The Lessons of Bygone Free-Speech Fights

Efforts to police offensive language have seldom achieved their goals, and often been turned against the groups they were intended to protect.

Rick Wilking / Reuters

Last week at Connecticut College, I conversed with Jelani Cobb about free speech and the student protests roiling college campuses. The event grew out of a back-and-forth in the pages of our respective publications. Here’s a version of the remarks that I delivered to kick things off.

More than 20 years ago, Henry Louis Gates, the renowned historian and director of Harvard’s Hutchins Center for African and African American Research, published the essay “Let Them Talk” in The New Republic. “The struggle with racism has traditionally been waged through language, not against it,” he observed. “The tumult of the civil-rights era was sponsored by an expansive vision of the First Amendment ... This concrete history and context make it perplexing that a new generation of activists... should choose the First Amendment as a battlefield.”

He was writing after the University of Michigan, the University of Wisconsin, and Stanford implemented speech codes targeted at racist and sexist speech. These were efforts to respond to increasing diversity on campuses, where a number of students spewed racist and sexist speech that most everyone in this room would condemn.

But those speech codes were policy failures. There is no evidence that hate speech or bigotry decreased on any campus that adopted them. At Michigan, the speech code was analyzed by Marcia Pally, a professor of multicultural studies, who found that “black students were accused of racist speech in almost 20 cases. Students were punished only twice under the code’s anti-racist provisions, both times for speech by or on behalf of blacks.”

Every speech code adopted in that era and challenged on First Amendment grounds was ruled unconstitutional. And even the critical race theorists who championed the codes acknowledged, “This debate has deeply divided the liberal civil-rights and civil-liberties community.”

Due to these shortcomings, Professor Gates predicted that pushes for speech restrictions would fade and activists would focus on more effective means of fighting racism. It seemed as if he was right circa 2002, when I graduated from college. Afterward, I got my first job at a newspaper in Ontario, California, where I saw undocumented immigrants use the First Amendment to their advantage. Later I worked with Andrew Sullivan, observing and then participating in the push for gay equality, a striking example of persuasive speech advancing civil rights.

For some time now, I’ve been a staff writer at The Atlantic. The magazine gives its staffers a lot of freedom to write about the subjects that we believe to be morally urgent. For me, that’s meant years of writing about policing abuses, the need for reforms to the criminal-justice system, and Black Lives Matter; about the case for marriage equality; about innocent civilians killed by drone strikes; about civil-liberties violations that Muslims have faced since 9/11; about torture, indefinite detention and surveillance; about the case for letting immigrants come to America. The Bill of Rights and those who fight to protect it are my most reliable allies.

Lately, I’ve also written a lot about free speech, academic freedom, and norms around discourse on college campuses. In today’s activism, as on many prior occasions, I see good, earnest people calling attention to important injustices. Bigotry, racial slurs, and harassment are abhorrent, and we all ought to condemn them. Racist mascots ought to be retired. First-generation college students ought to get more support. Legacy admissions preferences that extend the effect of white-supremacist policies into the present day should be abolished. Awareness of these issues and others should be raised. Student activists deserve credit for raising it.

But I see some of these well-intentioned young people undermining the First Amendment; spitting on people with whom they disagree; using stigma and “call out” culture rather than persuasion against non-bigoted speech; physically intimidating members of the press; bullying students who disagree with them; shredding newspapers because they disagree with an article; and calling for dissent to be punished. They don’t understand why this is counterproductive and wrongheaded.

When those speech codes were written 20 years ago, the people who drafted them at least tried to target the least valuable kinds of speech. Some sought to write codes that would affect only “fighting words.” Others tried to ban what they dubbed “group libel.” As courts struck those efforts down, there was a shift toward targeting speech that created “a hostile climate.” Citing Title VII of the Civil Rights Act of 1964, law professor Mary Ellen Gale argued that universities may prohibit and punish “direct verbal assaults” on “specific individuals” if 1) “the speaker intends to do harm,” 2) “a reasonable person would recognize the potential for serious interference with the victim’s educational rights,” and 3) “if the incident is highly likely to produce serious psychological harm and a hostile, intimidating educational environment.” What would it take to reach her hostile climate threshold?

This early 1990s supporter of a “hostile climate” speech code declared that college students would be engaged in protected speech, and would not run afoul of hostile climate laws, if they formed a White Supremacy Council, held meetings on the campus lawn where they displayed a swastika, and used racial epithets to protest the presence of nonwhite students on campus. That is disgusting behavior.

I’d certainly be out protesting those students.

