The Chilling Effect: Stanford Law’s Evelyn Douek on Visa Holders, Protests, and the Future of Campus Speech - Legal Aggregate - Stanford Law School

On a recent episode of Stanford Legal, Stanford Law Professor Evelyn Douek—an Australian-born First Amendment scholar and permanent U.S. resident—expanded on her Atlantic essay, “Can I Teach the First Amendment If I Only Have a Green Card?” She explored the irony of teaching free speech protections while the U.S. government detains or deports non-citizens for engaging in protests or student journalism. In conversation with fellow professor and podcast host Pamela Karlan, Douek reflected on what this tension means for the future of American universities. She also discussed her own shift in perspective, from initially questioning the breadth of the First Amendment to embracing its expansive protections as essential to democratic life.

The following is a shortened and edited version of their conversation. Listen to the full episode here.

I found the title of your essay amusing: “Can I teach the First Amendment?” Obviously you teach the First Amendment superbly. You’re a prize-winning teacher here at Stanford in great part because you teach the First Amendment. What led you to write the essay?

I love teaching the First Amendment and I feel really passionately about these issues. I was sitting there getting ready to teach in the spring quarter this year, and as I was revising my notes, I was reading all of these headlines about these student visa holders and green card holders that were being rounded up and put into detention for the things that they said during protests and for the op-eds that they wrote in student newsletters.

It was striking on a personal level. Reading these articles about what was happening to these students and graduates—and myself being a green card holder—I started looking more closely at all of these beautiful, sweeping statements from seminal cases about the value of free speech and the marketplace of ideas. How we need the courage of our convictions to hear speech we disagree with. So it was quite profound to contemplate teaching these issues as a green card holder. The message being sent to green card and visa holders around the country has been: “Watch what you say.”

One of the points that you make in the essay is that a lot of what we think of as traditional First Amendment doctrine is really quite new as a historical matter.

Yes, this always surprises students. There’s a strong cultural sense in America that the First Amendment is part of the country’s DNA. That it has always been there. That it came directly from the Founders when they wrote “Congress shall make no law…” But that’s not true and it is often a big surprise to students.

Most First Amendment courses will start by a reading of a trilogy of cases from 1919 when the Supreme Court upheld three convictions under the Espionage Act for nothing more than circulating pamphlets and articles opposing the American war effort in World War I. A socialist party presidential candidate, Eugene Debs, was jailed for giving a campaign speech that criticized the draft. This is just over a century ago. This is an example of core political speech and the draconian punishment that was visited on people as a result of their exercise of free speech. The modern doctrine around the First Amendment is by no means something that stretches all the way back to the founding.

One of the next cases we read is Abrams (1919), where Holmes writes his famous dissent—not yet using the exact phrase, but introducing the “marketplace of ideas” metaphor: the idea that the best test of truth is its ability to win out in the market. And that case was about immigrants.

Holmes didn’t care that the speakers were immigrants. Their speech deserved protection. One of the most famous opinions in the free speech canon was about immigrant speech.

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And then we have this long period between the wars where there’s not a lot going on with free speech doctrine, correct?

There is some, but not so much about core political speech. I think of Barnette as maybe the leading free speech case, and that case is really more about the right not to have to speak than about the right to speak. It’s a case about mandatory flag salute by school children.

Justices Holmes and Brandeis come around to this more speech-protective view, but they don’t convince their colleagues on the court. So they remain the minority view on the Supreme Court in the early 20th century. It takes a couple of decades until we get to what we recognize now as a highly speech-protective, modern First Amendment doctrine.

Could you compare the Australian notions of speech protection to the U.S. approach?

Australia is the only Western liberal democracy without a Bill of Rights. It doesn’t have a set of explicit rights protections in its constitution. However, judges will do what judges will do. And at some point in the mid-90s, they took a look at the constitution, they squinted really hard, and they saw the system of democracy that the constitution set up and the fact that there’s representative democracy and people are voting for their representatives in Parliament. And they thought hold on: you can’t have representative democracy without some sort of freedom of political communication, without the ability for citizens to be able to hear from their representatives, debate what their representatives are saying, and then freely vote on an informed basis.

And so they implied into the constitution this freedom of political communication, even though there isn’t express language protecting it. But for whatever reason, and it might be the fact that it’s implied or it might be cultural, it’s very hard to say, but that has been interpreted much less broadly and much less robustly than the First Amendment has been.

For example, Australia is widely known as the defamation capital of the world because of its weak protections against defamation claims. And this is understood as one of the reasons why Australia, for example, didn’t have a big Me Too movement because there are weak protections for people that make those kinds of allegations against other people, including public figures.

On the other end of the spectrum, you have the First Amendment, which is world famous for being uniquely speech-protective. When I teach the First Amendment, I teach students all of the ways in which the First Amendment maybe isn’t as speech protective as it is widely reputed to be, and the ways in which it sometimes under-protects speech. But that doesn’t change the fact that it is overall very speech-protective. The icon of the First Amendment is the idea that the Nazis were allowed to march in Skokie. Actual Nazis. They wanted to march in a suburb of Chicago that had a high Jewish population and a high population of Holocaust survivors. And there was this sense of that going perhaps too far. But the Court said no.

When you hear this story outside of the United States, about the Nazis marching in Skokie, people then do think, “That’s a bit much!? Why do the Nazis need to march? That’s not useful speech in the marketplace of ideas. I was really skeptical of a tradition that said no, even this, we need to protect.

