Free Speech Can't Trump a University's Obligation to Truth and Facts
In their coverage of Thursday’s Faculty Senate debate around the presence of Rupert Murdoch and Rebekah Mercer on the Hoover Institution’s Board of Overseers, The Stanford Daily and the Stanford Report offered a number of quotations from President Marc Tessier-Lavigne and Hoover Director Condoleezza Rice that form the basis of this essay.
Murdoch had been criticized for facilitating the spread of dangerous misinformation about the 2020 Presidential election. He had admitted as much under sworn deposition during the defamation lawsuit brought against Murdoch’s Fox News by Dominion Voting Machines. Mercer was criticized because her own media empire has promoted the dangerous “Great Replacement Theory,” a virulently antisemitic, white supremacist doctrine that holds that white people are being “replaced” by Jewish people and other racial groups. This theory has been evoked by various mass murderers in the manifestos. A resolution was presented that “the association of Rebekah Mercer and Rupert Murdoch in all positions of responsibility or honor at Stanford University be terminated due to their promulgation of dangerous, racist, and antisemitic disinformation.”
Although I have strong objections to Mercer, I have chosen to focus on Murdoch because his case allows us to adjudicate whether Stanford does or does not condone misinformation. Based on the test case presented yesterday, apparently it does, via this sleight of hand—misinformation is welcomed at Stanford if it is framed as simply one viewpoint amongst many and protected as free speech. The repetition of exact phrases and terms leads one to believe that Tessier-Lavigne and Rice are reading from the same script:
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The problem is, even if we frame this as a free speech issue, we find that free speech is not completely free. In Brandenburg v Ohio (1969), the Supreme Court established that speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite “imminent lawless action.” Fox’s repeated assertions that the election was “stolen” did in fact incite people to besiege the Capitol, violently attack those attempting to protect members of Congress, and call for the murder of Speaker of the House Nancy Pelosi and the lynching of Vice President Mike Pence.
Ben Smith, writing in The New York Times, reminds us of how Fox’s campaign of misinformation did in fact incite “imminent lawless action”—”High profile Fox voices, with occasional exceptions, not only fed the baseless belief that the election had been stolen, but they helped frame Jan. 6 as a decisive day of reckoning, when their audience’s dreams of overturning the election could be realized.”
It is remarkable to me how quickly, easily, and absolutely Tessier-Lavigne and Rice erase the fact that the “speech” they are so passionately attached to protecting is speech that incited an attack against the democratic process and an assault on the peaceful transfer of power, one of the signal points of pride our country celebrates. Fox’s lies were relentlessly blasted out before, during, and after the Insurrection, but as the comments quoted above indicate, for Tessier-Lavigne and Rice, Murdoch’s case is simply one of a point of view that has to be protected like any other one. When law professor Deborah Hensler expressed concern that Tessier-Lavigne’s statement seemed to indicate “that seemingly anyone, no matter their views, should rightfully be considered a candidate for a university institutional leadership appointment, in the interest of assuring freedom of expression,” Director Rice told her, “You have been a problem this entire time.”