I don’t want to make too much of the results of this survey, as it was based on only a small and limited sample of students: 530 undergraduates at the University of Wisconsin at Madison (UWM) surveyed in 2020. And one could argue that the results are somehow biased because one of the two surveying bodies, the Tommy G. Thompson Center on Public Leadership, looks as though it leans toward the right, though not strongly so. (The other partner was the University of Wisconsin Survey Center, which is a data-collection organization that seems pretty objective.)
The upshot is that students are depressingly eager to regulate First-Amendment free speech, and generally favor regulation of “hate speech” and government restriction of speech. The researchers also found that women are more in favor of restricting speech than are men—sometimes strongly so—and that conservatives are, in general, less in favor of restricting speech than are liberals.
The latter comes as no surprise to me given that liberals are more responsible for deplatforming college speakers, but I wasn’t previously aware of a sex difference. I suppose if I were to impute that result to anything (the authors don’t discuss it), I’d guess that women are in general more compassionate and empathic than men, and thus more in favor of restricting speech that’s assumed to create “harm.”
Click on the screenshot to go to the pdf:
I’ll summarize the results by questions asked:
A.) Hate speech. The topic broached was “The government should be able to punish hate speech.” The survey did not define hate speech, but that’s okay because those who oppose it rarely do.
63.2% of all students agreed (either “strongly”, “somewhat” or “slightly”, categories that we’ll use from now on), 30.5% of all students disagreed, and 6.2% had no opinion. In other words, more than twice as many students thought the government (yes, the government, not the school) should be able to punish hate speech than thought otherwise. Here’s the breakdown by sex, showing that women favor punishing more than men (74.9 % of women favor government punishing compared to 46.9% of men).
And a breakdown by politics, showing that conservatives favor less punishment. Since this breakdown by politics is seen in nearly every question, I won’t discuss it that much. (I will highlight below the difference between men and women, which is new to me):
I suppose some people could argue that conservatives are more often to be “haters,” and that explains the result. Nevertheless, UWM is a public school and the Supreme Court, in a 2016 decision, ruled that what most people consider hate speech is protected by the First Amendment:
“[The claim that the government may restrict] speech expressing ideas that offend… strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, sex, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate’.”
In other words, the “restrictors” are explicitly violating what federal courts consider to be free speech.
B.) Hate speech #2. The question asked was “A person should be able to prevent another person from speaking if they believe the person’s speech is ‘hateful’.”
In toto, 44.9% of all students agreed, while 56.3% of all students disagreed, and 7.9 had no opinion. Here the results are somewhat better for free-speechers, but still, almost half of students argued in favor of prevention. And again there was a sex difference: 56.6% of women agreed compared to 29.1%—a substantial difference.
64.6% of students who described themselves as “very liberal” favored the prevention, compared to 14.5% of students who described themselves as “very conservative”
C.) Racially insensitive speech. The question asked was “Should government restrict the speech of racially insensitive persons?” Note that the question is a bit ambiguous, as it could be taken to mean that all speech of bigots should be restricted, but I think it’s clear they’re referring to “racist speech.”
Here the overall result was about 50:50, or rather, 53% of the students thought that the government restriction was appropriate, while 47% though there should be no restriction. Again, we see a male/female divide, with 66.6% of women favoring restriction compared to only 43.3% of men. And there was the conservative/liberal divide: 29.6% of self-identified liberals supported speech restrictions compared to only 9.7% of conservatives.
D.) Holocaust denialism. The question asked was “Should the government restrict the speech of Holocaust deniers?” Although this kind of speech is illegal in sixteen European countries and in Israel, I strongly favor its legality, for it’s a question whose answers (and the supporting data) need to be handed down among generations. Holocaust denialism is of course legal in the U.S.
Nevertheless, 55.5% of all students thought the government should restrict denialism compared to 45.5% who did not. Here’s a pie-chart breakdown by sex, showing what we see above—a big difference (the data are presented in different forms throughout the document, and they should have been consistent):
Conservatives were again less in favor of such restrictions than liberals.
E. Restriction of speech that discomfits others. The question asked was “Speech should not be regulated even if it makes others feel uncomfortable.” Here, an “agree” answer is in favor of free speech.
Overall, 35.7% of students disagreed, urging some regulation, while 55.3% agreed. Here we have a majority in favor of free speech. But nearly half of the women (47.6%) were in favor of regulation of such speech, compared to 26.6% of the men.
F. Restriction of speech of Climate-Change deniers. The question asked was “Should government regulate the speech of Climate Change Deniers?” I don’t think most of us would favor government regulation of discussion of a scientific issue, even though the scientific consensus is clear.
The reserachers didn’t ask about creationism, but neither would I ban discussing the misguided ideas of creationism, as they gives us a chance to present the evidence for evolution—just as climate-change denialism allows us to present counter-speech with evidence for anthropogenic global warming. To be in favor of restriction means you’re in favor of restricting discussion of a scientific issue, even if that discussion is tainted with political bias (nearly all on the conservative side).
Again, most students (62.1%) came down on the side of free speech, but 37.9% were censorious, and that’s a hefty portion. And there was a substantial sex differential, with almost half the women but only a quarter of the men urging restriction.
On this one issue, there was not much of a difference between conservatives and liberals, as one might expect given the political connection between conservatism and climate-change denialism.
The survey went on, asking questions about whether public institutions can revoke invitations to speak if the speaker “may offend” the audience, a question about whether the government should be able to restrict biased media, whether social media should monitor and remove offensive speech, whether public schools should set aside 15 minutes of time for private prayer (a lot more agreement than disagreement here!), and whether business owners should be able to enforce their religious beliefs on others, like refusing to sell contraceptives (or, I suppose, gay wedding cakes). But I’ve already gone on too long, and will let you read the results for yourself.
A brief upshot:
1.) A surprisingly large number of UWM students favor restriction of speech, even though most of what those restrictions violate the First Amendment.
2.) Substantially more women than men favor restriction of speech. I don’t really understand this result, and we should remember that this is a smallish sample from a single college, but if it’s general it would need an explanation. You’re welcome to advance your own hypotheses in the comments.
3.) In general, conservatives favor less restriction of speech than do liberals. Given that the nature of the speech subject to this survey’s questions was on issues where there is already a political divide, I would have liked to see a more general question about restriction of any speech considered legal under the First Amendment.
I agree with the study’s authors, who say at the end that students clearly need education about the First Amendment. They broach a number of possible solutions, including infusing courses with First-Amendment material or giving them an introduction to free speech when they arrive at college.
Given the logistic problems of the former solution, I favor a “free-speech” unit when students enter college. That would be quite fraught now, for the students might interpret this as a college telling them that it’s perfectly fine to utter “hate speech”. (Legally it is, but socially it’s not.) But there could be lively discussion of the benefits of free speech, what “hate speech” really constitutes, and so on. I think it’s best to have these discussions before college students, steeped in an atmosphere of ideological conformity, become hardened in their opposition to free speech.
Oh, I forgot to mention that UWM, as a public institution, is required to abide by the First Amendment.
Writer Thomas Edsall is best known for his weekly op-ed in the New York Times, with the latest example below. It’s a long column, and not a bad one at all, even though I disagree with his conclusion that the First Amendment seems obsolete because, in the age of social media, free speech cannot promise “that factual information is guaranteed”.
Note that what is asserted in Edsall’s headline is not that the First Amendment has “wrecked free speech”, but that Trump’s lies have. The rationale for First-Amendment free speech in America is that it ensures a “free marketplace of ideas,” and, with that in place, the assumption is that truth will Triumph. Now that’s clearly not been so obvious under Trump, because he beleaguers the American public with untruth, and many of them buy it.
Is the wrecking of the benefits of the First Amendment, then, due to the election of a fascist as President, which has nothing to do with the Amendment itself, or to social media, which allows a largely unregulated dissemination of lies? That, too, has nothing to do with the Constitution, because social-media companies like Facebook and Twitter, as private corporations, aren’t required to abide by that Amendment. And those companies are already engaged in regulating speech in a manner that wouldn’t stand up if they were government agencies. But that hasn’t worked, either. It was social media, after all, that led to the debacle on Capitol Hill yesterday.
Another argument is that we do need to modify the First Amendment: we need to go to the European system in which some “hate speech”, like Holocaust denial and blasphemy, is banned. That doesn’t seem to have worked, either: those countries don’t seem to have less “hate” than America, and at any rate, I don’t see how banning, say Holocaust denial, is useful. In fact, I think it’s harmful, as people have no impetus for learning what the real evidence is for the Holocaust. The benefits of free speech are that you can hear the best arguments of those whose views you oppose. That was suggested by Mill, who also mentioned another benefit: if odious speech is prohibited, you’ll never learn who its exponents are.
