U.C. Berkeley Chancellor Nicholas Dirks Gets Free Speech Very Wrong

This is U.C. Berkeley's Chancellor, Nicholas Dirks.

Oh hai let us talk "free speech" lol.

Oh hai let us talk "free speech" lol.

Yesterday Chancellor Dirks sent an email about free speech to Berkeley students, faculty, and staff. In today's competitive publishing environment it is astonishingly difficult to distinguish yourself as an academic by being wrong about free speech, but Chancellor Dirks is equal to the challenge. His email is so very bad on every level — legally, logically, rhetorically, and philosophically — that it deserves scrutiny.

Iforgothowtospeech

Let's take Chancellor Dirks' email bit by bit.

Dear Campus Community,

This Fall marks the 50th anniversary of the Free Speech Movement, which made the right to free expression of ideas a signature issue for our campus, and indeed for universities around the world.

So far, so good. Berkeley was the center of the campus free speech movement, and deserves recognition for it.

Free speech is the cornerstone of our nation and society – which is precisely why the founders of the country made it the First Amendment to the Constitution.

OK. Yes, free expression is the cornerstone of American society. The "founders of the country made it the First Amendment" is awkward and imprecise writing — the founders recognized the rights to free expression and freedom of worship and protected them in what became the First Amendment. But I guess we can let that pass.

For a half century now, our University has been a symbol and embodiment of that ideal.

Ehhh, sort of, partially. Berkeley's speech codes are not unusually bad. As you can see from the Foundation for Individual Rights in Education's page on them, Berkeley has some chillingly ambiguous speech policies, and has had its share of problematical censorship incidents. Regrettably, a mediocre free speech record does not distinguish Berkeley from the mainstream of American academia.

As we honor this turning point in our history,

Wait. What turning point? Is an anniversary a turning point? We haven't established — or even stated — that Berkeley is facing a turning point. This is a null-phrase.

it is important that we recognize the broader social context required in order for free speech to thrive.

Wuh-oh.

"Context" is the mother of prevarication.

The only "context required" for free speech to thrive is a society governed by the rule of law, educated about its rights and willing to enforce them.

For free speech to have meaning it must not just be tolerated, it must also be heard, listened to, engaged and debated.

No.

First, observe the hidden premise Chancellor Dirks is presenting — that free speech must have "meaning." This implies that speech that does not have "meaning" — as defined, one presumes, by Chancellor Dirks or a committee of people like him — then it is not "free speech," and perhaps is not entitled to protection. Dirks is smuggling a vague and easily malleable precondition to free speech.

There is no such precondition. Our rights are not limited by some free-floating test of merit or meaning. As the United States Supreme Court recently said:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178, 2 L.Ed. 60 (1803).

Moreover, nobody need listen to, engage, or debate speech for it to be entitled to protection. If nobody wants to read, engage with, or debate the points I make in this post, I am still entitled to make them. Chancellor Dirks is implying that speech must meet an idealized model to be entitled to full protection. It doesn't. Thank goodness — because then the people who control the model control the speech.

Let's move on to his next proposition.

Yet this is easier said than done, for the boundaries between protected and unprotected speech, between free speech and political advocacy, between the campus and the classroom, between debate and demagoguery, between freedom and responsibility, have never been fully settled.

No. Absolutely not.

Chancellor Dirks is using a variation on a common censor's trick — saying "well, the First Amendment doesn't protect all speech, and sometimes the line is blurry" to justify broad restrictions. This is akin to me walking up to you, punching you in the face without warning, and saying "well, not all violence is prohibited. Under some circumstances it is permissible."

Yes, the First Amendment doesn't protect everything. Yes, not every possible First Amendment question has been resolved. Yes, sometimes First Amendment analysis is complex. But most often we deal in questions that have conclusive answers. Universities would like to pretend otherwise, and strive for ambiguity where there is none, but most campus speech issues are easily resolved by anyone sincerely concerned with the rule of law. Can students hand out the United States Constitution outside of an arbitrary "free speech zone? Yes. Can public schools punish students for mere crass insults? No.

Let's turn back to some of the distinctions in that sentence from Chancellor Dirks.

between free speech and political advocacy

This proposed distinction is a sign of civic illiteracy. Political advocacy is not distinct from free speech. Political advocacy is the apotheosis of free speech. "Speech by citizens on matters of public concern lies at the heart of the First Amendment, which 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,'” as the Supreme Court has said. Chancellor Dirks' proposed distinction is particularly galling because the Berkeley free speech movement itself was a rejection of the argument that political advocacy was unsuited for the campus.

between debate and demagoguery

There is no "demagoguery" exception to the First Amendment. Once again, Chancellor Dirks is suggesting that expression must meet an idealized idea of speech to be protected. That's wrong. "Demagoguery" might fall outside the First Amendment, but only if it satisfies well-established exceptions — such as speech posing a clear and present danger of imminent serious lawless action.

freedom and responsibility

Advocates of "contextual" views of the First Amendment like to talk about how rights are balanced by responsibilities. But the rule of law does not support this rhetorical flourish. The Constitution imposes responsibilities on the government and rights on the people. There may be a moral responsibility to speak decently, but that responsibility is enforced by the marketplace of ideas, not by the state. Nothing about Fred Phelps' speech was morally responsible, but it was protected nonetheless.

As a consequence, when issues are inherently divisive, controversial and capable of arousing strong feelings, the commitment to free speech and expression can lead to division and divisiveness that undermine a community’s foundation.

This is very badly written. More importantly, it is legally incoherent and misleading. If a community is build upon the rule of law and the rights of the people, evil speech does not threaten its foundations. If the state promotes constitutional values and citizens respect them, it is not divisive to recognize that we can condemn cruel or hurtful speech without banning it. It is only when the state arrogates to itself the right to pick and choose what speech is permitted — to "balance" the interests of the speaker and the interests of the community — that the foundations begin to crumble. That's because such a balancing is inherently inconsistent with a free and self-governing people.

This fall, like every fall, there will be no shortage of issues to animate and engage us all. Our capacity to maintain that delicate balance between communal interests and free expression, between openness of thought and the requirements and disciplines of academic knowledge, will be tested anew.

The rule of law permits no "delicate" balancing between "communal interests" and free speech. As the Supreme Court noted in the quote above, the framers struck that balance in recognizing and protecting the right of free speech in the First Amendment. And though the academy may require some limits on speech to operate, no government employees enjoy such robust speech protections as university employees.

Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so,

No. Absolutely not. Flat wrong.

Chancellor Dirks may be alluding to the statutory right to an education free of harassment. But that statutory right is narrow and yields to the strictures of the First Amendment. Students have a right to an environment free of "harassment" — but for these purposes harassment means "abuse sufficiently severe, pervasive, or persistent such that it denies or limits the student’s ability to participate in or benefit from the school’s program." It does not mean "words that hurt my feelings." And a good thing, to. The University of California has demonstrated that, given the opportunity, it will silence political speech on the grounds that it makes people feel "unsafe." Nor is there any right to "feel respected." You can't confer that right on someone without depriving everyone else of their right to free expression and free association. Does a student who believes in the inherent inferiority of some races enjoy a right to "feel respected?" No. Only rights are entitled to respect, and respect is expressed not through affirming words but through the rule of law.

and this in turn requires that people treat each other with civility.

No.

Civility is an admirable value. It is right and fit that we ask it of each other and impose social consequences upon the uncivil. But speech need not be civil to be entitled to robust protection. Berkeley's free speech movement did not seek to protect civil speech; the Vietnam war was not an occasion for civility. Paul Robert Cohen's "Fuck the Draft" jacket was uncivil, but was protected by the First Amendment nonetheless. There is nothing civil about burning the flag or picketing a funeral or being a racist, but those things are protected.

Simply put, courteousness and respect in words and deeds are basic preconditions to any meaningful exchange of ideas.

Here you see Chancellor Dirks weave his tricks together. Only "meaningful" speech is worthy of protection, and only "courteous" speech is meaningful. Therefore "discourteous" and "disrespectful" speech may be punished. What speech will be deemed too discourteous or too disrespectful? That depends upon the political preferences of the people administering the rules. If those in power like your speech, it will be protected. In fact it may be protected beyond the requirements of the First Amendment. Witness, for example, a University of California school dealing with a professor who assaulted protestors and took their sign by condemning the protestors. But if those in power don't like your speech — well. Think you have the right to burn the flag, because the United States Supreme Court says you do? That depends on the flag, friend. If your public university favors the ideas expressed in the flag you may find yourself disciplined.

In this sense, free speech and civility are two sides of a single coin – the coin of open, democratic society.

This statement is arguable if "this sense" means "as an idealized vision of speech to which I'd like to encourage people to aspire." As a statement of rights, it's empty and wrong. Civility is not weighed equally with free speech. It is not a prerequisite of free speech. It is a value, an idea, to be tested in the marketplace of ideas with other vales. Free speech is often uncivil. Lenny Bruce was uncivil. "Have you no sense of decency, sir? At long last, have you left no sense of decency?" was uncivil. "I have not yet begun to fight" was uncivil. "I called you naughty darling because I do not like that other world" was uncivil. "Now, if it is deemed necessary that I should forfeit my life for the furtherance of the ends of justice, and mingle my blood further with the blood of my children and with the blood of millions in this slave country whose rights are disregarded by wicked, cruel, and unjust enactments, I submit; so let it be done!" was uncivil. The equality of all humans regardless of station has always been a deeply uncivil idea, because "civil" usually means "that which makes me comfortable." Comfortable people paint nice watercolors but otherwise don't accomplish much.

Insofar as we wish to honor the ideal of Free Speech, therefore, we should do so by exercising it graciously.

Pardon my incivility, Chancellor Dirks, but I don't give a shit whether you wish to honor an ideal; I care whether you will comply with the law. If you don't, you should be compelled to do so at the point of a lawsuit. You will find litigation rather uncivil.

This is true not just of political speech on Sproul Plaza, but also in our everyday interactions with each other – in the classroom, in the office, and in the lab.

Sincerely,

Nicholas Dirks
Chancellor

What should we fear more — that we might encounter rude people in the classroom, the office, and the lab, or that the state aspires to regulate our interactions in all of those places?

I don't fault Chancellor Dirks for calling for civility. It is a good thing, a decent thing, a moral thing, to treat people as we would be treated. But it is not the role of the state — or its appointee, Chancellor Dirks — to police our speech to compel it.

Perhaps you think it's frivolous to subject a casual email to such scrutiny. Perhaps you think it's like proofreading your grandchild's thank-you note. Chancellor Dirks only meant to offer a warm and friendly aspirational statement, not a set of rules, you might say.

But like Chancellor Dirks, I care about context. His email doesn't come in a context in which free speech is safe. Rather, it comes in the context of the modern American university, at which free speech is increasingly threatened. Those threats come not just from the censorious appetites of university officials, but from the indifference of a generation of students. Chancellor Dirks isn't just asserting limits on speech that find no support in the law. He's encouraging the students under his tutelage to view speech as something the community should "balance." He's striking at the heart of free speech, which is how the community values it. As Learned Hand said:

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.

People like Chancellor Dirks don't just seek to raise a generation of civil Americans. They seek to raise a generation of Americans who look to the state to tell them what speech is acceptable. This is vile and shameful.

Last 5 posts by Ken White

Comments

  1. Craig says

    As I recall, the Free Speech Movement was driven by students, not administrators. Apparently Berkeley's administrators STILL don't get it.

  2. jaxkayaker says

    As we honor this turning point in our history,

    Wait. What turning point? Is an anniversary a turning point? We haven't established — or even stated — that Berkeley is facing a turning point. This is a null-phrase.

    No, an anniversary isn't necessarily a turning point, and that's not what is implied. Rather, the anniversary is an occasion to note and honor the turning point in our history: to wit, the campus free speech movement. I don't believe that's a null phrase, I believe you've misunderstood that phrase. No disagreement with anything else you've written herein, though. Good stuff, right on the money. Academic administrators too often lose sight of an important function of academia: the free exchange of ideas. It gets in the way of doing whatever they want without challenge.

