Free Speech and the American University: A Proposal

After the Death of Charlie Kirk

We are still recoiling from the murder of young Charlie Kirk, and we are still trying to draw the lessons that his life had borne. What Kirk displayed in his work was the thing most distinctive to human beings: giving and understanding reasons over matters of right and wrong. Kirk was inviting his adversaries to engage with him, civilly, in an argument. And as C.S. Lewis reminded us, the implicit assumption in arguments is that there are right and wrong answers, and that we have access to the standards of judgment for gauging the answers on either side. If that were not understood, an argument would make no sense, and we might as well be simply shouting at each other or throwing plates, or bullets.

What Charlie Kirk represented was not merely the voicing of strong opinions but an engagement in substantive arguments and conversations. That is what should be at the center of the life of a college. On the other side is the refusal to engage and to respond with brute force. To grasp that distinction is to learn the standards that have ever allowed us to distinguish between the speech involved in discourse, even heated discourse, and the kinds of speech that the American Founders saw as the “licentious” use of speech to assault and harm: the menacing calls, the threatening letters, the defaming of the innocent, and the incitement to violence.

This ensuing discussion, among myself and seven highly respected commentators, aims to bring to the forefront the high calling of rational discourse and the moral and legal restraints that make it possible. It is issued in the best possible good faith and in the belief that our reason and speech are the capacities we need to engage to pursue the life of the mind and the common life of citizenship.

A late friend of mine, a notable figure in the neural sciences, once told me that a light held to the retina can reveal a vast amount of information about the state of the organism. For this country, for our politics, for our professional associations, and our academic institutions, the light held to the retina was the eruption of demonstrations celebrating the attack on Israeli civilians by Hamas on October 7th. We were suddenly told, with high passion and orchestrated conviction, that the killing of parents in front of their children and the beheading of babies was somehow amply justified for the sake of ridding Palestine of the Jews who were “occupying” the land by living there.

Exactly what the nature of the “wrong” done by Jews who settled in this land before the formation of a Jewish state, or in the years since, was never exactly outlined in public declarations and exposed to a serious review and challenge. In the meantime, we have seen the presidents of major universities embarrass themselves in congressional hearings as they sought to explain how they understood the attacks on Israel and Jews on their campuses. They were able to rely on their testimony, on the advice given to them by lawyers at leading law firms, as those lawyers relied in turn on the doctrines settled in the courts and law schools regarding the regulation of public speech. And yet, as they sought to explain those doctrines to congressmen, or to members of the public, they suddenly exposed the moral emptiness, the radical want of moral coherence, in what has been given to us by the leading lights in the law schools and the courts.

What has broken upon us now is a moral crisis, straining our institutions. What is needed is a new regime for the regulation of highly charged speech in our public settings. But the cure will not require anything novel. It could be accomplished by the recall and restoration of those doctrines, grounded in the precepts of common sense and natural law, that used to prevail in our courts and public life. They had prevailed, that is, until doctrines of cleverness and novelty displaced them, untethered from any understanding of the properties of “ordinary language,” or the anchoring grounds of moral judgment. What is needed is the restoration of a moral framework for the regulation of speech, a framework that we, as a people, once had no trouble in understanding. But the recall of that framework may come to unfold itself to us more clearly if we take the time to understand what has been so novel and poisonous in these recent disruptions that have made life on the campuses for the first time unwelcoming and threatening to Jewish students. And then also radiating outward, spreading disruptions to airports and the highways that ordinary people depend on for their daily lives.

Responses:

Larry Arnn

Mark Bauerlein

Justin Dyer

David Forte

Mark Helprin

Michael Poliakoff

Peter Wood

Getting Clear on What Is New Here

Let us begin, then, with what we know about the ends that define and drive the Palestinian protests.

On September 8th, 2001, a meeting of the United Nations in Durban, South Africa, proclaimed the “inalienable” right of the Palestinian people to a homeland. That had the ring of the Declaration of Independence of 1776. But the “unalienable” rights in that Declaration began with the natural right of human beings to a government based on “the consent of the governed,” in free elections. And yet that could not have been the meaning of such a Declaration emanating from the United Nations. For a declaration of those principles would have called into question the legitimacy of a third or more of the governments represented in the United Nations. A closer reading made it clear that this proclamation must be closer to the Declaration of the Confederate States of 1861, seceding from the Union and its anchoring premises of natural rights.  It was the claim of a right of people to secure and hold control of a territory on terms quite indifferent to the nature of the regime they would put in place. It could be a monarchy or a regime of slavery. As Lincoln called them out:

[T]hey omit ‘We the People,’ and substitute ‘We the deputies of the sovereign and independent States.’ Why? Why this deliberate pressing out of view, the rights of men, and the authority of the people? [Message to Congress, July 4, 1861, Works, IV, at 438]

The call for a homeland for the Palestinian people did not insist on a government founded on “the consent of the governed.” The call was simply for a land filled with Palestinian people and governed by Palestinians without any emphatic insistence on the character of the regime.

