Shortly before I called Keith Whittington to begin our interview he was slightly surprised when I told him we’d do it over Zoom to help me transcribe the conversation. When we got together later that day I found out why: he had been wearing a Pink Floyd tee shirt and wanted to change to look professional. Perhaps it shouldn’t be surprising that America’s foremost conservative defender of free speech is a fan of psychedelic rock and heavy metal—Black Sabbath specifically. When he first arrived at Princeton as a young, untenured faculty member, the graduate students started a rumor that he was in a heavy metal band, based on the frequency with which he played the music in his office late into the night while working.

No matter what you think of heavy metal, it worked for Whittington. Now with an endowed chair in politics at Princeton and a soon-to-be-occupied chair on the faculty at the Yale Law School this fall, his wide-ranging research interests in constitutional law and his prodigious work ethic have catapulted him to the forefront of academia and the campus free speech movement. Who better to talk to if you want to get a sense of the challenges and nuances of the campus free-speech debate?

Whittington is now known nationwide as a defender of free speech, but he didn’t plan it that way. “I backed my way into focusing much more on campus free speech and academic freedom,” he tells me. Like many of us, he mostly took free speech “for granted” throughout his career, even though, as a conservative, he understood there was political danger and hostility to “conservatives and conservative thought” that forced him to “carefully navigate an environment that was politically sometimes fairly hostile.”

Whittington’s case is unique because he has mostly worked in Ivy League schools and departments around mentors and colleagues who are “extremely good” on the free speech front and desirous of having people around who were “interesting regardless of their politics.” He told me that he has personally “experienced a side of academia that is exactly what I would have hoped for … where ideas are taken seriously [and] people are willing to hear out ideas from a wide range of perspectives and willing to debate them in good faith.”

But despite that experience, he recognizes such a liberal atmosphere is “difficult to maintain” because the once-widespread sympathy for free speech on campus is dwindling. This is partly a problem among faculty but even more so among administrators and students who don’t see a “robust discussion of ideas as being central to what we should be doing.” He’s concerned about maintaining an atmosphere of openness and discourse.

Any dilution of free speech on campus would harm the “very purpose” of public universities in his view—more on that later. But now he also believes that the same schools are under attack from political forces—from the right externally and from the left internally. He sees both as forces posing a fundamental danger to the purpose of our universities: quality research and teaching. So instead of simply taking his own experiences for granted, he took up the mantle of defending free speech and academic autonomy as skepticism spreads on both sides. He now spends “way more time than I’d hoped” talking about free speech.

Academic freedom is related to free speech and the broader liberal political order, but it also has its own distinctive qualities. Understanding its relationship to other free speech issues is “quite difficult, conceptually,” Whittington says, which presents both the practical challenge of defending them but also the conceptual difficulty of understanding the principles, the “wrinkles” as he calls them. So even as he advocates for freedom, he’s also trying to flesh out a more complete understanding of why free speech matters on campuses, how it should be applied, and how it fits into current constitutional and political debates.

Becoming a Free-Speech Warrior

The fruits of his efforts include an organization dedicated to protecting campus speech, the Academic Freedom Alliance, comprised of a very impressive collection of scholars and practicing attorneys from a wide range of specialties. Two of his most recent books, Speak Freely (2018) and You Can’t Teach That! (2024), address campus speech from two different but complementary perspectives. We started by discussing his most recent book and the historical development of legally protected campus speech.

The movement towards a faculty right to speak independently came from Europe, most notably the German universities that had such a profound influence on the growth of twentieth-century American counterparts. Whittington explained that even the Ivy League as we know it today is really only about a hundred years old in terms of its culture, prestige, and quality of education. Prior to that, the schools were largely regional, devoid of quality research or serious scientific inquiry, dominated by administrators and large donors who regularly fired faculty who ran afoul of their views or beliefs. Teaching things like socialism or evolution regularly incurred the wrath of university leaders who enforced dogma ruthlessly.