  3. Levi Roth says

    I agree with some of your criticisms, but much of how you read Dirks' email strikes me as uncharitable. Many of what you identify as poor arguments and rhetorical tricks in defense of censorship only appear that way because, as far as I can tell, they aren't meant in defense of censorship at all. They are exhortations to be respectful, not threats that disrespectful speech will be suppressed. For example:

    First, observe the hidden premise Chancellor Dirks is presenting — that free speech must have "meaning." This implies that speech that does not have "meaning" — as defined, one presumes, by Chancellor Dirks or a committee of people like him — then it is not "free speech," and perhaps is not entitled to protection. Dirks is smuggling a vague and easily malleable precondition to free speech.

    I don't see any suggestion that free speech needs to have "meaning" in order to be protected. Instead, the suggestion is that a community – particularly an academic community – with a healthy attitude towards free speech is one that not merely tolerates free speech, but also critically engages with it.

    And given that, according to the passage you're discussing, free speech "must … be heard, listened to, engaged and debated" in order to be "meaningful," it's unlikely that the "meaning" Dirks has in mind is supposed to be a precondition for speech to be protected. Otherwise the conclusion would be that speech that isn't "heard, listened to, engaged and debated" isn't protected, which is a view I doubt anyone is likely to endorse.

    Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so,

    No. Absolutely not. Flat wrong.

    Chancellor Dirks may be alluding to the statutory right to an education free of harassment. But that statutory right is narrow and yields to the strictures of the First Amendment. Students have a right to an environment free of "harassment" — but for these purposes harassment means "abuse sufficiently severe, pervasive, or persistent such that it denies or limits the student’s ability to participate in or benefit from the school’s program." It does not mean "words that hurt my feelings." And a good thing, to. The University of California has demonstrated that, given the opportunity, it will silence political speech on the grounds that it makes people feel "unsafe." Nor is there any right to "feel respected." You can't confer that right on someone without depriving everyone else of their right to free expression and free association. Does a student who believes in the inherent inferiority of some races enjoy a right to "feel respected?" No. Only rights are entitled to respect, and respect is expressed not through affirming words but through the rule of law.

    Again, I don't see any suggestion that people have a right to feel "safe and respected," or that speech needs to be suppressed for the sake of that right. What the passage you've quoted says is that people won't exercise their rights as much if they think it would be unsafe to do so.

    and this in turn requires that people treat each other with civility.

    No.

    Civility is an admirable value. It is right and fit that we ask it of each other and impose social consequences upon the uncivil. But speech need not be civil to be entitled to robust protection.

    And again, there's nothing at all in this passage to the effect that speech needs to be civil in order to be entitled to protection. All that's being claimed is that people will not feel "safe and respected" if they are not treated with civility.

  4. Rick says

    As the United States Supreme Court recently said:

    The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison,

    I thought what was being was entirely too sensible for the current Supremes and I for real lol'd at "Marbury v. Madison."

    because then the people who control the model control the speech.

    Bingo.

  5. Levi Roth says

    I think the "turning point" in question is what's being "honored," the Free Speech Movement. You don't "honor" an anniversary; observing an anniversary is what honors the original event.

  6. Scott Pilutik says

    Fantastic shit-kicking of a poorly considered sermon. Even the subject line is foreboding, equating civility & free speech. If nothing else, at least reverse the order. Speaking of context, I have to imagine that Dirks' letter is responding to some ongoing campus debate, or some incident that happened the previous semester, because otherwise it seems to come from nowhere. And if that's the case, I'd be curious to know how Dirks handled it at the time. If I was going to give him the benefit of the doubt, I might suggest (I know nothing about Dirks and the situation at Berkeley) that Dirks wrote this (far too) casually and never stopped to consider the import of his words… in which case, uh, yeah, what's he doing in that job?

  7. TomB says

    And again, there's nothing at all in this passage to the effect that speech needs to be civil in order to be entitled to protection.

    Except for this part:

    Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so, and this in turn requires that people treat each other with civility.

    requires = needs

  8. Levi Roth says

    And how does that conflict with what I said? The mere fact that Dirks used the word "requires" doesn't entail the specific claim that speech must be civil in order to be protected.

  9. Kevin says

    I notice that Chancellor Dirks has a twitter account (@nickdirks) with a fair number of followers, but 0 tweets. I wonder if he deleted his tweet history when this story started going viral last night. No record of it on archive.org unfortunately.

  10. albert says

    @Ken,
    Dirks said:
    "…For free speech to have meaning it must not just be tolerated, it must also be heard, listened to, engaged and debated…."
    .
    I believe he meant: 'For the _idea_ (or concept) of free speech to have meaning it…'.
    OK, this is wrong, but it's not as bad as your interpretation.
    .
    Dirks: "…Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so,…"
    .
    Personally, I wouldn't feel 'safe and respected' if I joined a protest march, knowing that I'll get the shit kicked out of me by the police. _Many_ others would march anyway. (Kudos to them!)
    .
    Very poorly worded, and not well thought out. Should have been vetted by the legal dept. as well.
    .
    @Scott Pilutik
    "…What's he doing in that job?…". Earning $487,000 a year, that's what. Also see:
    (http://mondoweiss.net/2012/12/chancellor-falsehood-criticizing.html) If true, it might explain why he's a little gun-shy regarding free-speech issues…
    .
    I gotta go…

  11. TomB says

    And how does that conflict with what I said?

    It conflicts in that he says exactly what he wrote, otherwise, why write it? You said he didn't say anything that required speech to be civil in order to gain 1st Amendment protection, yet that is almost direct quote as to what he actually wrote.

    The mere fact that Dirks used the word "requires" doesn't entail the specific claim that speech must be civil in order to be protected.

    Even when he uses the WORD "specifically"?

    I know this is a hopeless cause but read that statement again. And look at the bolded words:

    "Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so, and this in turn requires that people treat each other with civility."

    IOW

    "Specifically the only way we have 1st amendment protection is if we treat each other in a civil way."

    He left no wiggle room, that is as direct a statement as a person can make.

  12. says

    Except for this part:

    Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so, and this in turn requires that people treat each other with civility.

    requires = needs

    Well no. "Requires" in the sense of "needs for X to happen" is not the same as "requires" in the sense of "must on pain of disciplinary action."

  13. says

    IOW

    "Specifically the only way we have 1st amendment protection is if we treat each other in a civil way."

    He left no wiggle room, that is as direct a statement as a person can make.

    No, really. That's a possible meaning, but the much more obvious one is about possibility, not protection. Like: "I can only go to the meeting if I've eaten first." That's not someone forbidding me, it's just a condition that does or doesn't make going to the meeting possible.

    ETA: But, at the same time, it could mean that I'm allowed to go only if I've eaten first. But that's not the most obvious meaning.

  14. TomB says

    Well no. "Requires" in the sense of "needs for X to happen" is not the same as "requires" in the sense of "must on pain of disciplinary action."

    Same thing. It's still putting a constraint of free speech that shouldn't be there. Civility is in no way "needed for free speech to happen".

  15. says

    I'm going to nitpick a little further.

    "Free speech is the cornerstone of our nation and society – which is precisely why the founders of the country made it the First Amendment to the Constitution."

    Amendment order is not a ranking, and the first amendment was actually supposed to be the third amendment when originally proposed. The original first two failed, but one of them later became the 27th amendment.

  16. Anglave says

    Ken,

    While I appreciate your vigorous defense of free speech, and I don't intend to argue with the thesis of your post, I personally didn't read Mr. Dirks' statements the same way you did.

    He sounds vague and confused, which is dangerous and deserves to be called out. But I don't get the sense that he would defend the positions you've attributed to his words.
    .
    The whole point of speech, of course, is to communicate.
    If we take his meaning of the phrase "free speech" to simply mean "communication" — in the sense of actual exchange of information and ideas (even uncivil ideas), we get:

    it is important that we recognize the broader social context required in order for meaningful communication to thrive.

    I get the impression this may come closer to Mr. Dirks' intent.

    Similarly:

    For communication to have meaning it must not just be tolerated, it must also be heard, listened to, engaged and debated.

    It's possible that he's trying to say that speech in a vacuum is meaningless; in order for speech to have an effect it must be heard and engaged with. This isn't to say that screaming profanity into an empty room wouldn't be protected speech, it simply wouldn't be very effective as communication.
    .
    Then, admittedly, he says some worrying things which I think you've properly addressed. It's my opinion that:

    … when issues are inherently divisive, controversial and capable of arousing strong feelings…

    is when our right to free speech is most important and must be most vigorously defended. I'm not convinced from his letter that Mr. Dirks shares this viewpoint.
    .
    I do read his closing as a call to civility in discourse. I think he's trying to say that communication works best when executed with good manners, rather than discourtesy, personal attacks, etc. IMO that's a fair request for a university administrator to make of the "campus community." I just wish he wouldn't mix it up with freedom of speech and first amendment issues.
    .
    Mr. Dirks comes across (to me) as confused on the topic of lawful free speech and the protections of the first amendment. That's a dangerous thing for a man in his position, certainly. Thanks for shining a light on it.

    It's possible that his letter is cleverly crafted propaganda, an attempt to assert the need for a "delicate balance between communal interests and free expression", to plant the idea that disruptive speech is not protected. It strikes me, however, much more like the product of muddled thinking and careless wording.

    I'd like to call for Mr. Dirks to clarify his meaning and visibly stand behind the strongest interpretation of the first amendment, as we honor this turning point in our history.

  17. TomB says

    No, really. That's a possible meaning, but the much more obvious one is about possibility, not protection. Like: "I can only go to the meeting if I've eaten first." That's not someone forbidding me, it's just a condition that does or doesn't make going to the meeting possible.

    "Specifically, I can only go to the meeting if I do not feel hungry, and this in turn requires that I eat prior to leaving."

    Using his exact words I've made it impossible for you to go to the meeting without eating.

  18. TomB says

    TomB, yes, but naming an impossibility is not the same thing as naming a prohibition.

    This is quite tedious.

    "Specifically, you can only go to the meeting if you do not feel hungry, and this in turn requires that you eat prior to leaving."

    Using his exact words I've prohibited you from going to the meeting without eating.

  19. Rick says

    TomB,

    "Specifically, I can only go to the meeting if I do not feel hungry, and this in turn requires that I eat prior to leaving."

    Using his exact words I've made it impossible for you to go to the meeting without eating.

    Well, it's more a case of "Specifically, you can only go to the meeting if you do not feel hungry, and this in turn requires that you eat prior to leaving.”

    Tyrants never restrict their own rights, only others'.

    (edit: damn it, I didn't refresh before posting so I duped your last. Oh well.)

  20. earlymoderngirl says

    It would help to put this email in context: Dirks, like the administrators at Penn State, is responding to the controversy at the University of Illinois, where the Chancellor refused to forward the contract of Steven Salaita to the board of trustees following his "uncivil" tweets about Israel's actions in Gaza this August. Salaita, a Pelestinian-American and noted critic of Israel, was offered a tenured position in the department American Indian Studies, and was already scheduled to teach classes when Chancellor Wise made the decision–without consulting the hiring department– to not hire, or unhire (the law seems to be a bit unclear here) Salaita, based on a campaign by wealthy donors and some alumni and students. As with most actions take by the U of I's administrators, this has blown up in their faces. Wise is being accused of unethical and illegal actions, and more and more departments are holding votes of no confidence in her, President Easter, and the board of Trustees. There's also a full-scale academic boycott of the University, and at least one conference has already been cancelled.

    Wise says it's an issue of civility and professionalism, and implies that Salaita's tweets are anti-Semitic. Some donors, alumni, students, and faculty (notably, Carey Nelson, professor emeritus of English and former head of the AAUP) agree. Others hold that Wise has trampled the principles of academic freedom and shared governance and warn that Wise's notion of "civility" is too vague a standard upon which to judge academic speech. The Chronicle of Higher Education has pretty full coverage, although the story's been picked up by major national news sources as well (like the NY Times, WAPO, Salon, Huffpo). Obviously, there's a lot more to the issue than I can summarize here (although if you all wanted to weigh in on the legality of Wise's decision, I would be interested to hear your take).

    In any case, all of these other calls for civility in academic discourse, especially as they're coming from other state schools which have to worry not only about academic freedom but also the first amendment, seem pretty well-timed to act as support for UIUC's administration. Even if they're arguably responding to a more local issue.

  21. anne mouse says

    Ken, thanks for shining a light on this subject.