And so, it is today: when we find protests on the campuses, objecting to the occupation of Palestine by the Israelis, these are not arguments for establishing a scheme of free elections, for the Palestinians have not found their chief complaint in living without free elections in Gaza or the Palestinian Authority. But that point seems to have made little impression on students smart enough to get into Ivy League colleges, for what they find themselves affirming, without quite grasping it all, is that the killing of Jews without moral restraint is thoroughly justified for the sake of allowing Palestinians to live in this land without the presence of Jews. Stripped to its essentials, it is an argument for genocide with hardly a thin façade.

In notable and dramatic contrast, it is virtually unthinkable that the burning of crosses would be permitted on any campus of the United States. Justice Antonin Scalia wrote a famous case to sustain the freedom to burn crosses [R.A.V. v St. Paul 1992]. His colleagues were caustic and biting in their commentary, but they finally agreed to go along out of a concern that the statute might have been overly broad. But the burning of crosses would not be suffered for a moment on campuses today. A wave of contempt would envelop anyone associated with such a thing; they would be subjected to a severe penalty or expelled outright. In that event, it is hard to see how the campuses could ever be more tolerant, in the name of free speech, of students proclaiming the deep rightness of killing Jews, even in a brutal way, if that's what it takes to purge them from the land of Israel.

Recalling a Truth That Dares Not Speak Its Name

This may be as good a moment as any, then, to brace ourselves for a truth that seems hardly thinkable any longer: that “demonstrations” have no fitting place at a university; and beyond that, they have the feeblest moral claim to be treated as a high flexing of the freedoms of the First Amendment. It was hard to find anyone more “absolutist" in defense of “free speech” under the First Amendment than Justice Hugo Black, and yet he insisted that there may not be demonstrations in front of a courthouse: there should be no suspicion that any judgment reached in a court will be affected by the massing of people on the street. In Cox v. Louisiana [1965], Black thought his colleagues were too quick to overturn convictions of people massing in front of the courthouse in Baton Rouge. He would sustain the legislation aimed:

to protect courts and court officials from the intimidation and dangers that inhere in huge gatherings at courthouse doors and jail doors to protest arrests and to influence court officials in performing their duties. The very purpose of a court system is to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures. Justice cannot be rightly administered, nor are the lives and safety of prisoners secure, where throngs of people clamor against the processes of justice right outside the courthouse or jailhouse doors. The streets are not now and never have been the proper place to administer justice. [379 U.S 559, at 583]

A moral conviction may sweep people into the street, but a massing of people on the campus is not a “discussion,” nor is it the making of a substantive argument. Thomas Hobbes grasped the problem long ago with an unsettling directness. It was one thing, he said, when people assembled in large numbers in the usual meeting of men at church or at a public show,” but when people come into the public streets in numbers “extraordinarily great,” one had to ask them to give an account of why they were there:

It may be lawful for a thousand men to join to a petition to be delivered to a judge, or magistrate; yet if a thousand men come to present it, it is a tumultuous assembly; because there needs but one or two for that purpose… When an unusual number of men, assemble against a man they accuse; the assembly is an unlawful tumult;  because they may deliver their accusation to the magistrate by a few, or by one man …. [Leviathan, Part 2, ch 22]

It took Thomas Hobbes to express the unlovely truth here: that the point of massing people in the street is to convey a sense of how powerful and rightful their position must be, which is to say it is simply another form of the “rule of the strong” or “might makes right.”

And so, as we begin to take seriously a moral framework for the preservation of civil speech on the campus, we begin by withdrawing the presumption that the mere massing of a crowd on the campus or the streets comes to us as a dramatic or stylish flexing of “First Amendment rights.”

