Why Evolution is True is a blog written by Jerry Coyne, centered on evolution and biology but also dealing with diverse topics like politics, culture, and cats.
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.
Hasen argues:
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:
Balkin continued:
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 University didn’t have to pass a resolution “distancing itself” from Atlas, and that wouldn’t have happened at the University of Chicago. For passing such resolutions chills speech, and, as our Kalven report emphasizes, says these wise words:
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).
The skinny:
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:
I decided to go back through the last two years of the Disinvitation Database from FIRE (Foundation for Individual Rights in Education) to see how free speech and its suppression was faring on campus. Their records of deplatformingsdisinvitations, and censorship attempts began in 1998, and now number 465.
The term “disinvitation incident” is used to describe the controversies on campus that arise throughout the year whenever segments of the campus community demand that an invited speaker not be allowed to speak (as opposed to merely expressing disagreement with, or even protesting, an invited speaker’s views or positions). We make a distinction between an attempt to censor a speaker and the actual end result of a speaker not speaking. “Disinvitation incidents” is the broadest category, including “unsuccessful disinvitation attempts” and “successful disinvitations.”
Not only are unsuccessful disinvitation attempts increasing, but so too are successful disinvitations, which fall into three categories:
“Heckler’s vetoes,” in which students or faculty persistently disrupt or entirely prevent the speakers’ ability to speak, illustrated by the case of Ray Kelly at Brown University. These incidents are labeled as “substantial event disruption.”
For each incident, FIRE gives the year, the school, name of the speaker, the kind of campus event, what the controversy was about, whether it was true “disinvitation” rather than an attempt to censor the speaker (i.e., a petition to disinvite), whether the impetus for the censorship came from the Right of the Left of the speaker (or information wasn’t available [“N/A”), and a link to the details. As I’ve reported before, when the data began in 1998, there was a fairly even distribution of censorship attempts from the Right versus the Left. That has now changed: the bulk of disinvitations come from pressure by the Left. But, as I show below, if you look at all the data, the last two years seem to mirror the overall 22-year fact that the Left exerts the bulk of campus censorship.
For the records from 2019 and 2020, go here, here, and here.
Here are the overall data beginning in 1998 (465 incidents):
Disinvitations from the Left: 283
Disinvitations from the Right: 129
Disinvitations whose origin was politically unidentifiable: 53
Percentage of politically identifiable disinvitations from the Left: 68.7%
The 2019-2020 data follow recent trends:
Disinvitations from the Left: 35
Disinvitations from the Right: 15
Disinvitations whose origin was politically unidentifiable: 10
Percentage of politically identifiable disinvitations from the Left: 70%
I guess, then, that, contrary to my impression, the degree of censorship coming from the Left hasn’t changed much.
As in most recent years, the Left is the end of the spectrum trying to censor speakers, but of course most students and faculty on American campuses are on the Left.
Here are a few instances of people you might know of, mostly involving disinvitations. (Go to the original entry and click on “view” to get the details.)
A few notes on reasons for disinvitations and censorship:
Stanley Fish: “Faculty committee cancelled speech by author Stanley Fish in the wake of student protests demanding that the university English department focus more on racial issues.”
Bob Kerry: “Former Nebraska Democrat Senator and governor Bob Kerry withdrew from commencement speech at University of Nebraska-Lincoln after the Nebraska Republican Party called for his disinvitation over his support of abortion rights.”
Jane Fonda: “Ohio Secretary of State Frank LaRose calls on Kent State University to disinvite actress Jane Fonda from giving commencement address over her criticism of the military.”
Ivanka Trump: “University president Jay Golden canceled commencement speech by Ivanka Trump in response to calls criticizing her selection as speaker in the wake of President Trump’s comments on protests over the homicide of George Floyd.”
Elizabeth Loftus: Given the nature of the reasons, I suspect that “From the Left” is probably more accurate than N/A: “Cognitive psychologist Elizabeth Loftus disinvited from New York University lecture series by NYU administration after serving as an expert witness for the defense during the Harvey Weinstein trial.”