At any rate, Edsall’s piece is fair in that he airs both sides in extenso. In fact, most of the airtime goes to those who want to keep the First Amendment intact. Yet at the end he concludes we need more regulation of speech to ensure that the truth will out. But he’s not specific about how this will happen. I’ll give some quotes from those on different sides of the issue; Edsall has done his homework by interviewing lots of people
Arguments for Modifying the First Amendment (Edsall’s words indented; those of his interviewees further indented):
In making, embracing and disseminating innumerable false statements, Trump has provoked a debate among legal scholars over whether the once-sacrosanct constitutional protection of free speech has itself become a threat to democracy by enabling the widespread and instantaneous transmission of lies in the service of political gain.
In the academic legal community, there are two competing schools of thought concerning how to go about restraining the proliferation of flagrant misstatements of fact in political speech.
Richard Hasen, at the University of California-Irvine Law School, described some of the more radical reform thinking in an email:
There is a cadre of scholars, especially younger ones, who believe that the First Amendment balance needs to be struck differently in the digital age. The greatest threat is no longer censorship, but deliberate disinformation aimed at destabilizing democratic institutions and civic competence.
Change is urgent to deal with election pathologies caused by the cheap speech era, but even legal changes as tame as updating disclosure laws to apply to online political ads could face new hostility from a Supreme Court taking a libertarian marketplace-of-ideas approach to the First Amendment. As I explain, we are experiencing a market failure when it comes to reliable information voters need to make informed choices and to have confidence in the integrity of our electoral system. But the Court may stand in the way of necessary reform.
Of course Trump’s lies were disseminated mostly Twitter, which is free to make its own rules. It can ban some speech, as it did yesterday for Trump (but for only 12 hours), censor it, as it did yesterday by hiding three of Trump’s tweets, or ban some people for speaking, as it threatened to do if Trump persisted. It is up to these companies how they handle speech, and what they decide to censor, but I would still favor them having fairly lax restriction, as close to the First Amendment as possible. After all, there’s no law against people standing up in public and telling injurious lies. Social media can spread lies faster and more widely, but the same goes for truth via counter-speech.
More calls to reform the First Amendment:
Tim Wu, a law professor at Columbia and a contributing opinion writer for The Times, is largely responsible for pushing the current debate onto center stage, with the 2017 publication of his essay, “Is the First Amendment Obsolete?” by the the Knight First Amendment Institute and subsequently in the Michigan Law Review:
“The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly differently than today’s,” Wu wrote. The basic presumption then was “that the greatest threat to free speech was direct punishment of speakers by government.” Now, in contrast, he argued, those, including Trump, “who seek to control speech use new methods that rely on the weaponization of speech itself, such as the deployment of ‘troll armies,’ the fabrication of news, or ‘flooding’ tactics.”
But these aren’t new methods, just ones that can be deployed faster. And, as I said, Twitter, Facebook, and YouTube can counter what they see as undesirable speech via censorship or banning. The problem with that, of course, is whether we trust these companies to do the right thing. I, for one, don’t. They already are biased in how the censor anti-Israeli speech (largely tolerated) and anti-Palestinian speech (often censored as “Islamophobia”). Of course companies can do what they want, but there’s no guarantee that they themselves won’t tilt speech toward their ideological preferences. Note, too, that Laurence Tribe, below, says that every era has argued that “political speech is different from what it was.”
are the most worrisome of the exogenous shocks facing democracies because they undermine the advantages that democracies once enjoyed over authoritarianism.
Democracies, Schor continued, “have muddled through profound crises in the past, but they were able to count on a functioning marketplace of ideas” that gave the public the opportunity to weigh competing arguments, policies, candidates and political parties, and to weed out lies and false claims. That marketplace, however, has become corrupted by “information technologies” that “facilitate the transmission of false information while destroying the economic model that once sustained news reporting.” Now, false information “spreads virally via social networks as they lack the guardrails that print media employs to check the flow of information.”
It seems to me that this “corrupt marketplace” still gives people the opportunity for counterspeech and weeding out false claims. And if the fault is “information technologies”, then what’s the solution? The technologies are here to stay, and who wants to give Zuckerberg the ultimate power over what speech should be aired?
And what happens at colleges where students, though they can’t exercise direct censorship, can still create bannings and deplatformings, and silence those who oppose them. This has created a rigid ideology in which Critical Theory gains ascendancy and no dissent is brooked. This purported attempt to eliminate “hate speech” has resulted in gutting the free discourse that is the heart of our universities.
Should we adopt the European system? (which of course means modifying the First Amendment). Nobody in the article seems to favor this.
Here’s what Erwin Chemerinsky (dean of UC Berkeley’s law school) has to say:
On the negative side, Chemerinsky noted that:
It is easy to spread false information. Deep fakes are a huge potential problem. People can be targeted and harassed or worse. The internet and social media have caused the failure of many local papers. Who will be there to do the investigative reporting, especially at the local level? It is so easy now for people to get the information that reinforces their views, fostering polarization.
Despite these drawbacks, Chemerinsky wrote that he is
very skeptical of claims that this makes the traditional First Amendment obsolete or that there needs to be a major change in First Amendment jurisprudence. I see all of the problems posed by the internet and social media, but don’t see a better alternative. Certainly, greater government control is worse. As for the European approach, I am skeptical that it has proven any better at balancing the competing considerations. For example, the European bans on hate speech have not decreased hate and often have been used against political messages or mild speech that a prosecutor doesn’t like.
Indeed; blasphemy—the criticism of religion—can still be punished in parts of Australia, as well as in Austria, Canada, Finland, Ireland, Poland, South Africa, Spain, and other countries in the West, not to mention the many Muslim countries. Granted, Western countries don’t often prosecute blasphemy, or don’t have explicit “blasphemy laws” (but can penalize criticism of religion), but the point is that if religion got into power, it could censor its critics. And I think laws banning Holocaust denialism or pro-Nazi sentiments are either counterproductive or haven’t worked. Remember too that many, many people see criticism of religion as “hate speech.” The First Amendment, however, says it’s okay. It is okay, and the ability to criticize religion is vital in dispelling a pernicious influence on society.
The problem is with advertising, capitalism, or the print media, not the social media. Some of those interviewed blamed the proliferation of lies to the failure of mainstream media (MSM) to be responsible enough to do objective reporting or on new “advertising models”. A few quotes:
Lawrence Lessig, a law professor at Harvard, was outspoken in his call for reform of free speech law:
There’s a very particular reason why this more recent change in technology has become so particularly destructive: it is not just the technology, but also the changes in the business model of media that those changes have inspired. The essence is that the business model of advertising added to the editor-free world of the internet, means that it pays for them to make us crazy. Think about the comparison to the processed food industry: they, like the internet platforms, have a business that exploits a human weakness, they profit the more they exploit, the more they exploit, the sicker we are.
Well, this seems to apply more to the Internet than the mainstream media—have you looked at HuffPost lately, though?—but it doesn’t make a lot of sense. What does it mean to say that advertisers “profit the more the exploit, the sicker we are.” This seems to be a problem of all advertising, not just the Internet. And, at any rate, the fix for this has nothing to do with regulating non-advertising speech. Deceptive advertising is not protected by the First Amendment anyway, so what should we do: keep advertisers from “exploiting” us? Good luck with that?
A different argument from Jack Balkin, a law professor at Yale:
The problem of propaganda that Tim Wu has identified is not new to the digital age, nor is the problem of speech that exacerbates polarization. In the United States, at least, both problems were created and fostered by predigital media.
Instead, Balkin contended:
The central problem we face today is not too much protection for free speech but the lack of new trustworthy and trusted intermediate institutions for knowledge production and dissemination. Without these institutions, the digital public sphere does not serve democracy very well.
A strong and vigorous political system, in Balkin’s view,
has always required more than mere formal freedoms of speech. It has required institutions like journalism, educational institutions, scientific institutions, libraries, and archives. Law can help foster a healthy public sphere by giving the right incentives for these kinds of institutions to develop. Right now, journalism in the United States is dying a slow death, and many parts of the United States are news deserts — they lack reliable sources of local news. The First Amendment is not to blame for these developments, and cutting back on First Amendment protections will not save journalism. Nevertheless, when key institutions of knowledge production and dissemination are decimated, demagogues and propagandists thrive.
We also lack reliable sources of national news. But again, as Balkin notes, this has nothing to do with the First Amendment. It may be part of the problem, but what is the cure?
When you look at the views of First Amendment scholars I’ve admired, like Geoff Stone here at Chicago or Lawrence Tribe at Harvard, they don’t see changing the First Amendment to counter whatever problems exist—though Stone notes that, as is true with any amendment, interpretations of the courts may change over the years. These scholars, and several others, favor keeping the First as it is. Curious, then, that though the weight of cogent argument is in favor of keeping the Constitution as it is, Edsall feels otherwise (see his conclusion below):
Geoffrey Stone, a professor at the University of Chicago Law School, voiced his strong support for First Amendment law while acknowledging that Wu and others have raised legitimate questions. In an email, Stone wrote (my emphasis):
I begin with a very strong commitment to current First Amendment doctrine. I think it has taken us a long time to get to where we are, and the current approach has stood us — and our democracy — in very good stead. In my view, the single greatest danger of allowing government regulation of speech is that those in power will manipulate their authority to silence their critics and to solidify their authority. One need only to consider what the Trump administration would have done if it had had this power. In my view, nothing is more dangerous to a democracy that allowing those in authority to decide what ideas can and cannot be expressed.