Restoring the Classic Teaching

My longtime and dear friend Robert George sounded the note of liberal confidence when he declared that the regime in the universities must encompass “the right to examine and defend or criticize any idea, including ideas we judge to be extreme and even evil.” But we must be clear at the same time that nothing in that search for the truth entails that we recede in any way from the surety that we have with us, now as ever, the standards for judging evil ends to be truly evil. There is no need to slip into a kind of soft relativism in which we are willing to pretend to ourselves that the case for Nazism and Auschwitz has a claim to be regarded as legitimate as any other ends that are on offer in our politics and civic life. However, that distinction was far clearer in the classic teaching on the moral framework of free speech that emerged from the landmark Chaplinsky case in 1942. [Chaplinsky v. New Hampshire] It was a teaching that was quite in line with what we have understood about linguistics, about the way that words are used in our ordinary language. But it offered the “common sense” understanding of the moral boundaries that are at work in “speech” as in every other dimension of our personal freedom. The drift away from that teaching has brought us to the moral emptiness of those cliches uttered by the presidents of three universities when Congress called them in to give an account of themselves. If we connect again seriously with that common sense teaching, we see that there is something seriously awry in the conventional formulas we have been offered now in the hope of securing at least some enclaves of free speech on the campus.

The upshot now is that the clichés offered in defense of free speech on campus have left universities morally mute, utterly bereft of judgment, in confronting the scariest assault on our civic life that I have seen in my lifetime. When I was born in July 1940, France had fallen and a murderous Nazi regime was moving with a growing dynamism. When the war had ended, as Victor Davis Hanson once noted, every notable Nazi was fleeing for his life or under arrest. The antisemitism after the war would be acted out in those forms of discreetly barring Jews from hotels and private clubs, from prestigious law firms and boards. But there were no more sights of public demonstrations calling for the killing of Jews. Those kinds of displays were now widely regarded in our culture as disreputable. The Supreme Court sustained in 1952, in Beauharnais v. Illinois, a statute that barred racial defamation, or the inciting of hatred based on race or religion. The statute was framed with language far more careful and precise than the language we’ve seen in statutes so casually struck down in our own day. The statute in Illinois was directed at those who presented to the public any lithograph, plays, publication, movie that:

portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots.

That statute was adopted after the famous race riots in Chicago in 1919. But in the aftermath of the Holocaust, those statutes were taken ever more seriously again and strengthened all over Europe. As the late Philip Kurland observed, the decision on that statute in Beauharnais has never been overruled. But now we have seen a dramatic moral inversion, with the eruptions on the campuses and in the cities. It is no longer disreputable to come out in public places to justify and celebrate the killing of Jews as a tenable way of making a territory in the Middle East Judenrein.

It was the deep virtue of Justice Frank Murphy’s opinion in the Chaplinsky case to show us that we can indeed have a serious framework of moral judgment to sustain a robust defense of speech. Among other things, that understanding had the cardinal attribute of reminding us that “assault,” in the law, has never strictly required a laying on of hands and a material harm. One can hold an unloaded gun near someone’s head and click the trigger; one can make sadistic and threatening phone calls in the night; and yes, one can burn crosses outside the home of a black family. Human beings, as “moral agents,” are naturally given to arguments and complaints about the things that are right or wrong, just or unjust. They will bring forth, in the language, the words and gestures that bear the moral functions of commending or condemning, praising or blaming. And at the very edge of things will be those words with the function of insulting and attacking. Hence, those lines from Justice Murphy’s opinion in Chaplinsky:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. [315 U.S., 568, at 571-72]

There were two critical components here. First, the words and gestures established as assaults are known in everyday usage in ordinary language. You don’t need an academic degree for this; truck drivers and construction workers can be as savvy as lawyers in noticing when they are being “dissed” or treated with disrespect. The clearest test comes with any jury: we tell the jury to hold back and not convict if there is any hint of uncertainty about the offensiveness of the words. We may give the jury a list: the [N-word], kike bastard, wop, urologist, meter maid, saint. Most people have no trouble picking out the terms that would be commonly understood as terms of attack, just as most people would have no problem in telling the difference between a burning shoe box and a burning cross.

But then the second, decisive point: that the sharp, practical distinction would be drawn between the words that assault and the words that make a substantive argument. The most telling examples in making Murphy’s point have been given to us in the cases of David Rosenfeld and Seth Waxman:

Rosenfeld, speaking at a meeting of a school board in New Jersey, had one adjective threading through his harangue, “mother f…ing.” He was asked to stop. As Justice Murphy would explain, this language had nothing to do with the “exposition of ideas.” To bar Rosenfeld from destroying the climate of discussion in that way did not deprive him of making the most searing substantive attack on the school board's performance.

