Challenged About the First Amendment, Eric Posner Lies About It

Last week I wrote about Professor Eric Posner's latest proposal for new First Amendment exceptions, placing it in the context of his history of advocacy for expanded free speech restrictions. Many others criticized Posner, usually more articulately than I did.

In a more recent post addressing (sort of) his critics, Posner offers this rebuttal:

The third generic argument is that once one makes an exception to broad protections for freedom of speech, the camel’s nose is under the tent, we have stepped onto a slippery slope, etc. These clichés are as dry as dust and not even true. Courts have constructed countless exceptions to the First Amendment’s apparent unconditional protection for speech, including exceptions for defamation, child pornography, copying, fraud, and more—and yet none of these exceptions have expanded to swallow up the rule.

I recognize that "countless" is a figure of speech, and difficult to prove or disprove. But offered to the end of censorship by a law professor, I am comfortable calling it a lie. At a minimum it is dishonest and misleading, part of pro-censorship movement's attempt to make Americans more ignorant about their civil rights.

Posner's argument — that there are "countless" exceptions to the First Amendment and it's perfectly natural to make more — is exactly the government's we-should-have-power-to-censor argument that the Supreme Court flatly rejected in United States v. Stevens in 2010. In Stevens — which I've written about before — the Supreme Court rejected the federal government's attempt to create the first of many new "balancing" based ad-hoc exceptions to the First Amendment. Faced with loathsome speech — so-called "crush videos" depicting animals being killed for pleasure — the court unequivocally reaffirmed that the set of First Amendment exceptions is historically based and finite and cannot be expanded based on the of-the-moment application of "balancing tests":

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)—including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254–255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447–449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)—are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571–572 (1942).
. . .
The Government contends that “historical evidence” about the reach of the First Amendment is not “a necessary prerequisite for regulation today,” Reply Brief 12, n. 8, and that categories of speech may be exempted from the First Amendment’s protection without any long-settled tradition of subjecting that speech to regulation. Instead, the Government points to Congress’s “ ‘legislative judgment that … depictions of animals being intentionally tortured and killed [are] of such minimal redeeming value as to render [them] unworthy of First Amendment protection,’ ” Brief for United States 23 (quoting 533 F. 3d, at 243 (Cowen, J., dissenting)), and asks the Court to uphold the ban on the same basis. 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 (1803).

Saying that courts have created "countless" exceptions to the First Amendment is not true. The opposite is true: courts have made those exceptions expressly limited and enumerated. They have done so in the course of rejecting Posner's exact argument.

There are foes of the First Amendment. And they lie. Watch them. Call them out. Fight them.

Edited to add: Just remembered that in my post about anti-free-speech media tropes, I said this:

Trope Eight: "[Professor] explained . . . ."

Example: "The exhibit of cartoons in Texas might have crossed the line, [Professor] Szmer said."

The media loves to quote a professor to support a viewpoint. This is intellectually neutral: it can be good or bad, depending on the honesty and qualifications of the professor selected.

Quoting professors about law is particularly risky, if your aim is an accurate and informative discussion of free speech law. If you call a physics professor and ask them what will happen if you drop your pencil, and why, he or she will say "it will fall, because of gravity." There is a relatively low chance that the professor will tell you "well, maybe nothing will happen" because he or she harbors the belief that the current gravitic regime is unfair and otherwise problematical. But when you call a professor of law, or political science, or journalism, and ask them a question about whether some controversial speech is protected by the First Amendment, there is an unacceptably high probability that you will get a quote expressing what the professor thinks the law ought to be. Sometimes the professor will flag a statement as an argumentative one, sometimes not. Moreover, some professors . . . . how can one put this delicately? Some law professors' views on how a court is likely to rule on an issue are untainted by exposure to actual courts.

Many professors will give you a sober, accurate and well-informed assessment of how a court would likely approach a given free speech situation. The trick is separating those professors from ones who are out of their field or mere advocates.


Eric Posner: The First Amendment's Nemesis

Every hero needs a villain.

Not only that, ever hero needs a suitable villain, a villain that somehow complements the hero's attributes. If your hero is a very large collection of Dalmatians, you need a villain who craves a Dalmatian-skin suit. If your hero is Aquaman, you need either a seafood-themed villain or perhaps a desert-themed villain, depending on your mood. If your hero is The Flash, you need a gigantic gorilla, because — well, okay. There are exceptions.