The early twentieth century was full of instances in which donors, administrators, and even politicians regularly had faculty censored or removed for researching and teaching what was viewed as controversial material. Those battles still resonate primarily because the arguments about why this material seemed dangerous and counterproductive sound a lot like the discussions we’re having today.

The Ivies and most American universities “reshaped their mission” when Stanford, Chicago, and land-grant schools entered the marketplace. This new competition forced older schools to “bring the sciences into those universities and give them a much more prominent place than they had previously.” Their initial mission, according to Whittington, of training “a bunch of ministers old wisdom that has been unchanged for hundreds of years” no longer was sufficient to compete with the new breed of scientifically oriented universities. Instead, the emphasis moved to “creating new wisdom and testing and challenging the conventional wisdom developing new and exciting ideas” throughout the humanities, sciences, and social sciences. That required faculty protections to explore controversial ideas.

This shift is not merely of historical interest for Whittington. He argues that its real significance was that American universities went from being backwaters to leaders in the explosive growth of political liberalism and the global economy. The tangible value of universities with open discourse and a new focus on science has given them immense practical value. He also warns, however, that this development is “fragile, and we could lose that if we’re not careful and corrupt those universities” which would move the serious cutting-edge research “somewhere else” which will deprive the nation of those activities.

First Amendment Considerations

The meat of the text addresses the legal and constitutional status of academic speech at public universities. During the McCarthy era, many states passed speech limits and imposed loyalty oath laws on college campuses. The constitutionality of some of these laws was litigated at the Supreme Court. After trying to “duck” the issue, the Court finally settled on a principle that there is “a First Amendment interest in educational environments being ones in which ideas can be freely discussed.” More specifically, it held that it is “contrary to First Amendment values for the government to try to impose a ‘pall of orthodoxy’ over the classroom context and the kind of ideas Americans can learn as they are going through an educational process.” They didn’t provide an elaborate doctrine or road map to apply this, but they clearly leaned towards giving professors more leeway to address controversial ideas.

Humans don’t want to confront challenging speech and will readily jettison their principles when given the chance, which makes maintaining the principle of open debate difficult for everyone.

Two other sets of Supreme Court rulings loom large for Whittington. The first is government employee speech as it pertains to basic work functions. The Court has held that speech related to the purpose of an agency or department is not protected and that supervisors must be able to discipline and manage employees in Garcetti v. Ceballos. Within the duties of your job, the government can curtail your speech. But this raises the question of what work exactly is college teaching? The Supreme Court addressed this briefly, but again without much guidance. So lower courts have typically viewed this as an exception, placing faculty in a different position than the average government employee.

Whittington also argues that “government speech,” which is separate from government employee speech, “dovetails nicely” with the notion that faculty are somewhat different. Many government employees are merely messengers for government speech such as encouraging smoking cessation and not littering. Are faculty simply there to deliver messages from the government and therefore subject to oversight by politicians or bureaucrats? He notes that the Court has increasingly differentiated between the two groups: “When you are hired as a public school teacher the school board adopts a curriculum they expect you to teach it and not deviate from it and they can sanction you for deviating from it.” Can the government micromanage public university faculty in the same way?

Whittington poses the question this way: “Are they [faculty] being hired to convey their professional expertise and judgment to their students and do they have some kind of First Amendment right to exercise that judgment and convey those ideas … even when government officials might object to it?” Or are faculty members supervised by politicians? A number of states have passed legislation, such as the Stop Woke Act in Florida, which seems to assume that faculty are just like K-12 teachers. But Whittington argues that the academic norms established in the twentieth century and the subsequent explosion in the growth and impact of American universities might prompt the courts to provide some constitutional protections to faculty.

He stipulates that this is “not at all well settled” and the courts are grappling with this now. A public university, he admits, “is an unusual context to build a First Amendment claim because it is a governmental institution” and normally individuals in those settings cede some of their rights according to precedent. But when we consider the history of the judiciary’s decisions in these matters, in reaction to McCarthy-era “anti-subversive” laws, constitutional protections were cited along with speech concerns in opposition to those laws. If a court were to grant such protection, what are its limits?