Seth Waxman, the distinguished Washington lawyer and former Solicitor General, was defending the Fox Network against the Federal Communications Commission, defending the freedom of performers on television to use such expressions as “sh..” and “f…ing.” [FCC v. Fox Television Stations, 2012] And yet during that finely spun argument, he never used those very words he was seeking to defend as words legitimate for public broadcasting. He then offered one of the most elegant confirmations of Justice Murphy's key point in the Chaplinsky case: Forgoing those words did nothing to impair his substantive argument, and he won his case.

And this remains the clearest distinction accessible to the common sense of ordinary people: the distinction between words and gestures of assault, set against the words that make a substantive argument. That is why, as Professor George says, we can fully protect the freedom of Professor Peter Singer to make his arguments in speeches and writings, the arguments, as Professor George recalls, that “[defend] the moral permissibility not only of elective abortion…but even the intentional killing of infants for some period of time after they are born.” That is also why we can discuss in class Hitler’s Mein Kampf, even as we restrain a bunch of self-styled Nazis from parading in communities containing survivors of the Holocaust and their families. This was the deliberate staging of an act to provoke, to stir alarm by scaring and triggering nightmares among people who had seen the real Nazis. This is what the ACLU prided itself in protecting as the highest defense of the First Amendment. But nothing fits the formula for an act of pure assault and malice more precisely.

Restoring that Classic Teaching to the Campuses

In the life of a university, the reliance on the testing of “substantive argument” bears the moral force of the very meaning of a university since its origin in Paris in the thirteenth century. If we are dealing with a university that takes itself seriously as a university and not an academic theme park, the Administration and faculty can insist now that we can be far more demanding: massing people on the campus is not a “discussion,” but a real university lives through the challenge and testing of arguments. We might, out of prudence or tolerance, accommodate this occasional flare-up of a demonstration. But the people who choreograph these protests should be alert that, in staging the demonstration, they are now called upon to defend their position and open themselves to a searching critique. The students defending Hamas should come before us and tell us why these attacks by Hamas are things they call “morally justified.” What “wrong,” say, has been done to the Palestinian people that finds it an apt and proportionate response in killing parents in front of their children and beheading babies? Of all things, those should be the most natural questions that ordinary folks will ask as they try to talk about the rights and wrongs of the matter. And yet the striking thing is that there has been no sign of that question being posed among the students in these demonstrations. And indeed, it might be taken as a sign of the fact that this mode of discourse and moral questions may have just fallen out of practice in the courses offered in the colleges these days.

However, if there are meetings on campus aimed at posing these questions and addressing these challenges, there could be professors on both sides ready to step in and engage in the debate. Have we forgotten that this is exactly what took place at Harvard and other universities in “teach-ins” over the war in Vietnam? Something like this has been played out recently at Dartmouth, and so we know that it can be done. What is missing simply is an Administration — and perhaps a faculty — with the imagination and nerve to insist that it should be done.

However, suppose demonstrations claim to make a serious, substantive argument. In that case, the organizers or choreographers will be responsible for showing up on a chosen evening when there are no classes to be canceled. They can be invited to present their arguments and deal with the challenges to those arguments. There should be a moderator to help ensure a fair allocation of time and preserve a climate of civility. The meeting should be compulsory only for those who have drawn public attention on campus. And they could now see whether they had persuaded other students and faculty to hear what they had to say. The meetings may run, say, one to three hours, and if the arguments are compelling enough, they may continue into the late morning, perhaps reminding us that we are starting to resemble what life in college was thought to be about.

None of this — we should be clear — would require the genius and expense of a Broadway production. These kinds of events have been organized frequently on campuses, and in many cases, by the students themselves. It would be a telling mark on the character of any college that it would not bring forth a professor who could speak with knowledge of the events leading for the formation of Israel as a State; of the settlement of the lands by Jews and Arabs long in advance of 1948; and the series of wars that began at the beginning, when an amalgam of Arab armies sought to crush the new State at birth. But if that kind of academic expertise is truly wanting on the campus, many informed speakers can be brought from the outside and other colleges.

But at the same time, we should be clear that this one meeting or set of meetings on the campus should not be expected to have either side confess that it had been profoundly uninformed and mistaken. The object of the discussion is to dissolve the slogans and challenge the defenders of Hamas to claim their right name by getting coldly clear on the ends they are seeking and the methods they are holding up as justified: They are not interested in having a disinterested forum establish the historical record of the settlements of these lands; they are not interested, as their foremost concern, in having a Palestinian land governed by free elections. Their objective is to end the “occupation” of Israel by the brute fact of forcibly removing the Jewish population living there, if necessary, or even preferably, with lethal force, bound by no moral or legal restraints.