    It's interesting how the comments are divided between those who wish to divine a benign intent behind Dirks' muddled language, and those who (like Ken) see this email as part of a cynical ploy or at least as dangerously misleading. A generous reading is that he *wants* speech to "thrive" and "have meaning" (whatever that means) and is exhorting students to create the conditions he thinks are necessary for that – as an "idealized vision", in Ken's words. Nowhere does he say that speech that fails to "thrive" or "have meaning" would not be subject to First Amendment protection.

    However, he didn't just say speech, he said "free speech", and that's a legal concept. "For free speech to have meaning…" sure sounds like an attempt to redefine "free speech", which would be ludicrous. Then there's the nonsense of tossing the distinctions "protected vs unprotected", "free speech vs (!) political advocacy", and so on, into one great concept salad. This sure reads like a cynical attempt to confuse the reader. Finally, the idea that we can only "exercise our right to free speech" if we "feel respected" and exercise "civility" is, as Ken amply demonstrates, completely wrong.

    I do wonder whether Ken would have the same reaction if the chancellor of, say, Harvard (i.e., a privately-run and privately-financed university, albeit one reaping huge revenues from government-subsidized student loans) had penned an identical memo. What is the point at which the principle of "it's my living room, I'll set the rules" comes into play?
    (Yeah, I know there's case law on this I could go read, but I'm feeling lazy.)

    Finally, dear commenters, if you're going to nitpick, go all the way. Dirk said "free speech is the cornerstone of our nation." In that case, wouldn't it have been Article I, not Amendment I ? Traditionally, there's only one cornerstone, and it is, by definition, the first stone to be placed.

  22. Kram Divad says

    I have to agree with most of the points you made, Ken. Especially this statement:

    People like Chancellor Dirks don't just seek to raise a generation of civil Americans. They seek to raise a generation of Americans who look to the state to tell them what speech is acceptable. This is vile and shameful.

    I've noticed that you often claim not to be "very conservative" in your political views. Yet, here you are, demonstrating the very heart of what it means to be 'conservative' or even 'libertarian' in thought. This idea that the state has some virtue to tell us what to say or not say is just as wrong as the believing the state has some virtue to direct our money, our business, our insurance, our wages, and so on. The same qualities of the state that make it unworthy of deciding our speech – also make it unworthy of running much of anything else. It is not ever better than the free will behavior of the people acting as individuals, whether the issue is charity, health care, lending, or any other issue in life.

  23. Dan Weber says

    between free speech and political advocacy

    This was stunning. Like if someone is too much of an advocate, their speech isn't free speech?

    Ideologues and no-compromise advocates are often annoying and drive away their closest allies. I avoid them as a rule. But they, with absolutely no doubt, are obviously practicing free speech.

  24. Dan Weber says

    anne, FIRE breaks schools into three broad categories, and I think our host has espoused similar feelings:

    1. State schools. Here the students and faculty enjoy broad free speech rights as found by SCOTUS. FIRE's response to school's stifling speech is often by hiring a lawyer.

    2. Private schools that promise free speech. These schools can punish speech, but it makes them hypocrites. FIRE will attempt to shame the school, but that's all it really can do.

    3. Private schools that say up front they'll restrict speech. FIRE says "eh, they never pretended otherwise, you got what you bought." It's up to the market here.

    This memo would still have been horrendous if it had been written by a chancellor of a school in the third category because of the ways it mis-groks the concept of free speech.

    … As for the memo, I think it's *possible* that some of the paragraphs have benign (if muddled) reasoning. In a few places he might be saying "it helps free speech when you respect the other person." In total, though, that doesn't feel like what's coming through. Reading in the, er, context.

  25. says

    @Kram Divad

    I've noticed that you often claim not to be "very conservative" in your political views. Yet, here you are, demonstrating the very heart of what it means to be 'conservative' or even 'libertarian' in thought.

    Not to speak for Ken, but I'll point out that "conservative" is not the same concept as "libertarian". Each is complex, and some facets of the one intersect some facets of the other. Chalk it up to common concerns that include skepticism about the efficacy of state power and the vulnerability of those who wield it.

    For this reason, Ken's denial that he's "very conservative" is by no means an assertion that he's not libertarian. Indeed, small-l libertarianism is probably the most obvious thread that unites us, perhaps with the exception of Charles, as co-bloggers here.

  26. sorrykb says

    I was reading the Chancellor's message as mostly a "wouldn't it be better if we all stopped screaming at each other", as well as an encouragement not to use the "heckler's veto" (which I believe has been criticized here as well), but then I got to the confused bit about the entirely non-existent line between free speech and political advocacy.

    But for a refreshingly (and sometimes shockingly) different take from another UC school, check out this announcement from UCLA. (Seriously, check out the list of speeches now online.)

  27. Matt says

    Maybe I managed to miss it in the 10 years (undergrad and grad) I was there, but I hear about this stuff, and I'm sometimes (additionally) glad I went to an engineering school, where people were generally focused on the schoolwork rather than the protest du jour. (Well, except for one professor emeritus in my CS department who looks (and has the politics) like he could've *been* one of those original Berkeley free speechers.)

    And not to pick on the man, but from one unibrow owner to another, Dirks should seriously consider shaving that eyebrow back into two, holy cow. Bert from Sesame Street doesn't have one that bad… :p

  28. TomB says

    That explains why he has those stupid glasses and wears them like a dork, misdirection, I never noticed his pet caterpillar.

  29. En Passant says

    Chancellor Dirks Short Form:

    Dear Fellow Kids,

    Please be nice. Don't let this "free speech" thing get out of hand. If you do, I might have to decide what to do about something that I don't understand. You don't want that to happen, right? So, just be nice.

    Sincerely, etc.

  30. Kaisersoze says

    Great stuff as always Ken. I'm not an attorney but I love it when someone takes a scalpel to this kind of word-mush.

  31. LeeK says

    Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so, and this in turn requires that people treat each other with civility.

    OpheliaB, clearly I won't be sharing your bus. It goes something like this:
    Firstly,
    a) D can only occur if I.
    b) I requires K.
    Therefore, D requires K.
    Now, your problem was that you were talking about the merits of proposition a), whilst far cleverer people had decided they'd gain more adulation by jerking themselves off the free speech topic and restricting themselves to pointing out how lame and flawed someone else's logic was.
    &nbsp
    Unfirstly,
    a) You can only make -5 by adding two natural numbers
    b) Both numbers need to be even.
    Now, it should be obvious to even one of your, admitted, limited mental stature, that not only is this impossible, but I've also made it impossible for you, AND I've prohibited you! (In addition, please note that this is something 'I' did to 'you', thus – hang on, there seems to be some white goo all over my keyboard. Let me just clean this up a bit –
    – Right, ok, that's better. Now where was I … Oh, yeah – thus furthering my
    perceived more awesomerness).
    &nbsp
    Feel fwee to bask in my intellectual supewiowity, butch.
    &nbsp
    P.S. As an aside (which, needless to say, is something a bit like a postscript), the speech would have been more contemporary if he had replaced "civility" with something like: 'a minimum of two sidearms, and at least one assault rifle or shotgun (bandoliers optional) in clear view'. This would have been way more hip, since several Learned Peoples have stated, on various occasions, that 'more guns == more warm, fuzzy saferyness', AND, just as better, 'mo' guns == mo' respek, yo'. Talk about Win-win! Both safer and more respected! Amirite?! Amirite??!1?1

  32. David C says

    For free speech to have meaning it must not just be tolerated, it must also be heard, listened to, engaged and debated.

    It might be possible that he meant something not-horrible with this. For example, shouting down a speaker isn't conducive to free speech. If the speaker can speak but people are actively prevented from hearing him, that's not really free speech,

    the boundaries… between free speech and political advocacy,

    That's like talking about the geographic boundary between the United States and Indiana. Both do have boundaries, but it doesn't make any sense to talk about the boundaries "between" them unless you have some false beliefs about where those boundaries lie.

    In this sense, free speech and civility are two sides of a single coin – the coin of open, democratic society.

    Free speech may belong on that coin, but civility doesn't. It's not required for democracy. Perhaps the other side of that coin could be something else actually required for an open, democratic society – like government transparency.

    Those threats come not just from the censorious appetites of university officials, but from the indifference of a generation of students.

    That may be a little harsh. Students often have a net worth that's negative – it would be rather difficult for them to initiate legal action against their university (not to mention the fear of reprisals.) And they may be ignorant of what the law actually says – especially if the very educational institution they are attending is giving them false information on the subject.

    And in the end, who actually has the say as to who the Chancellor of the university is, and what the free speech policies are? The students? Nope, it's the voters of the state, who elect the governor who appoints the regents who appoints the chancellor (at least in my state.) Now THERE is where you will see total indifference as to the free speech policies of the university system – what voter, who isn't actually a student or staff member at a university, makes university speech their primary issue? (And yes, students are voters too, but they're outnumbered, and to get a majority on the regent's board by electing a new governor likely would take longer than it takes to get a 4 year degree.)

  33. PatrickG says

    To those arguing "uncharitable reading", would you mind refreshing your memory of what happened during the Occupy protests under Birgeneau? Or what happened at UC Davis?

    This statement really does read like "Keep it in the dorm rooms. We have extremely civil riot police".

    In general, people protesting are the ones who don't feel "safe and respected". How rude of them to make other people slightly uncomfortable.

  34. says

    So, the Chancellor of U. C. Berkley appears to be an intellectually vague censorious prick. Not much of a surprise; that seems to be the default setting for collage administrators these last few decades.

  35. hymie! says

    As a layman, I have to agree with those who think you read way too much into a poorly-written email.

    It simply sounds to me as a politically-correct way of saying "The proper way to combat speech you don't agree with is not through threats or violence or louder speech; rather, the proper way to combat speech you don't agree with is more speech."

  36. KR says

    @TomB:
    "Specifically, you can only breathe underwater with breathing apparatus, and this in turn requires that you obtain such equipment before attempting to do so."

    According to you, I've just prohibited you from breathing underwater. Which…is ridiculous.

  37. TomB says

    According to you, I've just prohibited you from breathing underwater. Which…is ridiculous.

    Huh?

    No you've prohibited me from breathing underwater without help. Which……is normal.

    It is a requirement that I obtain specific equipment in order to breathe under water. I'm sure you agree that we should not burden anybody to obtain anything in order to exercise their 1st Amendment rights.

  38. says

    Hmmm…

    In this sense, free speech and civility are two sides of a single coin – the coin of open, democratic society.

    …then it kinds of seems like a big miss in the Bill of Rights to not address that "civility" thing, huh?

  39. Ed Firmage says

    My email response this morning to the chancellor:

    Dear Chancellor Dirks,

    As an alumnus of UC Berkeley (M.A. 1985, Mellon Fellow), I was chagrined to read about the email you sent to faculty and students regarding free speech. It's clear to me from the email that in fact you do not understand the phrase or the kind of thinking that led its rebel makers to enshrine it in the Constitution. If I were in Berkeley today, I would happily illustrate the true meaning graphically in corpore, as folks in that once blessed reserve of political incorrectness were wont to do. As I am limited to a mere email, I will illustrate the point by simply saying, "Fuck off."

    Yours sincerely,

    Ed Firmage

  40. Rick says

    Oh Ed,

    I'm sure a place as censorious as Berkeley is looking to be has nanny filters in place on their e-mail so your richly appropriate "fuck off" won't even reach him….

  41. KR says

    @TomB:

    I'm sure you agree that we should not burden anybody to obtain anything in order to exercise their 1st Amendment rights.

    Nobody is doing that, though.

    The breathing example isn't a case of me making a rule you have to follow, simply me describing the way that things are.

    People don't exercise rights they feel unsafe/disrespected exercising. This is true whether or not there is a rule against exercising rights you feel unsafe exercising.
    In order for people to feel safe/respected, they need to be treated civilly. Treating people uncivilly makes them feel unsafe and disrespected.

    The "this" in "this in turn requires" is "feeling safe and respected", not "having the right to free speech". It's not even "exercising the right to free speech" directly, and even then it's still simply a description of how things are rather than a prohibition. Or to the extent that a prohbition exists, it does so as a "law" of nature, not a law or regulation enacted by any individual or organisation or that can be rescinded by any individual or organisation.

    Seriously, the entire thing pretty much reads like a lengthier and more professional-sounding effort at "let's not use the anniversary of the Free Speech Movement as an excuse to be dicks to each other, yeah?" Which is wholly unobjectionable.