Lori Lightfoot: This surprised me as she is our liberal black mayor of Chicago, and yet the Left at Northwestern tried to censor her. Reason: “Petition to disinvite Chicago Mayor Lori Lightfoot over alleged misconduct of Chicago’s police officers.”
Note that many of these schools are public universities, and thus are legally required to abide by the First Amendment. That means that they cannot cancel speakers or disrupt their talks. The fact that this happens means that the speakers either aren’t trying to sue the schools or can’t be arsed to do so. (Of course some speakers withdrew before speaking.)
Beyond that, the data are embarrassing to all of us who consider ourselves on the Left. We are supposed to be the side in favor of free speech. But if you’ve learned anything from this site, censorship flows largely from The Woke, who constitute a moiety of the Left.
If all the articles that were given “Sidney Awards” by New York Times columnist David Brooks this week are as engaging at the one below, then you should read every one. Here we have author Jonathan Rauch, who wrote a prescient book about free speech in 1993, being interviewed by Nick Gillespie, editor at large of Reason.com, where this piece appears. The interview’s about free speech and cancel culture, and is one of the best things I’ve seen written about that culture.
Rauch has been following suppression of speech since this book, which Rauch wrote after what he deemed the true beginning of cancel culture: the fatwa issued against Salman Rushdie for The Satanic Verses (click for the Amazon link; the book is not at all cheap but the reviews are excellent):
Two more points before we look at the piece. First, it’s not surprising that Brooks, swimming against the current of his own paper, would praise an article so vehemently hard-line about free speech and so opposed to cancel culture—a culture that of course is instantiated by the NYT in stuff like the firing of James Bennet and the rousting of Bari Weiss. Brooks went to the University of Chicago, and now serves on its powerful Board of Trustees, and of course we’re famous for freedom of expression. The University Chicago uses its famed free-expression principles, like the Kalven Report and the “Chicago principles” for free expression, to sell our school to undergraduates and their parents.
Now lots of people reject the idea of “cancel culture” as a neologism that isn’t new. It is, they say, simply the same kind of criticism that people have always leveled at their political, moral, and ideological opponents. But they’re wrong, and Rauch tells us why. For cancel culture has little to do with criticism or constructive engagement: its signs, say Raugh—and he’s surely right—show that it’s a form of destructive disengagement.
Or, they say, “you can’t cancel somebody like Steve Pinker—he’s famous and well off from his books.” And it’s true: Pinker has too many admirers to ever be shoved into perdition. But that’s not the point: the point is that we now have a kind of culture that tries to dismiss him without engaging his ideas. Indeed—and this is a point Rauch makes in general—many of those who go after Pinker haven’t even read his books. (They’re too long for the Offended, anyway.)
But click on the screenshot below to read the whole interview, as I’ll quote only a small part of it (indented):
Rauch begins by drawing a crucial distinction between cancel culture and criticism:
Here’s what I think canceling is and why it’s different from criticism—because people always say, “Look, if you can’t stand the heat, get out of the kitchen. People are criticizing Jonathan Rauch. He doesn’t like it, so he calls it canceling.” Criticism is expressing an argument or opinion with the idea of rationally influencing public opinion through public persuasion, interpersonal persuasion.
Canceling comes from the universe of propaganda and not critical discourse. It’s about organizing or manipulating a social environment or a media environment with a goal or predictable effect of isolating, deplatforming, or intimidating an ideological opponent. It’s about shaping the battlefield. It’s about making an idea or a person socially radioactive. It is not about criticism. It is not about ideas.
The people who went after Rushdie had never read The Satanic Verses and were proud of it. In a typical cancel campaign today, you’ll hear the activists say, “I didn’t read the thing. I don’t need to read the thing to know that it’s colonialist or racist.” They’re not using physical murder now. They’re using a kind of social murder of making it very difficult for someone to have a job, for example—to lose their career, or to endanger all their friends. That, of course, is not physical violence, but if you’ve interviewed people who have been subject to it, and I have, you know that it is emotionally and professionally devastating.
