The bit in quotes in the title is the header in the email that Greg Mayer sent me, along with a link and his one-paragraph critique of the piece (below).
That NYT piece is apparently making a mistake that’s common in free-speech discussions these days, implying that free speech should be discouraged if it causes mental harm or offense.
Saying “Gas the Jews”, for example, is an example of legal free speech even though it’s calling for harm. It’s just that the harm is not imminent or predictable, for nobody is about to gas the Jews. And if it offends people, as of course it will, well, that’s unfortunate, but the phrase is neither personally abusive nor designed to incite a fight. I hasten to add that I abhor speech like that, but abhorrent speech is precisely the speech that needs protection. You could, for example, ask someone if they really did want to gas the Jews. Or what they mean when they chant “From the river to the sea. . . ” And, as Mill and others have noted, at the very least abhorrent speech “outs” the speaker as a repugnant person.
If you don’t know when speech is not protected, you should acquaint yourself with the exceptions to the First Amendment. Wikipedia has a good summary of these exceptions, which include false advertising, defamation, threats, inciting imminent and predictable lawless action, creating a hostile workplace, some forms of obscenity and pornography, and so on. And of course there are gray areas. Remember too that the First Amendment holds in public universities but not necessarily private ones, unless the private ones say they’ll uphold it, too.
Here’s Greg Mayer’s take on the article below (click headline to read or find it archived here). Remember that the Kalven Report is the University of Chicago’s policy of institutional neutrality: no official political, ideological, or moral stand can be promulgated by the university unless it directly deals with the academic mission of the school.
A member of the Times editorial board sort of endorses the Kalven report, but then says speech can do “real harm”, that college should be a “safe space”, and that colleges may have to be “weighing in on a larger political debate.” I think he may be trying to find a way to counteract actual threats (whose proscription does not conflict with free speech), while unfortunately adopting the “safety” terminology, which today means something like “if I don’t agree with it, someone saying it harms me.” He’s groping for what’s the right thing to do, but is trapped by his own submission to identitarian newspeak.
Unfortunately, the universities themselves have done their part to add to the mess. By taking public positions on some high-profile political issues but not others in recent years, they have exposed themselves to charges of inconsistency and bias. By imposing speech codes that ban what they deem offensive speech without clearly defining it, they have encouraged illiberalism in an environment designed to cultivate the liberal arts. And by relying increasingly on an ever-shrinking number of ultrawealthy donors, they have put themselves at risk of losing huge amounts of money if the donors decide they don’t like what is being said (or not said) in the university’s name.
As a result, many schools have flailed, some more than once, in their attempts to navigate the storms of speech, activism and vitriol that have consumed their communities over the past month. Administrators continue to face intense pressure to make statements and take sides, whether from students, faculty members, donors or lawmakers.
One solution is to say nothing or as little as possible. This is known as the University of Chicago approach, after that school issued a report in 1967 urging neutrality in response to student protests against the Vietnam War.
But then Wegman starts to go astray:
“There’s no answer that will please everybody,” Erwin Chemerinsky, the dean of the Berkeley School of Law and an expert on free speech, told me. “I put out a statement, the first sentence of which said I’m horrified by the terrorism that occurred in Israel. I got called a racist for that statement, because it labels it as terrorism.” He pointed out, however, that silence can speak just as loudly. “I didn’t issue any statement condemning students who defended Hamas. I got criticized for that.”
Mr. Chemerinsky wasn’t complaining about the criticism — he’s heard far worse — but even he was shocked by the degree of antisemitism he has been seeing on campus in recent weeks, much of it without meaningful pushback from university administrators.
The answer is to still adhere to Kalven. All our university said about the war was something like this: “there’s a war on, people are upset, and if you need help, you can find it here. . . . “. And we didn’t lose donors, incite faculty statements, or have to issue repeated official statements increasingly damning Hamas.
College presidents or administrators should not be making official pronouncements, and if they know what’s good for them, people in high positions should avoid making personal pronouncements too, for while the latter are legal, they serve to chill speech and are not good practice. (Of course faculty and students can say all they want so long as it’s not couched as University policy and doesn’t violate the First Amendment.)
Then Wegman makes the point that’s riling up everyone at Harvard, Stanford, and even at the University of Chicago:
. . . . and yet Jewish students can be forgiven for wondering why they must endure their professors referring to a terrorist slaughter of Jews as exhilarating and their fellow students calling to get rid of the Zionists. In an age of heightened sensitivity to the real harm that speech can inflict, it seems Jewish students are expected to take it on the chin.
The bottom line is that universities undermine their basic purpose if their students feel in physical danger. Administrators can and should speak out in defense of the safety of their students and the values of their academic community, even if doing so means weighing in on a larger political debate.
No, the university is fulfilling its purpose by allowing deeply offensive speech, like “Gas the Jews”, to be said. Of course that will make students feel “unsafe”, but they aren’t genuinely unsafe. They are offended (as they should be), but they’re not going to be gassed. They may feel unsafe, but they will not be unsafe so long as direct threats aren’t made to people or imminent lawless action isn’t called for. And, of course, once students learn that ssying “I feel unsafe” will stop offensive behavior, that’s the weapon they will use.
We’ve had several instances at my school in the last two weeks during which pro-Palestinian students uttered things I considered offensive and even hateful, and they have scared Jewish students. In the course of the demonstrations, the pro-Palestinian students violated University regulations, like blocking access to the Administration building, disturbing classes with megaphones, and shutting down a peaceful series of speeches by Jewish students by shouting over the speakers. All these are explicitly forbidden by University rules.
The students should be sanctioned not for what they said, but for violating University regulations about disturbing other events, blocking buildings, and the like. But they should not be punished for saying offensive things about Israel, like the “From the river to the sea. . ” mantra, recognized by everyone except Rashida Tlaib as a call for the erasure of Israel, even through genocide.
If our University failed, it was not in allowing students to scare others with offensive speech, but in not punishing students who violated the conditions specified for using free speech. (I don’t know if any students have been punished, and probably never will, but if students think that there are no sanctions for breaking the rules, they’ll break them even more frequently.)
The NYT article goes on about donors and the like, but the only other thing that I (JAC) want to take issue with is this:
Obviously there are legal red lines to a culture of free speech: threats, intimidation and harassment, to name the obvious ones. But universities can add their own limits — for instance, no targeting of specific students or of groups because of identity.
Targeting of specific students repeatedly is illegal harassment anyway, but not targeting groups. Yes, let people say “gas the Jews” or “Islam is a hateful and oppressive faith,” even though those words target groups and could scare or offend people (the two terms are pretty synonymous these days).
The “no targeting of groups because of identity” above is what Greg meant when he said this:
“[Wegman’s] groping for what’s the right thing to do, but is trapped by his own submission to identitarian newspeak”.
Targeting identities is legal under the First Amendment, and it should be legal in universities that adhere to that Amendment. Discouraging that behavior is telling everyone that they have to tread lightly when discussing identities, precisely chilling the kind of discussions we should be having right now.