  42. Rick says

    In order for people to feel safe/respected, they need to be treated civilly. Treating people uncivilly makes them feel unsafe and disrespected.

    Please define "safe", "respected", "civilly", "unsafe" and "disrespected."* Bonus points for showing how they trump my right to free speech, and any legal foundation to justify it.

    The Cliff Notes version is "They all mean whatever the tyrant of the moment wants them to mean."

  43. Gopal says

    I think I agree with Levi.

    Calling upon the student body to exercise civility in matters of "free speech" is not a statement of policy, so much as it is an opinion being expressed by an authority figure.

    Conflating the two seems to me to be like taking the President's state of the union address to be an a proclamation of binding law. It is not.

  44. Fred says

    Free speech is not patient, free speech is not kind. It does envy, it does boast, it is proud. It does dishonor others, it is self-seeking, it is easily angered, it keeps record of wrongs. Free speech does delight in evil but also rejoices with the truth. It sometimes protects, sometimes trusts, sometimes hopes, always perseveres.

  45. GeoffreyK says

    I'm with Levi and Ophelia on this one… The early part of "for free speech to have meaning" did not at all read like a precondition to me, except to free speech having meaning. If the rest of the letter supported that interpretation, or his past or future actions supported that interpretation, then maybe? But purely in this context, all I read there was that protesting to an empty room is still free speech, but it isn't very likely to accomplish your goals.

    The fiddly bits with the unclear line between "political advocacy and free speech", etc: that had it coming. Right on.

    But then again at the end, this thing about "safe and respected", and "requires": TomB, I think you're the one being tedious. Let's start with the premise: "we can only exercise our right to free speech insofar as we feel safe and respected in doing so". Before we even go to the next half, I think (I hope) that we can all agree that this is wrong. I think he's claiming that more people will participate in the free exchange of ideas if they feel safe while doing so (which would at least be an arguable premise), but really, feeling unsafe and unrespected while expressing free speech merely discourages it, it does not exclusively preempt it. His premise is false, but that wasn't even his point. The next half: "and this in turn requires that people treat each other with civility." If we accept his premise (which I don't), he's arguing that civility is a precondition for people to feel safe and respected. It is not a requirement for free speech to take place! It is a requirement of the environment he (incorrectly) thinks is necessary for free speech to flourish. That his premise is wrong makes it all the less worth discussing, but, geez, come on!

    In summation: I think this went too hard, too soon, and buried its strongest arguments against the bad things this man said, inside a low quality sandwich of uncharitable interpretations.

  46. KR says

    @Rick: I'm assuming you screwed up an attempt to quote me, since you definitely screwed up a quote and your message contains a line from mine verbatim, so: WTF are you talking about? Nobody is legislating anything here. Nothing related to those words trumps your right to free speech, nor did I say it did. Nor, for that matter, did Dirks, at least the way I read it.

  47. Rick says

    In order for people to feel safe/respected, they need to be treated civilly. Treating people uncivilly makes them feel unsafe and disrespected.

    Please define "safe", "respected", "civilly", "unsafe" and "disrespected."* Bonus points for showing how they trump my right to free speech, and any legal foundation to justify it.

    The Cliff Notes version is "They all mean whatever the tyrant of the moment wants them to mean."

    (I screwed the pooch on the formatting.)

  48. David C says

    Treating people uncivilly makes them feel unsafe and disrespected.

    If people don't feel disrespected by my incivility, then I'm doing incivility wrong. But unsafe is another matter entirely. I can't go pointing guns at anyone who passes by my protest, no matter how powerful a message that sends – but if you feel unsafe simply because I'm using strong language, that's on you, not me. It's a matter of reasonableness.

  49. says

    Oh hai.

    Look, I'm not saying mine is the only possible interpretation. The more forgiving interpretation is arguable. I hinted at that towards the end. But I don't think it's the more plausible interpretation.

    If the piece is intended only as fluff, it's very badly written and organized, and reckless when hurled into an environment where speech restrictions at colleges are a hotly contested issue.

    But I don't think it's fluff. First, it's a controversial issue at colleges in general and UC in particular. Second, it uses all the tropes that censors use when explicitly justifying speech codes. Third, it uses proposed distinctions — like between free speech and advocacy — that are flat wrong under any interpretation. I take all of those into account in reaching my interpretation of the "requirements" language.

    Reasonable minds can differ. But at the very least it's clumsy as hell.

  50. Tore says

    So, let me get this straight:

    The only "context required" for free speech to thrive is a society governed by the rule of law, educated about its rights and willing to enforce them.

    That's an OK opinion to have. I think it's tremendously simplistic, but that's your prerogative. The point at which you go over the deep end is where you then proceed to pretend the assertion was never made and interpret the text as if he's discussing the legal concept of protected speech, rather than the societal concept of a free discourse which the legal concept of protected speech underpins – ie, the context of protected speech.

    In other words, you're misunderstanding on purpose, and that's a shitty way to engage in a discussion. It also renders your critique worthless, as you're tilting at windmills.

  51. says

    OK, Tore.

    Let's take just one example.

    Yet this is easier said than done, for the boundaries between protected and unprotected speech, between free speech and political advocacy, between the campus and the classroom, between debate and demagoguery, between freedom and responsibility, have never been fully settled.

    That sentence, among other things, (1) explicitly references the protection speech gets, and (2) explicitly cites two false legal distinctions.

    How would you interpret it non-legally?

  52. Roger Strong says

    John Yoo wrote the torture memos to tell those who did it that torture was peachy-keen. Many consider him to be a war criminal.

    In the old days he would have fled to Argentina. Today, he's a law professor at Berkeley.

    There's your "broader social context " for U.C. Berkeley's interpretation of human rights.

  53. Tore says

    I don't really want to get into basic sentence analysis here, because it would be patronizing.

    How would you interpret it non-legally?

    I mean, I don't want to come off as a dick, but to be frank I used basic reading comprehension, and wish you would do the same before publically decrying him as "vile and shameful" and accusing him of "seeking to raise a generation of Americans who look to the state to tell them what speech is acceptable".

  54. says

    I don't really want to get into basic sentence analysis here, because it would be patronizing.

    Ah! The Canadian Girlfriend school of argument. I know it well.

  55. TomB says

    People don't exercise rights they feel unsafe/disrespected exercising.

    Many people would disagree with you.

    (what is it with the Berekely cheerleading squad and this tendency towards absolute statements?)

  56. Seth says

    I used basic reading comprehension

    Are you sure? Reason I ask is, you quoted a question but it seems like you totally forgot to answer it. No problem, take another crack at it if you like:

    How would you interpret it non-legally?

  57. TomB says

    Are you sure? Reason I ask is, you quoted a question but it seems like you totally forgot to answer it. No problem, take another crack at it if you like:

    Back off man! What are you, some kind of barbarian?

    He's trying to be "civil".

  58. says

    It's very difficult to read this letter as not saying some truly dumb things. Those who try to read it kindly seem do so by making claims that are bone headed on their face.

    For example: @KR justification of the chancellor was marred by all sorts of premises that were somewhere between mostly to completely wrong. Here's one:

    People don't exercise rights they feel unsafe/disrespected exercising.

    If this were true, we wouldn't have seen (and still be seeing) protesters in Ferguson, MO. While some people might be to timid to exercise rights when they feel unsafe or disrespected, in the US many people claim and exercise rights precisely because they feel unsafe and disrespected. My impression has always been one of the benefits of "freedom of speech" is to permit people to speak out about often disrespectful (or worse) government or societal treatment that causes them both to feel and actually be unsafe.

    @Anglave's desire to re-interpret the chancellor's letter by substituting "communication" for free speech may be kind, but it's silly. Let's look at it:

    The whole point of speech, of course, is to communicate.
    If we take his meaning of the phrase "free speech" to simply mean "communication"

    It's true the goal of speech is generally communication of some form. That hardly means that the phrase "free speech" in the chancellors message should be read to mean "communication" and nothing more. In fact, it almost certainly should not be read so. Berkeley is in the US where the specific choice of the term "free speech" will nearly always raise the notion that the speaker is discussing a legal right. The chancellor mentioning the constitution certainly strengthens that impression. If the chancellor' wished to convey the notion that communication is a two way street where both parties speak and both listen, that might be a useful message for students (and others). But in that case, the chancellor presumably is familiar with the word "communication" which is a perfectly find word to use when you mean "communication". He shouldn't substitute 'free speech', a term of art laden with legal meaning, nor wave the constitution around in his email. As he did both, I find it difficult he only meant "communication" rather than "free speech".

    As Ken pointed out, the chancellors message included other terms to signal he really means to be saying something about "freedom of speech" as guaranteed under the first amendment. He uses the term "protected speech"– what's that if not a constitutional concept?

    It may well be that the chancellor thought he was suggesting we all look to the "better angels of our nature" when exercising free speech. Some people might wish to believe that's what he meant, and he only failed due to serious incompetence in composing his communications.

    But that's not how his letter reads. He wrote something that at least sounds to many like he's discussing legal rights and suggesting freedom of speech covers a fairly limited class of speech. If he really meant to give an inspirational speech asking students to strive to tolerate opinions that differ from their own and reminding them that freedom of speech means tolerating speech that offends their own sensibilities, he needs to get himself a better script writer. Because he failed utterly to get any such message across.

  59. AlanM says

    I guess I just parse this differently. I see him as saying "Free speech is a legal right, but let's not be assholes about this". IOW, he's talking about the social side of freedom of speech and not just the legal side.

    Like in this comment:

    Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so,

    You called this flat out wrong. I see it as obviously correct. Legally you can exercise your right to freedom of speech whether or not you feel respected and loved, but, as a practical matter if you feel marginalized, you probably won't.

  60. Rick says

    Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so

    You called this flat out wrong. I see it as obviously correct. Legally you can exercise your right to freedom of speech whether or not you feel respected and loved, but, as a practical matter if you feel marginalized, you probably won't.

    If you do or don't exercise your right, that's your choice. That's as far as that line of thought should go. If your feeling "safe", "respected", "loved", or not "marginalized" are pre-conditions to my speech, that's not your choice. Or the Dean's. Or anyone's.
    Nor should those fuzzily defined non-absolutes be used afterwards to discipline prior speech, either, because everything is guaranteed to offend someone somewhere somehow.

  61. His Shadow says

    "I agree with some of your criticisms, but much of how you read Dirks' email strikes me as uncharitable. Many of what you identify as poor arguments and rhetorical tricks in defense of censorship only appear that way because, as far as I can tell, they aren't meant in defense of censorship at all."

    I think it's more than charitable. This isn't a YouTube comment being dissected. It's the Chancellor of UC Berkeley. Taking the least disturbing interpretation of this email would suggest that said Chancellor is either utterly clueless or is pefrectly happy being immensely careless with his language. Put in the context of the very real stifling of amendment rights on a national scale, there is every reason to be concerned with the language in this email.

  62. Dario Ringach says

    I believe your comments are legally correct.

    However, I suspect the Chancellor did not intend his email to be a legal document, but more of a remainder that there are specific codes of conduct within the University:

    http://sa.berkeley.edu/sites/default/files/UCB-Code-of-Conduct-new%20Jan2012.pdf

    Our role as educators is not restricted to explain students the legal definition of free speech, but to teach them to exercise it in a responsible way. We want students to express themselves freely, but also develop the skills necessary to listen to others, and to consider and understand other points of view.

  63. Rick says

    However, I suspect the Chancellor did not intend his email to be a legal document, but more of a remainder that there are specific codes of conduct within the University:

    http://sa.berkeley.edu/sites/default/files/UCB-Code-of-Conduct-new%20Jan2012.pdf

    Our role as educators is not restricted to explain students the legal definition of free speech, but to teach them to exercise it in a responsible way. We want students to express themselves freely, but also develop the skills necessary to listen to others, and to consider and understand other points of view.

    I just read that Code of Conduct and nowhere did I see what their definition of "responsible" is.

  64. TomB says

    Legally you can exercise your right to freedom of speech whether or not you feel respected and loved, but, as a practical matter if you feel marginalized, you probably won't.

    What does that even mean?

    As another poster said, in essence, if what I say makes you feel "unloved" or "disrespected", that is your problem, not mine.

    I wonder what those alcohol-fueled 3AM BS sessions we used to have in someone's dormroom where we solved the world's problems, mostly at the expense of a few people in the room, are like at Cal?