The First Amendment is not an exception. The First Amendment is a hero, of a sort: a tireless defender of expression from angry mobs and fickle tastes, a sentinel against the sort of annoy-me-and-I-kill-you rule that has prevailed for most of humanity's history. So of course it has a villain, a foe, cackling and scheming and plotting to tie it up and lower it into a bubbling vat of stinking, unprincipled lit-crit twaddle.

That villain is Eric Posner, professor at the University of Chicago. I would not go as far as to call him super-, but he is certainly the First Amendment's archvillain.

Professor Posner is in the news again with his latest call to restrict free speech. But you can't just leap in and read that cold. No! That would be like jumping into late-season Daredevil and not understanding why that nice gentleman from Law & Order seems so morose. You have to know the backstory: before you watch this week's battle, you have to see at least some of the battles that have gone before.

In that spirit, I offer you a sort of episode guide. Careful — there are spoilers!

Episode One: Wrath of the Blasphemed. In this episode, Posner plots to overturn the First Amendment in favor of international anti-blasphemy norms, and allow government punishment of speech he believes has "no value whatsoever." Little do his victims know the real nature of the international anti-blasphemy norms he touts: they are tools for religious majorities to oppress minorities, cruel whips that the powerful use to lash the powerless. Is that end this fiend's aim, or is he merely indifferent to it in his quest for the power to control speech? Tune in to find out.

Episode Two: Eric's Army of Darkness. In this episode, temporarily thwarted in America by the First Amendment, Posner seeks to overthrow free speech in Europe through clever reliance on violent terrorists. Faced with the Charlie Hebdo massacre, Posner sees fear and violence as the path to power over what people can say: he proposes that speech should be limited based upon what his motley league terms "low value," and based on the threat that if he is not given free reign to censor, fanatics will shed blood:

Me: if hate-speech laws had been enforced against Charlie Hebdo, then this attack would not have happened. So at a minimum, there is some evidence that they reduce violence. Rauch is right that hate-speech laws cannot be applied “neutrally.” But they can be enforced sensibly, to censor low-value speech that offends groups to the extent that violence may result.

Will the Europeans realize that this theory cedes control over speech to the subjective reactions of (1) foes of speech like Posner, and (2) the sort of fanatics who kill over cartoons? Find out next week! (Spoiler: no.)

Episode Three: Attack of the Zombie Children.> In this episode, Posner realizes that college students have underdeveloped brains ripe for control, control that can be exercised through more muscular speech codes and expression limitations. In what will become an ongoing theme this season, Posner harkens wistfully harkens back to an era will less freedom:

Yet college students have not always enjoyed so much autonomy. The modern freedoms of college students date back only to the 1960s, when a wave of anti-authoritarianism, inspired by the Vietnam War and the civil rights movement, swept away strict campus codes in an era of single-sex dorms.

Episode Four: The Listener. The First Amendment is on vacation so a disconsolate Eric Posner skulks around throwing rocks at the Fourth Amendment's windows.

Episode Five: In Which Posner Seeks To Sell Our Birthright Of Liberty for a mess of pottage that is security theater. You're caught up to the current episode! This time, Eric Posner proposes a law that "makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions." This will help prevent ISIS from recruiting American teenagers, just as laws against copyright infringement have effectively held them back from music and video piracy. Posner wants to invent a sinister time machine to take us back to the early 20th century, before modern speech protections:

However, these rules go back only to the 1960s. Before then, in the United States, people could be punished for engaging in dangerous speech. The U.S. government prosecuted Nazi sympathizers during World War II, draft protesters during World War I, and Southern sympathizers in the Union during the Civil War. It’s common sense that when a country is embroiled in a war, it should counter propaganda that could populate a fifth column with recruits.* The pattern in American history—and, in the other democracies as well, even today—is that during times of national emergency, certain limits on speech will be tolerated.

In other words, Posner is enthusiastically encouraging a return to the time when you could be jailed for questioning whether a war was just or expressing opposition to the draft.

Eric Posner is well-cast as the First Amendment's nemesis: he represents everything it stands against. He represents obeisance to passing tastes about what is couth, clenched fists of power disguised as helping hands, suppression dressed up as order. He is the Foe.

A villain has to be a little scary — there has to be at least some possibility that he'll prevail and overthrow the hero.

But the First Amendment has a lot of friends. I like its chances in this fight.

