Ten days ago Segal Ben-Porath, a professor in the Literacy, Culture, and International Education Division of the University of Pennsylvania’s Graduate School of Education, published a critique in Inside Higher Education (IHE) of the University of Chicago’s “Statement on Principles of Free Expression,” a set of free-speech guidelines now adopted by over 60 American universities. Click on the screenshot below if you want to know “where’s her beef?”:

Ben-Porath’s main complaint, which, according to her c.v., seems to be her preoccupation over the last few years, has been that allowing free speech on campuses erases marginalized groups and enables “hate speech”—in other words, the usual arguments against freedom of speech.  She gussies them up a bit, as do professors at Williams College, by saying that the Chicago Principles lack nuance; in her case, they “offer false assurance” because they don’t give universities guidance about what to do when free speech clashes with student sentiments:

If a group of young female aspiring scientists are raising concerns about statements that faculty members are making in their classes and labs, the institutional response should depend on whether those students are at, say, Bryn Mawr, the Massachusetts Institute of Technology or Utah State University. If African American students express opposition to a campus group’s invitation to an anti-Black Lives Matter speaker, their paths for legitimate protest are paved by the college’s history, its student body makeup and the willingness of the college leadership to work with them and help them make their voices heard (rather than restricting them to a “free speech zone”).

The Chicago principles would provide little guidance in such cases. An administration that endorsed them may be expressing its commitment to protect the professor and the invited speakers, but would that suffice as a response? It does nothing to satisfy the concerns of the students nor helps the college fulfill its mission to not only advance research but also educate all of its students. Free speech will be protected, but some students will find it harder to benefit from their education; they may be effectively silenced, which may be permissible but is surely undesirable. The invitation to speak their minds in response does little to help create an environment conducive to learning if they feel as though they are shouting into a void; in some states, protesting can lead to disciplinary action. . .

Today, the endorsement of the Chicago principles comes at the expense of the reasonable demands from people on campuses who argue that free speech that protects the expression of biased views creates an unequal burden that they are made to carry — especially as free speech today is too often used as a political tool by the right. If an institutional endorsement of the principles is the end of the conversation about free speech, it undermines the ability of that college or university to fulfill its teaching mission.

The words she writes are weasel words, because while Ben-Porath pays lip service to free speech, she really seems to want it limited when it offends minority students (though women, of course, are now in the majority on American campuses). For example, look at this, which purports to favor free speech but really doesn’t:

The current state of free speech will not be resolved by making better rules or endorsing any set of principles, no matter how well crafted. Policies are necessary to ensure equal treatment, but preserving free speech on campuses requires a redoubling of our efforts to include all of our students in a community of free inquiry. That requires a continuing commitment to listening and responding to the legitimate demands of students who feel excluded, while helping them grow and recognize their agency and power.

Well, some of the “legitimate demands of the students who feel excluded” include curbing speech that is “undesirable” and “effectively silences” them. Creating the environment that Ben-Porath says she wants means curtailing some speech, for there’s no other way she suggests that could restore the benefits that free speech supposedly subtracts from the education of marginalized students.

Ben-Porath further argues that free speech is basically a tool used by the Right to protect their own. It’s not, for free speech is classically the purview of the Left. And sadly, the curbing of free speech is being used by some Leftist students (and professors) to censor the Right. But, as Christopher Hitchens pointed out incessantly, who will get the power to decide whom to censor? The only reasonable answer is that of the Chicago Principles: nobody gets that power, not so long as the speech at issue is the kind protected by the First Amendment.

Ben-Porath is further misguided because the Chicago Principles aren’t meant to guide colleges about what to do when free speech upset students. The Principles simply establish freedom of speech as an overarching principle of discourse on campus, to wit (this is from the Principles):

Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge and learn. Except insofar as limitations on that freedom are necessary to the functioning of the University, the University of Chicago fully respects and supports the freedom of all students, faculty and staff “to discuss any problem that presents itself,” free of interference.

This is not to say that this freedom is absolute. In narrowly-defined circumstances, the University may properly restrict expression, for example, that violates the law, is threatening, harassing, or defamatory, or invades substantial privacy or confidentiality interests. Moreover, the University may reasonably regulate the time, place and manner of expression to ensure that it does not disrupt the ordinary activities of the University.

Fundamentally, however, the University is committed to the principle that it may not restrict debate or deliberation because the ideas put forth are thought to be offensive, unwise, immoral, or wrong-headed. It is for the members of the University community to make those judgments for themselves.

