BY HANK REICHMAN

In a recent post to this blog, John K. Wilson took issue with the AAUP’s recommendation “that administrations and elected faculty bodies work jointly to establish institutional regulations that prohibit the surreptitious recording of classroom discourse or of private meetings between students and faculty members.”  The recommendation came in the context of the AAUP’s statement against “Targeted Online Harassment of Faculty,” which made reference to surreptitiously recorded videos of faculty members as a source of online harassment.

Wilson offers several arguments as to why this recommendation is wrong and why such recording should be permissible.  He asks, “How is a tape recording of a professor in class fundamentally any different from a student who takes careful notes on a professor’s comments and publicly reports them?  Yet, I doubt that the AAUP would ever maintain that a student can be punished for taking notes and telling people what a professor has said.”

I too doubt we would do that, although I would not rule out the possibility that such “notes” might well be fraudulent.  But the real point is that recording is quite different from note-taking.  James Comey was certainly within his rights to write up detailed notes on all his meetings with Donald Trump, but it would have been quite a different matter had he shown up to those meetings wearing an unauthorized “wire,” by which the conversation could be secretly recorded.

The problem, of course, is that recordings can be abused in ways that would be far more difficult with notes, which can always be are more easily disputed.  It is true that such recordings have in some cases exposed corruption and hypocrisy (albeit mostly not at universities) and Wilson provides some good examples.  But at the same time the ability to edit and doctor such recordings make them ripe for abuse.  Wilson cites conservative writer Ramesh Ponnuru’s arguments in National Review against such recording, but does not spell them out.  They deserve consideration, however.  Such recording, Ponnuru writes in a response to Dennis Prager (who Wilson quotes),

might interfere with a college’s business model.  A no-recording policy would make it easier to prevent anyone from putting lectures online so that people can get them for free.

Second, snippets from recordings could be taken out of context and used to subject professors to undeserved mockery, criticism, and abuse.  Prager recommends that professors record themselves “to protect themselves against doctored material,” but that would not fully protect them from a social-media firestorm based on incomplete information–which, in case you have not spent much time on the Internet, sometimes happens.

Third, a professor might worry that recording would chill classroom discussion in classes with significant amounts of give-and-take: that students might feel inhibited in asking questions or expressing viewpoints.

Fourth, speaking in front of a group of people, even a large group of people, is just different from speaking in front of a camera for people you can’t see. There is such a thing as weighing your words too carefully, and a professor might think that it would be impossible to avoid doing that if students were recording him.

In the classroom effective instructors frequently play “devil’s advocate,” espousing arguments with which they disagree in order to encourage students to respond.  They may also rephrase arguments made in readings or by students in order to draw out their implicit meanings in ways that might shock.  Recording these out of context will often create an appearance that the arguments so phrased are the instructor’s own.

I would also call attention to Ponnuru’s third point, which Wilson largely ignores.  For surreptitious classroom recordings endanger not only professors but their students as well.  Indeed, I would argue that protecting the right of students to speak freely and openly in class is at least as critical as the protection of their instructors.  In 2011, responding to a secret recording of a labor studies class at the University of Missouri, the AAUP observed: “When students voice their views in class, they should not have to fear that their comments will be spread all over the Internet. When faculty members rightly explore difficult topics in class, they should not have to fear for their jobs or their lives.”

Wilson writes,

The 2003 Report of the AAUP Special Committee on Academic Freedom and National Security in a Time of Crisis called secrecy “fundamentally incompatible with freedom of inquiry and freedom of expression.”  For the AAUP to suddenly demand secrecy in the classroom (and the punishment of students who violate it) seems like a double standard.

But this confuses questions of secrecy in research with the confidentiality of the classroom, not to mention the fact that nowhere in the statement Wilson is contesting does the AAUP demand the punishment of students.  “A ban on secret recordings is absolute, and covers a wide range of circumstances where a secret recording might be the right thing to do,” Wilson argues.  Moreover, he claims, “a ban on secret recordings would likely extend far beyond the classroom, and could be used to punish professors and others who gather evidence as whistleblowers on campus.”  But the AAUP does not recommend a blanket ban (nor any specific punishments for alleged violations), but simply calls on universities to establish policies to prohibit surreptitious recordings in the classroom and in private meetings between professors and students.  The specifics of such policies will inevitably vary.  Hence, nothing in the AAUP recommendation bars an institution from permitting the recording of other public events or meetings or from making clearly defined exceptions to such a rule, e.g. for students with disabilities (although these are not surreptitious) or for recordings under the authority of a legal order.

Wilson then argues that such prohibitions will not be very useful anyway.  “A ban won’t prevent anyone from making false allegations about a professor, since the misremembered allegations of a hostile student are sometimes worse than an actual recording,” he writes.  “Moreover, the overwhelming majority of the targeting of faculty is because of their openly expressed extramural comments, such as tweets.  We cannot be satisfied with a system that protects professors only in the classroom.”  He adds as well that if such recordings are banned, those who make them will just be compelled to post them anonymously, concluding: “The assumption is that professors will never get in trouble for their classroom speech if only they ban secret recordings is naïve.”