But Professor Gale argued that because their acts weren’t targeted at an individual, and didn’t occur in a place, like a classroom, where students were a captive audience, it wouldn’t run afoul of hostile climate laws. Some of you might have noticed that she deliberately crafted that example as a campus analog of the famous case of Nazis who wanted to march through a town with many Holocaust survivors.

The ACLU successfully defended their rights to do so.

Why would a group that so frequently champions the rights of marginalized people defend a bigot’s right to behave so abhorrently?

The ACLU argued that “restricting the speech of one group or individual jeopardizes everyone’s rights. The same laws or regulations used to silence bigots can be used to silence you. And laws that defend free speech for bigots can be used to defend the rights of civil rights workers, anti-war protesters, lesbian and gay activists and others fighting for justice. In 1949, the ACLU defended an ex-priest who had delivered a racist and anti-semitic speech. The legal precedent in that case became the basis for the ACLU’s successful defense of civil rights demonstrators.” I have never yet seen a critic of the ACLU persuasively respond to that example.

Why are bygone battles over free speech worth our time today? One reason is that some erroneously believe that anyone raising free speech concerns is hostile to marginalized students. Often, the exact opposite is true, and history helps shows why many reasonably believe that expansive free speech norms are especially vital for marginalized groups. Another mistaken impression is that groups that are underrepresented on college campuses are alone in being asked to tolerate free speech that offends them.

In fact, the First Amendment has protected lampooning a member of the religious right by portraying him as having sex with his drunken mother in an outhouse. It has protected putting a crucifix in a jar of urine. It has protected burning an American flag outside a Veteran’s hospital. It would protect a sign that says, “Donald Trump is a fascist asshole,” or “white people are evil and should be shunned.” And, of course, the First Amendment protected the right of  Nazis to march in Skokie.

With that case in mind, consider how different today’s free-speech conflicts are. There are a lot of thorny debates about the outer limits of the First Amendment. But today's campus speech debates aren’t about neo-Nazis or hooded klansmen, any more than America’s torture debate was about a terrorist in Times Square with a ticking timebomb and Jack Bauer on the way with brass knuckles and pliers. Some students and administrators at public universities are flagrantly violating the First Amendment over costume parties and student journalists photographing protesters. At private colleges, they are trying to target, suppress, or punish speech that’s neither “fighting words” nor “hate speech” nor “group libel” nor targeted at individuals nor likely to produce serious psychological harm.

20 years ago, opponents of speech codes warned that those with the impulse to suppress any speech were putting us on a slippery slope; that core, protected speech would inevitably be punished or chilled. Today’s campus-speech battles suggest they were correct.

In October at UCLA, a fraternity hosted what they called a Kanye Western theme party. Attendees dressed up like Kanye West and his celebrity wife. Despite early press reports about some students wearing black face, students did not, in fact, incorporate black face into their costumes. Nevertheless, the Afrikan Student Union declared that the party was cultural appropriation. So far, there’s no First Amendment issue. The Afrikan Student Union had every right to protest something it found offensive.

But in this case, UCLA administrators punished the fraternity that hosted the party by temporarily suspending it. And that ought to alarm you even if you think that the frat shouldn’t have thrown the party, because UCLA is a public institution. It must adhere to the First Amendment. And dressing up in virtually any costume, no matter how offensive, is protected speech. Imagine you were having a Halloween party at your house. Wouldn’t you find it outrageous if the city government came and ticketed you or one of your friends for wearing the wrong costume?

Now, if asked beforehand, I would have urged the frat to choose a different theme. We should be sensitive to one another. But a Kanye Western party is far afield from the edge cases that define the outer boundaries of the First Amendment.

If UCLA’s speech police get their way, they would set a precedent that significantly narrowed a core right. That would do the most harm to the people who rely most on the First Amendment: the powerless, the marginalized, and the unpopular; activists for minority causes, contrarian intellectuals, and dissident journalists. And when the unintended consequences of today’s activism harm the least powerful, most marginalized individuals of the future, UCLA graduates and administrators are highly unlikely to be among them. They can afford to be shortsighted.

That said, even at UCLA right now, there are efforts to limit the free-speech rights of activists who criticize Israel while advocating for the human rights of Palestinians. Standing up for robust First Amendment rights on campus is as important as ever. But most student activism that concerns speech is now aimed at limiting it.

In California, even private universities are bound by state law to adhere to the First Amendment. But in many places, that isn’t so. So let’s assume that we're now talking about the free-speech norms that we want to see on campus, not the ones federal law requires.

At these private institutions too, free speech is under attack.

