The Philosophical And Moral Incoherence of “How Dare You Walk Out Of My Speech”

Harvey Silverglate, an icon of the ongoing American struggle for free expression, and Professor Randall Kennedy, a Harvard Law School professor justifiably famed and respected for piercing analysis of complex racial and social issues, have a complaint. They believe Mr. Silverglate has been cancelled.

Wait a moment. To be fair, they believe he has been “‘cancelled’, in a sense.” That qualification reflects a certain amount of intellectual honesty and self-respect. But their essay — published, as convention requires, at Quillette — could use a lot more.

Mr. Silverglate is a Harvard graduate and professor, crusading attorney and defender of rights, repeatedly published author of important books, founder of the Foundation for Individual Rights In Education, and a sought-after gripping speaker. He has not been fired, expelled from any organization, depublished, or even (so far as I know) shunned on Martha’s Vineyard. Here’s what happened: he was invited to speak to private high-school students on the subject of free expression, he used the racial epithet commonly known as the n-word in the course of accurately quoting the title of Prof. Kennedy’s book, he did so several times, some of the students walked out, he continued to speak with the rest of the students, later the school sent its community an apology for the epithet being used in the classroom and said it was inappropriate, and the school wouldn’t print Mr. Silvergate’s response. In other words, some people (rightly or wrongly, rationally or irrationally) didn’t like some of his free expression and responded with their own free expression. If there have been other consequences, he hasn’t mentioned them.

One could use this as an opportunity to explore the complexities of how we approach racial epithets, particularly in schools. Their essay doesn’t. Prof. Kennedy has done so in the past: his book “Nigger: The Strange Career Of A Troublesome Word” is a famous and thoughtful treatment of the cultural, historical, and legal legacy of the word and the vexing problem of context: when is a slur racist and when is it talking about racism? It’s a word that can be used for evil and oppression and can also illuminate evil and oppression. Decades after its publication Prof. Kennedy’s book continues to provoke valuable debate, as has its subject. It’s well worth reading.

Whether and how teachers should address racial slurs has long generated blazing controversy. The breathtakingly anti-racist classic Hucklebery Finn is a perfect example. Huck believes slavery is ordained by God, because that’s what he’s been taught, but decides he’d rather go to Hell than betray Jim, whose humanity he’s recognized. Huckleberry Finn used to be banned for being subversive and now is more commonly banned because it is perceived as racist, in part because of its free (and period-accurate) use of the n-word. I know where I come out on this — the book is an American classic and a key depiction of our long struggle with racism, when understood it’s fiercely anti-racist, and it should be taught at appropriate levels with careful discussions of context and acknowledgement of the brutality of its terms. But that’s just my opinion, and I lack the hubris to believe it’s the only legitimate opinion or the only opinion worth exploring.

Mr. Silverglate and Mr. Kennedy seem to embrace just that hubris. Here’s what they say:

What fatuous self-pity. Let us pass, quickly, the embarrassing notion that Mr. Silverglate — Harvard Law professor, ACLU board member, lifelong skilled advocate — is complaining, Ben-Shapiro-like, that Those High School Kids Won’t Debate Me. The students didn’t shout Mr. Silverlake down. They didn’t prevent anyone else from hearing him. They didn’t demand he be censored. They walked out. Walking out is a time-honored method of student protest. It’s historically resonant, evocative, and effective at attracting attention and provoking discussion. It’s a classic form of dissent and protest that’s available to people, like students, with less power in the face of people, like Mr. Silverglate, with more power. Mr. Silverglate knows that. He was a member of the board of the Massachusetts chapter of the ACLU, and the ACLU — including his own chapter — has repeatedly addressed the First Amendment limits on public school punishment of walkouts.

Yet instead of analyze or even acknowledge the free expression interests of the Milton Academy students, Mr. Silverglate and Prof. Kennedy swiftly and dishonestly conflate them with official censorship and censorial actions designed to silence speech:

One of those things is not like the other. Walking out isn’t shouting down or blocking. Moreover, Mr. Silverglate and Prof. Kennedy apparently believe that dropping the n-word is acceptable but walking out on Mr. Silverglate for dropping it is not “acceptable.” They seem to posit a known and absolute standard of decorum under which one is proper and the other just isn’t. They do not seem to acknowledge that some people may be as passionate about the n-word being inappropriate at school as they are passionate that it’s proper, or that people who feel that way have a legitimate interest in expressing their dissent. They don’t seem to recognize the irony of decrying incivility in the context of a fundamental dispute over what’s civil. Nor do they consider that even if we agree that the n-word can be appropriate at school, that people might disagree about whether a particular use is pedagogy or mere provocation, education or edgelordism. One senses that the authors believe their role is to dispense wisdom and the role of the students of Milton Academy is to sit there and take it.

Their complaints about Milton Academy’s official response isn’t much better. They quote only very selectively from the Academy’s apology, and to be frank, given the rest of their essay I am not inclined towards charitably assuming that it’s a fair or representative paraphrase. Of Milton Academy’s failure to respond to Mr. Silverglate request to respond, they say:

Courtesy, again. Propriety, again — at least for some. Mr. Silverglate and Prof. Kennedy have firm views about courtesy, but it’s not clear they acknowledge that others might have different views with considering. Milton Academy’s publications to their community are their free speech. Can I come up with a theory that when the school criticizes someone on their own platform, they ought to provide a forum for a response, even if that person already has a vast and powerful external network with which to communicate? I suppose. Do I think that’s the only plausible argument? No, I don’t. Do I think that a school’s failure to provide a space for external rebuttal in their communications to their community means they’re “afraid of offending the sensibilities of censors”? Don’t be ridiculous.

As I wrote earlier this year, I think we could come up with a principled definition of “cancel culture” that identifies responses to speech that violate decency, proportionality, or shared values. But I believe we haven’t tried, and that that our dialogue about “cancel culture” venerates the speech interests of whatever person we choose to the irrational exclusion of the speech interests of anyone reacting to that person. I believe most “cancel culture” dialogue is philosophically and morally incoherent because it worries about the decorum of only some speech (criticizing a speaker) and not other speech (what the speaker said). I also believe the loudest critics of “cancel culture” tend to conflate criticism and censorship in a fundamentally dishonest way. I could not, if I tried, have drafted a better example than Mr. Silverglate and Prof. Kennedy’s essay.

This is a deeply disappointing and embarrassing essay to come from either Mr. Silverglate or Prof. Kennedy, both of whom have done essential work at defending rights and discussing hard subjects seriously. One wonders if their chosen venue influenced the seriousness of their approach. The controversy over cancel culture deserves serious treatment, not culture-warrior self-indulgence.

Edited to correct the spelling of Mr. Silverglate’s name. My people have no tradition of proofreading.