Having said that, Stone continued,
I recognize that changes in the structure of public discourse can create other dangers that can undermine both public discourse and democracy. But there should be a strong presumption against giving government the power to manipulate public discourse. [JAC: I’d add “social media companies” to “government”]
The challenge, Stone continued,
is whether there is a way to regulate social media in a way that will retain its extraordinary capacity to enable individual citizens to communicate freely in a way that was never before possible, while at the same time limiting the increasingly evident risks of abuse, manipulation and distortion.
The problem is exacerbated because “regulating social media” runs exactly the same risks as “allowing government regulation of speech”, but the regulators are corporations rather than the government. If Twitter is now most people’s source of news and information, then Twitter is in fact more powerful than the government, and their own biases pose a danger to free discourse.
Laurence Tribe, a constitutional scholar at Harvard, agrees with Stone, and doesn’t think we should go to the European system:
In one of the sharpest critiques I gathered, Laurence H. Tribe, emeritus professor at Harvard Law School, wrote in an email that,
We are witnessing a reissue, if not a simple rerun, of an old movie. With each new technology, from mass printing to radio and then television, from film to broadcast TV to cable and then the internet, commentators lamented that the freedoms of speech, press, and assembly enshrined in a document ratified in 1791 were ill-adapted to the brave new world and required retooling in light of changed circumstances surrounding modes of communication.” Tribe added: “to the limited degree those laments were ever warranted, the reason was a persistent misunderstanding of how constitutional law properly operates and needs to evolve.
The core principles underlying the First Amendment, Tribe wrote, “require no genuine revision unless they are formulated in ways so rigid and inflexible that they will predictably become obsolete as technological capacities and limitations change,” adding that
occasions for sweeping revision in something as fundamental to an open society as the First Amendment are invariably dangerous, inviting as they do the infusion of special pleading into the basic architecture of the republic.
In this light, Tribe argued
that the idea of adopting a more European interpretation of the rights of free speech — an interpretation that treats the dangers that uncensored speech can pose for democracy as far more weighty than the dangers of governmentally imposed limitations — holds much greater peril than possibility if one is searching for a more humane and civil universe of public discourse in America.
Agreed. And after all this (I’m not leaving out much criticism of First-Amendment free speech), Edsall still quotes Hannah Arendt as if Edsall thinks that that Amendment still poses a problem:
The result of a consistent and total substitution of lies for factual truth is not that the lies will now be accepted as truth, and the truth defamed as lies, but that the sense by which we take our bearings in the real world — and the category of truth vs. falsehood is among the mental means to this end — is being destroyed. . .
Totalitarianism required first blurring and then erasing the line between falsehood and truth, as Arendt famously put it:
In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true ….
Mass propaganda discovered that its audience was ready at all times to believe the worst, no matter how absurd, and did not particularly object to being deceived because it held every statement to be a lie anyhow.
And here’s Arendt in “Truth and Politics” again, sounding like she is talking about contemporary politics:
Freedom of opinion is a farce unless factual information is guaranteed and the facts themselves are not in dispute.
America in 2021 is a very different time and a very different place from the totalitarian regimes of the 20th Century, but we should still listen to what Arendt is saying and heed her warning.
Her warning is that the proliferation of lies doesn’t drive out truth so much as make people cynical about truth; it’s a reiteration of the ideology of Big Brother in Nineteen Eighty-Four. But how do we “guarantee factual information?” I don’t see how we can do that unless someone becomes the arbiter of fact. And we know that what is seen as “fact” depends on who’s in charge. Trump, for instance, saw climate change as fake rather than fact. And of course in science facts are provisional, as they should be.
It would be nice if Edsall would have told us exactly how we’re supposed to pay attention to Arendt. How do we heed her warning? The only recourse I see is allowing someone to determine what the facts is (like Steve Miller’s “detective down in Texas”).
Once again we have a professor who said stupid stuff—not hateful this time, but medically wonky and potentially dangerous—and was officially condemned by his University.
Hot off the press from The Stanford News (click on screenshot): Scott Atlas, a senior fellow at Stanford’s Hoover Institution—and formerly a professor and chief of neuroradiology at the Stanford University Medical Center—became a coronavirus advisor in the Trump administration, and proceeded to make a number of pronouncements about the pandemic that contravened medical wisdom. Last Thursday he was condemned in a Stanford faculty resolution, with 85% of the faculty voting for that resolution.
So here we have the usual conflict between freedom of speech and the “harm” imputed to that speech. And once again, while condemning the speaker, I defend Atlas’s right to say what he wants without institutional condemnation.
From the report:
A resolution, introduced by members of the Faculty Senate Steering Committee and approved by 85 percent of the senate membership, specified six actions that Atlas has taken that “promote a view of COVID-19 that contradicts medical science.”
Among the actions cited are: discouraging the use of masks and other protective measures, misrepresenting knowledge and opinion regarding the management of pandemics, endangering citizens and public officials, showing disdain for established medical knowledge and damaging Stanford’s reputation and academic standing. The resolution states that Atlas’ behavior is “anathema to our community, our values and our belief that we should use knowledge for good.”
The resolution singles out for criticism Atlas’ recent Twitter call to the people of Michigan to “rise up” against new public health measures introduced by Gov. Gretchen Whitmer to curb disease spread.
“As elected representatives of the Stanford faculty, we strongly condemn his behavior,” the resolution states. “It violates the core values of our faculty and the expectations under the Stanford Code of Conduct, which states that we all ‘are responsible for sustaining the high ethical standards of this institution.’”
In approving the resolution, members of the senate called on university leadership to “forcefully disavow Atlas’ actions as objectionable on the basis of the university’s core values and at odds with our own policies and guidelines concerning COVID-19 and campus life.”
The indictment goes beyond simply damning Atlas for misrepresenting the scientific consensus in a potentially harmful way (presumably if he misrepresented continental drift there would have been no faculty resolution), but criticizes him for giving the imprimatur of Stanford and the Hoover Institution to his words. This is a common way to criticize speech: by saying that the speaker is an authority figure and puts the weight of his/her position behind the words.
In discussion, David Spiegel, the Jack, Samuel and Lulu Willson Professor in Medicine, who has been among Atlas’ most vocal critics, reiterated his belief that the university has an obligation to act because Atlas has inappropriately used his position at the Hoover Institution to give credibility to his COVID-19 positions.
“What Atlas has done is an embarrassment to the university,” Spiegel said. “He is using his real affiliation with Hoover to provide credibility in issues he has no professional expertise to discuss in a professional way.”
Yes, of course what Atlas said was dumb, and would have potentially harmful effects on those who followed his public statements. (But be mindful that there have been dissenters from the received wisdom about how to control the pandemic. Sweden, for instance, initially (and fruitlessly) sought to stem the pandemic through herd immunity—one of Atlas’s recommendations.)
But stupid pronouncements, even when made as an official of the Trump administration (and a fellow on leave from Hoover) constitute free speech. Atlas’s intent, or so he said in his response to the resolution, was neither intended to cause harm (the guy was just clueless), nor, if harmful, did it cause immediate harm. Ergo it’s free speech under the First Amendment.
And it doesn’t violate freedom of speech to make a pronouncement as an individual affiliated with Stanford. As far as I know, if I tweeted, as Professor Jerry Coyne, “Face masks are useless for preventing spread of the virus,” I would not be violating the First Amendment simply because I mentioned my position. I might be violating a company’s regulations, or Stanford’s regulations (though I don’t know if that’s the case), but Stanford, although a private university, should not have rules that prevent free speech among its faculty.
Indeed, faculty who voted against Atlas recognized the tension between free speech and “harmful speech”, but resolved it in favor of preventing harm. It’s a case of “we favor free speech BUT. . . ”
In his comments on the issue, [Stanford] President Marc Tessier-Lavigne said he was “deeply troubled by the views by Dr. Atlas, including his call to ‘rise up’ in Michigan.” Tessier-Lavigne noted that Atlas later clarified his statements, but he said that the tweet “was widely interpreted as an undermining of local health authorities, and even a call to violence.”
Tessier-Lavigne reiterated Stanford’s commitment to free speech and academic freedom. Atlas, he asserted, remains free to express his opinions.
“But we also believe that inflammatory remarks of the kind at issue here by someone with the prominence and influence of Dr. Atlas have no place in the context of the current global health emergency,” he said. “We’re therefore compelled to distance the university from Dr. Atlas’s views in the strongest possible terms.”
No, President Tessier-Lavigne, Atlas’s misguided statements were NOT a “call to violence”, at least of the immediate and predictable kind that does violate the First Amendment. Atlas even made that clear. How a statement is interpreted by people is not important; what’s important, if you’re seeking to damn someone for free speech, is what they intended to do.
