictions and influences that might limit the questions they ask and distort their findings. But this does not mean that academics are free to say anything they please in professional contexts. Speech in academic spaces is highly regulated. Research cannot be published without rigorous review. Professors insist that students remain roughly on topic when they speak in class. The content of academic speech matters.

Because most analyses of academic freedom have focused on political rights, we have not been as attentive as we should be to the norms that ought to govern our speech as experts. We have interpreted academic freedom to mean that faculty speech should not be constrained in any way. The consequences of this failure are significant. Naomi Oreskes and Eric Conway’s Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues From Tobacco Smoke to Global Warming (Bloomsbury, 2010), demonstrates how professors can use their academic credentials to purposely spread misinformation. Surely that should be considered an abuse of academic freedom.

Now we are experiencing a crisis of misinformation — and our profession has contributed to it. Instead of modeling how standards of evidence and logic can create more trustworthy knowledge, our lack of a coherent professional ethics has fueled the notion that all opinions are equal in the marketplace of ideas. At Stanford’s Hoover Institution, for instance, at least one professor has used his academic authority to spread misinformation about the coronavirus.

Some faculty critics, having accurately identified a potential misuse of academic freedom, are calling for Stanford’s disaffiliation from the Hoover Institution. But their proposed solution is not sufficient. Divorcing Hoover from Stanford would address an immediate problem but not the deeper issue: the misuse of academic credentials to mislead rather than enlighten.

We need to develop professional norms that govern our behavior as experts — and the consequences for people who violate those norms. This means rejecting the equation of academic freedom with free speech and instead articulating legitimate restrictions on our behavior as professionals. I know that this is scary, given the ways in which professors’ rights as citizens have been abused. But the norms that govern us as citizens are not appropriate when we speak as experts.

I do not pretend that it will be easy to establish the line between professional and unprofessional speech. We need to proceed carefully and tread lightly. But we can no longer avoid this task. Before we talk about penalties, we need to engage in serious discussions of ethics in our professional societies and faculty meetings. I suggest we begin by discussing cases, both real and imagined, of professors presenting themselves as experts in public forums. I suspect there will be some easy cases of unprofessional conduct: faculty members posing as authorities far outside their areas of expertise; or voicing views that are, in fact, clearly rejected by most experts in the field; or presenting misinformation for financial gain.

There will also be examples of inarguably professional conduct: faculty members discussing topics that they know well in ways that make sense of complicated issues, clarify disputes, or expand the public discourse. And there will be gray areas: faculty members expressing views with certainty when they know there are significant questions about their validity, or downplaying information that might be damaging to their own patrons. Analyzing those ambiguous cases will help us clarify the principles that should underlie professional norms.

Establishing professional norms will, one hopes, rein in most misbehavior. But as we know from cases of research malfeasance, even when norms are clear, people will sometimes violate them. Faculty committees in our professional societies and at the university level must lead continuing discussions of professional ethics, investigate violations, and recommend penalties. The sanctions could involve a public rebuke, prohibition on publishing in the association’s journals for a number of years, a temporary salary freeze or reduction, or, in severe cases, revocation of a Ph.D. or dismissal from a position. Penalties, particularly harsher ones, would require review from multiple professional bodies before action is taken. The goal is self-regulation, not punishment.

The AAUP’s original vision of academic freedom was not as an absolute right but rather as a professional privilege and responsibility. The association maintained that faculty peers, not college presidents or boards of trustees or legislatures, should determine when colleagues have overstepped the bounds. We should finally enact that vision.