It will not take any special genius to bring out these points clearly enough because the partisans of Hamas have not shown the least reluctance or embarrassment in making their position brutally clear. One protester brought out the meaning when he taunted Jewish students, shouting that October 7th would take place “10,000 times over.”

But once these points are brought forth, there would be no need or rationale for renewing these theatrics every day or week to come. The Administration can make clear, to use an old line from a love affair gone awry, that “we’ve enjoyed about as much of this as we can stand.” Any further demonstration can be limited in place and time. The organizers, who are the choreographers and suppliers here, may be required to submit their names to apply for permission to stage these encores, which may no longer be thought to be needed. Their names can be put on the public record to be read by parents, donors, and potential employers. It may be comparable to insisting on putting on the public record the names of students who would burn crosses on the campus, and being compelled to remove their masks.

The Levers of Authority

However, the events of April and May have brought home to even the most obtuse college administrators the precise range of levers they can use — if they can summon the nerve to see what is before them. The police have begun removing protestors from the campuses all through the country, from Columbia to UCLA. (The glaring exception has come in Washington, D.C., where the Mayor refused the plea from the President of George Washington University to do what civil authorities are expected to do in protecting institutions from assault and disorder) We have seen now at Columbia a replay of 1968 with students occupying buildings and declaring to the world that they will not budge until the University negotiates seriously with them. What seems to have fled past the imagination and wit of these college students, denizens of prestigious academic places, is that their demands are so imbecilic, or so patently unjust, that any Administration that took them seriously would be confessing its own unfitness for the authority it bears.

The mobs have been emboldened by the fact that the Administrations have not seen, or pretended not to see, what is imbecilic in the demands. The Presidents or Chancellors have been altogether too willing to treat these “protests” with gestures of respect, even when the students could not explain the substantive wrongs they are protesting against. A “demonstration” may be treated as theater, which should not be allowed to damage the furniture or “scare the horses.” Nor should they unsettle the lives of bystanders, with disruptions and noise that make it hard for other people to get on with their own lives. The disruptions may move along a scale of disorder, and the penalties should be aptly tuned from the forgiving to the severe. The “taking of a building” is a breach of the civic order, the breaking of any moral tie to the community, and with that breaking must come a departure, a separation from the community.  

The Administrators have curiously failed to summon the wit of grown-ups to see how “demoralizing” has been their waffling, their want of resolution. That unsteadiness betrays to the students a want of real conviction. As for the campus police, they are demoralized by the sense that they’re being asked to enforce regulations that are not taken with moral seriousness by the authorities who are ordering their enforcement.

But a problem even deeper reveals itself now among those administrators who have actually been firmer in standing up to protect their campuses from disorder. For the most part, they seem able to say even now that the decisive point lies in the “respect for the rules,” that the critical boundary is marked by the spilling over into violence. Ben Sasse, the former Senator from Nebraska and now the President of the University of Florida, has never been exactly laconic in broadcasting his views. He came out with one of the most quotable lines when he said that “we’re a university, not a day care. We don’t coddle emotions…” He said that the university had

repeatedly and patiently explained two things to protestors: we will always defend your rights to free speech and free assembly—but if you cross the line on clearly prohibited activities, you will be thrown off the campus and suspended. In Gainesville, that means a three-year prohibition from campus. That’s serious. We said it. We meant it. We enforced it.

That is the highest form that the posturing has taken. And yet, there has been no hint of recognition that this adamant “enforcing of the rules” has missed the central point that has been staring the authorities in the face. For Administrations, and almost all the media, it is a happy example of “taking the low door under the wall.” Things may quiet down. Students may simply gather quietly, wearing masks, engaging in low chants, with signs proclaiming “October 7th—yes—"10,000 times over”; that Jews are colonial rulers, that Zionists are racists, that the killing and mutilating and slaughter of October 7th is amply rightful and justified to rid Palestine of the Jews. The Jewish students, faced with this ongoing spectacle and with the taunts they produce every day, may be driven from Harvard, Columbia, and Yale, long after the Jewish quotas were abandoned with embarrassment. But in the style of good pragmatism, the Administrators and the media will pronounce this a fine work of prudence, for the vexing moral question at the heart of the matter will have been put off for another day.