The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community. It is a community but only for the limited, albeit great, purposes of teaching and research. It is not a club, it is not a trade association, it is not a lobby.
In this case the University (Stanford) is the critic, making public pronouncements so it looks good. And by so doing, it chills the speech of those faculty who would advance renegade views. Some of the faculty even recognized this:
The discussion of Atlas’ actions raised issues of academic freedom and freedom of speech, as it has in the past. Among those expressing concern about the resolution’s effect on freedom of speech and academic freedom was John Etchemendy, former provost, the Patrick Suppes Family Professor in the School of Humanities and Sciences and the Denning Family Co-Director of the Stanford Institute for Human-Centered Artificial Intelligence.
Etchemendy said that the resolution could be interpreted as suggesting Stanford faculty members have less freedom of speech rights than members of society in general.
But Etchemendy said, “As far as the statements that have been made by Atlas, as a private citizen he has the right to make those statements. I am troubled by the idea that a person who has those rights to speak and to assert certain things – however outrageous – have fewer rights to speak, given that they are Stanford faculty. I find that to be contrary to what is, I think, the highest value of the university, which is the value and promotion of free speech and open dialogue.”
I agree wholly with Etchemendy. But clearly most faculty, even if they do favor free speech and academic freedom, favor the “free speech BUT. . .” variety. One more quote:
Debra Satz, dean of the School of Humanities and Sciences, said she believes the resolution has reminded the university of the importance of leading with its values.
“In our messaging, we have sometimes been more focused on the legal issues rather than the value issues,” she said. “This brings the value issues front and center. We have been pretty good at pointing to the value of freedom of speech and freedom of inquiry, which I believe are central. But there are other values at stake. As a university, we have a commitment to push back against the undermining of expertise and knowledge. That is one of the great threats to our democracy at the moment.”
In my view (others may differ), those “other values”, which constitute misinformation—even potentially harmful misinformation—do not outweigh the great value of freedom of speech, especially at a university. Stanford should have kept its collective mouth shut.
Now you might be asking, “Well, what’s the difference between what Atlas said and false advertising, which DOES violate the First Amendment?” After all, Atlas’s statement, like false advertising of drugs, could be harmful to people’s health.
As far as I know, commercial advertising has a bit less leeway than other forms of speech, and what has been prohibited by the courts is deceptive commercial advertising, when a firm makes claims it knows to be wrong. That is not the case for Atlas, who believed what he said. But even if he knew what he said was wrong, he should be damned and excoriated for it by counterspeech, not subject to official university condemnation. Universities, after all, should be kept as unsullied as possible by the chilling of speech, for they are places where ideas should be freely expressed and debated.
Atlas is a moron, but even morons get to say dumb things under the First Amendment.
I was going to put a poll here, “Do you agree that Stanford should have had a vote on condemning Atlas?” But I’d rather hear what you have to say in the comments, so speak up.
Abbas Ghassemi is a “teaching professor” of chemical engineering at the relatively new campus of The University of California at Merced. He’s also a nasty piece of work: the most blatant form of anti-Semite who, between June and December, tweeted the most shopworn stereotypes about Jews on his 18-month-old Twitter account. His activities, now under investigation—though I contend they shouldn’t be—are recounted in the Times of Israel (below; click on screenshot), the Jewish News of Northern California(JNNC) and The San Francisco Chronicle (paywalled).
A teaching professor in the UC Merced School of Engineering is the owner of a Twitter account that had a pattern of antisemitic posts, J. [JNNC] has discovered. The content was described by the Anti-Defamation League as “repulsive” and promoting “antisemitic tropes.”
On June 14, Abbas Ghassemi tweeted “… reality bites!!!!!!” along with a photo of a “Zionist brain” with labels such as “frontal money lobe,” “Holocaust memory centre” and “world domination lobe.” That same image can be found on the website “Jew World Order,” which peddles antisemitic conspiracy theories.
On Dec. 8, in response to Joe Biden’s election win, Ghassemi retweeted another Twitter user’s post and commented, “Surprise, surprise!! The entire system in America is controlled by [the] Zionist. Change of president is just a surface polish, change of veneer. Same trash different pile!”
Many of Ghassemi’s tweets used “IsraHell” in place of “Israel.”
On Dec. 13, he retweeted something and added the comment, “the Zionists and IsraHell interest have embedded themselves in every component of the American system, media, banking, policy, commerce … just a veneer of serving US interest and population — everyone pretends that is the case.”
Ghassemi tweeted similar posts about Zionists and Israel controlling certain components of the United States another eight times between October and December.
He deleted his account after JNNC made inquiries, though a few of his tweets got captured. A particularly invidious one is below:
Antisemitic tweets by @ucmerced Professor Abbas Ghassemi include a brain diagram with "Holocaust Memory Centre" and "Frontal Money Lobe", and a Magen David as a blood-soaked pentagram in cover photo.
The whole thing. This is about as stereotyped as you can get.
Yes, the stuff is absolutely repugnant. In response, the Chancellor and Provost of his university wrote an open letter to the community decrying the hatred of the account (Ghassemi wasn’t named) and saying that an investigation has been started. An excerpt from the letter:
The opinions presented in this Twitter account do not represent UC Merced or the University of California. They were abhorrent and repugnant to us and to many of our colleagues and neighbors; they were harmful to our university, our students, and our years of work to build an inclusive and welcoming community.
The Twitter account, now deleted, was called to our attention by the media. We have now confirmed the account was in fact associated with a member of our faculty. The professor’s dean subsequently emailed faculty and staff in the school on Dec. 23 calling the tweets “reprehensible” and affirming that they in no way represent UC Merced. We have called upon the dean and department chair to work with the Office of the Vice Provost for Academic Personnel to conduct an inquiry into potential violations of our standards, the UC Faculty Code of Conduct or other policies of the university, to determine what consequences are appropriate.
We have heard from some students who have raised concerns about this faculty member’s online statements about their heritage. These concerns will be addressed through the Offices of the Vice Chancellor for Student Affairs and Dean of Students.
We are also directing the Office of the Associate Chancellor for Equity, Diversity and Inclusion to develop programming for the spring semester that addresses free speech, hate speech and anti-Semitism in academia and promotes ways to challenge discriminatory insinuations when and wherever they emerge within the university community.
Ghassemi’s tweets almost certainly violated Twitter’s “hate speech” rules, and his account would have been deleted. He’s also been criticized by the Anti-Defamation league. All that is legal. What may not be legal, and to my mind violates Ghassemi’s First Amendment rights (remember, Merced is a public university) is to conduct a university investigation. Unless there’s evidence that Ghassemi broke other university rules—and I can’t imagine what rules would prohibit him from speaking as a private citizen on social media—he has the right to say whatever he wants in public. Twitter may shut him down, but he could bawl his anti-Semitic drivel on the state capitol steps in Sacramento, for all I care, and he’d have the right to do that.
As for the putative “programming” that the University will develop that “challenges discriminatory insinuations,” well, that comes perilously close to violating Ghassemi’s First Amendment right as well. (He’s apparently retained a lawyer.)
Should the University have decried his speech as “abhorrent and repugnant”? I don’t think so. If Ghassemi pulled the same stunt at the University of Chicago, the response from the administration would almost surely be, “Professors have the right to say whatever they want in the public sphere.” Period. The University should not be in the business of decrying “hate speech” publicly, as that’s a slippery slope that could lead to their decrying debatable things as well, like criticisms of the Black Lives Matter movement. As our Kalven Report dictates, the University of Chicago should make public pronouncements on politics only when they deal with issues that immediately deal with the running of the University.
Look, I’m a secular Jew and have a soft spot for the Jewish people (though not the religion). I’m always accused of being a Zionist, and I suppose that’s true as I support the state of Israel existing as it is (though not necessarily all the settlements). But as far as anti-Semitic “hate speech” goes, bring it on. We can fight back with counter-speech, as as long as the haters don’t try to incite immediate and predictable violence, what they have to say is allowed. As is the speech of Professor Ghassemi, who should not be punished by the University. The students can (and should) avoid the knucklehead, or contest his speech in every appropriate venue. But he shouldn’t be punished officially.
What interests me about this is the lack of coverage of Ghassemi’s activities. Jewish and Israeli papers have covered him, as have the local papers. But you won’t find it mentioned in liberal media like the New York Times, Washington Post, or of course the HuffPost. Anti-semitism is not something they usually report on, for the Left is imbued with it, though they call it “anti-Zionism.” (This is why Bari Weiss had to leave the NYT.) But imagine the coverage if Ghassemi posted anti-Black or anti-Hispanic racism as nasty as that which heaped on the Jews. It would be a national scandal!
In the end, Anti-Semitism is one thing, free speech another. If the latter permits the former, then so be it. We’re in no danger of gas chambers in America, and one of the best defenses against anti-Semitism is to allow its purveyors to out themselves, and then fight back—with words.