  65. says

    AlanM

    You called this flat out wrong. I see it as obviously correct. Legally you can exercise your right to freedom of speech whether or not you feel respected and loved, but, as a practical matter if you feel marginalized, you probably won't.

    And yet we have demonstrations in Ferguson MO. In fact, as a practical matter many people do exercise freedom of speech when they feel disrespected and unloved because in those cases they believe exercising their right to speak is the only way to ensure other rights and liberties and the do so. Many people who feel disrespected, unloved and marginalized also write letters to the editor, post at blogs, and indulge in all sorts of free speech. Some do so skillfully, some resort to rants. But however they do it– we see evidence that as a practical matter the marginalized, disrespected and unloved can do, and often revel in, indulging in their right to free speech.

    The empirical evidence tells us Ken is mostly right; the chancellors statement is wrong. His statement is wrong legally and in practice.

  66. Duvane says

    @AlanM: "We can" and "[we] probably won't" are not opposites. IOW, "if you feel marginalized, you probably won't" "exercise your right to freedom of speech" is not the same as saying "we can only exercise our right to free speech insofar as we feel safe and respected in doing so". The latter statement is absolutely false: people exercise their rights to free speech all the time in situations where they are unsafe and/or disrespected (I'm not sure why those two things seem to go hand in hand in this context–they are vastly different). The only thing necessary to prove "can not" wrong, is to show that it can or has ever been done, even once, and assuming "we" includes all people, then that's fairly easy to do in this case.
    Perhaps (almost certainly) people are less likely to exercise those rights when they feel unsafe, but that is not the same as saying that they can not. This is not merely semantics: if that assertion were true, it would mean that a right to free speech implies a right to be respected. It absolutely does not. More importantly, because the communication of (dis)respect is speech, it would imply that some arbiter would have to choose what sort of speech would be allowable, which is the attitude that Ken rightly decries. "We all theoretically have the freedom of speech, however what you want to say is preventing another person from speaking because they feel disrespected, therefore you won't be allowed to say it."

    @lucia: You pretty much wrote what I was thinking, and better, too.

    The only thing Ken probably is wrong about is the "turning point"–Dirks probably is referring to the movement per se and not to the anniversary as the turning point, but that's just down to poor writing. "This turning point" presumably refers to "the 50th anniversary…" which is two paragraphs prior. The chancellor clearly doesn't understand antecedents, though, given the second paragraph. The "it" in the second clause can only refer to "free speech", which means he apparently intends to say "the founders… made [free speech] the First Amendment", which is either embarrassingly poorly worded, or demonstrates a puerile knowledge of the constitution.

  67. David C says

    @Dario:

    I believe your comments are legally correct.

    However, I suspect the Chancellor did not intend his email to be a legal document, but more of a remainder that there are specific codes of conduct within the University:

    http://sa.berkeley.edu/sites/default/files/UCB-Code-of-Conduct-new%20Jan2012.pdf

    But what is the Code of Conduct if not a legal document? Students can be fined or expelled for violating it. And if it's the Code of Conduct that's trying to make students strike a balance "between free speech and political advocacy", it's almost certainly doing something unconstitutional.

    Our role as educators is not restricted to explain students the legal definition of free speech, but to teach them to exercise it in a responsible way. We want students to express themselves freely, but also develop the skills necessary to listen to others, and to consider and understand other points of view.

    Are such things really the jobs of university professors and administrators, who are teachers of adults who are paying a lot of money for experts to teach them specific subjects? If this is so important, why not teach it at the high school level, where you have much a higher percentage of the population attending and the instructors are not quite as expensive?

    Also, understanding the opponent's point of view can be a good thing, but civility does not, and sometimes should not, necessarily follow from that. There are a couple of people I can think of where I'm guessing that if I truly understood their point of view, it would actually cause me to be less civil to them, not more.

  68. Dario Ringach says

    @David C. I am no legal scholar, but I think the university code of conduct is largely based one workplace harassment law. Yes, the Chancellor's call goes beyond what the code stipulates, but as I said, I think that is part of the educational mission of the university.

    Critical thinking and honest debate is part of most academic disciplines — from the sciences to the arts. It must be part of what we teach. I am all for teaching such skills from early on.

    Also, understanding the opponent's point of view can be a good thing, but civility does not, and sometimes should not, necessarily follow from that. There are a couple of people I can think of where I'm guessing that if I truly understood their point of view, it would actually cause me to be less civil to them, not more.

    Agreed… but that will take us to a longer discussion about how we, as a society, think moral disputes ought to be resolved. In any case, if presented with the choice between the uncivil but educated, and the uncivil and ignorant, I'd go with the former.

  69. Rick says

    Critical thinking and honest debate is part of most academic disciplines — from the sciences to the arts. It must be part of what we teach. I am all for teaching such skills from early on.

    Absolutely. If only this discussion was about honest debate. It's not. It's a about dishonest debate; stacking the deck in favor of the the rule makers' agenda(s).

    In any case, if presented with the choice between the uncivil but educated, and the uncivil and ignorant, I'd go with the former.

    At my first job as a teenager, the owner of the business said more than once, "College just educates you; it doesn't make you any smarter." In other words, your "I'd go with…" generalization is generally horrid…to me.

  70. Robert What? says

    Is it my imagination but do many leftists seem to have the same look? His face has "leftist tool" written all over it. Sort of "I'm better and smarter and more caring than you. Please don't beat me up."

  71. ppnl says

    Oh this is quite tedious.

    Free speech is a negative liberty created by a limitation on government actions. Mutual respect is not required, needed, or very often even advisable. All that is required is that limitation on government. All else is Hyperbole, histrionics and soap opera.

  72. Kratoklastes says

    His Shadow
    September 7, 2014 at 3:25 pm

    "I agree with some of your criticisms, but much of how you read Dirks' email strikes me as uncharitable. Many of what you identify as poor arguments and rhetorical tricks in defense of censorship only appear that way because, as far as I can tell, they aren't meant in defense of censorship at all."

    I think it's more than charitable. This isn't a YouTube comment being dissected. It's the Chancellor of UC Berkeley.

    EXACTLY right, His Shadow. Someone fucking gets it.

    This is, quite specifically, a deliberate 'trial balloon' being sent up by the senior administrator of a major public university, in the ful expectation that his statements will be interpreted asa de facto declaration of policy.

    It's like a Pope making a statement that exculpates paedophiles (say) and then geting called on it… then the Quislings turn up and try to force some wiggle room into the debate my claiming that the Pope's letter was not ex cathedra (that has happened in a paedophile inquiry in my jurisdiction).

    Or my other fave example: that the encyclical "Quaesitum Est" – written by Joey "the Nazi-Rat" Ratzinger when he was head of Sacra Congretatio de Propaga Fides [the Inquisition] – was not canonical. As a matter of Canon Law, it wasn't canonical – but did it influence the behaviour of Catholics "on the ground"? You fucking bet it did. Was it intended to? You fucking bet it was.

    Fuck that: these CEO tax-vampire types do not send out 'stream of consciousness' stuff on letterhead (or from their official e-mail accounts). Every word is parsed.

    Was this pretentious censorious sanctimonious fucknard trying to chill speech? You fucking bet he was. Fuck him and his stupid glasses and über-faggy moustache.

  73. David C says

    Now I can't tell if Kratoklastes is trying to make some sort of point about civility and free speech, or if he just talks like that. Oh well.

  74. David C says

    Critical thinking and honest debate is part of most academic disciplines — from the sciences to the arts. It must be part of what we teach. I am all for teaching such skills from early on.

    Then my other point would be… this statement from the chancellor doesn't really teach anything of the sort. Imploring students to use civility is not the same as teaching them critical thinking and debate skills.

    The email is not enforceable (due to free speech), the students won't get graded on it, most of them will probably barely even read it, and it doesn't actually tell them much except that they should be civil (with perhaps an implied "or else", depending on your interpretation.) If I were a student and this appeared in my inbox I'd probably skim it to see if there was any actual policy or anything useful or informative in it, roll my eyes when I saw there wasn't, and forget about it.

  75. Rachel says

    At risk of the ad hominem pile on, I have to admit that Robert What's comment was fucking hilarious and put into words the exact emotions that struck me upon my first glance at Herr Dirks's visage.

  76. Rob says

    The email is not enforceable (due to free speech), the students won't get graded on it, most of them will probably barely even read it, and it doesn't actually tell them much except that they should be civil (with perhaps an implied "or else", depending on your interpretation.) If I were a student and this appeared in my inbox I'd probably skim it to see if there was any actual policy or anything useful or informative in it, roll my eyes when I saw there wasn't, and forget about it.

    The problem is 1) not all of them will understand that it isn't really enforceable, and 2) DIRKS may not understand that it isn't enforceable.

    I see the Chancellor's letter in a similar vein as a mobster who sidles up to your register and says "Nice business ya got here; be a shame if anything happened to it." It isn't an explicit threat, and a charitable reading would take it as a polite well-wishing, if it were not for the context of the mobster and the history of the mob's participation in extortion rackets.

    So it is with the Chancellor. His letter in another context may be seen as a clumsy and legally illiterate plea for civility, but because of his position and the history of his office being used to suppress the speech of the students and faculty he governs, the letter carries with it an implicit threat: "This is how I wish things to be, and if you don't obey I can make things go badly for you."

  77. glasnost says

    Um, maybe if there was an actual policy related to this email. But there isn't. So, yeah, also not really feeling this post. Seems like an overreaction to typical administrative word salad. I'd go as far as to say this email seems actually more interested in the relevance of free speech than my low expectations.

    Like every university and management example ever, it wants to have all the freedom, but it would be nice if everyone could avoid the negative impacts, please. Fruitless, yet a nothingburger. I'd like to see one official communication by any business or organization (not one already about civil liberties) that has ever said, "Here's what we think: say anything you want, full stop, that's america, we're behind you". Nope.

  78. says

    Whosoever feels that it is appropriate to search for charitable meanings and turn the email into a fluff piece:

    You are absolutely not prepared to understand this discussion in context. Save yourself embarrassment (and ableist insults) by just not commenting. This isn't my opinion, it's a fact and a piece of advice.

    More sensibly, the topic of debate should be how soon and how deeply to panic, and whether it is time for insurrection yet.

  79. Stuart beaton says

    Rachel – Wouldn't a "Herr Dirk" be a right wing fascist, not the leftist described by Robert What?

    SB

  80. says

    People don't exercise rights they feel unsafe/disrespected exercising.

    Allow me to pile on with more education. Talk to Aaron Walker, John Hoge, Robert Stacy McCain, Ali Akbar, and the infamous et al. Also, talk to Martin Luther King, Jr. Also talk to Rosa Parks. You really didn't think that through, did you?

  81. Joe Blow says

    Huh. So I guess Dirks Benchley or whatever his name is thinks Cohen v. California was wrongly decided.

    He coulda saved some ink and trees by just saying that.

  82. says

    @John Hitchcock,
    To be fair, King and Parks, et al., exercised rights they felt unsafe/disrespected exercising… and their doing so seemed so extraordinary that they're still revered decades later for having done so. If it's extraordinary for people to exercise rights under those conditions, then it's ordinary for people to refrain from doing so.

    You didn't really think that through, did you.

  83. Jason says

    Let's remember a couple things here, though. Libel and slander are not protected "free speech." You can state your opinions – particularly about the government – without fear of punishment but you do not get to attack people. You can swing your verbal fist until it hits my face, but no further.

    I think people who are passionate about free speech need to get better at showing the "enforce(ment) by the marketplace of ideas, not by the state." How often did you see free speech advocates protesting, to use your example, Fred Phelps? "Yes he has his right to his opinion but f*** him, he's an awful human being." Sure there's media bias here in who gets airtime but even going to these things in person it's always leftist or statist groups who don't want him to express it at all. If we don't want the police enforcing morality, then we're going to all have to buck up and do it ourselves, I guess is my point.

  84. says

    Jason:

    How often did you see free speech advocates protesting, to use your example, Fred Phelps?

    I personally have counter-protested Westboro Baptist, in the flesh, one of a number who ringed these people to prevent the deceased's family and friends from seeing the signs. As for online discussion of Phelps, enter his name in the search button on the right.

    If you can find free speech advocates who described Phelps in terms other than "vile" and "reprehensible," please provide examples.