Safe Spaces As Shield, Safe Spaces As Sword: Part II


When I wrote yesterday about the notion of "safe spaces" being used to annex public spaces and dictate what may be spoken within them, I didn't imagine that modern academia would provide me with another example so swiftly. The place is the University of Missouri, where students accused the administration of indifference to overt racism. Activists demanded, and got, some high-level resignations over the matter. (They didn't get everything they wanted: as far as I can tell their distinctly Maoist demand for a handwritten confession and acknowledgement of ideological tenets was not met.) Agree with them or not, the Mizzou activists engaged in classic protected speech, at least to this point.

The safe-space-as-sword came during the victory celebration. The proposition was wantonly naked: the university's public spaces that activists had chosen to occupy were a no-dissent zone, where activists were entitled to be free from differing interpretations of events:


The "parameters" in question were the public university's quad, one of the most quintessentially public spaces in American law and tradition. This sentiment — that students could take over a public space, use it to express their views on a public issue, and shut other views out of it in the name of emotional safety — was vigorously enforced by a crowd threatening a photographer and a communications professor shouting for "muscle" to help her expel media.

All of this — engendered by accusations of racism against African-Americans — comes within living memory of people asserting their right to make public venues culturally "safe spaces" free of African-Americans. Of course, those safety-minded citizens were somewhat less sophisticated in their jargon. They had signs too.

Some people look on this sentiment and despair. I don't. It's a good thing for America to see how mainstream the spirit of censorship is. Some people say the censorship discredits the substantive values the students are fighting for. I don't. The protest about racism rises or falls on its own merits; the anti-dissent sentiment is so banal and common in academia now, and students aren't taught any different. It would be like saying that t-shirts and bad hair discredit the ideas the protesters are fighting for. Some people suggest that these students (and professors) deserve to face the censorship they encourage. I don't. Deserve's got nothing to do with it. We routinely protect the freedoms of people who scorn freedom: Nazis marching at Skokie, Westboro Baptist Church members protesting at funerals, and other assorted nitwits who dream of an America where their whims are law. That's the deal. We're not going to change because some academics and students are thuggish louts. We're not them. The sentiment "only people we agree with deserve rights" is theirs, not ours.

White People Are Good With Cows, Brown University People Are Bad With Free Speech

Last month I picked on students at Wesleyan. Today, it's the turn of students at Brown.

A few weeks ago the Brown Daily Herald published a rather odd and meandering column by M. Dzali Maier '17 entitled "The White Privilege of Cows" that pondered whether some cultures thrived more than others because of circumstance or because of biological differences. For example:

Thus, whenever I see a white college student, reeking of privilege, I recall the coincidence (or causal relationship) between white physical features and animal agriculture. It is still a question whether or not evolution endowed Eurasians with skills utilized to capitalize on the good luck of livestock animals, or whether Eurasian features just happen to be a poor man’s clue to agricultural history.

Um. Okay. "White People: Naturally Good With Livestock?" I see a series of awkward meetings with a thesis adviser in Maier's future.

I'm generally uninterested in investing much time or effort into exploring whether human ethnic groups have innate biological differences that contribute to "success." I start out very skeptical, since it's a field that is historically so driven by junk science and bigotry. Now? Well, to paraphrase the Simpsons, even though the subject may not be inherently racist, it's #1 with racists. Ultimately I don't see it changing how I treat people, or how the law should treat them, whatever the outcome of the inquiry.

But it's a concept that the marketplace of ideas can deal with very handily. College juniors asserting in student newspapers that white folks may be naturally good with cows does not strike me as an event requiring official intervention.

I'm not sure that's the prevailing sentiment of modern students, or of faculty.

To the extent that anything at Brown is notable, the angry reaction to Maier's column was. The paper added a cringing apology at the start of the column.

We initially made the decision to publish the column, as we generally edit opinions columns for style and clarity alone, giving our columnists great leeway in making their argument as part of our commitment to freedom of expression. We regret that decision and believe it’s clear that this column crossed the line from an opinion we merely disagree with to one that has no place in our paper. The Herald is committed to an accurate and thoughtful opinions section, and we are taking steps to prevent similar issues in the future.

Students and recent graduates called openly for censorship of speech like Maier's. Students demanded that the paper apologize and commit to ill-defined ideological boundaries. An English professor opined that speech can cause physical and emotional harm. Notably, students attacked not only the column, but the sentiment that the paper ought to be free to publish it. Take Alex Seoh '14:

When you defend harmful speech, you are not just a bystander. You are a barrier to social change. Whether you ultimately delay the realization of civil rights and gender equity by weeks, months or years, you are delaying our progress, and you will be on the wrong side of history. Freedom of speech should be valued but not when it infringes upon the freedom of others. It is clear how “The white privilege of cows” infringed upon the rights of people of color here at Brown.