These points are true, of course, but hardly comprise an effective argument against the recommended policy.  Certainly no one has offered the naive assumption that Wilson refutes.  It is like arguing that because we cannot always prevent crimes, we should not prohibit them.  There are many ways that a faculty member’s academic freedom may be violated and there are no magic bullets to protect us, but that is hardly a reason to eschew seeking one reasonable protection that might be helpful in some circumstances nonetheless.

Perhaps the most important of Wilson’s objections comes in his response to the position of the AAUP’s 1915 Declaration of Principles:

In the 1915 Declaration of Principles, the AAUP announced about speech by professors in the classroom: “Such utterances ought always to be considered privileged communications.  Discussions in the classroom ought not to be supposed to be utterances for the public at large.  They are often designed to provoke opposition or arouse debate.  It has, unfortunately, sometimes happened in this country that sensational newspapers have quoted and garbled such remarks.  As a matter of common law, it is clear that the utterances of an academic instructor are privileged, and may not be published, in whole or part, without his authorization.  But our practice, unfortunately, still differs from that of foreign countries, and no effective check has in this country been put upon such unauthorized and often misleading publication. It is much to be desired that test cases should be made of any infractions of the rule.”

For many years, I would cite this provision as an example of how outdated the 1915 Statement was.  How ridiculous, I thought, that anyone could believe that a student should be punished for quoting what their professor said in class.  I noted back in 2014, “the belief that a professor’s statements in the classroom are ‘privileged’ is something the AAUP now correctly rejects, I hope.  While there are still concerns about surveillance of what professors say and hidden recordings, the truth is that what professors say should not be a secret.”

Wilson is correct when he admits he “might have been wrong to assume that the AAUP agreed with me about this.”  For the principle that classrooms are sites of privileged communication does still hold and the AAUP, as well as others in the academic community, have not abandoned that view.  [I would also note that the statement does not say, as Wilson argues, that a student must be “punished for quoting what their professor said in class.”]  So, for instance, take this 1985 statement the AAUP issued jointly with twelve other higher education associations in response to the activities of Accuracy in Academia, a project that sent secret observers to classes to “expose” liberal professors, and cited in our 2013 report on “Academic Freedom and Electronic Communications:”

The classroom is a place of learning where the professor serves as intellectual guide, and all are encouraged to seek and express the truth as they see it.  The presence in the classroom of monitors for an outside organization will have a chilling effect on the academic freedom of both students and faculty members.  Students may be discouraged from testing their ideas, and professors may hesitate before presenting new or possibly controversial theories that would stimulate robust intellectual discussion.

The classroom, it should also be added, is a site where the professor’s intellectual property is employed.  Lectures are often scholarly creations — distillations of or trial runs for more sophisticated published work — and these belong to the professor who delivers them.  Whether they may be used in a recording should be their creator’s prerogative, and no one else’s.

Wilson concludes: “In a marketplace of ideas such as the university, enforced secrecy is antithetical to freedom.”  But the university classroom is not a marketplace of ideas in the same way that a public square or even a campus quad may be.  In the classroom there are limits to free speech.  While a professor may permit a student to argue, for instance, in a history class that the Holocaust never happened, she is obliged to make clear that this view is false and may well fail the student who persists in so arguing.  And the professor is not free to teach that the Holocaust is a fiction, even if she could do so in, say, an op-ed piece.  Similarly, a professor may restrict students from using disrespectful or insulting language in class that may be entirely permissible in a dorm room or at a political demonstration on campus.

In a talk at Brown University last fall, Yale Law School Dean and former Committee A Chair Robert Post put it this way:

There are different kinds of freedoms that are related to the two different kinds of missions of a modern university — research on the one hand, teaching on the other.  But in either case, these freedoms are conceptually distinct from the kind of freedom of speech that derives from the political arena, where all are equal and all have to exist for the end of self-governance.  The university is not about self-governance.  The university is about the attainment of education and the attainment of knowledge.

Post argued that

a classroom is a place in which professors must choose specific content types to teach, ignoring others; judge the quality of student ideas; compel students to speak about what they’ve learned; and regulate speech so that the environmental is a respectful and productive one.

“Any teacher knows that students who are threatened or assaulted don’t listen,” he said.  “They don’t learn. So you have to create the conditions under which learning is possible, and you have to regulate the speech in order to advance that goal.”  Again, he said, these requirements of good teaching and learning necessarily violate the rules of the First Amendment.

Wilson concludes:

We cannot embrace a false freedom that only protects professors who keep their actual thoughts away from the public ear, to be expressed solely within the confines of a protected classroom space.  We must instead defend the right of professors to say controversial things, and not depend on a ban upon recordings to keep them safe.  A freedom that depends on suppression is only a phantom of liberty.

But the point is that the classroom is not a site where professors simply express their “actual thoughts.”  It is a site where they teach, employing a variety of discursive tactics, and where students are asked to learn, not just hear or even engage with contrary ideas.  No sane person would argue that a ban on secret recordings will keep the faculty safe from assaults on our academic freedom.  But such a move might well provide some welcome, if limited, protection for both the freedom to teach and the freedom to learn in the classroom.