The Washington PostDemocracy Dies in Darkness

Why Trump’s decision to intervene in campus speech policies is so dangerous

Trump might be encouraging unrestricted speech. But he’s creating a method for others to do the opposite.

Polly Olson holds up a heart that says “Jesus Loves You” during a March 21 event with President Trump to sign an executive order requiring colleges to certify that their policies support free speech as a condition of receiving federal research grants. (Jacquelyn Martin/AP)

President Trump’s executive order to make federal research funding contingent upon universities’ free speech policies is the first major federal intervention in the battle over free speech on college campuses. Unsurprisingly, the conflict has become an ideological battleground for liberals and conservatives. Some activists on the left recommend speech codes and trigger warnings as tools to battle hate speech and make campuses more comfortable for marginalized groups. Their opponents argue that speech codes could limit what is taught and studied, or lead to “coddling” students. The debate is further polarized by the contention that it is mainly radical conservative groups, such as white nationalists or student National Rifle Association chapters, that are silenced by such policies.

The crisis is real, but in framing Trump’s executive order in terms of short-term partisan politics, we are asking the wrong questions. Rather than asking, “What will this free speech policy do now?” we must instead ask, “What will this make possible decades from now when power is in different hands?”

Throughout history, crises have led governments to extend their power over public speech in ways that had unintended consequences. The president exerting authority over campus speech codes, even just to demand they be unrestrictive, creates precedent for a future president to demand the opposite. After all, even during the Red Scare, when ferocious state and public pressure pushed universities to purge communist faculty, the U.S. government did not intervene directly in campus speech policies. Trump’s intervention threatens to set an important precedent, and by creating new tools for censorship, opens the door for future repression that should concern all of us.

Over centuries and across the globe, authorities have found ways to repurpose seemingly benign institutions — passport systems, post offices, hospitals and civilian organizations — to do their censoring without the messy visibility of creating something new. In fact, most of history’s major censorship projects have been carried out by repurposing tools that were not created for the purpose. The repurposing was usually done in response to a perceived crisis, like the current college speech fight.

The Inquisition is history’s richest example of this phenomenon. Most people assume the Inquisition, which burned books and prosecuted dissenters over eight centuries, was government censorship. But it was actually the work of an independent international organization whose relationships with local governments varied over time and space.

It began with temporary local tribunals created in the 1100s to battle heresies in France. But since Catholic authorities in Rome struggled to exert control at such a distance, they expanded these local tribunals to make the first permanent Inquisition in 1229. Rome did not have the infrastructure to run such an expansive enterprise, however, so it outsourced the tasks of investigating and arresting heretics to monastic orders, large private organizations with their own funding and established transnational reach (think here of current governments asking tech companies like Google, Twitter and Facebook to censor for them).

Over the next centuries, as the concern over French heresies abated, regional governments realized they could redirect the Inquisition’s now-established apparatus against new perceived enemies. By arranging scapegoat witchcraft trials or accusing political rivals of invented moral crimes, local elites used Inquisition branches to strengthen their interests and silence local resistance.

The most infamous version of the Inquisition came in the 1400s, when the Spanish Crown wanted to purge Jews, Muslims and their descendants in Spain. The Inquisition had not focused on this before but had the necessary infrastructure already in place, so all it took was a massive funding boost from the xenophobic government to birth the Spanish Inquisition, which soon extended its reach from Mexico to the Philippines.

When the Reformation began to challenge Catholic authorities in 1517, Rome once again repurposed the Inquisition, this time to silence Protestant voices and police the spreading art of printing. In 1559, the pope published the first Index of Prohibited Books, targeting primarily Martin Luther, John Calvin and their followers. The next year, the Church ordered that all books in Catholic lands be examined by a censor before they could be printed. The Inquisition was one of several institutions tasked with this.

This led to the Inquisition’s strangest transformation: into a system of proto-copyright. Copyright did not exist in the early days of printing, but when publishers took books to censors as the Church demanded, censors gave them a monopoly license to print that particular book, and make big money selling it. This became the model when England created its first licensing system, which developed into modern copyright. Thus while we consider copyright a way to protect creators’ work, it was actually born from a desire to replicate the Inquisition's ability to control who published what, which let licensers silence political dissent and make money while doing it.

The tactic of repurposing established infrastructure or laws to silence speech didn’t disappear in modern times. Far from it. Modern representative democracies frequently exhibit the same pattern. Around 1900, for example, when New Zealand authorities wanted to censor pornography, the government empowered customs inspectors to do it, repurposing staff already in place to check for contraband. In 1951, when New Zealand’s prime minister wanted to crack down on striking dock workers, he used extra-strong anti-sedition laws left on the books from World War II to declare it sedition to praise or support the strike.

Private sector censorship follows this same trend. In 1951, as McCarthyism flared in the United States, the dean of students at my own university, the University of Chicago, wanted to oust the editor of the student paper for attending a communist youth rally. So he used his control over school club budgets to shut down the paper.

In many ways, this maneuver stemmed from government action: Since the First Amendment kept the U.S. government from passing laws to restrict communist speech, McCarthy and his allies threatened college and university funding to try to force out communist faculty and students, and pressured organizations such as the MPAA to create blacklists. School club budgets, movie studio hiring policies and federal research grants were never intended as tools for censorship, but they became effective ways to silence political dissent.

This history of censorship tells us time and again that any system created to quiet political opponents creates a tool for even harsher censorship down the road. Remembering this has been essential to helping America protect speech through some of its darkest moments. During the same early Cold War moment that produced McCarthy-led repression, America’s atomic energy researchers battled fierce pressure from the government, which wanted them to keep their findings secret, and to police student admissions to exclude students with ties to the Eastern Bloc. While scientists consented to secrecy surrounding projects like the Manhattan Project, and even served as spies, they also pushed back, thinking not in the short-term about the current crisis, but in the long-term about the future dangers of creating mechanisms that would let the state silence research and restrict access to higher education.

In 1948, during the heat of the nuclear arms race and the Red Scare, the New York Times ran a series on “The Problem of Secrecy” by military editor Hanson W. Baldwin. Baldwin interviewed researchers and disseminated their warnings that allowing the government to bind research in secrecy would weaken scientific progress and threaten freedom. Their efforts to preserve the freedom of research helped keep discovery flowing, giving the United States a valuable advantage over the more secretive Union of Soviet Socialist Republics. In fact, the East-West split in scientific culture still weakens Russian science to this day.

Now, as during the Cold War, researchers agree we must look past the current crisis and think of the long-term consequences of government intervention in academic freedom. We should heed their advice. An executive order requiring speech codes — even unrestrictive ones — would let future presidents require very different kinds of speech codes. There is a free speech crisis on college campuses today, but, as Baldwin and our atomic scientists put it in 1948, our problem, like theirs, “cannot be solved by government censorship, no matter in what guise.”