The Value of Fighting Attacks on Free Speech Early and Often

There’s no sense in waiting for the problem to become endemic before moving to arrest it.

Beck Diefenbach / Reuters

Professor Keith Humphreys of Stanford University does not believe that speech is threatened on America’s campuses. He’s never perceived a meaningful threat himself. And he is very antagonistic toward several of us who believe that important values and vulnerable people will suffer unless more is done to protect free expression.

His posture is not unusual. Across issues and ideologies, on matters big and small, harms that disproportionately affect a vulnerable group or class of people attract skeptics who feel impelled to minimize the importance of documented injustices, especially when they manifest in what appear to be atypical circumstances. A skeptic may grant that there are bad apples in police departments, hate crimes perpetrated against Muslims, abusive teachers who exploit union job protections, or men who catcall women on the street. But perhaps they’ve never been affected, or known anyone who has suffered the relevant harm, so they are predisposed to concluding that the problem isn’t really that bad. Baffled by those who think otherwise, they come to regard them as discreditable agitators.

This type of skeptic is a scourge of civil libertarians. Though they may value the same goods in the abstract, they have a bankrupt understanding of how civil rights, liberties, and key norms must be defended in the particular if they are to endure.

Last year, while reviewing the case that free speech rights and norms are threatened from the top down and the bottom up on college campuses, I detailed evidence as varied as official codes of conduct that explicitly restrict speech at scores of campuses; a lobbying campaign to ban some criticism of Israel at the University of California; many efforts to disinvite speakers from colleges; a government program that sent undercover cops to spy on Muslim college students; an administrative action at UCLA that brazenly violated the First Amendment; student activists at numerous institutions formally demanding that speech be punished; and widespread attempts to restrict the content of college newspapers. The rundown was highly incomplete, but I thought it sufficient to make the case.

Humphreys was so unpersuaded by “The Glaring Evidence That Free Speech Is Threatened on Campus” that he cited it this week in a contemptuously dismissive rebuttal posted at Reality Based Community and The Washington Monthly. He began with an anecdote.

On a brisk autumn evening at Stanford University, he chanced upon two acquaintances, a retired Eastern European diplomat and a female graduate student. Humphreys shook hands with the diplomat, who was wearing leather gloves, then introduced the diplomat to the grad student. The diplomat removed his gloves to shake her hand—and the graduate student did not take offense that he did so.

“After he departed, I said I had never seen a man take off a glove before shaking a woman’s hand and asked the student if she had or if she knew whence the custom came,” Humphreys wrote. “She smiled and responded ‘I really don’t know; maybe they do that where he’s from. But he’s a sweet old man and I could tell it was his way of being gallant.’”

For Humphreys, that anecdote is a useful corrective.

“If you have been reading Conor Friedersdorf’s or Greg Lukianoff and Jonathan Haidt’s writings about campus culture in The Atlantic,” he wrote, you’d have thought that “the women recoiled from the gendered micro-aggression and lambasted the diplomat.” But the encounter as it really unfolded represents “what I have seen over and over again from students for decades,” he wrote. “A spirit of common humanity and a tolerance for different ways of acting and thinking. People come to my university from all countries and all backgrounds with a huge range of beliefs and customs. Yet I have never (and I do mean never) witnessed anything on campus suggesting that the atmosphere of widespread intolerance, suspicion and emotional fragility that I keep reading about in The Atlantic actually exists.”

Sure, he added, “some students now and then have goofy ideas or act in rude ways,” but he recalls that “being just as much the case when I was a student 30 years ago.”(For what it’s worth, free speech on campus was certainly threatened then, too.)

He concluded with paragraphs that treat the distinct questions of whether speech is threatened and whether today’s students are awful as though they are the same:

I have asked many colleagues and students at my university and at other universities this two-part question “Have you read how students today are coddled, intolerant, whiny, narrow-minded prigs and do you yourself have any experience at all of this?”Everyone has answered yes to the first part of the question and all but a handful have answered no to the second.

I thus remain dubious that the heavily recycled grab bag of anecdotes I keep hearing from Conor Friedersdorf and company establish that universities have suddenly become hell-holes of epistemic closure, Maoist impulses and mattress wallpaper. Repeating dramatic anecdotes does not make them more representative of the experiences of the over 15 million students at our country’s over 4,500 colleges and universities.

Humphreys did not quote any of my actual work in his article, or when he queried his colleagues. Had he done so, he might have realized that I think more highly of their cohort than he led readers to believe, that I believe the most alarming “bottom-up” transgressions against free speech to be the work of a small minority of students, and that even when writing about the most egregiously illiberal student  behavior, I include passages like this one, written about events last year at Yale:

The purpose of writing about their missteps now is not to condemn these students. Their young lives are tremendously impressive by any reasonable measure. They are unfortunate to live in an era in which the normal mistakes of youth are unusually visible. To keep the focus where it belongs I won’t be naming any of them here.The focus belongs on the flawed ideas that they’ve absorbed. Everyone invested in how the elites of tomorrow are being acculturated should understand, as best they can, how so many cognitively privileged, ordinarily kind, seemingly well-intentioned young people could lash out with such flagrant intolerance.

With regard to the overall threat to speech, it is strange to be accused of trafficking only in dramatic anecdotes when my article includes an alphabetical list of institutions with written codes that infringe on speech, with links to source material.

Still, the style of attack is too familiar to be surprising.