  85. says

    To the folks ragging on the guy for his appearance: The Chancellor did not engineer, and cannot fundamentally change, the way he looks. He did engineer, and completely governs, his proclamations– their content, tone, and relationship to relevant context.

    That said, I'm now inexplicably leaning toward the purchase of one of these.

  86. Blah McBlah says

    I don't know, if I looked like the goofy guy in the picture I'd probably send a longwinded and misguided email about how everyone should play nice and not hurt each others' feelings too.

    Seriously Dirk – go to the dollar store and pick up a goddamn tweezers.

  87. Rick says

    Seriously Dirk – go to the dollar store and pick up a goddamn tweezers.

    Seriously, dude, grow the fuck up.

  88. luciaphile says

    Dirks, like the administrators at Penn State, is responding to the controversy at the University of Illinois, where the Chancellor refused to forward the contract of Steven Salaita to the board of trustees following his "uncivil" tweets about Israel's actions in Gaza this August.

    I guess if anti-Semitism ever really disappears, we'd have to reinvent it; as there's nothing like it to arouse the left to a spirited defense of protected political speech.

  89. Mercury says

    Another succinct, well supported and all around excellent bit of polemic by Ken White on an extremely important, topical and fundamental issue.

    Everyone should be writing macros to enable the rapid deployment of this post to any and all persons in need of being fact-slapped on this subject.

  90. Jim B says

    Let's take just one example.


    Yet this is easier said than done, for the boundaries between protected and unprotected speech, between free speech and political advocacy, between the campus and the classroom, between debate and demagoguery, between freedom and responsibility, have never been fully settled.

    That sentence, among other things, (1) explicitly references the protection speech gets, and (2) explicitly cites two false legal distinctions.

    How would you interpret it non-legally?

    It isn't clear, or even the most obvious interpretation, that the first clause referencing the protection that speech gets ("between protected and unprotected speech") is intended to be a legal test that applies to the following clauses, which arguably would be "false legal distinctions" if that were the case.

    Rather, I think that the chancellor is noting a series of free-speech-related dichotomies that are independent of each other: There is a boundary between protected and unprotected speech – notably libel laws and "fighting words"; there is a boundary between free speech and political advocacy, at least with respect to public employees using state resources to conduct a political campaign; there is a boundary between the campus and the classroom – a student can't monopolize class discussion time in a physics class to attack Zionism, even though he can be as vocal as he wants on the quad; there is a boundary between debate and demagoguery – even if the boundary is sometimes indistinct; and there is a boundary between freedom and responsibility – the understanding of which is the mark of a mature human being.

    The Chancellor never said that he wanted to impose rules that would police those boundaries; it is you who has characterized them as "legal distinctions". Like many of the other commentators, I am frankly amazed to find myself in the position of defending the UC Berkeley chancellor against a conservative critic, but your column somehow managed to do just that.

    Whether or not you view the more charitable interpretation of the chancellor's remarks as the most plausible, it is certainly the most salutary. Why not assume that the chancellor merely intended his message as a call for self-policing civility, at least until events prove otherwise?

  91. Jason says

    Patrick –

    Excellent! So have I and I encourage you to continue such activities. My statement is not to impugn the morality of individual free speech advocates or the advocacy in general but to point out the responsibility portion of it that, at least to me, seems to be left out of these discussions. Respecting someone's right to an offensive position without also holding him accountable (in a social or non-governmental way) for being a jerk is a recipe for all kinds of problems -problems that people will want to solve with a central gov't if left hanging.

  92. albert says

    Like Clark Kerr being immortalized on a placard, I wonder if Dirks will be remembered in the phrase 'dirk-head'. Time will tell…

  93. says

    Mr Byron, there is a difference between "people don't do something" and "ordinarily, people don't do something". And what makes people like Chesty Puller and Audie Murphy? I say it's ordinary people in extraordinary circumstances doing what they feel they need to do.

    Talk to the military heroes. They'll tell you they aren't heroes; they just did what they had to do. Talk to a high school Creationist who speaks up in high school science classes. Talk to a Christian homeschooler who has to face down anti-Christian bigotry at work every day and sex-based attacks at work every day because he's a Christian homeschooler. Talk to a woman who faced FGM in the Middle East who is trying to speak out in the US.

    It is ordinary people faced with circumstances that they felt forced them to do something.

    Yes, I really did think it through.

  94. Babs says

    @Dario Ringach:

    I am no legal scholar, but I think the university code of conduct is largely based on workplace harassment law. Yes, the Chancellor's call goes beyond what the code stipulates, but as I said, I think that is part of the educational mission of the university.

    Workplace harassment law doesn't supersede the Constitution either. If the chancellor's "call" reflects the school's code of conduct, the code is unconstitutional. As an educator, you really should be reading thefire.org.

  95. says

    Mr Hitchcock, I think we can agree that the assertion "People don't exercise rights they feel unsafe/disrespected exercising. This is true whether or not there is a rule against exercising rights you feel unsafe exercising." was a crude generalization that omitted obvious exceptions. Simply prefixing the whole with "Some" would've fixed it.

    The interesting question is "How many?" Do most people rise to the occasion, despite real or imagined antagonism? Or do most people buckle when confronted with (real or imagined) social difficulty?

    It seems to me that even the "everyday heroes" such as a seemingly persecuted homeschooler or a suppressed woman fighting for equal rights are in the minority; most, as the poster we're correcting implied, probably withhold and withdraw unless the social context seems safe.

    (Now maybe I'm wrong about that; I'd like to be. But whether I am or not, your correcting the minor error of the original poster with "Allow me to pile on with more education" was arguably sillier than the post you were correcting.)

    Most people aren't extraordinary heroes; furthermore, most people aren't ordinary heroes. Most people are ordinary non-heroes. So the fact that you would simply invoke "ordinary heroes" alongside "extraordinary heroes" in your reply suggests that, no, you didn't really think it through.

  96. Anglave says

    After having read some of the rebuttals here (notably Ken's and Lucia's, but others as well), and having spent some more time with Chancellor Dirks' email, I'm giving up any defense of the man's words.
    .
    Even under the most charitable reading, the Chancellor's email comes across as confused, vague, and ineloquent. He really, really should have known better.
    .
    And, given the context into which it was issued and the other language in his email, I agree that such a charitable reading isn't defensible. He's a university Chancellor, addressing the entire campus community, at a time when restrictions on speech at campuses around the nation are making news. He specifically references the free speech movement and the first amendment.
    .
    In that context, I'd place his statements somewhere along the axis of misguided to downright evil. He opens with what could perhaps be charitably interpreted as a discussion of the preconditions for meaningful speech, then makes some truly offensive and incorrect assertions that imply restrictions on free speech that don't exist, and then closes with more more constraint on speech disguised as a call for civility.
    .
    I'm reversing my earlier opinion, this guy is intentionally disguising his dangerous ideas with innocent sounding language.

  97. sorrykb says

    Robert What? wrote:

    Is it my imagination but do many leftists seem to have the same look? His face has "leftist tool" written all over it. Sort of "I'm better and smarter and more caring than you. Please don't beat me up."

    That's just the sort of idiotic claptrap I'd expect from someone who looks like a gray geometric pincushion.
    – a Leftist

  98. skeptonomist says

    This was hardly an inspired email or one that will be remembered, but this post is incredibly nit-picking to the point of frivolity. It won't make anybody favorably remember Ken White's views on the first amendment.

  99. Neo says

    The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

    This is a brief, not a court opinion .. which means it could have come from a monkey's ass

  100. says

    Neo:

    Yes, it's a brief the United States Supreme Court is quoting in order to state the governmet's position, which the Court then explains is wrong.

  101. pst314 says

    "between free speech and political advocacy"
    That is a particularly strange opposition, given that Chancellor Dirks just finished tipping his hat to the wonderfulness of the Berkeley Free Speech Movement, which was emphatically not about bringing freedom of speech to the campus (students and faculty were free to explore any side of any intellectual question) but rather to allow political advocacy and agitation, and ultimately to politicize every part of the university.

  102. Doug says

    What Dirks is trying to say is two-fold: 1) Please don't embarrass us in front of the donors or state legislators; and 2) if we all conduct our free speech within the confines that I am setting here, then it will be easy for me to ignore you.

  103. Barandis says

    What bothers me more about this than anything is who wrote the email.
    .
    For one thing, this is the chancellor of one of the most respected public universities in the country. He didn't get into that position by being dumb. I have a really hard time believing that he was so obtuse as to produce such a "poorly-worded" statement without knowing exactly what he was saying. Given the recent history of free speech controversies at universities, I have to think that he considered carefully before using the words "free speech" and wrote exactly what he meant.
    .
    On top of that, this is a man with real power in his arena. He can wield a great deal of influence over university policy. When he expresses such a fundamental misunderstanding of the legal meaning of free speech, it's troublesome precisely because he can turn that into a set of policies that implements that misunderstanding.
    .
    This kind of thing is no big deal when it comes from some low-level PR staffer. Coming from the chancellor, it's very much more concerning.

  104. kevino says

    Your fisking of the Chancellor's fascists ramblings is well done. Thank you.

    I find these words by Dirks particularly grotesque: "As a consequence, when issues are inherently divisive, controversial and capable of arousing strong feelings, the commitment to free speech and expression can lead to division and divisiveness that undermine a community’s foundation."

    I guess they don't teach the old adage: "I disapprove of what you say, but I will defend to the death your right to say it."

  105. Keith G says

    Look, if society deems that conservative speech is not to be protected, then it won't be protected. And that's OK. We already see people with conservative views being fired all the time. It society does not want to tolerate conservative views, then society is free to stamp them out. That's what free speech means. It does not mean an absolute right to always say what you want. It's what society says is OK.

  106. Rick says

    Look, if society deems that conservative speech is not to be protected, then it won't be protected. And that's OK. We already see people with conservative views being fired all the time. It society does not want to tolerate conservative views, then society is free to stamp them out. That's what free speech means. It does not mean an absolute right to always say what you want. It's what society says is OK

    Free to stamp them out in what Communist country? Not this one (at least not yet). Your definition of free speech, while much more succinct, is every bit as odious (and odorous) as the Chancellor's.

  107. Paul says

    With all due respect, I think you are reading way too much into what the guy wrote. I think he's merely promoting freedom of discussion rather than freedom of speech. He's trying to encourage "respectful" engagement among the students on his campus. He's using the 50th anniversary of the "campus free speech movement" as a sort of tool to make the point that we need to stop yelling at each other, talking past each other, and instead listen to each other and encourage discussion of differing views. It's true, of course, that I may be being a bit too charitable, and even if I'm correct, he's still doing a rather poor job of making the point *I* think he's making, but the bottom line for me is that I don't think he's trying to put limits on free speech.

  108. Fasolt says

    My thanks as well, David Byron. A little nugget of some of that comedy gold:

    Dwight's doubts grew, however, when Woronoff and de Trudeau failed to see each other over Christmas break.

    "I was like, 'How come you're not gonna see Audrey over break? You've got two weeks off,'" Dwight said. "Tim said he couldn't fly there because his parents wouldn't let him travel over New Year's, with the whole Y2K thing and all. And he said Audrey couldn't come here because she didn't get any time off from school for Christmas, since they don't observe it in Canada. At least not in the French-speaking parts like Alberta."

  109. Doug says

    I guess if anti-Semitism ever really disappears, we'd have to reinvent it; as there's nothing like it to arouse the left to a spirited defense of protected political speech.

    Amusing. Righty loves to play fake victim so much that of course he accuses the other side of doing it —- by calling actual victimhood fake. And of course now he will say he didn't actually call it fake (because in fact he merely implied it was trivial).

  110. anne mouse says

    @David Byron,

    Actually, cases like Rosa Parks are famous because what she did *wasn't* unique. There are constant cases where some truly extraordinary person speaks up for him/herself or others, is promptly smacked around and/or hauled away, and forgotten. The difference in the case of Rosa Parks is that an effective organization was already in place, looking for a symbol to rally around, and she was an insider in that movement. Another member of the movement had been arrested some weeks before Rosa Parks, for exactly the same thing, but activists decided that that particular person, Claudette Colvin, wasn't politically appealing enough to rally around. ( She was an unwed mother.) There were others as well – check out the plaintiff list in _Browder v Gayle_ 142 F. Supp. 707 (1956) for some examples.