Here’s a poll, which I’ll try just to roll out our new polling plug-in:
Ira Glasser was head of the American Civil Liberties Union (ACLU) from 1978 until 2001, and his name is familiar to those who keep an eye on civil liberties. As Wikipedia notes:
The ACLU website credits Glasser with transforming the American Civil Liberties Union from a ‘mom and pop’-style operation concentrated mainly in a few large cities to a nationwide civil liberties powerhouse.” Indeed, at the end of Glasser’s presidency the ACLU maintained staffed offices in all fifty states, the District of Columbia, and Puerto Rico; when he became director in 1978, only about half of the states had staffed offices. Glasser raised the ACLU’s annual income from $4 million in 1978 to $45 million in 1999. Although the ACLU had protected civil liberties generally through litigation, Glasser expanded the focus of the ACLU’s activities through lobbying and public education programs.
There’s a new movie about Glasser that I haven’t seen yet (but will), the 2020 “Mighty Ira“, 100 minutes long. And, presumably because of the movie, Reason.com‘s Nick Gillespie just interviewed Glasser. At the site below (click on screenshot), you can hear a 71-minute podcast with Glasser (I haven’t listened yet), or read a shorter transcript of his remarks. I’ll mention what I think are the most relevant and interesting things he has to say in the transcript, and give a few excerpts.
Glasser dwells at length at what happened in Skokie in 1977, where everyone thinks the ACLU defended the American Nazi Party’s right to march through Skokie, Illinois, and that the march took place. In fact, it didn’t, because the ACLU won another case—in Chicago—that prohibited the city (and thus Illinois) from forcing demonstrating groups to post a $250,000 bond as security against damage. No company would cover such a bond, so that effectively banned public demonstrations. The ACLU took that to court and won. They also won the right of the Nazis to march in Skokie (Skokie is not Chicago, but its own city), and, given the choice, the Nazis decided to march in Marquette Park, Chicago. It’s useful to learn what really happened, as Glasser was in charge when this was happening, and it’s an iconic but misreported case of free speech.
Glasser also describes how the ACLU defended the Klan’s right to march in Mississippi. When I was younger, the organization would, if they had the lawyers and dosh, defend anybody’s speech that was in danger of being suppressed by the government, no matter how odious the speech and the speaker seemed. And that’s what the First Amendment is for.
As I reported in 2018, Reason.com published a leaked memo from the ACLU suggesting that they might be backing off of their traditional mission of defending everyone’s free speech in favor of “social justice” speech. That is, the ACLU was changing course, deciding that some speech might not be worth protecting, or at least not be worth defending by their organization. When asked about this, Glasser gave an answer that didn’t really thrill me (Gillespie’s questions to Glasser are in bold):
In 2018, a leaked ACLU memo came out where the group seemed to be walking away from the idea of viewpoint neutrality when it came to protecting speech. The ACLU now advises its affiliates to consider the content of speech and whether it advances the group’s goals before deciding whether to defend the right to speak. How do you feel about that?
I’m 20 years gone from steering this ship. I don’t really know a lot more about what’s going on than you do. That memo did in fact introduce a content-based consideration to whether they would take a free speech case, enough so that it made me wonder, “If Skokie happened again, would the ACLU take it?” It’s not politically outrageous during times like these for the ACLU to want to become more of a political organization than a civil liberties organization. That’s not surprising, and there’s nothing evil about it. An organization has a perfect right to change its agenda or mission, to say, “The times require us to be something different than what we were.” The ACLU has taken a few steps toward doing that, I think, but they’ve denied it.
There are a lot of progressive political groups out there. I’m glad to have more of them, because that’s my politics too. But there’s only one ACLU. It doesn’t matter on whose behalf the immediate client is. What matters is you have to stop the government from gaining the power to decide. It’s taken 100 years for the ACLU to develop from the 30 or 40 people that started it in 1920 to the powerhouse of civil liberties that it is today. If the ACLU isn’t there for speech, who will be?
I don’t quite get why—hard-line free-speech advocate that he is—Glasser thinks it’s okay that the times could create a useful change in the ACLU’s mission, but a change that dilutes its historical defense of free speech. It’s a bit of a confusing answer, because I can also read in it that Glasser doesn’t think it’s okay (look at his last sentence). Perhaps because he may still have strong ties to the ACLU, Glasser doesn’t want to criticize it so publicly.
Glasser is a social-justice advocate of the right type: he believes in free speech but also in fighting for the oppressed, for racial segregation was why he got into civil liberties in the first place. He reiterates what I see as the right reasons for defending everyone’s speech, and then talks about the intersection (pardon that word) between social justice and civil liberties.
A few words about the enemies of free speech:
It wasn’t until my 30s that I began to understand free speech, that the real antagonist of speech is power. The only important question about a speech restriction is not who is being restricted but who gets to decide who is being restricted—if it’s going to be decided by Joe McCarthy, Richard Nixon, Rudy Giuliani, [President Donald] Trump, or [Attorney General] William Barr, most social justice advocates are going to be on the short end of that decision. I used to say to black students in the ’90s who wanted to have speech codes on college campuses that if [such codes] had been in effect in the ’60s, Malcolm X or Eldridge Cleaver would have been their most frequent victim, not David Duke.
. . .Is civility overrated?
To a point. I’ve seen vigorous advocacy demonized and suppressed on the grounds that it wasn’t civil. I once had somebody at the ACLU propose a new policy for us that would oppose speech that demeaned and insulted people. I got up at that conference and said, “Well, every time I open my mouth, I’m looking to demean or insult somebody because of their views, and I’m about to do it again.” I proceeded to attack that, because in the hands of malevolent power, a statute like that would suppress speech in the name of civility.
And yes, that’s what colleges are doing: prioritizing civility (often described as “harm”) above speech.
I found this interesting:
[Glasser]: Next to slavery and the homicidal, genocidal destruction of American Indians, the worst civil liberties violation that occurred in this country en masse was the incarceration of Japanese-American citizens during World War II. You know which president signed that executive order? Franklin Delano Roosevelt, who was a god in my parents’ house because he had saved them from ruin financially. But for me, the antagonist of civil liberties and free speech is not this or that party; it’s power, whoever holds it.
That, of course, is one of the reasons that demonstrating groups and “social justice warriors” are always about power as well as justice, for if you have power you can keep people from saying things you think shouldn’t be heard.
Free speech and social justice. I found this long exchange quite bracing, not because of the student diversity, which is itself good, but because of Glasser’s response. But to be sure, the students are the future and Glasser is the past. So now I’m depressed again!
I grew up in an era where your broad view of the value of free speech was culturally dominant. What has happened to change that?
I went to one of the half-dozen best law schools in the country a year or two ago to speak. And it was a gratifying sight to me, because the audience was a rainbow. There were as many women as men. There were people of every skin color and every ethnicity. It was the kind of thing that when I was at the ACLU 20, 30, 40 years ago was impossible. It was the kind of thing we dreamed about. It was the kind of thing we fought for. So I’m looking at this audience and I am feeling wonderful about it. And then after the panel discussion, person after person got up, including some of the younger professors, to assert that their goals of social justice for blacks, for women, for minorities of all kinds were incompatible with free speech and that free speech was an antagonist.
As I said, when I came to the ACLU, my major passion was social justice, particularly racial justice. But my experience was that free speech wasn’t an antagonist. It was an ally. It was a critical ally. I said this to the audience, and I was astonished to learn that most of them were astonished to hear it—I mean, these were very educated, bright young people, and they didn’t seem to know this history—I told them that there is no social justice movement in America that has ever not needed the First Amendment to initiate its movement for justice, to sustain its movement for justice, to help its movement survive.
Martin Luther King Jr. knew it. Margaret Sanger knew it. [The labor leader] Joe Hill knew it. I can think of no better explication of it than the late, sainted John Lewis, who said that without free speech and the right to dissent, the civil rights movement would have been a bird without wings. And that’s historically and politically true without exception. For people who today claim to be passionate about social justice to establish free speech as an enemy is suicidal.
Amen! That three-paragraph answer should be distributed to every campus and taught as part of the “free speech” seminar I’d like to see accompanying the usual indoctrination given to college students in their first days on campus.
UPDATE: I’m told by reader Ben that the talk Glasser describes above was given at the University of Chicago Law School. Here’s Glasser talking to Glenn Greenwald about the talk and his movie.
The Foundation for Individual Rights in Education (FIRE) has a particularly useful new report that gives the annual “free speech” ratings of American colleges and universities (478 of them). There are three ratings; going from worst to best they are red light, yellow light, and green light. You can access the full report here or click on the screenshot below. The ratings are explained below.
As someone who lives on a campus regarded as the bellwether of free speech among American colleges, I found the college ratings particularly useful (spoiler: Chicago again gets an overall green light), but because many college students brought up at these places will take their places among the American elite, it’s useful to know what regimes they experience. Especially useful were the sections explaining what free speech really is (FIRE uses the First Amendment as a guideline), and the various ways colleges try to either ignore it or get around it. If you want to know why hate speech does not violate the First Amendment, or what legally constitutes sexual harassment, you’ll be edified by the discussion. I’ve put FIRE’s summary video at the bottom.