And you can immediately think of people who have been “canceled” by those who haven’t either read them or haven’t engaged with their ideas. In just under two minutes I made a list of several examples; here are some. The common factor is that instead of discussing their contentions, the Offended call them names, dismissing them as “racists”, “transphobes”, “misogynists”, “Islamophobes”, and so on:
J. K. Rowling
James Damore
Heather Mac Donald
Charles Murray
Abigail Schrier James Abbott
Ayaan Hirsi Ali
Christina Hoff Sommers
Feel free to add your own list below. It runs on much longer.
And so on. It’s enlightening to look through the FIRE “disinvitation database” to see attempts to cancel speakers—mostly, but not always, with those cancellation attempts coming from the Left.
I can’t say I agree with all or even most of what these people say, but I do maintain that they should at least be heard. People like Murray, for example, get deplatformed when scheduling talks that have absolutely nothing to do with The Bell Curve.
Rauch also gives a list which is like the DSM of psychology: if you see two or three of these six symptoms, then someone’s getting canceled:
First: Is the intent of the campaign punitive? Are you trying to punish the person and take away their job, their livelihood, and their friends?
Second: Is the intent or predictable outcome of the campaign to deplatform someone and to get them out of the position that they hold where they can speak/be heard and out of any other such position?
Third: Is the tactic being used grandstanding? Is it not talking to the person about their point of view? Is it basically virtue signaling, posturing, denunciation, and sort of ritual in nature?
Fourth: Is it organized? Is it in fact a campaign? Is it a swarm? Do you have people out there saying, as is often the case, “We’ve got to get Nick Gillespie off the air” or “We’ve got to get this asshole fired”? If it’s organized, then it’s canceling. It’s not criticism.
Fifth: A certain sign of canceling is secondary boycotts. Is the campaign targeting not only the individual but anyone who has anything to do with the individual? Are they not only saying, “We think what Nick Cannon is saying on the air is inappropriate”; are they going after the company by saying to boycott it? Are they going after his friends and professional acquaintances? If there’s a secondary boycott to inspire fear so that no one wants to have anything to do with the guy for the fear that they’d be targeted, that’s canceling.
Sixth: Is it indifferent to truth? Well-meaning criticism is often wrong, but if it’s wrong, you’re supposed to say, “Oh, gee. I’m sorry that was wrong.” You’re supposed to pay attention to facts. Cancelers don’t. They’ll pick through someone’s record over a period of 20 years and find six items which they can use against them. This is what literally happened to [Harvard psychologist] Steve Pinker. [JAC: See my analysis of this “cancellation” attempt here.] Tear them out of context and distort them, and if they’re corrected on them, they’ll just find six other items. That’s not criticism. That’s canceling. These are weapons of propaganda.
Rauch correctly sees these items lying on a cancellation continuum, so it’s a matter of taste whether you decide that someone’s in the cancellation crosshairs. But you can see that most of these symptoms center around something relatively new in intellectual circles: not criticism, but demonization and, often, attempts to ruin someone’s career. For sometimes a cancellation mob can also contain a few people who actually engage with the target’s ideas, while most are just a bunch of hounds baying for the hunters. Is that “cancellation” or not. Who knows, and who cares? But you can see that Rauch has thought a lot about these issues.
I’ll give just one more item: Rauch’s views on the “harm” argument—the claim that speech must be restricted because it causes emotional damage. That, argues Rauch (and I hadn’t thought of this) derives from the Equal Employment Opportunity Commission’s 1989/1990 definition of a “hostile workplace”, which is properly seen as illegal. But that has been taken up by college students, and now the greater public—including the New York Times‘s employees, who helped get rid of Bennet because the editorial he ran created an “unsafe environment” for some staffers—to weaponize any kind of offensive speech.
Rauch:
The emotional safety argument is at the core of what’s going on. In the book I’m writing, I give it no quarter at all. The emotional safety argument, I argue, is fundamentally illiberal, and there is really nothing about it that can be salvaged. It is just inconsistent with the open society. The reason for that is it says that the most sensitive pair of ears in the room gets to decide what everyone else gets to hear or what everyone else gets to say.
The notion here is that emotional injury is a kind of harm like physical injury, and because it’s a kind of harm it’s a rights violation. The problem is this is a completely subjective standard, and it makes any form of criticism potentially subject to censorship and cancellation and lumps science into a human rights violation.