At Wesleyan, a student wrote an op-ed that expressed sympathy for the goals of Black Lives Matter, but criticized it for what he saw as vilifying police officers. In response, activists trashed whole runs of the newspaper by seizing it at campus distribution points and started trying to get the student government to defund the publication.

At Amherst, student activists operating under the name Amherst Uprising demanded “a zero-tolerance policy for racial insensitivity.” And they specifically sought to punish dissenting students who made their own protest signs with the messages, “All Lives Matter” and “Free Speech Is the Real Victim of the Missouri Protests.”

At several colleges, activists want faculty members to be punished for all microaggressions.

A black student at Occidental told The Los Angeles Times that he has been shunned and harassed for opposing efforts of other student activists to oust the college president.

At Duke, activists want faculty to lose the possibility of tenure for words that they utter “if the discriminatory attitudes behind the speech could potentially harm the academic achievements of students of color.”

At Yale, student activists spat on attendees of an event with which they disagreed. Others called for a professor and his wife, herself a Yale lecturer, to be removed from their positions in residential life for failing to apologize for an email about Halloween costumes.

To his credit, my conversation partner, Jelani Cobb, is concerned about students and their grievances. He has also written, “That these issues have now been subsumed in a debate over political correctness and free speech on campus—important but largely separate subjects—is proof of the self-serving deflection to which we should be accustomed at this point.” He characterized this response as “outraged First Amendment fundamentalism.” I respectfully but vehemently disagree.

First, it’s perfectly possible to debate free speech on campus and efforts to make campuses more inclusive. The media is full of both debates. Neither has been subsumed by the other.

Second, how can one fully understand student activists without attentively listening and then engaging in conversation and, where there is disagreement or lack of clarity, debate? Without a culture of free speech there cannot be constructive dialogue.

Third, the free-speech objections raised today are not fundamentalist in the least: The vast majority of examples at public universities fall easily within long-settled First amendment precedents––these are not edge cases––and at private colleges, one needn’t be a free-speech zealot to object to activists spitting on people or telling a man he’s disgusting and should resign because of an earnest email his wife wrote!

Finally, civil libertarians don’t get to choose when to defend civil rights. I’d love to defend due process with choir boys and Girl Scouts as my examples. Instead, I objected to Anwar al-Awlaki being killed, because his killing posed a threat to due process.

I’m tremendously sympathetic to college students who don’t feel welcome on their own campuses. Smart, idealistic, likable 18-year-olds are not the antagonists I’d pick in a free-speech fight if I were choosing. But I’m not. They are. Administrators and students chose to target speech; at UCLA they chose a course that would set precedents weakening the First Amendment for people far beyond themselves; at Yale, Dean Jonathan Holloway said in an interview with Professor Cobb that video of students yelling at a professor gave outsiders the false impression that the conflict there was about free speech. But Yale protestors chose to call in their official, written demands for the resignation of a faculty-in-residence at an undergraduate colleges for refusing to apologize for his wife’s email. So yes, the conflict at Yale is partly focused on trying to punish speech, due to the choices of students.

These wrongheaded choices are distracting them from other, more worthy demands, and weakening their cause, because a lot of small-l liberals understand that for colleges to thrive, speech cannot be chilled. There needs to be a process of unending discussion and debate, where wrongheaded ideas are changed by persuasion, not punished by babysitter administrators. And contrary to what some students say, this is not a subject that divides white people from “people of color.”

Earlier this month, Pew asked, “Should government be able to prevent people from saying things that are offensive to minority groups?” 67 percent of all Americans said no. Majorities of men, women, Republicans, Democrats and Independents said no. Sixty-six percent of people who’d attended some college said no. 75 percent of people with a college degrees said no. 57 percent of “people of color” said no.

Of course student activists are getting pushback against the anti-speech parts of their agenda. Majorities of every demographic group disagree with them! Their campus bubbles blind them to this. I hope activists who’ve made this mistake will recover from it.

I want to leave students here with a message of empowerment.

You’re all smart people. You’re all capable of the strength that it takes to hear a wrongheaded idea, to react intellectually, even if you’re also reacting emotionally, and to formulate a persuasive response. That sort of resilience will serve you well in your career, where no one is going to tiptoe around your feelings. And it is vital in civic life, because America is filled with horrific injustices, and we need more people who are willing and able to look at them squarely and to persuade their fellow Americans to do better. To stigmatize and shame someone is worth far less than persuading them. Don’t let anyone convince you that you’re a marginal voice or that you need to cast yourself as weak to make gains.

Your strengths are formidable––and so long as you’re not attacking the First Amendment or the spirit of open debate, you will have a lot of allies fighting for your just causes.

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