Cases discussed in this episode:

• Sweezy v. New Hampshire, 354 U.S. 234 (1957)
• Keyishian v. Board of Regents, 385 U.S. 589 (1967)

Transcript:

This is Michele Goodwin, executive producer of Ms. Studios and  Ms. Media. Welcome to our new, limited series, Speaking Freely: a First Amendment Podcast with Stephen Rohde. In this illuminating new series, prominent First Amendment expert, Stephen Rohde, who has litigated and written about freedom of expression for decades, will explore some of the most controversial free speech and free press cases decided by the U.S. Supreme Court. Looking at hot-button issues like hate speech, defamation, incitement, social media, obscenity, flag burning, espionage, and academic freedom. 

0:00:44

We hope you enjoy these intriguing programs. For a full transcript, links to cases referenced in this episode, and further reading, check out our landing page at MsMagazine.com.And now, here’s your host, Stephen Rohde, with our episode: Assaults on Academic Freedom.

0:00:57 Stephen Rohde:

From the rise of McCarthyism and anti-Communist fervor in the 1950s and into the 1960s, state and federal officials punished teachers and college professors because of their political beliefs and writings. Today, we’ll take a look at two very important cases in this area that reached the Supreme Court. One involved Paul Sweezy, who had been a Harvard lecturer and was co-founder of a political journal.

0:01:27

The other involved an English instructor named Harry Keyishian and some of his colleagues who taught at State University of New York, at Buffalo. The cases we’re discussing today are not just interesting historical relics. As I will discuss in more detail later in this podcast, the last few years have seen an enormous and frightening increase in legislation and other attempts to ban books, to limit the content of what teachers can teach, and frankly, to rewrite our history.

0:02:04

The critical First Amendment principles the court established in these two cases are as relevant today as they were more than 60 years ago. Let’s start with the case of Sweezy v. New Hampshire. As I mentioned, Sweezy had been a Harvard lecturer and was co-founder of the Monthly Review, a Marxist journal that published articles written by such leading figures as Albert Einstein, W. E. B. Du Bois, and Jean-Paul Sartre.

0:02:38

On January 5 and June 3, 1954, Paul Sweezy was summoned to testify under oath before the New Hampshire Attorney General. This was, of course, during the Red Scare, a period of terrifying hysteria and fear in our country, after World War II and into the 1950s, over the perceived threat posed by Communists in our society.

0:03:06

A few years earlier, in 1951, the New Hampshire legislature had declared that what they called “subversive organizations” were unlawful and that “subversive persons could not be employed in state government.” These included teachers and professors at public colleges and schools. A loyalty program was instituted. All current employees as well as candidates for elective office were required to make sworn statements that they were not “subversive persons.”

0:03:45

During his testimony in 1954, Sweezy denied that he had ever been a member of the Communist Party or that he had ever been part of any program to overthrow the government by force or violence. But he refused to answer several other questions including questions about other people, such as the following: “was she, Nancy Sweezy, your wife, active in the formation of the Progressive Citizens of America? Was Nancy Sweezy when working with individuals who then were members of the Communist party? Was Charles Beebe active in forming the Progressive Citizens of America?”

0:04:33

But Sweezy didn’t just refuse; He explained why he refused. He told the legislative hearing the following: “the very first principle of American constitutional form of government is political freedom, which I take to include freedom of speech, press, assembly, and association.” He said, “these investigations are a grave danger to all that Americans have always claimed to cherish,” and he said, “no rights are genuine if a person can be hauled before some tribunal or forced, until penalties of perjury and contempt, to account for his ideas and conduct.” 

0:05:18

Sweezy was then questioned about a lecture he’d given to a class of 100 students in a humanities course at the University of New Hampshire. He refused to answer questions such as the following: “didn’t you tell the class at the University of New Hampshire on Monday, March 22, 1954, that socialism was inevitable in this country? Did you advocate Marxism at that time? Did you, in this last lecture, on March 22, or in any former lectures, espouse the theory of dialectical materialism?”

0:05:58

Given Sweezy’s refusal to answer such questions, the attorney general immediately asked the Superior Court of Merrimack County to hold Sweezy in contempt. At his contempt hearing, Sweezy was called as a witness. He continued to refuse to answer the questions. The court then held him in contempt and ordered him committed to the county jail until he answered the questions.