. . .And colleges adopted it. We haven’t talked about universities. We probably should. That’s the other big arm of cancel culture. Colleges adopted it, and it took the form of, “Well, you’re creating a hostile environment for students if you say oppressive and discriminatory things.” That led to a series of things like formal speech codes. It also led to this notion of “a hostile environment is an unsafe environment.”
If you have to have a safe environment, then you have to proactively scrub the environment of microaggressions, offensive and bigoted statements, and anything else that might cause the environment to become unsafe. That’s a doctrine which has, even conceptually, no conceivable limits. That’s where we wound up.
What starts in colleges infects the wider culture, so it’s worth paying attention to what’s happening with undergraduates. This is one reason I spend so much time reading about college speech, and trying to prevent my own school—once the Gold Standard for free expression—from going down the drain along with Evergreen State, Yale, Princeton, Harvard, Haverford, and just about every nonreligious liberal-arts school in America.
Rauch spends a lot of time worrying about how to respond to students who want to cancel others—those students who admonish him to “check his privilege.” In the end, like John McWhorter, he doesn’t see the sense in engaging these folks, but recommends appealing to those who still are persuadable. This resembles arguing with creationists, whose minds are almost never changed, but there’s still a subset of Americans capable of being persuaded by scientific evidence.
Rauch considers several alternative responses, and comes up with this:
The answer that I finally settled on. . . was: “It doesn’t matter all that much what you say to them, because they’re not listening. That’s what they’re telling you. They’re not listening. What matters is that you not shut up. They do not have the power to silence you if you do not allow yourself to be silenced. Insist on your right to continue the conversation to say what you want to say. Don’t slink away. You won’t necessarily persuade those people, but, as we found in the gay marriage debate, your real target is that third person on the periphery of the circle of the conversation who is seeing one person acting rationally and reasonably and other people acting irrationally and unreasonably. You’re probably winning the heart and mind of that third person, so don’t shut up.”
Yep, we shouldn’t shut up.
As we see above, Rauch is writing a new book, and there’s been so much water under the bridge since 1993 that it’ll be well worth reading.
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.
About three years ago I got a frantic call from a teacher in the upper Midwest asking for help. Her high school had banned her from teaching Huckleberry Finn to her upper-level English class because the book contained the “n-word”. She thought it was important to not only let the students read the book, but also to read that word, unexpurgated, in class (there were readings aloud). She was willing as well to have a discussion about the use of the word with the students, which I thought was good. Sadly, I couldn’t help her, for there’s not much someone like me can do on the high school level about such matters.
This kind of censorship has occurred with other works of literature as well, including To Kill a Mockingbird and the stories of Flannery O’Connor. Even historical documents get censored. In the two articles below by libertarian law scholar Eugene Volokh, he reports that his own school UCLA condemned a lecturer, W. Ajax Peris, for reading Martin Luther King’s “Letter From a Birmingham Jail” aloud. The essay is a classic of anti-racism literature, and an iconic document in the struggle for civil rights. It also contains the “n-word.” Peris’s crime was that he read that word aloud, quoting the text directly. (I’m referring, of course to the full word.)
King’s letter contains two mentions of the word; here’s one:
But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: “Daddy, why do white people treat colored people so mean?”; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “nigger,” your middle name becomes “boy” (however old you are) and your last name becomes “John,” and your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodiness”–then you will understand why we find it difficult to wait.
That’s eloquent, and the word serves a real purpose here—showing its hurtful use in oppressing and degrading black people. Frankly, I don’t see the use of glossing over it, or saying the “n word” in its place, for the “offense” of the word is no worse than the images it conjures up: beatings, lynchings, and cross-burnings. Nevertheless, Peris was reported to the University and condemned by his department. It’s not clear yet whether he’ll suffer further punishment. One thing is for sure, though: he’ll be ostracized.
This brings us to the crux of the matter: is it okay to use the n-word in full when you’re reading it in a historical or literary context? The Foundation for Individual Rights in Education (FIRE) says “yes”, arguing that the entire unredacted word has a didactic purpose, and prohibiting its utterance is an infringement of academic freedom:
Peris’s academic freedom, as a faculty member at a public institution bound by the First Amendment, includes the right to decide whether and how to confront or discuss difficult or offensive material, including historical readings that document our nation’s centuries-long history of racism,” Patton said. “Doing so does not amount to unlawful discrimination or harassment, and the law is abundantly clear that UCLA could not investigate or punish a professor for exercising his expressive or academic freedom.”
