Interview with David A. Goldberger, Professor Emeritus of Law at the Moritz College of Law1/16/2016 Q: As society becomes more openly diverse, especially on college campuses like Ohio State, how important is it, at least in your opinion that free, unfettered speech remains a right?
A: Of course, it’s really very important that it remain a protected right. But I think that it growing diversity has little to do with the framing of the issue of free speech on campuses. The essence of a university is that there has to be a free exchange of ideas, including ideas that we find disagreeable. And that's always been the purpose of the university and the idea that they should be anything less is abhorrent. Q: I certainly agree. So what, in your opinion, would pose the most serious threat to free speech? A: Obviously, the most serious threats right now are efforts to suppress different viewpoints, and even viewpoints that are just painful to hear. Q: You would say then that the recent events at Yale are a negative development? A: We're talking about the Halloween costume? Q: Yes. A: It’s just disappointing. I find it disappointing. I have differed with my faculty colleagues through the years; I think that there's tendency on college campuses to dismiss the idea that there should be a free-flowing exchange of ideas, and that even ideas that are disagreeable have to be included in that exchange. I think that there's a paternalism that exists on campuses that I think is stunning. The fact that leading comedians in the United States--Jerry Seinfeld and others--won't perform on college campuses because they find the atmosphere too repressive, is a damning statement. Q: So would you say then that there's almost a cultural, fundamental misunderstanding of tolerance then? A: I just think it goes with the turf. I think that, if you put the conservatives in charge, they’ll try to suppress the ideas from the left that they disagree with. If you put if you put the liberals in charge, they’ll try to suppress the ideas that they disagree with. I think it's the human condition. That's why we have a constitution, because it protects our rights against repressive majorities, so that it's not just on campuses. It's everywhere. I just bet that one would think that on campuses was it would be a less of an issue, because you have people dedicated to transmitting knowledge in an exchange of ideas. College and university students and university faculty are no different than anybody else. But, I don’t think that universities are any worse than anybody else. But unfortunately right now better than anybody else and I think that they should be. Q: So how would you go about changing that for example? A: I don't know that there is a way to do it except through litigation—and that’s only good for people who have state universities—and for people to pushback. It’s the only thing I can imagine—as I said it’s the human condition. People don't want to hear ideas that they disagree with. They can tell you how committed they are to free speech, but once push comes to shove, they want to shut down at least some of the ideas that are really patently offensive to them. Q: So what should the courts, or at least an individual, for example, on a college campus, consider when making a statement that could be controversial? Is there a line that we should at least acknowledge? A: No, there is no line. Obviously, the First Amendment protects everyone’s speech outside of inciting violence or whether it's obscene. It seems to me that the best you can do for student groups is to form groups that are not politically committed to one ideological pole or another, to push back, and to be protected. Q: You talked about student action or at least forming student groups. Now would you say that the recent protests on college campuses, for example at Missouri, or even the student occupation of the Union here at Ohio State, are positive developments? A: I’m kind of conservative; any occupation of any place—now we’re talking about the Union—in any way that essentially is more than assembly, is preventing other people from using of facility. I have problems with that. I don't think that it’s wrong for students to protest and to criticize offensive speech. That is protected in freedom of speech. Let’s get one thing straight: freedom of speech and also includes the freedom to take the position that people shouldn't wear costumes that are offensive. I have no problem with that position, and I'm talking now about the Yale protests. But to the extent that someone stands up to take the other side, and there are people urging that she lose her job? That shows a complete misunderstanding. Although they have a perfect right to advocate that she should lose her job, in that setting it’s intimidating and it’s disappointing. Q: So ironically that would go back to the reason why we have free speech laws which protect against the tyranny of the majority, correct? A: Or the tyranny of whoever has the power to push the buttons. Now some people, and I include this teacher among them, if you're going to say something offensive, you're going to have to have the guts to take the heat. Free speech doesn't mean that when you say things that others find disagreeable, that you're not going to take some heat for it. But it should be heat in the form of protest, or criticism, or whatever you want, but it should not be in the form of threatened loss of a job, or any other kind of penalty or sanction. Q: So moving along towards litigation, would you say that the current Roberts court is a friend of free speech? A: It hasn’t been bad. On free speech, it generally has been decent, in my view. I've had some concerns about how it has handled campaign finance. My brother and the ACLU don’t agree with me on this, but I'm very wary of money in politics. But I think, for the most part, the Roberts Court has done the right thing outside of its handling of campaign finance. Q: Are you referring to Citizens United? A: Yes. Q: What would your issue be with the ruling? A: Money gives you a bigger megaphone than others have--substantially bigger--to which Scalia would say “That’s tough.” (Laughs) Q: But wouldn’t restricting campaign finance that pretty much cap the amount of influence a given individual could have? A: There are different ways to have influence. If you’re a remarkable organizer, or if you organize something online, for example, and get people to join with you and give ten dollars a head or five dollars or twenty five dollars, that gives you a lot of influence as well. That’s just a whole different can of worms, it seems to me; it means that, basically, the wealthy in our society have more, and their votes essentially become amplified, and that their votes count more than yours or mine. So I'm not I'm not an absolute purist. Q: Mr. Goldberg I'd like to thank you for your time and I really appreciate you answering these questions. A: Sure. Good luck and thank you.
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