0:06:26

The New Hampshire Supreme Court affirmed his contempt conviction, and Sweezy then appealed to the U.S. Supreme Court. On June 17, 1957, the court ruled 6 to 2 in Sweezy’s favor. Speaking for four of the justices, Chief Justice Earl Warren began by sounding the following warning, “legislative investigations, whether on a federal or a state level, are capable of encroaching upon the constitutional liberties of individuals, which may impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas, particularly in the academic community.”

0:07:17

Chief Justice Warren then commented on how dangerously broad the definition of the phrase “subversive persons” was. He said the definition “goes well beyond those who are engaged in efforts designed to alter the form of government by force or violence. The potential sweep of this definition extends to conduct which is only remotely related to actual subversion, and which is done completely free of any conscious intent to be part of such activity.”

0:07:51

Warren similarly found fault with the very broad definition of “subversive organizations.” He then noted that the program for getting rid of this purported subversion was equally problematical. As he explained, “it was drawn without regard to the presence or absence of guilty knowledge in those affected.” In fact, Chief Justice Warren’s opinion was so filled with crucial reminders of the importance of academic freedom and political expression that it’s worth considering some of his most forceful statements in full.

0:08:33

He wrote that “merely to summon a witness and compel him against his will to disclose the nature of his past expressions and associations is a measure of governmental interference in these matters. These are rights which are safeguarded by the Bill of Rights and the 14th Amendment. We believe that there unquestionably was an invasion of petitioner’s liberties in the areas of academic freedom and political expression, areas in which government should be extremely reticent to tread. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth.

0:09:15

To impose any straightjacket upon the intellectual leaders in our colleges and universities would imperil the future of our nation. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study, and to evaluate, to gain new maturity and understanding. Otherwise, our civilization will stagnate and die.”

0:09:47

Chief Justice Warren also stressed the fundamental importance of political freedom in our society. On that point, he stated as follows: “[e]qually manifest as a principle of the democratic society is political freedom of the individual. Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. 

0:10:17

Exercise of these basic freedoms in America has traditionally been through the medium of political expression. An interference with the freedom of a party to simultaneously…as an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the programs of our two major parties. 

0:10:43

History has amply proved the virtue of political activity by minority dissident groups, who, innumerable times, have been in the vanguard of democratic thought and whose programs have ultimately been accepted. Where unorthodox or dissent from the prevailing mores cannot be condemned. The absence of such voices should be a symptom of grave illness in our society. unquote

0:11:16

For all these reasons so eloquently spelled out by Chief Justice Warren, the contempt citation against Sweezy was reversed. Justice Felix Frankfurter, joined by Justice Marshall Harlan II, wrote a concurring opinion. Justice Frankfurter agreed that a free society depends on free universities. Quoting a variety of sources, he noted that, “a university ceases to be true to its own nature if it becomes the tool of church or state or any sectional interest.

0:11:54

A university is characterized by the spirit of free inquiry, its ideals being the ideal of Socrates to follow the argument where it leads. This implies the right to examine, question, modify, or reject traditional ideas and beliefs.”

0:12:15

Today, these may seem like obvious and commonplace ideas, but in the 1950s the fear of Communism blinded many people to the truth of these principles. It took the courage for just  judges like Chief Justice Earl Warren and Felix Frankfurter to speak with some force and clarity about the importance of academic freedom. 

0:12:42

Yet, as we turn to the second case, Keyishian v. Board of Regents, we realize that the fundamental principles underscored by Chief Justice Warren are not settled once and for all. They must be reaffirmed every time there is a new assault on free speech and academic freedom. Harry Keyishian was an instructor in English. George Hochfield was an assistant professor of English and Newton Garver was a lecturer in philosophy at the State University of New York, at Buffalo.

0:13:19

George Starbuck was a non-faculty library employee and part-time lecturer in English at the same university. To keep their jobs, all lecturers and professors were required to sign certificates stating that they were not Communists and that if any one of them had ever been a Communist, that person had communicated that fact to the president of the State University of New York.

0:13:49

The library employee was not required to sign a certificate but instead had to answer, in writing, under oath, the following question: “have you ever advised or taught or were you ever a member of any society or group of persons who taught or advocated the doctrine that the government of the United States or of any political subdivision thereof should be overthrown or overturned by force, violence, or unlawful means?”

0:14:20

Keyishian refused to sign the certificate. So, his one-year term contract was not renewed. Hochfield and Garver, whose contracts still had time to run, feared dismissal, so they joined the legal challenge. Starbuck refused to answer the question and he was dismissed. They all lost their cause before a three-judge federal court and appealed to the U.S. Supreme Court.