    Thousands of people walked to work and school every day during the bus boycott, effectively refusing to sit in the back of the bus. The main reason Rosa Parks is famous is that the list of their names would be too long for the history books.

    The interesting part about figures like Rosa Parks is not that they had some mythical "extraordinary courage", but that they had the social skills to execute a strategy requiring the near-unanimous participation of so many people.

  111. barry says

    Taking the right to free speech from the uncivil would be like taking the right to vote from felons.

  112. sadmar says

    IMHO, the problem with this discussion is that it's hung up on the issue of Dirks' intent. This is exacerbated by the fact the email is so poorly written that the 'signal to noise' ratio is awfully low. I could say (only maybe half ironically) that the fact someone with such poor language skills has risen to the post of Chancellor at one of the nation's top Universities — and either a) lacked the insight to have his public statements vetted by a competent communication professional, or b) was stupid enough to only get advice from some utter tool face-palmingly employed by Cal in a PR capacity — is as or more disturbing than anything in the email itself.

    But, for the sake of argument, let's imagine a slightly different version of the email that more clearly states that the thesis "In this sense, free speech and civility are two sides of a single coin – the coin of open, democratic society. Insofar as we wish to honor the ideal of Free Speech, therefore, we should do so by exercising it graciously." is indeed as Ken put it "an idealized vision of speech to which I'd like to encourage people to aspire." This imaginary email would then be absent the language that seems to conflate 'the ideal conditions of democratic speech' with what is and isn't protected under the First Amendment. It would CLEARLY NOT make a claim that 'un-civil' speech lacks First Amendment protection. What should we make of it then?

    I would argue that what someone like Dirks DOES is the issue, not what thoughts may be behind his actions, and this would apply first of all to the imaginary 'improved' email. It would be possible faux-Dirks was engaging in cynical calculated Machiavellian sophistry in an attempt to lay the groundwork for an intentional abuse of power. It would also be possible he meant only to make a personal appeal for civility — emphasis on "SHOULD exercise graciously" as opposed to "MUST" — 'you don't have to be civil, but to the extent you can be, the campus will be a better place." Regardless, the text would say what it says and does what it does, and a lot of Ken's more important complaints, and issues raised in the comments above, would remain.

    Which is to say that faux-Dirks (or real-Dirks for that matter) could be channeling a powerful stream of problematic ideology without being aware of it or it's influence on 'his' thought.

    We'd still have the language de-fanging the Free Speech Movement and incorporating it into the institutional forces it opposed. We'd still have the language squeezing the broad concept of 'civility' into the narrow constraights of 'graciousness' and 'courteousness'. We'd still have the language of "Campus Community" evoking an image of more-or-less equal players on a more-or-less level field, and thus appallingly obfuscating the differences in power, privilege and responsibility between students, staff, faculty and administrators. A re-written statement: "The boundaries between free expression and political advocacy, between debate and demagoguery, between freedom and responsibility, between classroom, campus and community, can never be fully settled" is still a clusterf*** of philosophical bludgeoning of dissent regardless of speech's status as a matter of law. And wait, there's more SMH false dichotomies! …the "delicate balance between communal interests and free expression, between openness of thought and the requirements and disciplines of academic knowledge." All of this subtext is still being dropped in the context of the Salaita affair at Illinois, and the threat to administrative authority posed by the protests against UI's Chancellor and Board.

    In short, even if Dirks is NOT "asserting limits on speech that find no support in the law," Ken White's critique that "He's encouraging the students under his tutelage to view speech as something the community should 'balance'," remains valid. However, I must take exception to Ken White's suggestion that 'People like Dirks seek to raise a generation of Americans who look to the state to tell them what speech is acceptable.' Instead, I would argue, 'Statements like Dirks' are encouraging a generation of Americans to look to authority figures to tell them what speech is acceptable. They are also a warning to faculty to stay in line.' In that regard, I think earlymoderngirl is being too generous in suggesting that calls for civility "act as support for UIUC's administration" in terms of its (arguably justifiable) decision not to offer a faculty position to Steven Salaita. I would suggest they act as support for university administrators to do whatever the hell they want.

  113. Sad Panda says

    Quite a different audience of commenters today. As a politically centrist Canadian I'd expect to be in agreement with the inrush from what I assume is the American left, but since I do actually care about civil liberties I find all the "oh he didn't mean it, he just wants us all to get along" apologist crap to be rather disappointing. Isn't there supposed to be some intellectual rigour somewhere in that group? It's not on evidence here today.

    Suggesting that there is a boundary to be found between free speech and political advocacy? On the university chancellor's letterhead? That is obviously a very intentional effort to chill undesirable speech. There's no other credible way to read it, and Dirks clearly deserves to be ripped a new one. If possible, Ken was too easy on him.

    But people in positions of power never give you your rights, you have to assert them and defend them. Hopefully Berkeley's current generation of students will show him no more respect than would the students of 50 years ago. That would be a truly fitting way to honour an important anniversary.

  114. Rick says

    Quite a different audience of commenters today. As a politically centrist Canadian I'd expect to be in agreement with the inrush from what I assume is the American left, but since I do actually care about civil liberties I find all the "oh he didn't mean it, he just wants us all to get along" apologist crap to be rather disappointing. Isn't there supposed to be some intellectual rigour somewhere in that group

    Snort. The American left is just as intellectually dishonest as the American right is, and is as every bit committed to clarity and truth.

  115. KeithB says

    I think the problem is that this is a mashup, conflating two totally separate emails. One about Constitutionally protected free speech and the other about "Can't we all just get along" civility. The bass-o-matic was not kind.

  116. says

    @anne mouse, I didn't say or imply that what Parks did was "unique" (your word, different in meaning from what I said), but rather that it was "extraordinary". There's no question that her act was out of the ordinary– uncommon– even if she wasn't flying solo.

    The interesting part about figures like Rosa Parks is …that they had the social skills to execute a strategy requiring the near-unanimous participation of so many people.

    How extraordinary!

  117. TurboVex says

    I'm sure Dirks would find this counterintuitive, but nothing dams a free flow of ideas like a call for decency.

  118. Burnside says

    To everyone that's saying "I'm sure he didn't mean what he said" or the ilk, please remember that this is the head of a major public organization putting out an email on official letterhead to the entire organization and the public. It is, essentially, a press release. If you know anything about corporate communications, you would know that each word has been very specifically chosen and vetted through many people before it went out to the public. That means each word has been very carefully parsed. He meant what he said, and so did everyone else who touched that email.

  119. anne mouse says

    David B,

    Fair points, I agree that successful civil disobedience movements are extraordinary, but the point is that individual acts of civil (or uncivil) disobedience, and other forms of free speech, are not as uncommon as you might think, regardless of whether the speaker is heard or respected.

  120. Jack Perry says

    For free speech to have meaning it must not just be tolerated, it must also be heard, listened to, engaged and debated.

    This is a troubling statement from a legal point of view. Free speech may have meaning, it may not, in fact we do not have to agree with it at all, ever and it's still FREE. Free to be given, Free to be totally ignored, Free to tell the other person "you are so full of it" and Free to repeat it, if we accept it, even if we do not. Free speech pertains to public matters of public interest such as the "POS in the White House is a/an @$$#*&&." But not, "Hey, my neighbor, Jane Doe, was dancing naked in street." (some of the public might want pictures… but that is another topic).

    In Canada, the government decides what is '"free speech" under something bizarre labeled as "being responsible" which really means 'whatever the government states it is' and at the end of the judgment by the court is not really "free speech" afterall. The United States is not Canada.

    Alas… the progressives have made yet another mess of a perfectly good thing… defining again what they think "Free speech" should be and here what it should not be. It's not to any one party to decide… it's already been decided with the Founding Fathers.

    "Free Speech" is what permits the progressives to make stupid statements like this and get away with not being hauled away to jail for being harmful to the opinions of the conservatives. Conversely, where the conservatives make the exact same statements against the exact same public officer holder (change the D to an R) and suddenly that speech is oh so bad worthy of jail and speeches on why speech is supposed to have meaning.
    Eliminate "free speech" altogether, which is what 47 Democrat senators in DC want to do (as of July 2014), and progressives will be the first to find themselves in prison for saying something negative about any Republican (in some public office) because the progressives (includes by other names: democrats, socialists, communists – actually according to the communists the democrats are more to the left than they are and that speaks volumes on how dysfunctional the democrats really are -, and marxists), like all other times, did not see the harm in what they were thinking.

    Free Speech is not to be meddled with, lest we lose it altogether, forever.

  121. luciaphile says

    Amusing. Righty loves to play fake victim so much that of course he accuses the other side of doing it —- by calling actual victimhood fake. And of course now he will say he didn't actually call it fake (because in fact he merely implied it was trivial).

    The "victim" has enjoyed the distinct honor, unlike most people, tweeting or commenting into the void, of having his freely-uttered words taken seriously, and further disseminated. Where they gave offense in one quarter, in many another they are likely to earn him a sinecure.
    I apologize for merely implying that the matter was trivial.

  122. luciaphile says

    In candor, I should add that those comments of Salaita's that have come to attention seem rather mild, not beyond the pale.

  123. GeoffreyK says

    @Jack Perry:
    It would be a troubling statement from a legal point of view, IF it stated that meaning was pre-requisite for something to qualify as free speech. Since a literal reading of that sentence doesn't say any such thing, the rest of your tirade (even as I agree with large chunks) falls flat, as being an unrelated tangent.

    This whole "argument" feels to me overly common: there are people who hate what this man said. There are others of us, who think the man said bad things. The latter says to the former, "Whoa, there, that seems a bit unreasonable" and the former responds "How dare you defend any aspect of this?" and here we are, hurling epithets about communists, and *gasp* "liberals". There's maybe 1 person in this whole thread who thinks the Chancellor wrote a good thing; the rest is a discussion of a matter of degrees, and yet you'd think this was a debate on the floor of the Senate.

  124. Richard says

    I've seen some people highlighting the "specifically" in bold, as if they are reading "Specifically, we can only…" as "We can, specifically, only…"

    That's not how I read that word at all; I see it as a connecter to the idea in the previous paragraph of "being tested:"

    Our capacity to maintain that delicate balance between communal interests and free expression, between openness of thought and the requirements and disciplines of academic knowledge, will be tested anew.

    Specifically, [one such test we will have to face is that] we can only exercise our right to free speech insofar as we feel safe and respected in doing so, and this in turn requires that people treat each other with civility.

    Sp, "specifically" doesn't really have anything to do with the "we can only" clause – it links the previous paragraph to the second half of this sentence. The sentence can thus be re-written as:

    "One such test will be treating each other with civility in our discourse, as we can only exercise our right to free speech insofar as we feel safe and respected in doing so."

    Now, I haven't changed the clause that you're objecting to at all, but using the "specifically" in context with the preceding paragraph and succeeding clause, as opposed to reading it as "we can specifically only exercise our right etc." changes the meaning of the sentence quite a bit.

    The other thing I think people are misreading in this sentence is the "we." People, from what I see, are seeing this as "You can only exercise your right to free speech insofar as others feel safe and respected in your doing so." That is, the person exercising the free speech and the person being respected are two different people.

    Now, if you read the "we" and "our" as referring to the same person each time, it becomes:
    "[a person] can only exercise [his] right to free speech insofar as [he] feel[s] safe and respected in doing so." (Apologies for the masculine pronoun)

    This just seems to be common sense – If you are punished for speaking your mind, you're going to be less likely to speak your mind.

    I agree that he worded this whole sentence poorly, but like some others here, I'm not reading this letter as "Be civil or else we will restrict your right to free speech," but rather, "Other people want to exercise the right to free speech; please be civil in your discourse so that you don't stifle their ideas while you're expressing your own."

  125. En Passant says

    When Ken's post first appeared, I had a vague sense of déjà vu, but couldn't quite place what I was recalling.

    Now, after reading the whole comment thread (I can't believe I read the whole comment thread!), I do recall.

    Chancellor Dirks' letter reminds me of Principal Pooper's More Science High pep rally speech before the big game with Commie Martyrs High School, in the Firesign Theatre's Don't Crush That Dwarf, Hand Me the Pliers. (Wikipedia link)

    Those familiar with Don't Crush That Dwarf may recognize the similarity right away. Others, not so much.