UCLA is, of course, a public university, and so the First Amendment applies, which allows the use of such a word, especially when it’s not a “fighting word”.
I think the same argument holds true for any historical document or work of literature, so long as it’s presented in a didactic and not disparaging way. Yes, some people may be offended, while others may feign offense (after all, the word is regularly used by blacks themselves, and is pervasive in rap music; the crime is that the word is uttered didactically by a non-black person—but one who is not trying to insult someone). Still, there are a lot of things that are offensive, but none so taboo as the n-word. As a Jew who’s been subjected to similar slurs, those involving epithets like “yid”, “kike”, “Hebe”, and so on, I have to say that I do find them offensive, and would be angry and upset if they were directed at me or other Jews (secular or not). But when they occur in law documents or literature, as they do in, say, TheCatcher in the Rye, I find no problem with reading them, silently or aloud.
Why, though, shouldn’t professors redact the word to the shortened “n-word” version when teaching it? Well, think of how that would sound when reading King’s letter. And should you redact the letter itself, changing the text to read “when your first name becomes ‘n-word’ and your middle name becomes ‘boy’. . . . .?” It’s not the same, is it? King’s eloquent denunciation of black oppression is watered down.
In the piece below, Volokh describes how his dean at UCLA apologized (but Volokh did not) for Volokh’s quoting a law case when a man was prosecuted for “loud, abusive, or otherwise improper language” for saying “What, are you an idiot? What do I have to do, be a nigger to be served in this—in this place?” That’s directly from the law transcript. As Volokh and Harvard Law Professor Randall Kennedy emphasize in their longer piece below, the word “nigger” has been spelled out in full in literally thousands of court decisions, including those authored by the likes of Sonia Sotomayor, Ruth Bader Ginsburg, Thurgood Marshall, Sandra Day O’Conner, Clarence Thomas and so on. They didn’t abbreviate the word because they insist on accuracy; and abbreviation not only broaches that accuracy, but distorts the offense.
Lawyers obey what Volokh call the “use-mention” distinction, which draws a bright line between using such a word as an insult, and referencing them in a didactic context, like court cases or teaching literature. As Volokh says in the article below:
Professors certainly shouldn’t use epithets, racial or otherwise, to themselves insult people. But when they are talking about what has been said, I think it’s important that they report it as it was said. This is often called the “use-mention distinction,” see, e.g., Randall Kennedy, How a Dispute Over the N-Word Became a Dispiriting Farce, Chron. Higher Ed., Feb. 8, 2019; John McWhorter, If President Obama Can Say It, You Can Too, Time, June 22, 2015 (distinguishing “using” from “referring to”).
Thus, when I have talked in my First Amendment Law class about Cohen v. California, I talked about Cohen’s “Fuck the Draft” jacket, not “F-word the Draft.” When I talked about Snyder v. Phelps, I talked about Phelps’ signs saying things like “God Hates Fags.” When I talked about Matal v. Tam, I talked about a trademark for a band called “The Slants,” which some view as a derogatory term for Asians. I suspect many, likely most, law professors do the same; they should certainly be allowed to. If I were to talk about the Redskins trademark case, I would say “Redskins,” rather than talk around the word, the way some news outlets apparently do.
What’s useful in Volokh’s piece above is his list of reasons why you shouldn’t abbreviate the n-word in a “mention” context. He gives five reasons. I won’t go into them all, but they include some of what I said above, as well as the “slippery slope” argument: once a word is made taboo, it makes it easier to make other words taboo, as each group demands that it gets the same consideration. This is not just a theoretical speculation: people have already been punished for using the term “Negro”, “wetback,” “bitch” and “fag.” And of course there are blasphemy considerations as well: many believers get deeply inflamed when someone in academic or intellectual discourse criticizes Islam or mocks the Prophet. Some of those people are even driven to murder! Nevertheless, I, at least, don’t favor a ban on such speech or images.