But again, everyone knows that nothing of this sort would be tolerated for a moment if students had peaceful, controlled fires, burning crosses, without too much hoopla. Or if they railed against black students admitted to the colleges with board scores that would admit no white student. That state of affairs would be regarded instantly as insufferable. And so, the only question is: what holds the colleges and universities back from recognizing the cognate or worse evil being proclaimed now so loudly and visibly within their sight? At a certain point, believe it or not, Administrators have it in their hands to say of the Palestinians what they would say of the cross-burners without looking over their shoulders: that “we will just not have this—here, or anywhere else.”

Again, my case has been that just the recognition of that point on the campus, which stamps these “protests” as despicable and disreputable at the core on the part of the Administration or a notable wing of the Faculty, would itself make a profound difference. It could make it far less necessary to call in the auxiliary aid of police, to put students into vans and threaten punishment ever grander.

I can see the anxiety arising: Do we want to have cliques of the faculty taking rival positions on the politics of the day, whether abortion, same sex marriage, or demonstrations against Israel? But then, why not? Don’t we have this already and strongly tilted to one side? There has been no want of passionate declarations in favor of “reproductive rights” on the part of faculty, and no want of invective against conservative nominees such as Brett Kavanaugh and Clarence Thomas. In striking contrast, few faculty have been willing to make themselves targets of inflammatory attacks because of signing letters in opposition to abortion and same sex marriage. (I can list myself as one of the targets of such an attack, and I can offer the name of a gifted professor who was driven from his campus through a poisonous campaign over the matter of gay rights.)

But the Ever Present Fear: That These Principles May be Turned Against Us

The sweeping claim of the protestors, stripped of pretense, is the claim to the rightness of genocide unconstrained. Well, of course, if we take that argument seriously, it is not a leap to point out that a license to kill small human beings in wombs, at numbers rising to a million a year for 50 years, is a palpable exercise in genocide. The protections of the law were removed from a whole class of human beings, whose lives could be taken without the need to render a justification. Why would it not be legitimate for Catholic schools, or other schools, to forbid the presence on campus of Planned Parenthood or the organizations making the most impassioned case for abortion rights? In 1979, I was part of an “Abortion Parley” organized at the University of Notre Dame to bring together, for arguments and discussions, the people on both sides of that divisive question. The meeting sprang from the mind of the late Fr James Burtchaell, when he was Provost of the University. The very holding of that conference was condemned by no less a figure than the beloved John Noonan. He asked, “Why not hold, at this famously Catholic University, a conference on Papacide” that is, the case for or against the killing of Popes. But Fr. Burtchaell thought that the Catholic position in opposition to abortion could be defended in a compelling way against the people who would challenge it. And he thought it important to show that a Catholic University was not afraid to stage that serious encounter with substantive arguments. However, at the same time, a Catholic University showing that confidence could be perfectly warranted in refusing to lend legitimacy to a Notre Dame Pro-Choice group or a Transgendered Outreach.

It is easy to anticipate the response: the elite schools may as confidently declare that it is illegitimate to hold forth in the classroom, or in any group in the college, a teaching that would deny the deep “reproductive rights” of women. But that nightmare is hardly hypothetical. It is very close to the established, orthodox system currently at the leading colleges. It is virtually unthinkable that I could teach at Amherst any longer my signature course on Political Obligations, aka “First Things.” The principles unfolded in that course led to a powerful argument in opposition to abortion. That course would now be seen as objectionable to women, a course in which women would feel unsafe as they experienced the unfolding of that argument.

And so, part of the response is that this state of affairs is already upon us. It takes no wild conjecture to foresee people using our arguments and drawing the most perverse conclusions from them. But to this enduring fear, it is long past the time to state the counter objection: there is no argument to be made for anything rightful that cannot be turned and used to command or compel, policies we find repugnant. It cannot be an “argument stopper” to learn–gasp!–that other people are in sharp disagreement. Surely, it is deeply untenable to hold back from making the most compelling argument we can put forth, and to hold back by conjuring up how skewed reasoning may bring forth monstrous conclusions from even good principles. If we are faced with the misuse of our arguments, the proper response, as ever, is to challenge those arguments and show that they are specious. But what should not be admitted is that the very prospect of adversaries turning good principles against us must ever count as a practical bar to making the most morally coherent argument we think we can make.

It is time to stop distracting ourselves from what is novel and evil in the sudden developments that have burst upon us in our public life. And to shake loose of the hobgoblins that would bid us hold back from making the judgments we know to be true.

Hadley Arkes is a Senior Fellow of the Claremont Institute, Founder and Director of the James Wilson Institute, and the Edward N. Ney Professor in American Institutions (Emeritus) at Amherst College.