Students Liam Dean-Johnson '16, Aidan Dunbar '16, Anastasiya Gorodilova '16, Nico Sedivy '17, and Madison Shiver '17 resorted to the familiar argument that free speech for some inhibits the rights of others whose feelings are hurt. Though they tried to frame their argument as being about the paper's editorial standards, ultimately their point is that the concept of free speech should serve a particular ideological point of view:

Censorship has a particular meaning that has been lost in these debates. Censorship is the exercise of power to suppress challenges to the status quo. People of color calling attention to racism does not constitute an overbearing power structure that will limit free speech. The oppressed by definition cannot censor their oppressor.

It probably doesn't occur to those students to question what constitutes the status quo, and what constitutes power, on a particular college campus. Fish don't know they're swimming.

Some faculty in the Brown community pushed back and supported Maier's right to write the column and the paper's right to run it. So did some students. But like the Wesleyan incident, Brown's tumult reflects that an appetite for censorship is common and mainstream, not an outlier.

Should student newspapers exercise some editorial control in deciding which opinion columns to run? Sure. Most papers aren't going to run an editorial arguing that the moon landing was faked or that the sun revolves around the Earth. Could a student paper have declined to run Maier's column on the grounds that, scientifically, it's gibberish? Maybe. But would that paper be subjecting every opinion column to intellectual rigor, or just the opinion columns that fell outside a range of popular viewpoints? Public clamor for censorship — and demands that papers apologize for publishing offensive viewpoints — do not create an environment where student journalists can make such decisions.

Let's Applaud Wesleyan's Student Censors For Honesty

Earlier this week I covered a tumult at Wesleyan, where students claimed to be silenced by a student newspaper op-ed they didn't like.

The student op-ed criticized the Black Lives Matter movement in a manner that strikes me as more bootlicking than racist. This yielded a cringing and cringeworthy apology from the Wesleyan Argus' staff (bad) and a vocal commitment to free speech by Wesleyan's President (good).

Some Wesleyan students have responded with a petition and list of demands, which 171 students and alumni have signed as I write this. Here's a hard copy in case it gets disappeared. Edited to add: looks like critics are editing it to satirize it, so look at the hard copy instead for an accurate view of what it looked like.

I like the petition. I like it because the students aren't pretending to be anything but censorious: it's honest.

The students signing the petition agree to "boycott" the Argus, "recognizing that the paper has historically failed to be an inclusive representation of the voices of the student body." So far, this is a call for responsive expression, which is fine. From there it gets scary. "Most specifically, it neglects to provide a safe space for the voices of students of color and we are doubtful that it will in the future." In context, it appears that "safe space for the voices of students of color" means "a newspaper that won't print anything that this particular group of students of color finds objectionable," an aim worthy only of our open scorn.

"This boycott includes recycling the Argus," the petition continues. What does "recycling" mean? It means taking and throwing away copies of a free student newspaper so that others can't read content you don't like, and it's a nationwide problem, as the Student Press Law Center documents. People who respond to student paper content they don't like by trashing the paper to suppress it are thug trash, and it's nice of them to sign a self-identifying petition.

The petition goes on to demand that Wesleyan defund the Argus until their demands are met. Those demands include "Monthly Report on allocation of funds and leadership structure" (that is, more intensive control of a newspaper by student government), "Required-once a semester- Social Justice/Diversity training for all publications (Via Elisa Cardona/SALD office)" (meaning mandatory ideological conformity training on publications via school administration), and "Open spaces dedicated for marginalized groups/voices if no submissions: BLANK that states: 'for your voice” on the front page" (meaning, quotas for expression by particular predefined groups, somewhat like the thankfully-abandoned and Orwellian-named Fairness Doctrine).

Bear this in mind: Black Lives Matter is an explicitly political movement with explicitly political goals. Many of those goals — like questioning and monitoring disproportionate police violence against young black men — are worthy. But the notion that there is only one correct way to think about a political movement is monstrous and un-American. Wesleyan is a private school; they can abandon basic notions of free expression and turn their school into a training ground for ideological conformity if they want to. But isn't it thoughtful of these students and alumni to say exactly what they want, without equivocation? They've thoughtfully provided a list of people never to hire.

The War For Free Speech Laws, Hearts, And Minds Is Endless

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.