But I’ve come around because what I have come to understand is that this is actually not about the Nazis. It’s about the delegation of power to someone to decide which speech we get to hear and which speech we don’t, and the inherent tendency of those in power to declare that those that they disagree with are saying dangerous things. There’s this broader concern about giving the government the power to censor speech, which I think is an inherently dangerous thing that needs to be delegated very carefully.

A lot of your scholarship has focused on the First Amendment in the technological era. How do you see that playing out? On one hand, we have more capacity for individuals to speak. Someone on a soapbox with a megaphone could only reach the people within the range of their voice. And now you can reach everywhere. And yet, at the same time, we have more threats to free speech than ever.

It is obviously true that the internet, and social media in particular, have radically transformed our information environment. We are barely beginning to understand its effects and what it is doing to society and to democracy, and how to think about these extremely powerful speech technologies. There has been this dramatic backlash against social media and the internet for all the pathologies that are also introduced into the public sphere. You don’t have gatekeepers managing the information environment the same way. On the other hand, that can be really great. Gatekeepers weren’t always good at their job, and they certainly weren’t always democratic. And so we are still really wrestling with this, but I go back to the principle that we were just discussing: distrust in the government in making those decisions. The principles that are in these early dissents of Holmes and Brandeis that I think still hold true despite the dramatic changes in technology in the intervening century.

Speaking of the government making these sorts of decisions, can you talk a bit about what is happening with the Trump administration?

One of the things that the Trump administration has been very effective at doing is what First Amendment scholars call “jawboning,” wielding the vast economic, political, regulatory power of the federal government to pressure private actors, whether they be speakers themselves or media companies or universities, to stop saying certain things or to regulate the speech of others so that they don’t say certain things. And even though much of this obviously runs afoul of the First Amendment, in many ways it does not matter because these companies, law firms and universities—even though they have very strong First Amendment claims—they need certain things from the federal government: merger approvals, federal funding, and so forth. And so the incentive is to comply, or to change their speech, or to comply with informal or formal demands because they just don’t want the headache. And I think that is a very pernicious threat. And it shows that no matter how strong First Amendment law is on paper, it still really depends on private actors and courts being willing to uphold it.

One of the areas in which we’ve seen the Trump administration going after people most vigorously based on their speech is in a series of cases involving the grabbing of graduate students off the street and jailing them for comments they’ve made in connection with the war in Gaza. Can you tell us a little bit about what’s going on there?

It is such a jarring image to see in this land of the First Amendment. To see the administration—and I really don’t know any other way to put it—but rounding up dissidents. Rumeysa Ozturk, in Cambridge, Massachusetts, grabbing her off the street because she co-authored an op-ed that was critical of U.S. policy towards Israel in light of the war in Gaza. It is reminiscent of the cases we just talked about: the 1919 cases of political dissidents who were rounded up for pamphlets criticizing the American War effort. And here we are again.

And this is core political speech. This is not, for example, obscenity which, yes, we protect, but we don’t necessarily think has much value, or commercial speech where it’s about trying to sell somebody a product. Those types of speech have always been thought of as more peripheral.

Right. The speech at question here is what the doctrine calls “high value speech.”

Are these attacks on foreign students designed to also chill everyone or are they just designed to chill foreign students?

It is both. As a green card holder, I felt the chill watching these headlines. What it makes very clear is that the administration does not like these views. It does not like these views being expressed. And to the extent that it can find levers to punish people for expressing these views, it will pull them.

In fact, the administration has done this in such a spectacular way: grabbing the students off the street. It’s intended to be a spectacle so that people see these images and think, “I don’t want to spend months in a detention center, even if ultimately, my First Amendment claim is vindicated, even if ultimately I win in court, I don’t want to spend months in a detention center.” And that is a very understandable preference.

And the administration is trying to wield its significant power over universities through federal funding. The administration is saying, “We will pull your funds, we will cripple your university. We will make it impossible for you to survive as the institution that you currently are unless you, university, change your speech rules, change who you have on your faculty, change who you admit as students.” These are First Amendment-protected rights of universities to make these decisions for themselves as part of academic freedom. But again, the universities are faced with this terrible choice of sticking up for their First Amendment rights or losing a significant component of their budgets.

On a personal note: I was an international student at Harvard in 2016 and 2017. I was there on a visa and then ultimately got a doctorate at Harvard and that made it possible for me to have this wonderful job at Stanford. I think I have the best job in the world and to have this green card and work at Stanford and all of that would not be possible in current conditions. And that’s maybe no great loss to America. Evelyn Douek is not the big loss. But you aggregate that in the thousands of people who are now making these choices not to come here or who can’t come here. And I do think that is a significant loss to the intellectual vibrancy of this country.

Evelyn Douek is an Assistant Professor of Law at Stanford Law School. Previously, she was a Senior Research Fellow at the Knight First Amendment Institute at Columbia University, and obtained a doctorate from Harvard Law School on the topic of private and public regulation of online speech. She also was an Associate (clerk) to the Honourable Chief Justice Susan Kiefel of the High Court of Australia and did short stints at two commercial litigation firms in Sydney. She graduated with First Class Honours from the University of New South Wales with a Bachelor of Commerce/Laws in 2013, where she was the Executive Editor of the UNSW Law Journal and the Undergraduate Student Representative on UNSW Council, the University’s governing body.