Click on the screenshot for the full report:
Both public (106) and private (372) schools were thoroughly evaluated in several areas for how “free” they allowed speech to be; each school was given one of three colors (a fourth was given rarely) in each of several areas (handbooks, “free speech zones”, etc.), and then assigned an overall color for freedom of speech. Here are the categories from worst to best; the “blue light” category below was given to only eight schools, most of them either religious (Yeshiva University, Brigham Young University) or military (West Point, Annapolis):
A “red light” institution has at least one policy that both clearly and substantially restricts freedom of speech. A “clear” restriction is one that unambiguously infringes on what is or should be protected expression. In other words, the threat to free speech at a red light institution is obvious on the face of the policy and does not depend on how the policy is applied.
When a university restricts access to its speech-related policies by requiring a login and password, it denies prospective students and their parents the ability to weigh this crucial information. At FIRE, we consider this action by a university to be deceptive and serious enough that it alone warrants a “red light” rating.
A “yellow light” institution is one whose policies restrict a more limited amount of protected expression or, by virtue of their vague wording, could too easily be used to restrict protected expression. For example, a ban on “posters containing references to alcohol or drugs” violates the right to free speech because it unambiguously restricts speech on the basis of content and viewpoint, but its scope is very limited.
Alternatively, a policy banning “verbal abuse” could be applied to prohibit a substantial amount of protected speech, but is not a clear violation because “abuse” might refer to unprotected speech, such as threats of violence or harassment as defined in the common law. In other words, the extent of the threat to free speech depends on how such a policy is applied.
If a college or university’s policies do not seriously imperil speech, that college or university receives a “green light.” A green light does not indicate that a school actively supports free expression. It simply means that FIRE is not currently aware of any serious threats to students’ free speech rights in the policies on that campus.
Warning – Does Not Promise Free Speech
FIRE believes that free speech is not only a moral imperative, but also an essential element of a college education. However, private universities are just that—private associations—and as such, they possess their own right to free association, which allows them to prioritize other values above the right to free speech if they wish to do so. Therefore, when a private university clearly and consistently states that it holds a certain set of values above a commitment to freedom of speech, FIRE warns prospective students and faculty members of this fact.
If you want to look up a particular college that has been rated, just go here. You can search by school name, state, or ranking, and the entries it breaks down all the sub-areas for each school. The report linked above lists only the overall ratings of every college.
I won’t summarize the results in detail, but will give just a few highlights (for me). First, the overall ratings (all colleges) are improving: red-light schools have dropped strongly in the last nine years, mostly replaced with yellow-light rankings. But the greenies are going up slowly but surely, and the rise is statistically significant.
Here’s the breakdown among all colleges. Since nearly all schools profess to promote free speech (but most don’t foster it in practice), the 12% of green-light colleges means that we have a long way to go. But, as shown above, the arc is bending in the right direction.
Since The University of Chicago is widely seen as the model for free speech at a university (we get a “green” in every category), many schools have adopted the “Chicago Principles” of free expression, which you can read here. Two years ago it was 55 schools who aped us; now it’s 78. That’s good news, except that some of those colleges get RED ratings on other grounds: schools like Princeton, Johns Hopkins, and Georgetown University. Go by the light colors, not what the college professes.
Here’s FIRE’s statement about the Chicago Model:
Seventy-six university administrations or faculty bodies have now adopted policy statements in support of free speech modeled after the “Report of the Committee on Freedom of Expression” at the University of Chicago (the “Chicago Statement”), released in January 2015. (Since this year’s report was written, two more institutions have adopted a version of the Chicago Statement, bringing the total to 78.)
Two more points. Some of the restrictive “red-light” colleges were eminent ones, which surprised me. Here’s a list of the surprising red schools:
Johns Hopkins University
The Evergreen State College (“Where speech goes to die” is my motto for TESC)
Portland State University (notorious persecutor of “Grievance Studies” critics)
University of Texas at Austin
Finally, there’s a long and very absorbing section about the different ways colleges abrogate free speech with their use of “speech codes”, restrictions on “incitement”, “threats and intimidation”, “bullying”, “harassment” (often misconstrued by colleges), “hate speech”, the creation of “free speech zones” that shunt speech off to the hinterlands of schools, the institution of “bias response teams” to intimidate those who practice genuine free speech, and demands for “respect and civility”.
And there’s a list of ways that colleges also try to obviate the new Title IX regulations created by DeVos’s regime. As I’ve said, the institution of the new regulations, which allow a lot more fairness in adjudicating claims of sexual misconduct, is one of the few good things to come out of the Trump administration. FIRE also thinks the new regulations are an improvement, but also notes that some schools have created a “dual-track approach”, which nominally adheres to the new standards but also also incorporates a parallel and broader definition of “sexual harassment” than specified by Title IX, and so can still punish students who engage in speech that conforms to the First Amendment’s definition of “free.”
All in all, while colleges appear to be getting more woke, at least the formal restrictions on speech seem to be improving. But, as FIRE notes, they rate schools only on policy, not on what they actually do, which they can’t keep track of. I’m thus a bit wary. And I’m worried that Chicago will lose its “green light” rating in view of some recently allowed chilling of speech, violations of the Kalven report that have been allowed to stand. Since our school touts its rating as a selling point to students and their parents, losing our green light rating would be a serious matter.
Here’s a short video from FIRE summarizing the report.
In a new ruling, the U.S. Supreme Court overturned New York Governor Andrew Cuomo’s limitation of congregation sizes in churches during the pandemic. The ruling was split 5-4, with new Justice Amy Coney Barrett voting with the conservative majority—affirming the side of the Roman Catholic Church, which brought the suit—while Chief Justice Roberts voted with the liberals. (Had RBG been alive, the vote would have been 5-4 the other way.) Beside the unsigned majority opinion, there are separate concurring opinions by Justices Gorsuch and Kavanaugh, while there are dissenting opinions by Roberts, Breyer, Kagan, and Sotomayor in various combinations.
While the judgment affirmed that Cuomo’s order violated the First-Amendment guarantee of freedom of religion, one shouldn’t assume that the decision was purely one of religious conservatism, for this was a tough call. You can read the opinion below (the unsigned majority take is short), or read the New York Times article about the decision (click on both screenshots below).
The Times’s article:
This ruling overturns two lower-court decisions affirming Cuomo’s decision to force churches to have 10 or fewer congregants during the “red-zone” phase of the pandemic. One of the reasons the majority overturned this restriction (which has since been rescinded!) is that the numerical restriction was not imposed on businesses other than churches. Hence, one could construe that this violates the First Amendments “free exercise” provision by discriminating against churches.
From the majority decision:
In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. See New York State, Empire State Development, Guidance for Determining Whether a Business Enterprise is Subject to a Workforce Reduction Under Recent Executive Orders, https://esd.ny.gov/guidance-executive-order-2026. The disparate treatment is even more striking in an orange zone. While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit.
Irreparable harm. There can be no question that the challenged restrictions, if enforced, will cause irreparable harm. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U. S. 347, 373 (1976) (plurality opinion). If only 10 people are admitted to each service, the great majority of those who wish to attend Masson Sunday or services in a synagogue on Shabbat will be barred. And while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance. Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance. App. to Application in No. 20A90, at 26–27.
But against this, one could argue, as did Justice Sotomayor in her dissent, that businesses that didn’t have government-specified limits are materially different, in terms of viral spread, from church congregations, especially where congregants are singing loudly. From her dissent:
But JUSTICE GORSUCH does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time.
As I noted, the case appears moot because the numerical limits obtaining at the time of the lawsuit have since been lifted (this was emphasized in the dissents). But the majority opinion took that into account as well, saying that Cuomo’s decision could be reversed, and rather than re-litigate the issue, I presume the court wanted to render an opinion that would be in place should that reversal take place:
The dissenting opinions argue that we should withhold relief because the relevant circumstances have now changed. After the applicants asked this Court for relief, the Governor reclassified the areas in question from orange to yellow, and this change means that the applicants may hold services at 50% of their maximum occupancy. The dissents would deny relief at this time but allow the Diocese and Agudath Israel to renew their requests if this recentreclassification is reversed.
There is no justification for that proposed course of action. It is clear that this matter is not moot. See Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 462 (2007); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000). And injunctive relief is still called for because the applicants remain under a constant threat that the area in question will be reclassified as red or orange. See, e.g., Susan
B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014). The Governor regularly changes the classification of particular areas without prior notice.3 If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services before judicial relief can be obtained.
I suppose Left-wing sites might couch this as an unwarranted, pro-faith opinion supported by the usual suspects, who now include Barrett. And that may be the case, but it’s not a cut-and-dried issue. Here are my thoughts:
1.) It is supremely important to uphold the Free Exercise clause, just as it’s important to uphold the entire First Amendment, which includes freedom of speech as well as of worship.