A Market Solution To Academic Snowflakes

For years I've been grumbling about the rise of the imagined right not to be offended.

It's not going away. If anything, feelings of entitlement not to be offended are growing, especially in academia. The University of California is considering enshrining a right to be free of "expressions of intolerance," defined as meretriciously as you'd expect. Chancellors of great universities announce that free speech requires feeling safe. Too many students seek not just to disagree with ideas but to prevent ideas they don't like from being uttered in their safe spaces at all.

Plenty of folks and institutions — the Foundation for Individual Rights in Education, for example — are devoted to pushing back against this attitude.

But what if they're taking the wrong approach? What if the market is the right way to deal with the imagined right not to be offended?

Snowflake U.

Imagine a world in which the market lets people decide whether to be special snowflakes — people wtih an actual protected right not to be upset or offended.

As the University of California's proposal shows, the legions of school administrators are perfectly capable of creating Snowflake Schools, where the administration vigorously defends students' rights to be free of offense. What if we let them?

Take, let's say, Brown University. They're already on FIRE's red light policy list, and frankly I enjoy making fun of them. Brown could decide to take on the mantle of a Snowflake School. It could openly declare that its students have a right not to be offended. It could enact policies accordingly, and discipline students and faculty who cause any offense through their speech and actions. Brown could display the snowflake symbol on their letterhead and web page. They could even vigorously rebrand themselves to attract students who don't want to be offended — I don't know, they could rename their teams The Blizzards or something.

Students, staff, and academics could then vote with their feet. Do I want to go to an acknowledged Snowflake School? Maybe I do, and will wear the snowflake badge proudly. Maybe I don't — either because I don't want to get expelled for offending someone, or because I'm embarrassed to go someplace that marks me as a snowflake.

Other people could vote, too. Do I want to hire someone who chose to go to a Snowflake School? You might, but I wouldn't. Do I want to date a Snowflake? Do I want a doctor, a lawyer, an accountant who wears a Snowflake U. sweatshirt?

The Department of Snowflake Studies

But wait! Isn't the snowflake/non-snowflake decision too binary, you ask? Won't schools that make a choice always be riven by snowflake vs. non-snowflake conflict, with some schools lurching back and forth?

Perhaps. That's why we can implement market forces within schools as well.

Imagine: "Snowflake Choice" schools have a Snowflake Registry. Students, staff, and academics can choose to sign up for that registry, or refuse to. Only folks on the registry can assert a right not to be offended, and pursue offense-related grievances. If you're on the Snowflake Registry, you are subject to full punishment for causing offense. If you're not on the Snowflake Registry, you're subject to punishment only with respect to self-selected Snowflake Classes and Snowflake Activities and Snowflake Departments. You might get kicked out of Professor Feels' classes but not Professor Grownup's classes.

Once again, this lets market forces take hold. Do I want to take history from a professor on the Snowflake Registry, knowing I can get kicked out of her class if I offend someone? Or do I want to sign up for a class taught by a professor not on the registry? Do I want to major in a Snowflake Subject, or a non-Snowflake subject?

Transcripts, naturally, would reflect status. I'd be able to see if a job applicant only took classes from Snowflakes, and act accordingly. I'd be able to see if an applicant's major was in a Snowflake Department. I'd be able to notice if a student got all As from non-Snowflake teachers but Cs from Snowflake-teachers, and draw appropriate conclusions.

Every Snowflake Is Unique

A few caveats are important. First of all, non-Snowflake status would not be a defense to accusations of genuine misconduct. A physical assault is not mere offense, nor is a true threat.

Second, Reverse-Snowflakes would find no solace. A Reverse-Snowflake is someone who thinks they have a protected right not to be told they're offensive, someone who thinks that they have a right not to be called an ass when they act like an ass. That's whingy and unprincipled nonsense. Such people should sign up for a Snowflake School, since that's what they fundamentally are.

Let A Thousand Snowflakes Melt

The virtue of this approach is choice. The struggle between Snowflakes and Non-Snowflakes would remain, but rather than a struggle to control institutions to impose their viewpoints, it becomes an individual struggle.

Non-Snowflakes may worry that the market would operate in a way they don't like — that the market would favor Snowflake Schools and Snowflake Majors and huge drifts of graduating Snowflakes. Maybe. But if that's the case, do we deserve any better?