0:14:47

The court reversed by a narrow 5-4 ruling that the New York law and regulations violated the First Amendment. In his opinion for the majority, Justice William J. Brennan Jr. persuasively wrote as follows:, “our nation is deeply committed to safeguarding academic freedom.”

0:15:16

In his opinion for the majority, Justice William J. Brennan Jr. persuasively wrote as follows: “our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. The classroom is peculiarly the marketplace of ideas. The nation’s future depends on leaders trained through wide exposure to the robust exchange of ideas, which discovers truth out of a multitude of tongues rather than through any kind of authoritative selection.”

0:16:05

The Keyishian case relied on a very important principle in First Amendment law, namely that vague and ambiguous laws pose an unacceptable threat to freedom of speech and press. As Justice Brennan put it, citing an earlier ruling, “precision of regulation must be the touchstone in an area so closely touching on our precious freedoms.”

0:16:32

“For the standards of permissible statutory vagueness are strict in the area of free expression, because First Amendment freedoms need breathing space to survive. Government may regulate in the area only with narrow specificity.” The concept of breathing space goes hand in hand with what is called the vice of vagueness and the chilling effect that vagueness can have on conduct; in this case, the conduct of teachers in their classrooms.

0:17:06

Again, as Justice Brennan explained, “when one must guess what conduct or utterance may lose him his position, one necessarily will steer far wider of the unlawful zone. The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools, which clearly inform teachers what is being proscribed.” Justice Brennan was concerned with what he called the regulatory maze created by New York, which contained vague phrases such as seditious, treasonous, the teaching or advising the doctrine of overthrow of the government.

0:17:53

They were wholly lacking in terms susceptible of objective measurement. Men of common intelligence must necessarily guess at its meaning and differ as to its application. Justice Brennan observed that “it would be a bold teacher who would not stay as far as possible from utterances and acts that might jeopardize his living by enmeshing him in these intricate machinery.”

0:18:23

For all these reasons, the court held that the New York law and the regulations were im-impermissibly vague. They were so vague that they violated appellants’ First Amendment rights. It’s against the background of Sweezy and Keyishian decisions that today’s battle over academic freedom are being fought. And those battles today are as aggressive as we’ve ever seen.

0:18:48

Here’s a rundown on the most recent attacks on academic freedom. In September 2020, the Trump Administration issued an executive order outlawing the teaching of so-called “divisive concepts” in employee training and federal departments and agencies and for government contractors. President Joe Biden quickly revoked the order following his inauguration in January 2021.

0:19:18

A recent UCLA study reveals that in 2021 and 2022, over 560 bills outlawing the teaching of divisive concepts–by the way, a perfect example of an incomprehensible, vague term–were introduced in state legislatures and local governments in every state in the country except Delaware. Of these, 241 such laws were actually enacted. The overwhelming majority of these laws, 94 percent, included K-12 schools as targets, impacting over 22 million public school children.

0:19:59

Florida’s Stop Woke act is perhaps the most well-known of these laws. These laws prohibit school instruction or workplace training that allegedly teaches that individuals are “inherently racist, sexist, or oppressive, whether consciously or unconsciously,” that people are privileged or oppressed based on race, gender, and national origin, or that a person “bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress over actions committed in the past by members of the same race, gender, or national origin.”

0:20:42

All of those concepts are prohibited from being taught. These laws are being challenged in court on First Amendment grounds, and fortunately, the early rulings have once again upheld the First Amendment. On November 17, 2022, in a comprehensive 139-page opinion, a federal judge in Florida, citing the fundamental principles in the Sweezy and Keyishian cases, prohibited the key provisions of the Stop Woke act. 

0:21:16

The judge noted as follows: “the law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints.” The judge concluded that such a law clearly violates the First Amendment. And on March 16, 2023, a three-judge panel of the Federal Court of Appeals unanimously refused to stop that prohibition from going into effect immediately, pending a full appeal on the merits.

0:21:53

Legal challenges to classroom censorship laws are also going forward in Oklahoma, New Hampshire, and elsewhere. I have no doubt that the ongoing battle over academic freedom is sure to return to the U.S. Supreme Court.Thank you for listening to Speaking Freely. Please join us for future episodes. I want to thank Allison Whelan and Ms. Media for the opportunity to present Speaking Freely: a First Amendment Podcast.