Those who point to evidence of war crimes are often accused of hating the troops; those who raise concerns about the difficulty of firing abusive or incompetent educators are accused of being anti-teacher; anti-rape activists are invariably told that not all men are sexual predators, as if it is obvious that they believe otherwise; reformers calling attention to unjust police killings are cast as waging “war on cops;” but in every case, as in the matter of threats to campus speech, one needn’t hold any whole class in contempt to see preventable injustices or worrisome trends, or to conclude that clearer thinking or better policy would be useful. Wrongheaded behavior exists in every population, even the ones we like and root for.

When I pushed back on Twitter, Humphreys expanded on his reasons for dismissing the case I made in “The Glaring Evidence That Free Speech Is Threatened on Campus.” He noted that even if I cited 100 restrictive speech codes, that would amount to evidence of a problem at no more than 2 percent of college campuses; he observed a dearth of evidence that speech is more restricted now than in the past; he said he would be persuaded only if “a random sample” of campuses revealed speech codes that were “stupid and being enforced,” or a nationally representative survey showed “a rising, pervasive tide of firings, censorship, and harassment.” Otherwise, he said, one is just “sampling the fringe and presenting it as generalizable.”

He made some good points. I would welcome the data a national survey of educational institutions would yield. And it is useful to remember that there has never been a golden age of unfettered expression in institutions of higher education, from Socrates on down, even as taboos and orthodoxies have changed. But like most attempts to insist that documented injustices in a given realm don’t rise to a level that warrants concern, his insistence on further evidence falls short. It doesn’t make much sense to wait until a civil right or settled norm is attacked so pervasively that a large portion of the population has suffered harm before defending it. I’d prefer to protect the vulnerable individuals or groups first affected—what Humphreys calls “the fringe”––and thereby preempt pervasive harm.

The free-speech rights that Americans enjoy today are ours precisely because organizations like the ACLU have spent decades “sampling the fringe” and filing lawsuits adjudicating edge cases on behalf of the victims, often precisely because they are suffering from discriminatory treatment that is atypical and unrepresentative. The Foundation for Individual Rights in Education is doing that work today. It does so in part because it understands that enforcing speech restrictions against a very few people can invisibly chill the speech of a much larger class. One or two firings may be enough to convince many professors to watch what they say; no faculty waits for a wholesale purge before they begin to self-censor.

And suggesting that a hundred institutions restricting free speech still wouldn’t be sufficient evidence of a broad problem––or that a randomized sample is needed before a rigorous threshold is met––makes no sense in this context. Sometimes, the actions of a single university can have a broad impact all on their own. I’ve repeatedly written about threats to free speech at the University of California. It is funded by taxpayers, overseen by elected officials, and encompasses 238,000 students. Its faculty and staff number 190,000; and it has roughly 1.7 million alumni. When the UC system infringes on free speech, it has enormous ramifications, even if a randomly selected sample of other colleges is doing much better.

While I generally share the critique that Ivy League institutions loom too large in American life and in coverage of higher education, there is also a strong case for evincing particular concern for the health of free speech at places like Harvard, Yale, Princeton, and Brown: Their undergraduates are disproportionately propelled into positions of influence in government, business, and media; they exert soft power and influence in academia; their gargantuan endowments vest them with outsized clout; and vital social-science and medical research is disproportionately undertaken on their campuses, where the strength of free-speech norms will affect its quality. Even if free-speech norms at America’s under-appreciated system of community colleges and its many trade schools are as healthy as they’ve ever been, threats to free speech elsewhere remain important.

Nor do I believe that those who care about higher education, enlightenment values, and liberal norms ought to evince concern about “stupid” speech codes in college handbooks only when they are regularly enforced. I’m as flabbergasted by the same logic when I suggest that the Espionage Act ought to be repealed, to spare us future mischief from an abusive president, only to be told, as if in defense of that law, that it has scarcely been used across the century since its passage. The speech codes of the 1990s were not regularly enforced, but that wasn't any solace to the students who were actually punished, a disproportionate share of whom were African American. Critics like Henry Louis Gates and the courts that struck down those laws were right to challenge them, though they were seldom used.

Among people who spend time or effort trying to call attention to problems, there will invariably be disagreements about the relative importance of particular injustices. Those disagreements will shape how attention and effort is parceled out, to the understandable frustration of those who feel their own priorities are given short shrift. That frustration is the price of living in a big  country filled with diverse individuals. I feel that frustration whenever I write about civil-libertarian concerns, only to discover that the vast majority of people feel less concern about the subject than I do.

That diversity of outlook and priorities can also be a great strength. None of us is infallible or able to focus on everything that’s going wrong. As I write about my biggest concerns, I’m glad others focus on other problems. Some academic readers believe the greatest threat to speech on campus flows from the vulnerable position of adjuncts. I cheer their efforts to safeguard good teaching and scholarship.

What galls me, whether the subject is police abuses or anti-Muslim animus or professional-licensing laws, is when folks are given clear evidence of actual injustices, but dismiss their magnitude, then go a step farther, as if the right course is to treat those who are more concerned than they are as if they’re the problem. Even granting that Humphrey may have been engaging in some rhetorical hyperbole, he neither understands my actual beliefs about today’s college students nor explains why his high opinion of their virtues should allay concerns about the plurality of threats to free speech that originate with non-students.

Addressing a gathering of undergraduates last year at Long Beach State, I urged that they reject the views of anyone who tries to stymie free expression or underestimates their strength. “You're all smart people,” I told them. “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 logical, persuasive response. Don't let peers, professors, or administrators convince you that you're incapable of that. If you're not there yet, you can get there, and it's worth practicing. 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. We need more people who are willing and able to look at them squarely and to persuade their fellow voters of sound responses.”

That remains my feeling about today’s college students. Whereas if I ever have a chance to address a gathering of college administrators, I’ll have much sterner stuff for their ears.