2.) Nevertheless, when public safety is compromised by free exercise of religion, the former trumps the latter, as it has historically. Practicing one’s faith does not give you the right to endanger those who are not of your faith. This gives courts the power to restrict religious practice if it, for example, is likely to spread coronavirus.
3.) But one cannot discriminate against churches in this respect, imposing sanctions on them that aren’t imposed on similar enterprises like businesses.
4.) HOWEVER, and this is the most important bit for me, is a church with a congregation limit of 10 equivalent to a business like Wal-Mart in which more than ten people are present at once—in a much larger space? I don’t think so, particularly when church congregants sing and pray without masks, a particularly dangerous way of spreading the virus via respiratory droplets. I’m not sure whether the court’s decision, holding equivalence such as this, is justifiable, and Sotomayor makes that point. This is in fact a public health rather than a legal decision, and is not really within the court’s competence.
5.) As for the restrictions having changed, rendering the original lawsuit moot, I do agree with the majority that given the to-and-fro of restrictions during the pandemic, a judgment was still warranted. Whether this was the right one, I am not sure. But it’s better to have some opinion in place rather than having the matter re-litigated should restrictions once again be imposed.
Perhaps there are lawyers in the crowd here who want to render an opinion, and I have to say that I haven’t scrutinized the entire set of opinions minutely. But this decision doesn’t bother me as much, as, say, ones that pose more serious dangers, including those that restrict abortion or dismantle the Affordable Care Act. But those will be coming, for the court is now solidly conservative—even if Justice Roberts is mellowing in his old age.
The 25th Amendment of the Constitution provides a way for the Vice President to replace the President if the latter becomes unable to fulfill the duties of his office. I won’t give the whole Amendment, but the relevant parts for this piece concern Trump’s erratic behavior, which many psychiatrists have diagnosed as a mental illness serious enough to have him removed from office.
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
. . .
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. . .
Now Section 4 is a bit unclear as to exactly who will provide the written declaration of the President’s unfitness, though it seems that a majority of the Cabinet, acting with the Vice President, could do the deed. However, a number of psychologists and psychiatrists have, over the last few years of the Trump Presidency, decided and declared that the man is palpably unfit for office—indeed, according to their remote diagnoses, he’s mentally ill—and should be given the boot forthwith.
I agree that Donald Trump is mentally ill, but I’m not a professional, and thus am not bound by the strictures of professional associations to avoid diagnosing someone you haven’t personally examined. And those strictures exist most prominently in the American Psychiatric Association’s (APA’s) “Goldwater rule“, created after a number of psychiatrists pronounced Barry Goldwater unfit for office in 1964. Here’s the rule from the APA’s “Principles of Medical Ethics,” and this rule is still in force:
On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement
There doesn’t seem to be a penalty for psychiatrists who flout this rule, however, as psychiatrists who have diagnosed Trump as ill, or even lobbied Congress to proceed with the Trump Dump, have suffered no penalties.
The many writings and activities of the therapeutic community—psychiatrists, their subset of psychoanalysts, as well as psychologists and medical doctors—to depose the President are detailed in Wikipedia as well as in the op-ed below that just appeared in USA Today. The author, Bandy X. Lee, is a forensic psychiatrist at Yale who’s spent a lot of her time trying to promote Trump’s removal on mental-health grounds. I wrote about her activities, and those of other therapists, in October of this year. (She also edited a book: “The Dangerous Case of Donald Trump: 37 Psychiatrists and Mental Health Experts Assess a President). But now that all of the professionals have failed to get Trump removed—and, anyway, the voters have done what the shrinks couldn’t—she’s back, this time arguing, too late for this case, that the Goldwater Rule violates the First-Amendment right of psychiatrists to speak up, and also (her usual line) that psychiatrists have a duty to speak up because of the danger that Trump poses to America.
Click on the screenshot to read:
Perhaps Dr. Lee is now concerned about future deranged Presidents, and maybe that’s why this appeared when Trump is already on the way out. As for my own opinion, well, yes, I think he’s a narcissist and a sociopath or psychopath, but I am not a professional therapist. If I were, I would not give my professional opinion, for I happen to believe that the Goldwater Rule is correct. Just as a medical doctor won’t give an opinion about what illness a public figure has if that hasn’t been revealed, so a psychiatrist (they’re all M.D.s) should keep mum about mental illness. There is of course a difference, as mental illness could render a President dangerous or ineffectual. But so could many diseases, like stroke or dementia. (Woodrow Wilson was rendered unfit to run the country by a stroke.)
The psychiatrists say they have a duty to warn the public about what they see as a serious threat to the nation. That’s commendable, but they should consider how their comments will be taken by the vast majority of Americans, particularly in a highly politically polarized time. The language of mental health and illness is widely used yet poorly understood, and it comes loaded with unwarranted assumptions and harmful stereotypes. There’s a good reason the profession established an ethical guideline in 1973, known as the Goldwater Rule, that prohibits psychiatrists from offering professional judgment on public figures they have not personally examined.
The paper broached the correct solution: (impeachment didn’t work):
The best solution is the simplest: Vote, and organize others to register and to vote. If you believe Donald Trump represents a danger to the country and the world, you can take action to rein in his power. In November, you can help elect members of Congress who will fight Mr. Trump’s most dangerous behaviors. If that fails, there’s always 2020.
And, YES WE DID. Lee herself seems a bit obsessive in publishing the same old same old at this late date, especially when there’s really no penalty for psychiatrists violating the Goldwater Rule. In her closing, she also says that the APA’s rule about keeping mum is a breach of the First Amendment:
We need to get back to basics. Painter stated at our conference: “the Goldwater rule … is a violation of your First Amendment rights, and a violation of your duty to your country and to human civilization.” It is a basic understanding that to remain silent against a critical medical need is a violation of our professional “responsibility to society,” as outlined in the first paragraph of the preamble of our ethics code. The APA should no longer mislead the public and the media into believing that its guild rule of restricting speech on public figures, which no other mental health association has and is not admissible on any state licensing board, is universal. The truly universal Declaration of Geneva says that we must prevent harm and injustice, especially when they are coming from a destructive government.
Lee is dead wrong about “other associations not having similar regulations,” for the American Psychological Association (another APA), has very similar rule:
Of course a psychiatrist or psychologist can give their opinion without government penalties, for such penalties do constitute censorship and it’s a violation of the First Amendment for the government to sanction anyone for saying that Trump is a loon. But the APA’s penalty (were it enforced) would be a sanction by a professional organization, so the First Amendment doesn’t come into play.
Is it a duty to America for therapists to say that Trump is mentally ill and unfit for office? Well, given what the NYT said, I doubt that such warnings would have any effect. In fact, they didn’t, because thousands of Democratic non-therapists have offered the same opinion, and none of it had any effect. Somehow Dr. Lee thinks that she and her colleagues have the unique medical power to pry Trump out of the Oval Office. They don’t—not with Pence and Trump’s cabinet being who they are. And the speech of Dr. Lee and her colleagues is not restricted. They had their say, and even wrote a book. It did no good, and that’s what you’d expect.
Were I a Democratic, anti-Trump psychiatrist or psychologist, I’d keep my gob shut about diagnoses and just say that Trump is endangering America—without tendering a professional opinion about his mental health. You can palpably point out how the man has damaged America without speculation about what in his brain made him do it.
Two tweets disturbed me this morning, both calling attention to Richard Stengel‘s anti-free speech column in the Washington Post last October. Stengel is a writer and government official who was editor of Time magazine and also worked as Undersecretary of State during the Obama administration. Now he’s on the Biden transition team for the U.S. Agency for Global Media, though I’m not sure exactly what that job involves.
(The “ACLU retreats from free expression” piece mentioned in the tweet below was written by Wendy Kaminer in the Wall Street Journal in June, 2018, and access isn’t free. I’ve been saying that same thing for a while though, and I’ll try to get my hands on it. It is true that the ACLU is taking some alarmingly regressive steps.)
A Biden transition official is calling for hate speech laws. Good thing the ACLU will defend my right to….oh…I see pic.twitter.com/aYiH5wW3eQ
At any rate, a bit over a year ago Stengel—and remember, he’s on the media part of Biden’s transition team—wrote this op-ed. Click on the screenshot to read it.
Stengel’s contention is that the First Amendment is outmoded, especially in an age of social media, for there is no guarantee that “truth will drive out lies” now. But when was there ever a guarantee? Here’s what he says:
It is important to remember that our First Amendment doesn’t just protect the good guys; our foremost liberty also protects any bad actors who hide behind it to weaken our society. In the weeks leading up to the 2016 election, Russia’s Internet Research Agency planted false stories hoping they would go viral. They did. Russian agents assumed fake identities, promulgated false narratives and spread lies on Twitter and Facebook, all protected by the First Amendment.
the intellectual underpinning of the First Amendment was engineered for a simpler era. The amendment rests on the notion that the truth will win out in what Supreme Court Justice William O. Douglas called “the marketplace of ideas.”