I recommend you go the article above and read Volokh’s arguments. They’re certainly worth considering.
After several experiences like this, and observing the censorship of those who use taboo words in the “mention” rather than “use” (derogatory) context, Volokh and his UCLA Academic Senate Committee on Academic Freedom created a statement prompted by Peris’s denunciation. It’s contained in the post below, or you can read it directly here. It allows instructors free rein to assign material that is potentially offensive, but also allows students the right to discuss that material, which is only fair. As Volokh says, “it’s not a binding university rule [JAC: it should be, as similar principles apply in my school], but we hope it will be influential.”
Finally we get to the document at the bottom (click on screenshot below the book) that really does make a compelling case for the “use/mention distinction”: a 32-page, heavily documented piece written by Volokh and Randall Kennedy. If you read Kennedy’s biography above, you’ll know he’s not only a black, liberal, anti-racist Harvard Law Professor specializing in race law and relations, but has no problem using the n-word in full. In fact, he wrote a book about it in 2003 (click below to go to its Amazon page). You can also see Randall Kennedy discussing the word’s use on a PBS video here.
The Washington Post published an excerpt from Chapter 1, which you can see here.
I read the entire 32-page document; it’s easier if you don’t delve deeply into the footnotes. Much of it is about the potentially detrimental effect of expurgating words on law students, but the overall argument is a general one for free speech and academic freedom.
In the end, I think I agree with Kennedy and Volokh: professors should be able to use any words in the “mention” context so long as they’re relevant, and students have the right to object or give counterarguments. And I have no problem with professors deciding to censor themselves: University of Chicago professor Geoff Stone stopped saying the whole n-word in his First Amendment law school class after the Association of Black Law Students objected. I wouldn’t fault him for that.
I won’t really have this dilemma, as I no longer teach, and, at any rate, none of my lectures come within miles of using potentially offensive words. But I believe that anybody who does so for good reason in the classroom (or in other didactic contexts) shouldn’t be censored, punished, or rebuked.
Ten days ago I reported on a kerfuffle at the University of Cambridge, in which a group of faculty, led by philosopher Arif Ahmed, were trying to eliminate the University speech policy‘s stipulation that community members “respect” each other’s viewpoints. Here’s one of the three policy statements to which people objected; emphasis is mine:
The University of Cambridge, as a world-leading education and research institution, is fully committed to the principle, and to the promotion, of freedom of speech and expression. The University’s core values are ‘freedom of thought and expression’ and ‘freedom from discrimination’. The University fosters an environment in which all of its staff and students can participate fully in University life, and feel able to question and test received wisdom, and to express new ideas and controversial or unpopular opinions within the law, without fear of disrespect or discrimination. In exercising their right to freedom of expression, the University expects its staff, students and visitors to be respectful of the differing opinions of others, in line with the University’s core value of freedom of expression. The University also expects its staff, students and visitors to be respectful of the diverse identities of others, in line with the University’s core value of freedom from discrimination. While debate and discussion may be robust and challenging, all speakers have a right to be heard when exercising their right to free speech within the law.
Similar restrictions appeared in two other paragraphs of the speech code, and irked writers like Stephen Fry and Nick Cohen, both of whom wrote editorials arguing that “respect” wasn’t the right word. For while one can respect an opponent as a human being to be treated civilly, there is no good reason to be respectful of opinions. Both Fry and Cohen emphasized that the operative word was “tolerance”: one can tolerate both opponents and their opinions—and argue with them if you don’t like the opinions—but you don’t have to give them respect.
As Nick Cohen wrote in his Spectator column today (see below):
As I explained in The Spectator last week, the distinction between respect and tolerance goes to the heart of today’s raging debates on free speech. To tolerate an opponent is to refrain from punishing him or her for their views. You remain free to offend and challenge them. You most certainly have no obligation to respect ideas you regard as ignorant or dangerous or both. ‘Respect,’ by contrast, is a slippery concept that should set off alarm bells. Respect can be hard earned and freely given. Yet gangsters also demand it at the point of a gun. What version of the word did Cambridge mean when when it said staff and students must ‘respect’ differing opinions?