When Lightning Strikes An Utter Tool

Harry Vincent is a 19-year-old college student and kind of a dick. That's banal. Lots of 19-year-olds are dicks, and many of them are college students. Harry Vincent is notable because he has been struck by proverbial lightning — he offended someone online, and that person had the inclination and free time to complain about him to his university, and his university had the shitty values and utter lack of proportion or good sense to punish him for it. That's an unlikely chain of events. But do we really want it to be more likely?

Harry Vincent goes to Texas Christian University. In his spare time, he likes to say "beaners" and imagine people he doesn't like being "exiled" to the Sahara Desert, which he may or may not think is a country.




That's Harry — indifferently literate, choadish, kinda racist, and not particularly creative or good at any of it. The average 13-year-old on Reddit would school his sorry ass on being notably offensive in a hot second. Harry — who goes by @classypatriot, and probably not ironically — is just plain dull.

The internet is oozing with Harrys. But this one caught the attention of a some no-rocket-scientist-either woman in Maryland who encouraged her readers to complain to TCU about him. Harry wasn't speaking on behalf of TCU, or using their Twitter account, or talking to or about TCU students, and wasn't a TCU public relations official or anything. This person "Kelsey" apparently just felt that assholes shouldn't go to college. Ridiculous. Who would run our hedge funds?

Normally this wouldn't be a problem. If sensible people had received Kelsey's complaints of private-time toolbaggery by Harry, they would have shaken their heads and gone back to whatever it is that the hideously swollen academic-administrative class does all day. But apparently TCU lacks sensible people, because TCU suspended Harry Vincent and restricted him from dorms and campus activities. The FIRE has the story, and wrote TCU a stern letter. TCU is a private entity and not bound by the First Amendment — but, as FIRE points out, they claim to celebrate free speech, and ought not if they're going to act like this.

Does TCU, a private entity, have the right to suspend Harry without anything resembling due process for engaging in patently protected speech? Yep. Is its decision to do so worthy of our respect? No. It's ridiculous. First of all, it's arbitrary. I guaranfreakingtee you that a sizable percentage of TCU's student body routinely acts like assholes on the internet. Harry's being singled out because a petty and disturbed person ran across him — he's been struck by lightning. Second, it's unsustainable. Even the army of administrators that colleges support these days can't possibly keep up with policing and regulating the private online speech of students. It's a waste of money to try. Third, this runs contrary to what a college ought to be. TCU isn't some American madrassa openly advocating for uniform thought, like a Bob Jones or a Liberty. If you go to one of those places, you know what you're getting into. No, TCU is nominally a respected academic institution devoted to free inquiry. Suspending people for political expression, however uncreatively dickish, is thoroughly un-academic.

The appropriate American remedy for Harry Vincent being a bigoted twerp is (1) absent fatal alcohol poisoning, him growing up, and (2) more speech imposing social consequences. I suppose being suspended from a private institution is a form of social consequence, but it's a thoroughly disproportionate and disreputable one. Imposing official school punishments on the Harry Vincents of this world suggests that the TCUs of this world can't counter his oafish speech — that all the professors and administrators and earnest students cannot make a convincing counter-argument to some slackjawed dipshit saying "beaner." Doesn't inspire much confidence in the educational system, does it?

TCU deserves scorn for this. They deserve an object lesson as well. If TCU thinks that it ought to regulate its students' private speech when the fragile pussywillows of the internet object to it, why not take TCU at its word and help it along? I'm sure it will be easy to identify TCU students on social media and comment sections and blogs. Why not examine what they say, and write to the administration of TCU if it irks anyone? I'm not just talking about Harry Vincent's sophomoric twaddle. For every TCU student who says #blacklivesmatter, someone ought to write TCU protesting that #alllivesmatter, FOR FEELS. For every student who says something unflattering about Israel there ought to be an angry email. For every off-color joke, there should be a statement about the over-sexualization of society. For every student who makes a hurtful remark about political groups, TCU's administrators ought to get a missive from a Concerned Person. Maybe it's ridiculous to take personal offense at those things, you might say. Well, you might think so. But TCU is clearly interested in how random internet citizens feel about their students and their words. How can we not help them along? You can find email addresses here. Be polite.

Postscript: if you are inclined to write a comment complaining that I ought to be defending free speech without criticizing the speech or the speaker, kindly snort my taint, fool.

Leaked Northwestern University Email States Rules For Title IX Investigations

A Northwestern University insider, who wishes to remain anonymous, leaked to Popehat the following email on Title IX investigations, which was circulated to the Northwestern faculty and staff last Friday.

