When in Rome, Don’t Censor Yourself

Renowned civil libertarian and FIRE Board of Advisors member Nat Hentoff has an article in the Village Voice excoriating New York University (NYU) President John Sexton for kowtowing to censorship on NYU's foreign campuses. Here's a bit of what Nat has to say: 

This is how NYU president Sexton responded when Human Rights Watch asked: "Is NYU going to advertise the magnificence of studying in Abu Dhabi while the government persecuted an academic for his political beliefs?"

Did Sexton, a scholar of our First Amendment, answer by quoting back Supreme Court Justice Benjamin Cardozo's classic definition of our identity as Americans: "Freedom of expression is the matrix, the indispensable condition of nearly every other form of freedom"?

Hell, no. Speaking in the (London) Times Higher Education Supplement about his venture in spreading U.S. higher education in the United Arab Emirates, Sexton glibly said: "We shouldn't behave there the same way you behave in Greenwich Village or Piccadilly in London. . . . It's about being sensitive to your cultural environment."

Gee, President Sexton, will the next NYU campus abroad be in Robert Mugabe's Zimbabwe, or maybe, wow, in China? Or North Korea?

First, it's worth noting that Nat's rhetorical question is not-so-rhetorical, as NYU has recently opened a Shanghai campus. More importantly, the broader question is: When an American university opens a satellite campus overseas, to what extent should it protect freedom of expression, as defined and understood in American jurisprudence, on that campus? 

This is not a purely academic question. Hosts of American universities are expanding overseas. Just this week, Bloomberg reported that students at Yale University's new Singapore campus "will be able to express themselves freely on campus." However, the president of Yale's Singapore branch commented that "off campus ... students will have to abide by the laws of Singapore." Furthermore, Yale students have expressed concerns about the new campus, and this statement by the designated Dean of the Yale Singapore campus doesn't help allay these fears: "What we think of as freedom, they think of as an affront to public order, and I think the two societies differ in that respect." That might be a wake-up call to any student worried about expressing themselves while in Singapore.  

While applying the Bill of Rights abroad does raise jurisdictional questions beyond the scope of this post, American public universities are legally bound by the First Amendment, even when operating campuses on foreign soil. At a satellite campus of a public American university with degree-conferring authority stateside, any adverse disciplinary action (such as expulsion) based upon First Amendment-protected expression abroad is within the jurisdiction of American courts. Thus, for example, a University of Nevada, Las Vegas (UNLV) administrator in Las Vegas cannot initiate a college disciplinary hearing in Las Vegas to investigate blasphemy charges levied against a student that had studied on the UNLV campus in Singapore the previous semester. Such a student might have a cognizable constitutional claim against UNLV. Plainly, if a public university has a choice between violating the First Amendment or having a satellite campus abroad, the First Amendment should win each time. Public universities simply do not have the option of bargaining away their students' rights. (A further question is to what extent a university has an affirmative obligation under the First Amendment to publicly defend its students when their expression is stifled by host government abroad.) 

American institutions of higher education are well-regarded across the globe, enjoying significant clout and prestige that they can and should bring to bear to defend free expression on their own campuses in foreign countries. While universities may not have a legal obligation to spend money or political capital changing local laws, they have a moral obligation to defend the values of free inquiry and expression when their students' expression is on the line.

When a university such as NYU or Yale opens up a campus outside the United States, there are a host of legal and political issues to address: taxes, visas, construction, marketing, investment, employment, and so forth. Universities negotiating to open foreign campuses may not be able to do so if they don't make assurances about the behavior of their students and their compliance with local laws. And going back on these assurances once the campuses open could lead to practical problems for the universities. In retaliation for the unpopular speech of its students, university professors, administrators, and students could be denied entry to the foreign country. University programs and construction could be stymied. So it is understandable that universities might be inclined to grease the wheels by failing to grant their students and professors abroad the same speech rights to which they are entitled on the American campus. 

But is it really acceptable for an American university to demand its students be complicit in other moral wrongs as a condition of attendance? If South Africa had demanded compliance with racially discriminatory hiring practices during the apartheid era, one would have rightly expected any American university to decline to open a campus there that complied with those practices. Is free expression less important? After all, one of the defining purposes of a university is to foster and promote free inquiry. What business does a university have setting up a satellite campus that violates that core mission?

While it might make things more difficult or inconvenient for the administrators tasked with starting campuses abroad, the moral question is not a close one: Universities should refuse to open up First Amendment-violative campuses. To be on the surest moral and legal footing, American universities abroad should ensure that the same speech protections they guarantee on U.S. soil apply on their foreign campuses. Universities are not legally bound to spend political capital defending students that run afoul of local laws while off campus, but they are legally and morally bound not to aid foreign censorship by disciplining students on behalf of foreign governments. While an American student studying abroad cannot expect that he can break local law, he should not have to worry that his university will be the one putting the thumbscrews to him by initiating disciplinary proceedings.