Whittington pointed to one obvious limit: when faculty simply ignore all forms of reasonable professional judgment in teaching a class and turn it into “whatever I want.” First Amendment rights are frequently without limit, which he rightly says “seems like anarchy” in the classroom. So his is a functional and contingent argument “if states have decided that we are going to have institutions of higher education which have certain kinds of characteristics to them—places that explore ideas and seek truth—then there are First Amendment conditions that come along with that.” Just because something becomes politically inconvenient doesn’t mean it overrides constitutional interest.

Why We Should Want a Pluralist Campus

This brings us back to Whittington’s earlier book, Speak Freely: Why Universities Must Defend Free Speech, written during a period in which conservatives found themselves under attack by administrators, faculty, and students on many campuses. Here he adopts a staunchly utilitarian approach to freedom of speech. “When we are talking about a university context,” he argues that regardless of the circumstances “why do we care about free speech there?” He acknowledges that when applying the principle to democracy there’s a fundamental need for freedom of speech to have a functioning political system, and with artistic expression, it’s “intimate to human autonomy and dignity to express yourself” and the government doesn’t have a right to “crush your soul” by limiting your expression.

In universities, he argues that “the free ability to explore and criticize ideas, to raise questions, and to develop answers helps advance knowledge and the truth.” It’s imperfect, to be sure, but we don’t have a good alternative. Imposing speech limits undermines the search for truth and the efficacy of the university model. “If we want to have a functional university that accomplishes the things we want it to accomplish—to advance knowledge and convey what we’ve learned to the wider world—then we need very robust speech protections.”

Of course, not everyone thinks about a university in this way. Perhaps it is little more than a certification mechanism, a way to enhance a local economy, or merely to teach the ideas that the government wants. More pointedly, he presents two more options—a government-run “patriotic” university designed to support the existing regime or a “social justice” university that would promote a different set of values. In any of the above-mentioned cases, he says free speech would in fact impede those goals. Debate and open exchange of ideas would conflict with the singular “truths” espoused at either Patriotic U or Social Justice U. They would interfere with the promotion of the privileged world views. But once that is the norm, why are any speech protections needed on these campuses? “When advancing a set of substantive values—and a lot of universities are increasingly saying that—one of the implications is that you no longer need robust debate on campus,” which he worries will become “the twenty-first-century vision of the university.”

So I asked him if there was a unifying way of thinking about the two books’ differing theses. Is there a process to protect controversial speech on campus, which seems to be consistently under threat, difficult to maintain, and yet so necessary for the continued success of the American university model?

In a free, pluralistic society disputes are inevitable, but he argues that “we work through those disagreements by tolerating people and debating them. And part of the reason we do that is that the only way we can live together successfully is if we learn to tolerate people who have different ideas about these things. … The way in which we can live together peacefully and successfully is if we talk through those ideas rather than trying to stone the witch when we disagree with them.”

That approach not only allows us to live more peaceably together—it also advances our ability to find answers. When there is a significant disagreement within a society, “we are more likely to come up with better answers” when we actually have a debate about it. Cutting off debate will provide worse answers and social suffering. Debates, then, can be important for utilitarian reasons.

Whittington wants a discussion—not just “mindless chanting and noise making” focused on disruption over discourse.

Today, attacks from within the campus tend to come from the left, and political attacks by legislators from the right. That situation, however, could easily shift in the future, Whittington warns. That makes it all the more critical to establish a broad set of principles that maintain an open intellectual climate. “Part of what I hope in both books is that people will be able to step back a bit from those immediate controversies and look in the mirror and say ‘if I object to these kinds of speech restrictions maybe I should be a little hesitant about applying my own.’” Humans don’t want to confront challenging speech and will readily jettison those principles when given the chance, which makes maintaining the principle of open debate difficult for everyone. We all want to carve out exceptions in a particular moment. He believes the books are together important so both sides can see the future risks.