FROM: Joan Slavin [Director, University Sexual Harassment Prevention Office; Title IX Coordinator; Special Assistant to the Provost]
TO: FACULTY GROUP [3,344 email addresses], ADMIN GROUP [3,635 email addresses]
DATE: Friday, May 30, 2015 at 3:15 p.m.

Dear Northwestern administrators and faculty:

Many of you have expressed concern and upset at Professor Laura Kipnis' latest article, this one attacking Northwestern's Title IX investigation of her based on a past article. (Those of you who have not read the article can find it here: Trigger warnings for victim-blaming, sexual assault issues, cultural prejudice.)

As you know, we have a strict policy against commenting on pending Title IX investigations except to Northwestern administrators, victims, witnesses, victim advocates, student-administration liasons, and victims' emotional support companions. Therefore, I cannot state whether or not several more students have filed complaints against Professor Kipnis based on her writing an article discussing her experience with students filing complaints against her based on her writing an article. I also cannot state whether we have commenced a new proceeding, a more comprehensive one this time, against Professor Kipnis.

But I must emphasize that Northwestern University will not tolerate any retaliation or aggression, macro- or micro-, against students who have made complaints against faculty or each other. Such retaliation is both unlawful under Title IX and against University policy. Professor Kipnis' latest article, like her previous one, represents a deeply problematical challenge to these community values.

This situation requires a review of our basic anti-retaliation rules. I hope that this will both remind you of your obligations and demonstrate without cavil that our policies are completely consistent with freedom of speech, properly understood.

Public Attacks On Victims: When a student accuses a faculty member or another student of sexual misconduct, the only University response consistent with Title IX is contrition, acceptance, and support. That's an obligation of all University employees. Whether or not the complaint has yielded public litigation or press coverage, it is inappropriate for University employees to engage in victim-blaming and victim-challenging behaviors that might deter complaints. Prohibited behaviors include weighing, evaluating, questioning, critiquing, deconstructing, or otherwise assaulting the victim's complaint. This proscription applies to all departments: it is inappropriate to challenge a victim's factual account or legal assertion through the disciplines of law, philosophy, rhetoric, logic, or physics. Statements of support and belief in the victim's account remain acceptable — and strongly encouraged — under any discipline.

Professor Kipnis forces me to clarify a point that ought already be plain in an environment like this one: "neutrality" is no shield for attacks on victim integrity. Professor Kipnes' columns suggest that it is appropriate in the course of discussing an accusation to report what the target says in response to it. Unless the response is a full acknowledgement of wrongdoing and apology, it is not appropriate. Repeating what the wrongdoer says in response to an allegation re-victimizes the victim. The pretense of "neutrality" or "even-handedness" or "telling both sides" has its roots in privilege. Neutrality is not neutral in any academically meaningful sense.

We recognize that these concepts can be difficult to understand for some, particularly those in the physical sciences. Therefore, we have retained a professional adviser to help employees comply with their obligations. Justin Weinberg is an Associate Professor of Philosophy at the University of South Carolina and has published a forceful rebuttal to Professor Kipnis' most recent article, and has reaffirming this University's values: As a respected Professor of Philosophy, he is eminently qualified to explain what areas of inquiry and discussion are inappropriate in a University environment.

Title IX Procedure: Professor Kipnis' latest article is a brutal and biased attack on the University's procedure for evaluating Title IX complaints. I must remind the faculty that discussions of procedure and "fairness" are not excuses to attack victims. Employees should avoid discussions that imply that any particular victim, or victims in general, may not be telling the truth, or may be seeking unwarranted remedies. We do not speak in a vacuum; our words can hurt and retaliate. Discussions of notice to the accused, assistance of counsel, burdens of proof, and opportunity to confront accusers all arise from a presumption that the victim might be untruthful or mistaken. That is not a presumption that we may lawfully or ethically entertain.

Curriculum: It is our collective responsibility to avoid unlawful retaliation not only directly, but implicitly. During this period of reassurance, and whenever Title IX investigations are pending, the College of Arts & Sciences faculty should avoid undue emphasis on problem authors whose texts undermine free reporting of sexual misconduct, such as Arthur Miller, Franz Kafka, or Harper Lee. This is an excellent opportunity to redouble our efforts to expose students to writers who embrace welcoming approaches to victim truths, including Rigoberta Menchu or Wahneema Lubiano. Classes on the American court system, civil rights and civil liberties, and criminal justice may continue so long as professors emphasize to their students that they are participating an an anthropological study of a profoundly sexist and cisgender-biased system and that no positive normative judgment is intended.

