I do not anticipate an end to the war for, or against, free speech in academia. Last week was a bloody one in that struggle.
In California, the Regents of the University of California had an opportunity to wave glorious banners of censorship, blow trumpets, and retreat from the field. Some committee or working group proposed a Statement of Principles Against Intolerance, a dog's breakfast of poorly-defined wrongthink that would be patently unconstitutional if made mandatory. The Statement had what amounted to a censorship-abjuring loophole: it said that it could not "be used as the basis to discipline students, faculty,
or staff," making it more a proclamation of feels than a rule.
But it does not appear that bargain will hold. At a contentious Regents' meeting, several Regents demanded that the policy be be reworked to inflict punishment for violations of the vaguely-worded and generally unprincipled intolerance code. Regent Richard C. Blum threatened that his wife, U.S. Senator Dianne Feinstein, would interfere and make trouble if the Regents didn't commit to punish people for prohibited speech. Meanwhile, students and faculty battled over whether the intolerance statement should adopt the State Department's definition of anti-Semitism and therefore cave to some factions that believe that Jews have a special right to be protected from certain arguments about Israel.
I predict that the University of California will take the wrong path and wind up buying a beach house for some lawyer.
Free speech still has principled support in academia, articulated by leaders who insist that students act like adults. In Nebraska, University of Nebraska-Lincoln Chancellor Harvey Perlman rebuked calls to censor preachers in Nebraska Union Plaza with a forthright call for free expression:
The university does not condone these comments. One would hope that the campus could enjoy intellectual disagreements without this type of rhetoric. Nonetheless, as far as we can determine the speakers were within their First Amendment rights of free speech. We have designated the plaza outside the Nebraska Union as a place where provocative speech can be conducted without disruption of the ongoing activities of the university.
. . . .
We all have the option to avoid the plaza if we neither want to hear nor be subjected to this type of language. In the end, we are fortunate to live in a free society where speech is protected, regardless of how offensive or provocative it might be.
At Wesleyan, when the student paper printed a controversial op-ed questioning the Black Lives Matter movement, University President Michael Roth defended the paper's right to print it and rejected demands that it be punished:
Some students not only have expressed their disagreement with the op-ed but have demanded apologies, a retraction and have even harassed the author and the newspaper’s editors. Some are claiming that the op-ed was less speech than action: it caused harm and made people of color feel unsafe.
Debates can raise intense emotions, but that doesn’t mean that we should demand ideological conformity because people are made uncomfortable. As members of a university community, we always have the right to respond with our own opinions, but there is no right not to be offended. We certainly have no right to harass people because we don’t like their views. Censorship diminishes true diversity of thinking; vigorous debate enlivens and instructs.
The existence of a few principled allies in the war for free speech is heartening. The existence of foes like Regent Blum (and his wife, a U.S. Senator) is not. But most disheartening of all is the recognition that in fighting for free speech we struggle against an army of child soldiers. At Wesleyan, students responded to their Presidents' example with arguments that free speech should be suppressed because it "silences" other speech and that permitting expression of viewpoints they don't like is a "coward's approach." At the student paper, editors wrote a cringing apology for having offered an offensive viewpoint. Will that paper allow a substantially non-conforming viewpoint in an op-ed again? I fear it will not.
The child soldiers — young people devoted to using official power to punish ideas they don't like — are terrifying because they seem so divorced from core American values like liberty, freedom of conscience and expression, and individual responsibility. Let's not forget that's our own damned fault.
Last 5 posts by Ken White
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016
- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
- FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts - September 22nd, 2016