Alumni Profile – Nadine Strossen, former President of the American Civil Liberties Union

Q. Your forthcoming book “Free Speech: What Everyone Needs to Know” is one of your many publications on the subject. Can you describe the evolution of your ideology and what shaped your argument in this book?

A. I have always had a very strong belief that I, along with every other individual by virtue of our humanity, have a right to self-expression, to freedom of conscience and thought, which are the same beliefs reflected in the Declaration of Independence. I was delighted to learn that there are organizations dedicated to bringing those ideals to reality. The evolution has been from having a belief in the ideal of free speech to being empowered to do more to help make that ideal into a reality.

I am completely committed to questioning everything, even the most fundamental principles; therefore, I’m constantly grappling with opinions that are different than mine on free speech. The more I learn about the details of First Amendment doctrine, the more respectful I have become of how these principles accord with common sense; they empower the government to outlaw the speech that is the most dangerous while barring the government from engaging in the censorship that is as dangerous.

That’s why I decided to write my book. I’ve found that the more people understand about the nature of free speech principles and are aware of the history that gave rise to them, the more supportive they become. The book is written in a very user-friendly format as question and answer, and is influenced by my extensive experiences as a speaker engaging in audience Q&A. Since I wrote my prior book – also about free speech issues – in 2017, I have been making more than 200 public presentations per year before diverse audiences, all over the U.S. and also in many other countries. I’ve been hearing the most burning questions people have about free speech, and the most serious arguments they can make against it, so I could sit down at my computer and put those conversations down on paper.

Q. Growing up in an immigrant family, your father being a Holocaust survivor and your mother’s father a protester during World War I, your role as an American civil liberties activist is very well informed. How does your role as an activist inform your work as a lawyer?

A. Before I became the president of ACLU, I was very active there and in Human Rights Watch. As an activist, I was more interested in addressing major issues through developing general policy than in litigating specific cases for the organization. I did a lot of congressional testimony, and the main thing I have done as an activist is to speak both to the media and to various public forums. Rather than litigating individual cases as a lawyer, I was advocating more generally in the court of public opinion. The one exception is when I was at S&C, where I wrote amicus briefs for the ACLU in US Supreme Court cases. S&C was always very supportive of my pro bono efforts. When I was a senior associate, they would find junior associates to work with me on these briefs, and it was really an excellent experience to get to work on important constitutional law cases. Beyond that I would say the legal knowledge that you acquire and general skills that you develop as a litigator are very transferable to other forums. I have no doubt that I am a more persuasive advocate before Congress or a national TV audience as a result of the litigation skills that I developed as a practicing lawyer.

Q. A theme of your writing focuses on the distinction between protected speech and punishable speech. In your opinion, how have current events changed the landscape of this debate?

A. Current events have changed the details but not the principles. There have been timeless, eternal debates within the mind of each individual as well as the governing and cultural institutions of every society about how to strike the balance between individual liberty and community concerns. It’s a balance that is reflected in the United States Constitution. On the one hand, we are a democratic republic with officials elected by the majority in a particular community, accountable to those majorities. But the founders in their wisdom created a government that is not a complete majoritarian democracy. They acknowledged that there are some rights that are so fundamental that no majority, no matter how large, may deprive a minority of those rights, no matter how small or how despised the minority might be. All that has changed over time and in different periods of history are the particular factual contexts in which that basic fundamental tension presents itself. Sometimes even the factual scenarios are identical. The principal founder of the ACLU, a social worker named Roger Baldwin from St. Louis, MO,  said something about this that is still one of the ACLU’s mottos: “No fight for civil liberties ever stays won.” Let’s take hate speech, for example. The ACLU’s most famous case ever goes back to the late 1970s in Skokie, IL – which had a large Jewish population, including Holocaust survivors – when we came to the defense of the free speech rights of Neo-Nazis who engaged in hate speech. And then in the 1980s campus hate speech codes emerged, and we went to court to strike those down. More recently, we have seen college and even law students disruptively protesting against invited speakers whose ideas they consider hateful. I think for each generation and each individual, we should keep raising questions and revisiting all these issues.

Q. Another theme of your writing discusses the intrinsic connection between speech-protective principles and racial justice. What are some ways you feel individuals can contribute to fostering these causes?