With these guidelines, I hope that faculty conduct will better reflect our University's shared values. Further Title IX investigations will help professors recognize how their expression, whether in the classroom or out of it, can help us achieve our goal: a welcoming environment for everyone.

Tumult At Oberlin In Wake Of Emotional Support Animal Companion Initiative

Oberlin, Ohio (AP): A new initiative calculated to promote healing and inclusiveness has instead led to controversy, legal threats, violence, and reported feelings of unsafeness on the campus of Oberlin College.

Oberlin administrators announced the Emotional Support Companion Animals Program for Everyone, affectionately known as "ESCAPE," last week to an eager student body. "This is a safe space," said Walter Green, the college's Executive Vice-President for Redress of Grievances. "And we choose to make it safer with the help of the nonhuman companions with whom we share Mother Earth."

"The nonhuman companions' choices will also be part of our community dialogue," he added.

With that, Oberlin launched an ambitious plan to supply each student and faculty member with an animal companion to support their emotional, spiritual, and socioeconomic needs, drawing from a large population PETA recently liberated from various forms of servitude across the midwest. Excited undergraduates lined up outside the Nifong Student Empowerment Cooperative, waiting their turn to choose and bond with a companion. "We needed this. We needed this to get through this year from hell," remarked Sophomore False Consciousness Studies major Lauren Haller, as her friends jazzhanded in an affirming manner.

Haller referred to a series of crises that have intruded upon the lifespaces of Oberlin students. In February a senior delayed three days before accepting public responsibility for using the term "girls." College administrators, citing federal privacy rules, declined to specify his punishment. In March, the campus roiled when a computer error resulted in several issues of GQ being stocked at the student convenience store, and the administration failed timely to respond to a Campus Justice Petition demanding changes to certain culturally normative elements of the engineering curriculum. More recently, a speech by extremist Christina Hoff Sommers caused widespread distress. Plans to pelt Ms. Sommers with rotten fruit was derailed when organizers learned that their organic produce supplier had once spoken in opposition to a $25 minimum wage, news that led to widespread tearful recriminations.

Unfortunately, ESCAPE has not provided the solace for which it was designed. Problems began the first day when Little Mister Derrida, a wolf hybrid companioned with popular Classism Professor Forrest Moore, savagely attacked senior Pietro Salvador's emotional support rabbit Che. "It's unreasonable, and in fact very offensive, to expect Little Mister Derrida to deny his nature in order to confirm to social expectations that make the majority comfortable," protested Professor Moore, who declines to classify his companion as either wolf or not-wolf. Salvador, who could not be reached for comment, reportedly informed his RA that he had not found the experience emotionally supportive.

There were other violent confrontations between companions of different backgrounds and life experiences throughout the week. Moreover, many students reported that their classmates had not offered the welcoming and accepting community that is the hallmark of Oberlin. Sophomore Henry Trask's attempt to bring his emotional support pig to a Comparative Religion class led to a largely unproductive and mostly screamed debate about the inherent tension between Trask's right to emotional support and his classmates' protected right against offense. Freshperson Darlene Oswalt filed a federal civil rights complaint when a professor asked her to take her raptor outside, saying that the college had attempted to "silence [the eagle's] own story." Moreover, students with sensory differences have reported hygiene anxieties. "The residence halls reek from feces and urine," said one student who asked to remain anonymous. "And this time not just that one graduate dorm."

Administrators rushed to address student concerns, but unsuccessfully. Room-to-room trigger warnings listing the types of companions therein proved impractical with an active and mobile student body and were condemned as "othering and stigmatizing" by some students. The school hired emergency crisis counselors, but discovered that the students' anxieties and conflicts merely relocated to the waiting areas of the counselors' offices. "I can't reach serenity without Dostoyevsky," said one student, referring to her emotional support chinchilla. "And Dostoyevsky can't be serene if there are, like, four coral snakes waiting there with those pretentious assholes from the theater department."

At press time, administrators were privately expressing grave concern. "I don't know what to do," said Green. "There's going to be a surge in calls for emotional support next week when those free speech fanatics from FIRE show up to talk. And this is Peak Triggering season in the economics and history departments. These students need to have someone unquestioning and uncritical reaffirm their feelings, and we thought animals fit that bill."

"They are being exposed to upsetting ideas every day," said Green. "What are we supposed to do, just tell them to deal?"