Could Cambridge ban an atheist speaker for refusing to respect religion? Or a feminist for failing to respect transwomen? Should scientists treat anti-vaxxers with respect and hold back for fear of hurting their tender feelings and offending their dignity?
I know from trying last week that no one in the university’s hierarchy could answer these questions. Indeed Roger Mosey, former editorial director at the BBC and master of Selwyn College, later admitted, ‘In retrospect, respectful might not have been the word we should have chosen.’
Well, Cambridge took a vote yesterday on its speech code, and on three amendments that would change “respect” to “tolerance”, as well as to eliminate restrictions that would have made it harder to bring in outside speakers who violated nebulous provisions about “risking the safety” of individuals in the community. As the BBC reports (click on screenshot below), all three amendments—#1 changed the paragraph above, altering “respect” to “tolerance”, while #2 and #3 eliminated free-speech restrictions for outside speakers—were overwhelmingly approved:
Those are all lopsided votes in favor of free speech. In these days of increasing calls for restrictions on speech, this is something to be celebrated. Although the change of wording from “respect” to “tolerance” may seem trivial, it is in fact important in affirming that views themselves are never entitled to respect just because they’re views. That, in fact, is deeply connected with the misguided idea that you shouldn’t say anything that would cause people “harm”, meaning “offense.” And we don’t want to unduly restrict speakers just because what they say might be considered “harmful.”
In his new column in the Spectator, Nick Cohen also applauds the vote (click on screenshot) but also calls out the Cambridge community for suppressing speech. Click on screenshot below:
Cohen’s approbation:
Academics at Cambridge won a cheering victory for free speech today when they voted by an overwhelming majority to reject plans from the vice-chancellor to change the rules governing debate at the university.
And Cohen’s denunciation:
Yet here is what is telling about [the debate on the amendments]. As soon as anyone chose a side, you knew without needing to be told where they stood in today’s culture wars. The Cambridge branch of the University and College Union showed how hopelessly it has lost touch with its members when it recommended that they should not vote for Ahmed’s amendment. Ahmed said that his colleagues not only had a strong commitment to freedom of expression and academic freedom but were worried about threats to those who spoke out of turn.
Cambridge itself witnessed class-based thought policing recently when students at Clare College damned one of their porters as ‘unfit both to hold public office and to be in a position of responsibility over students.’ Kevin Price was a Labour councillor as well as a porter. His crime was to refuse to accept a motion from his local party that stated ‘Trans women are women. Trans men are men. Non-binary individuals are non-binary.’
Students, largely drawn from the middle and upper classes, were trying to get a working man fired because his views, expressed outside the college workplace, did not conform with current left orthodoxy. The right may exaggerate the threat to freedom of speech in the universities, in part as cover for its threats to the BBC. But that does not mean that there aren’t real fears. Academics, public sector workers, liberal journalists and artists can all cite examples of intimidation and censorship and of the cloying culture of fear that follows.
Cohen, whose Leftist credentials are impeccable, is nevertheless standing up for the right to say things that upset “current left orthodoxy.” And that’s the way it should be, for the Left have historically had confidence in the marketplace of ideas. Apparently having lost some of that confidence, they’re now trying to enforce Righthink by fiat rather than debate.
And yes, there are real fears about losing freedom of speech. I’m worried about that in my own university, as various departments and units of the University, contravening official policy and statements by our administration, use authoritarian methods to chill the speech of others. But more on that later.
Just remember that if universities don’t permit, and, indeed, encourage free speech—especially public schools that must adhere to the First Amendment—American society will gradually pull the teeth from that Amendment. And although Britain has no First Amendment, people like Ahmed, Cohen, Fry, and members of the Cambridge governing body must be eternally vigilant against attempts of both Left and Right to silence those whose opinions they dislike.
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):
Red Light
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.
Yellow Light
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.
Green Light
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:
Georgetown University
Harvard University
Johns Hopkins University
Middlebury College
The Evergreen State College (“Where speech goes to die” is my motto for TESC)
Northwestern University
Portland State University (notorious persecutor of “Grievance Studies” critics)
Princeton University
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.
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