As a corollary to this commitment, members of the University community must also act in conformity with this principle. Although faculty, students and staff are free to criticize, contest and condemn the views expressed on campus, they may not obstruct, disrupt, or otherwise interfere with the freedom of others to express views they reject or even loathe.

If students get upset, well, the University of Chicago is free to (and should) address their concerns—but not at the expense of diluting the Principles. When you hear calls for “nuance” when employing or considering the Chicago Principles, it’s invariably a call to limit or dilute those principles.

Fortunately, there’s a counter-piece today in IHE by Michael Poliakoff, formerly a classical studies scholar and now President of the American Council of Trustees and Alumni, characterized as “an independent, non-profit organization committed to academic freedom, excellence, and accountability at America’s colleges and universities.” Click on the screenshot:

He pretty much takes Ben-Porath apart, though in a scholarly and inoffensive way:

Ben-Porath expresses two major concerns with the Chicago principles: 1) that they are not a one-size-fits-all solution to the free speech debate and 2) that the Chicago principles, and free speech more widely, can come at the cost of silencing minorities — whether religious, ethnic, racial or sexual.

Ben-Porath is correct that endorsing the Chicago principles is not a silver bullet that ensures freedom of expression, a point that the Foundation for Individual Rights in Education recently concurred with. But that is not what endorsing the principles is meant to accomplish. The Chicago principles constitute a statement of intent that a university can use to guide it in fostering the free exchange of ideas. If a university is so committed, it will align its bylaws, student code of conduct, faculty handbook and programming to reflect that commitment.

For example, after Purdue University endorsed the Chicago principles, it instituted a freshman orientation that focused on the importance of free speech. Other institutions translate the Chicago principles into action in other ways. Just as the Declaration of Independence has no legal power and cannot ensure that all men are treated with the respect due to being created equal, it articulates a sacred American value with profound effect.

Re point 2:

Ben-Porath’s second point is that the demand for free speech is itself problematic, arguably even destructive of academic values. That assertion bears the marks of ideological prejudice in its portrayal of the concern to protect free speech not as a categorical value of higher education but as a means of protecting conservatism.

. . . Ben-Porath claims that free speech “comes at the expense of the reasonable demands” from those burdened by the free speech that protects biased views. But what is bias to one person may reasonably be seen as truth by another: that is precisely why the free exchange of ideas alone can further understanding. Perhaps Ben-Porath is right that proving biased views to be incorrect is a burden, but it is a responsibility that comes with leading an examined life and a valuable educational exercise in and of itself. To protect students from this activity would weaken the academic experience.

It is, moreover, all too short a step from that to Herbert Marcuse’s theory that tolerance of viewpoints that diverge from liberalism is itself repressive, and from there to the contemporary meme that speech that departs from the perceived interests of the oppressed is a form of violence that justifies physical violence to counter it. At institutions including the University of California, Berkeley, and Middlebury College, the fruit of that ideology has stained the reputation of higher education.

Well said—though it shouldn’t need to be said. But people like Dr. Ben-Porath are becoming increasingly vocal on campuses, for their social-justice mission takes precedence over free speech—another clash of liberal values that’s resolved in the wrong way. Given the importance of free and open discourse not just on campus, but in society as a whole, it would require something extraordinary to curb the kind of speech that the Chicago Principles are meant to protect. I can’t even imagine what that would be.

And we should always remember that even if free speech protects expression of conservative or even hateful views, it’s also been responsible for the remarkable progress in equality and morality discussed by Steve Pinker in his last two books. Poliakoff knows this, and ends his excellent essay with an unassailable point:

The worst irony of all is that the world of higher education, which should be eager for vigorous debate and challenge, often lags behind the diverse leaders who embrace free speech as the engine of progress. U.S. congressman and civil rights leader John Lewis asserted, “Without freedom of speech and the right to dissent, the civil rights movement would have been a bird without wings.” And, in a more recent struggle, Jonathan Rauch, senior fellow at the Brookings Institution and LGBTQ advocate, observed, “Not long ago, gays were pariahs. We had no real political power, only the force of our arguments. In a society where free exchange is the rule, that was enough. We had the coercive power of truth.”

The integrity of higher education, too, rests on the uncompromising protection of the powerful truth that those who struggle for minority rights know so well.

Amen, brother!

h/t: Luana