This “marketplace” model has a long history going back to 17th-century English intellectual John Milton, but in all that time, no one ever quite explained how good ideas drive out bad ones, how truth triumphs over falsehood.
Milton, an early opponent of censorship, said truth would prevail in a “free and open encounter.” A century later, the framers believed that this marketplace was necessary for people to make informed choices in a democracy. Somehow, magically, truth would emerge. The presumption has always been that the marketplace would offer a level playing field. But in the age of social media, that landscape is neither level nor fair.
Of course there’s no guarantee that the truth will drive out lies: Trump’s falsehoods have been widely believed, but of course the media has exposed them as lies. It’s the free press that allows this exposure, but it can’t guarantee that everyone is going for the “truth” side. If that were the case, there would be no religions! And there’s nothing all that different about social media: there has always been media in which people have told untruths. It’s just now that media is available to everyone, who can put up their merest thoughts in an instant.
Still, the clash of opinion on things like abortion, the Israel/Palestine question, affirmative action, gun control and the like are the only ways to give both sides an airing and to propound their best arguments. The rest is up to the people. If you don’t have this clash of ideas because one side claims that it KNOWS THE TRUTH and will censor the other side, then we’re truly doomed. Allowing someone to determine the truth is the surest way to guarantee that the truth becomes one person’s opinion. And this is the whole problem with Stengel’s attack on the First Amendment and push for “hate speech”—which he sees as speech that people find insulting to their race, religion, ethnicity, and sexual orientation:
Since World War II, many nations have passed laws to curb the incitement of racial and religious hatred. These laws started out as protections against the kinds of anti-Semitic bigotry that gave rise to the Holocaust. We call them hate speech laws, but there’s no agreed-upon definition of what hate speech actually is. In general, hate speech is speech that attacks and insults people on the basis of race, religion, ethnic origin and sexual orientation.
I think it’s time to consider these statutes. The modern standard of dangerous speech comes from Brandenburg v. Ohio (1969) and holds that speech that directly incites “imminent lawless action” or is likely to do so can be restricted. Domestic terrorists such as Dylann Roof and Omar Mateen and the El Paso shooter were consumers of hate speech. Speech doesn’t pull the trigger, but does anyone seriously doubt that such hateful speech creates a climate where such acts are more likely?
It could, but it also outs those who are bigots and allows us to see their arguments. If arguments for bigotry win, then we have no chance as a democracy, anyway. And there are already laws, as Stengel says, against speech that incites violence—if the violence is imminent and predictable. If the violence could result much later from someone’s speech, then people like Richard Dawkins could be (and have been) accused of pulling the trigger, for Dawkins is an anti-theist who attacks religion in general, including Islam. If some crazed Muslim-hater reads Dawkins or Hitchens and goes on a killing spree, does that make them responsible, and should their works have been censored because they offend believers? No, because we can’t predict or fend off everything that could result from speech. We might as well ban Evangelical Christianity because the Bible, and their preachings, have led to the killing of abortion doctors and the demonization of homosexuals.
Let the debate begin. Hate speech has a less violent, but nearly as damaging, impact in another way: It diminishes tolerance. It enables discrimination. Isn’t that, by definition, speech that undermines the values that the First Amendment was designed to protect: fairness, due process, equality before the law? Why shouldn’t the states experiment with their own version of hate speech statutes to penalize speech that deliberately insults people based on religion, race, ethnicity and sexual orientation?
All speech is not equal. And where truth cannot drive out lies, we must add new guardrails. I’m all for protecting “thought that we hate,” but not speech that incites hate. It undermines the very values of a fair marketplace of ideas that the First Amendment is designed to protect.
Yes, Stengel is a Pecksniff who wants hate speech laws, but is curiously silent about who will make them? Who will be The Decider? We all know the problems with that, and they are pretty much insuperable. For every Biden official who disallows criticism of Black Lives Matter and Islam, there will be a later Trumpy official who criminalizes speech that liberals favor. The best solution is to allow everyone to say their piece, with a reasonable few exceptions that the courts have carved out as outweighing free speech (false advertising, defamation, harassment of individuals, and so on).
You know what my worries are: that Stengel will influence and also reflect a general censorious wokeness on the part of the new Biden administration. Granted, this editorial was written over a year ago, but I think it’s fair to ask Stengel if he still stands by it. If he does, then we should keep a weather eye on his behavior—and that of the Biden administration’s actions about speech.
What’s happened to the American Civil Liberties Union (ACLU) is a crying shame. And I say this even though I volunteered for them, have been a member on and off, and was the recipient of their largesse when, for no fee, they represented me and four other defendants in a class-action suit about illegal drafting in New York. I went to the ACLU, and their lawyers took the case, arguing successfully in Federal court that we were drafted illegally as conscientious objectors. This freed a couple of thousand men from forced civilian service. I’ve always been deeply grateful for the ACLU’s help.
Although the ACLU is still doing a lot of good legal work defending genuine civil liberties, they’re also getting woke in a way that, to me, deeply compromises their integrity. I’ve done a fair number of posts calling out their dubious stands over the last few years; these include posts bearing these titles (click to see them):
What’s especially worrying is the ACLU’s backing off on free speech (the subject of today’s short post); its pushback against one good thing that the Trump administration did: making the Title IX proceedings adjudicating sexual misconduct fairer; and the organization’s big push to defend the “right” of medically untreated biological males to participate in women’s sports. Now of course the ACLU should be defending transgender rights, for every person, regardless of gender status, should enjoy equal rights under the law, and discrimination on the basis of gender is largely illegal. And they’ve done a good job of that (see below).
But the ACLU has also gone a bit off the rails on the transgender issue, arguing that even biological men who haven’t undergone hormone therapy should be allowed to compete in sports against biological women. As I reported a while back, the ACLU defended two Connecticut people who were born male, identify as female, and, without any hormone therapy or surgery, decided to compete against biological women in track and field. In fact they did compete, and did very well, for Connecticut law mandates that self-identification as a woman is all you need to compete in women’s sports. The ACLU buys into the argument that you’re a woman simply if you claim to be a woman.
But the organization shouldn’t be defending something so manifestly unfair. They’re also making a big push to defend transgender athletes without reservation, despite the notoriously slippery issues involved in defining “men” and “women” for transgender athletes. The standards for competing, as in the Olympics, are subject to much dispute. The ACLU’s view is apparently that a claim itself is all that’s needed to deem you a man or a woman.
And now, to my great sorrow, an ACLU staff lawyer and champion of transgender rights, Chase Strangio, has come out full bore in favor of censorship. I’m referring to his demanding, as shown in the tweets below, censorship of a book we discussed yesterday: Abigail Shrier’s treatise on gender dysphoria in adolescent and teenage girls, Irreversible Damage.
Although Strangio’s tweets are “protected”, I assume that the two below, reproduced by “Wokal Distance”, are accurate. In the second, he blatantly advocates censorship of Irreversible Damage, “stopping the circulation of the book and these ideas.” How else can that be interpreted as censorship? And “stopping ideas” should not be the business of the ACLU, which has always defended the First Amendment. They should be defending the right of Shrier to publish her book and circulate her ideas, not fight against them. This shows how low the ACLU, at least in the person of Strangio, has fallen. An organization dedicated to defending civil liberties is calling for their suspension when they offend people.
Here is an ACLU lawyer saying their goal is to stop the circulation of books and ideas…
Strangio and his team won that case, with the conservative Supreme Court ruling 6-3 that Title VII of the Civil Rights Act of 1964 protected transgender people from employment discrimination. (The plaintiff was a transgender woman fired from a funeral home.)
Strangio was also on the team that won a similar landmark case.
In June 2020, the U.S. Supreme Court decided 6–3 in favor of Gerald Bostock, a gay man terminated from his job due to discrimination on the basis of sexual orientation, in Bostock v. Clayton County. Strangio was one of the lawyers on the case. The case ruled that it is illegal to discriminate in employment on the basis of transgender identity or sexual orientation.
But Stangio’s tweet above isn’t even a case of his deciding between two conflicting rights. There is a right to promulgate your ideas; there is no “right” for the transgender community to be protected from criticism about gender dysphoria and medical intervention in adolescent girls.
Strangio is favoring censorship, pure and simple, and a watering down of First Amendment rights: “stopping circulation of this book.” Is Shrier’s argument so injurious to transgender people, and to society in general, that it cannot be read or heard? I don’t think so.
Remember that the ACLU defended the rights of the American Nazi Party to march through Skokie, Illinois: a Jewish community. Surely that’s more hurtful than Shrier’s book, for the Nazis call for the deportation and death of Jews, while Shrier is merely telling society to examine the cause of an epidemic of gender dyphoria in young girls. The “unwavering commitment to principle” that the ACLU itself touts in the Skokie case is apparently not shared by Strangio.
Like the Southern Poverty Law Center, the ACLU is damaging its mission by buying into wokeness, and nobody is reining in either of these once-great organizations. It’s a huge shame.