Pluralism—Inside and Out

With the challenges to improving the intellectual climate on campuses today and the rising interest in “alternative” right-leaning universities, I asked him what institutional reforms he’d suggest to help American universities go down a more open path. He told me that he had long warned many of his colleagues that unless they “cleaned up their houses,” universities would be devalued or that politicians would try to intervene. He noted that the frustration with universities in the early twentieth century led to the founding of Stanford and the University of Chicago as new institutions with modern sensibilities and goals. The founders of those schools, much like their counterparts today at the University of Austin and elsewhere, looked at the Ivy League and saw them as “dead ends” and started their own schools, which ultimately led to competition and overall improvement. Whittington therefore endorses competition, experimentation, and pluralism among universities. He cited the prospect of a Great Books university or more technical scientific schools as examples of experimental models.

But he doesn’t want to give up on the existing universities. They must carry out their missions better than they are currently. And he acknowledges that outside pressure may be necessary—but it should focus on adding new voices and reopening debate. While expressing concern about the content of many of the bills now under discussion by state legislatures, he nevertheless supports those that provide enhanced protection of free speech. He cited examples like the Hamilton Center at Florida and banning DEI statements in hiring as positive steps.

He then reminded me that originally the AAUP was advocating for expertise in teaching and scholarship. Politicians shouldn’t know enough about academic disputes to make good choices about curriculum, hiring, and research topics. The faculty, not the Board of Trustees, should make those decisions.

But Whittington acknowledges “there’s a responsibility that comes with that as well but we have to make good choices about what we are doing. We have to be willing to patrol our own institutions and our own peers to make sure they’re doing high-quality research and pursuing good ideas and reasonable and interesting ideas in an interesting and reasonable way, and if we don’t do that, we don’t deserve to have the freedom to explore those ideas.” He continued, “it’s not a viable deal” if faculty want the freedom without accountability. He raised the prospect that political science and many disciplines aren’t studying important ideas in their research. This, of course, raises the question of tenure, which has increasingly become a point of political contention. While Whittington acknowledges the abuses that are possible, he noted that usually when controversial things are taught by faculty it is untenured faculty who are fired and that increasingly untenured faculty are doing the bulk of the teaching throughout academia.

Finally, we turned to the protests sparked by the conflict between Israel and Hamas at many prominent universities. Are they part of the robust flourishing of free speech or do they lay bare the inconsistency that’s been common? He replied that the protests have been “challenging and exposed a lot of problems,” including double standards to speech protections rather than consistently applying their rules. He described some folks on campus as “shocked” and “startled” based on the actions of administrators and faculty over the past 5-10 years. His concern is that leaders will not consistently apply the rules, but rather “carve out more exceptions” and doubling down on “hate speech” which is not a constitutional principle, rather than learning the important lesson of “protecting speech in a more consistent way.” He sees this as very much in flux at the moment.

Whittington did add that this issue divides the dominant faction on campus. Progressives dominate campuses and what kinds of speech should be tolerated and suppressed. The way he described it was that a bunch of people who were comfortable with being closed-minded to conservatives on campus suddenly “woke up and said ‘Oh, wait a second! Maybe things aren’t as great as we thought!’” So he sees a potential opening for new allies for free speech.

Words and conduct need to be separated. Unsurprisingly, Whittington supports the expression of a wide range of ideas, but at the same time believes the neutral conduct rules are important and have to be enforced aside from the content of the ideas. He saw too little tolerance of a wide expression of ideas and too much tolerance of conduct that did not respect “time, place, and manner” regulations in quads throughout the middle of the night. What kind of rules are actually principled, serve the function of the university, and can we imagine being applied in an even manner when push comes to shove” rather than arbitrarily applying them based on shared sympathy by university leaders. Ultimately he wants a discussion—not just “mindless chanting and noise making” focused on disruption over discourse. He said bluntly that these protests have to “turn the corner” to discussion and debate or simply disallow them.

And much like the surprise at discovering that a conservative faculty member is a fan of heavy metal, setting aside our preconceived notions about what individuals are likely to say or believe based on imperfect categories makes free speech and expression on campus important. We might think we know what the “other side” has to say about something, but we can frequently benefit from robust challenges to our stereotypes, even about Ozzy Osbourne.