A. It’s especially sad to me to see so much skepticism on the part of those who have been arguing, an argument that goes back at least to the 1980s, that we have to choose between equality, diversity, inclusion, individual dignity versus free speech and individual liberty. I continue to welcome the opportunity to reexamine the interrelationship, and I continue to be convinced that freedom of speech is the absolutely essential prerequisite for advancing equality of any sort, including racial justice. Censorship, no matter how well intended, is inevitably going to do more harm than good to other human rights causes. Every anti-hate speech law or anti-disinformation law has always been and continues to be disproportionally enforced against minority views or minority speakers. And that’s no coincidence. As I said earlier, our nation’s founders intentionally designed constitutional guarantees such as the First Amendment to protect minority groups from the inevitable “tyranny of the majority” in a democratic system. That’s why I find it puzzling that advocates of restricting free speech say that that’s going to somehow advance justice on behalf of minority groups.

Q. How did your experiences at S&C help prepare you for your endeavors beyond the Firm?

A. While I was at S&C, there was completely generous support for pro bono projects. Michael Cooper was in charge of the Firm’s pro bono practice, and he was wonderful. There was never any objection in terms of the time commitment or the perspective that I would be advocating. My main pro bono activities were on behalf of the ACLU. The Firm recognized that it was an important personal benefit to offer to lawyers to have the sense of satisfaction that comes from using your legal skills not only on behalf of the Firm’s clients, which was very satisfying, but also on behalf of causes and principles that were personally important to the individual lawyer. I really appreciated that. The Firm also recognized quite accurately that these were opportunities for sharpening and developing legal and advocacy skills one might not be able to develop through one’s billable work.

Q. What has been most rewarding about your work as Professor Emerita at New York Law School? Did you always want to work in academia?

A. I never wanted to work in academia! I went to law school only because I was so eager to practice law. I know that Harvard Law School has changed enormously since I graduated in 1975, but back then, there were no faculty members who had any substantial practice experience at all, and there was only a very limited clinical program. I was so happy to escape from academia and begin my life as a practicing lawyer. After I had left S&C and gone to another small firm, a law school classmate of mine who was teaching at NYU Law School let me know they had an opening in their civil rights clinic. It was really wonderful, because I would be able to provide law students with the kind of experience that I had never had, while being able to work on human rights cases fulltime. Then one of the faculty members at NYU immediately asked me to co-author an article with him about an important new constitutional law issue on which I had worked in my ACLU capacity. I found to my surprise that I loved working on the article,  and that it was very similar to writing a brief, but maybe even more influential. I published five law review articles in my first year. Then I was given an opportunity to teach some standard classroom courses. I really loved that, so I thought I would pursue the possibility of becoming a constitutional law professor, which New York Law School offered to me; within one semester, I had tenure and full professor status. I have loved teaching there for many reasons, one of which is that it truly makes a difference in the lives of the students. At New York Law School, we get many people who didn’t have such great undergraduate opportunities, many of whom are first generation in their families to go to college, let alone law school, many of whom are from immigrant and refugee backgrounds, and many of whom are working their way through law school in various occupations and going to law school at night. They were always prepared for class even if they had been working all weekend between their jobs and families. I’m still in contact with so many former students at NYU and New York Law Schools. I feel very lucky to have had the opportunity to meet all of them.

Q. What advice would you give to current S&C lawyers who may be interested in following a similar path into activism?

A. I would say first and foremost, seek out and use every opportunity that exists. There are organizations that would be delighted to take advantage of whatever spare time you have and whatever activities you want to engage in. We’ve been talking about litigation because that’s what I did, but there are opportunities for lawyers who are doing transactional work as well to contribute their expertise to public interest organizations that need help with incorporation documents, and other aspects of shaping and promoting their missions. In addition to specific lawyering-type activities, lawyers also have special analytical and articulation abilities, talents that make them very well equipped to rise in leadership ranks in other organizations. When I was a young lawyer, I wasn’t aware of these general benefits of a legal education and practice experience, but other people are certainly aware of them, and eager to put them to good use.

Examples of important contributions that S&C lawyers can make are provided by the two S&C lawyers with whom I’ve recently had the opportunity to work in two significant, relatively new academic freedom organizations. Tom White is the chair of the Legal Advisory Council for the Academic Freedom Alliance, founded in 2021. John Evangelakos is the chair of the Harvard Alumni for Free Speech group. There definitely are opportunities, and you should seek them out and pursue them.