  126. Duvane says

    @Richard:

    I'm not reading this letter as "Be civil or else we will restrict your right to free speech," but rather, "Other people want to exercise the right to free speech; please be civil in your discourse so that you don't stifle their ideas while you're expressing your own."

    I think there is a third reading, which amounts to "Civility is required in order to exercise one's rights to free speech, because incivility in one person's speech limits another person's ability to exercise their right to free speech." Or, I suppose, a stronger wording of your reading: "Other people have the right to free speech, and must feel respected in order to exercise it; you must therefore be civil in your discourse so that you don't impinge on their right to free speech while exercising your own."
    This follows if we assume that "[a person] can only exercise [his] right to free speech insofar as [he] feel[s] safe and respected in doing so." (Which is also how I was parsing that sentence.) As far as I can tell, respect only matters in this context if it is communicated, and that communication is speech itself or an aspect thereof. If we agree with Dirks that respect is a necessary condition for the exercise of free speech rights, then we have established that two people's rights to free speech can be mutually exclusive. In that case, an arbiter is required to decide where the boundary is.

    The "safe" part his statement, I see as relatively non-controversial. One's free speech rights already do not extend to making actual threats against others, and we generally accept that arbiters are necessary to decide what constitutes an actual threat. Obviously a person's right to safety doesn't spring from their free speech rights, but I think in this case we are looking at a manufactured right of "respect" that would.

    It seems really nitpicky, but I think this is illustrative of a "progressive" (for lack of a better word) mindset that should be pushed back against, especially in the context of all the "errors" in the email. There are a lot of ways to appeal to civility, such as making that case that civil discourse is often more productive than shouting, without implying, as in this email, that "political advocacy" doesn't count as speech. I simply find it hard to believe that this subtext is purely the result of clumsiness of thought and writing.

  127. doug says

    I think things are becoming clearer. Progressives are to blame for both exercising their free speech uncivilly because they are anti-semitic (as anyone is who disagrees with Bibi in anything), but they are also to blame for inappropriately trying to staunch that very speech. The implication being of course that if Republicans ran the world, free speech would be allowed, but unneeded, since everything would be perfect. Get a grip, people. This is a lot more about how people with power mis-use it. It is power that corrupts, not the political party to which one belongs.

  128. Dictatortot says

    Chancellor Dirks' letter reminds me of Principal Pooper's More Science High pep rally speech before the big game with Commie Martyrs High School, in the Firesign Theatre's Don't Crush That Dwarf, Hand Me the Pliers. (Wikipedia link)

    Ah, yes: "I must make my dirti–duty clean–I mean, clear!" Strikes a truly Dirksean note.

  129. ppnl says

    Duvane,

    This "mindset that should be pushed back against… " isn't just a mind set that should be pushed back against. It is a perversion of the very meaning of free speech. It is true that true threats are not protected speech but that isn't because they interfere with another persons free speech. Even if I threaten to kill you if you don't shut up that isn't violating your free speech. I cannot even in principle violate your free speech because only the government can do that. Free speech is a negative liberty formed by limiting government and only government action. Trying to protect people's free speech from each other would convert it into a positive liberty, a product that government is empowered to deliver. That would be the death of free speech and the birth of regulated speech.

    As a government entity a college has far less right to limit speech than any individual or private company.

  130. says

    Whoops — he goes off the rails in the second sentence.
    "Free speech is the cornerstone of our nation and society – which is precisely why the founders of the country made it the First Amendment to the Constitution."

    This is a common but embarrassing historical and factual mistake.
    1. The founders did not make free speech the first proposed amendment to the Constitution. It was third on the list; it simply got ratified by the states first. Many careless lovers of the 1st A make this mistake. Jill Abramson said the same thing a year ago.
    2. The "founders" didn't include any protection for free speech in the Constitution, at all. Rather, opponents of the proposed Constitution highlighted the lack of individual rights as the key reason to oppose ratification. This gained a lot of traction in larger states such as Virginia and New York. Madison and his confreres came up with the political expedient of promising to add a Bill of Rights right away, if delegates would agree to ratify (first). It worked and ratification was passed by razor slim margins, tying it to demands for amendments. Maier, Pauline (2010). Ratification: The People Debate the Constitution, 1787–1788, at p. 431 (Simon & Schuster. ISBN 978-0-684-86854-7). So, to be perfectly honest, the "founders" were not enshrining free speech as the most important value. They were cutting a political deal to in exchange for ratification. If the opponents had raised some issue about taxation, or travel, or commerce, or the color of the flag, they would have been offered amendments on that instead.
    3. The same "founders" who purportedly revered free speech passed a law, within just ten years of ratification of the First Amendment, making it a crime to criticize the government or the President. The Sedition Act was used by Adams and his successor Jefferson — both "founders" — to prosecute, fine and imprison several dozen newspaper publishers and printers who supported their political opponents. Chernow, Ron. "Alexander Hamilton", p. 668 (2004 Penguin Press). Not exactly a ringing endorsement of free speech by "the founders".

  131. SirWired says

    I don't have time to read every comment, but I have to agree with those that this is nothing more than a call for more civility in campus discourse so that everybody can be heard; it's not a policy statement, nor does it call for any sort of censorship.

    It's hardly controversial to state that a bunch of people screaming at each other is not a useful means by which understanding by people on either side of an issue increases. This was a wordy and poorly-written expression of that idea.

  132. Moishe Pipik says

    I'm always amazed that people think they have a _right_ to not be offended! And that it is the responsibility of College Campuses and workplaces to make sure nobody is ever offended.

    Also, he has a Unibrow!

  133. Rick says

    I'm always amazed that people think they have a _right_ to not be offended! And that it is the responsibility of College Campuses and workplaces to make sure nobody is ever offended.

    And since some people are offended if you call the sky blue, good luck with placating everyone.

  134. FlyingDogs says

    this is nothing more than a call for more civility in campus discourse so that everybody can be heard; it's not a policy statement, nor does it call for any sort of censorship.

    Civility is not required in campus discourse. The problem with the chancellor's statements, even if you take them as benignly as possible, is one of his muddle headed administrators will recall this email at some point during the coming school year and use it as a cudgel against some student or group of students. Ken provides some pretty convincing links, there are numerous other examples at FIRE.org.

  135. barry says

    When Ken's post first appeared, I had a vague sense of déjà vu

    Me too. It reminded me of that 'cancer doctor' from a Popehat post not far back. He was trying to insist that only the 'properly qualified' were allowed to argue or comment on what he was doing.

  136. babaganusz says

    David C:

    Now I can't tell if Kratoklastes is trying to make some sort of point about civility and free speech, or if he just talks like that. Oh well.

    maybe both? but Kratoklastes does usually 'talk' like that.

    ~
    En Passant:

    Chancellor Dirks' letter reminds me of Principal Pooper's More Science High pep rally speech before th

    EAT IT RAW!!!

  137. babaganusz says

    Vijay Prashad does his own analysis here:

    http://www.counterpunch.org/2014/09/08/berkeleys-faux-free-speech/

    and he adds some interesting background info as well.

    indeed:

    In a fascinating essay titled “The Crimes of Colonialism,” Chancellor Dirks cited an essay by Slavoj Zizek and then noted, “Zizek is examining here not only the problem of origins, but the fact that the search for origins leads to a recognition of the horror that lies just below the surface of civility, the realization that the law, indeed lawfulness itself, is predicated on its originary establishment in violence.” This essay was published in 1999, when Chancellor Dirks was then merely Professor Dirks.

    and it gets 'better'…

  138. Fasolt says

    Here's the link to a Ken post on another free speech wizard of a chancellor, in case you haven't been around here that long. The post includes a mention from the Chicago Manual of Style For Censorious Dipshits ("CMSCD").

  139. Fasolt says

    Note that the link I posted was the link to the first post about Chancellor Sorensen's misguided attempt to "Save the Children". Ken's link above "strive for ambiguity" is the follow-up post to the link I posted.

  140. Juan Infinity says

    Man, Ken, that's a lot of words merely to confirm our own biases. I read it in Rush Limbaugh's voice and it was even worse. But I'm no masochist — I declined to read the comments. Did I miss anything, or were they, too, wholly predictable and repetitive?

  141. albert says

    @Moishe Pipik

    You realize that in some EU countries (like Germany) you can be sued for offending someone. This is the endgame of the pseudo-liberal, super-enlightened, Sesame Street culture. Isn't this what our universities are trying to promote? Civility has it's place, but sometimes it can't get the job done. Sometimes, we need to be A LITTLE MORE ACTIVE!
    .
    Regarding the Unibrow: BE NICE! His skin just looks a little red there. For proof, I give you: http://chancellor.berkeley.edu/
    .
    I gotta go…
    .
    P.S. Yes, Virginia, some folks do have WAY too much spare time….

  142. Devil's Advocate says

    @albert

    With all due respect, the object of the "pseudo-liberal, super-enlightened" is to make you feel offended at the exact same set of things that they are offended at, no more and no less. I can think of some other groups with similar goals. Strangely, they don't always agree on which things should and should not be offensive.

  143. Rick says

    With all due respect, the object of the "pseudo-liberal, super-enlightened" is to make you feel offended at the exact same set of things that they are offended at, no more and no less.

    Snort. Add some faux superiority, some extra-potent condescension, and some wannabe petty dictatorship to the recipe and you'll be closer to that particular witches brew.

  144. jimmythefly says

    @ james wheaton

    Thanks, I didn't know all of that background info, and will have to do more reading. I always knew of course that the reality of the country's founding was way more messy than in most textbooks, it's cool to read those specific example.

  145. TradeGeek says

    Ken. I think you are interpreting his words purely from a constitutional point of view. While I can find no fault in your position on free speech; I think your reading every word through a constitutional and legal filter. He was not writing a legal brief. While handing out copies of the constitution in a public space is certainly protected by the First Amendment, reading the constitutions out loud at the top of your lungs during a physics exam is not. There are nuances to this and those nuances are not necessarily a question of constitutionality but where one draws the line in the interest of being fair.

    As an example: I would not want to discourage an employee from having a friendly chat with a patient. On the flip side, I also would not want my receptionist to get into political debates. Chatting about your kids little league game, thumbs up. Chatting about how much you think the president should be impeached, thumbs down. These are not questions of Free Speech in the legal sense, but in the fair sense. I wouldn't want to be so restrictive to my employees that they feel stifled but not so lenient that I have customers and other employees walk out. The first amendment does not extend to someone’s right to work for me. Wearing a swastika is protected speech. But it won’t protect you from being fired if you wear it to work.

    I’m sure there are similar nuances in an academic environment. People often use the term “free speech” broadly and often in the wrong context. Although I understand your, somewhat, knee jerk response given the recent history of academia advocating for a restrictions on the legal right to free speech. I just didn't read the letter quite the same way.

  146. says

    TradeGeek, I accept that not all of the language is legal. Some of it is rhetorical. What troubles me is that he combines the legal and rhetorical.

    The reference to protected vs. unprotected speech is expressly legal, and immediately following with a reference to advocacy vs. free speech seems to be legal as well.

    At a minimum, it's drafted in a way that predictably causes concern.

  147. TradeGeek says

    Ken.. With that I will agree. Maybe I'm just accustomed to rhetoric injected into everything.

    On a side note, could Chancellor Dirks fire any faculty that appear on Ancient Aliens? I don't know if that is a question of constitutional law but I would really get some satisfaction out of it.

  148. Driver8 says

    I don't know if most of you are on campuses these days, but civility has a new connotation — new since the last few years — of being the state of affairs that helps prevent people from shooting each other. While the Israel-Palestine conflict has not been the given explanation for any single shooter situations that I'm familiar with, I think it's worth beginning to ask what "the legal protection of free speech" means when the state no longer has a monopoly on violence *even in state institutions*. My Big 10 university recently had a single shooter scare in one of its biggest lecture hall buildings, and what was most fascinating about it was how unsurprising it seemed even as it was happening. I'm not arguing on Dirks side — I think it was an awful letter — but I also think that there are social changes afoot ("context") that may change the game for educational institutions' management of rights.

  149. jakesdad says

    "Can public schools punish students for mere crass insults? No."

    tell that to Jameis Winston…

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  1. […] Fox News contributor Julie Roginsky. That combo will also comment on the appalling campus memo on "Civility and Free Speech" penned by UC Berkeley Chancellor Nicholas Dirks to commemorate the 50th anniversary of the Free […]