What an NYU Administrator Got Wrong About Campus Speech

Ulrich Baer’s op-ed in The New York Times is the latest challenge to liberal speech norms that fails to withstand close scrutiny.

Earlier this week, Ulrich Baer, a vice provost at New York University, published an op-ed in The New York Times defending student-activist efforts to shut down speakers at institutions of higher education like Auburn, UC Berkeley, and Middlebury. He urged readers inclined to defend liberal norms on matters of speech to adopt “a more sophisticated understanding” and argued that “the parameters of public speech must be continually redrawn to accommodate those who previously had no standing.”

Were there “parameters of speech” at Berkeley 10 or 15 years ago that denied standing to students who have it today? What were the parameters? Who are the students?

The op-ed is elusive throughout in a manner typical of university administrators with censorious instincts. Many words are lavished on a questionably relevant anecdote about the Holocaust and the obligatory theory of a postmodern French philosopher. Very few words clarify what speech is to be suppressed by what standards, or who is to decide if they are met, as if we needn’t worry overmuch about limiting principles or the abuses that invariably follow when they are absent—even though marginalized groups typically bear the attendant burdens most heavily.

The op-ed comes closest to clarifying what speech is to be suppressed after casting ostensibly unworthy speech as that which marshals abstract argument against personal experience. The dice are quickly loaded with Baer’s choice of example: He leads readers to think of bygone instances of Holocaust denial, “where invidious but often well-publicized cranks confronted survivors with the absurd challenge to produce incontrovertible eyewitness evidence of their experience of the killing machines set up by the Nazis to exterminate the Jews of Europe. Not only was such evidence unavailable, but it also challenged the Jewish survivors to produce evidence of their own legitimacy in a discourse that had systematically denied their humanity.”

Grounding the op-ed in that example is odd for a few reasons.

While it is monstrous to tell a Holocaust survivor that the horrors he or she lived through did not happen, the paradigm of evidence-based empiricism seems preferable, for those intent on Holocaust deniers losing, than a paradigm where personal experience is paramount. After all, Holocaust survivors will not be with us much longer; those who feel sure the Holocaust never happened will outlive them.

What’s more, even though robust free-speech protections permitted anyone to deny the Holocaust in America, and protected neo-Nazis as they marched through Skokie (a free-speech precedent later marshaled to defend the speech of racial minorities), Holocaust denial stayed a highly stigmatized, fringe belief. The descendants of Holocaust survivors are not marginal victims kept down by bygone free speech. So the culture of relatively absolute free speech worked. Indeed, Holocaust denial is arguably less widespread in the country with no laws against it than some Western European countries that have long criminalized denying the Holocaust.

Nevertheless, Baer concludes from his example that “certain topics restrict speech as a public good.” So let’s grant the premise. Maybe there are certain topics like that.

Of course, we could as easily load the dice in the other direction, illustrating the danger of elevating personal experience over demands for evidence or abstract reasoning. Consider the marginalized son of Appalachian coal miners who goes off to college feeling sure, based on personal experience, that the climate is not changing. Few would disagree that having deeply held experience-based beliefs contradicted by evidence, and siding with the evidence, is part of what college should teach.

What’s more, free speech facilitates making experiential claims as much as reasoned claims, so even if your premise is that certain debates are setbacks for the public good, you might still champion robust speech protections so experiential claims are protected. Instead, the op-ed gives only the Holocaust example, making it seem monstrous to subject personal experience to the marketplace of ideas, then segues to the most specific account Baer offers of who and what should get censored, by his lights.

“Some things are unmentionable and undebatable, but not because they offend the sensibilities of the sheltered young,” he writes. “Some topics, such as claims that some human beings are by definition inferior to others, or illegal or unworthy of legal standing, are not open to debate because such people cannot debate them on the same terms.” He adds that recent student protests “should be understood as an attempt to ensure the conditions of free speech for a greater group of people, rather than censorship. Liberal free-speech advocates rush to point out that the views of these individuals must be heard first to be rejected. But this is not the case. Universities invite speakers not chiefly to present otherwise unavailable discoveries, but to present to the public views they have presented elsewhere. When those views invalidate the humanity of some people, they restrict speech as a public good.”

To reformulate that sketchy explanation into a speech test:

1. It is forbidden to mention or debate the claims a) that some human beings are by definition inferior to others; or b) that some human beings are illegal or unworthy of legal standing.
2. Prior restraint on speakers is okay if they’ve violated rule one in the past.
3. Failure to adhere to rule one invalidates the humanity of some people.

The last claim is most easily dispatched.

Don’t worry, students, Milo Yiannopolous does not, in fact, possess the power to “invalidate” your humanity—as yet, he hasn’t even shown an ability to dignify his own. The humanity of every individual is a fact. No one can invalidate it with speech. Teaching undergraduates otherwise renders them needlessly vulnerable to bigots and trolls. (And  people who believe that, say, undocumented Honduran immigrants have no legal right to live here are not, by and large, even claiming their humanity is invalid.)

As for the rest:

Does Baer grasp what his positions imply? Using the standards he offers, here is a partial list of speakers that would have to be denied a platform at New York University:

• Barack Obama, who ordered and later defended a drone strike against Anwar al-Awlaki, an American citizen he deemed unworthy of legal standing and subject to a kill list because of his work on behalf of the terrorist organization Al Qaeda; and who deported hundreds of thousands of undocumented immigrants during his tenure, including household raids on Central American families that the last president presided over as recently as the autumn of 2016.
• Bill Clinton, who declared in his 1995 State of the Union address, “All Americans, not only in the states most heavily affected but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold might otherwise be held by citizens or legal immigrants. The public services they use impose burdens on our taxpayers. That’s why our administration has moved aggressively to secure our borders more by hiring a record number of new border guards, by deporting twice as many criminal aliens as ever before, by cracking down on illegal hiring, by barring welfare benefits to illegal aliens. In the budget I will present to you, we will try to do more to speed the deportation of illegal aliens who are arrested for crimes, to better identify illegal aliens in the workplace as recommended by the commission headed by former Congresswoman Barbara Jordan.”
• Hillary Clinton, who said during her most recent campaign, “I voted numerous times when I was a senator to spend money to build a barrier to try to prevent illegal immigrants from coming in. And I do think you have to control your borders.”

As Jonathan Chait aptly observers, “Nearly all American politicians in both major parties support some limits on legal immigration, and some measures to enforce those laws. Virtually all of them define some human beings as ‘unworthy of legal standing.’”

If Plato were reincarnated for a day and if he offered to deliver a lecture at NYU, one wonders if Baer would decline the offer, what with the philosopher’s writing on eugenics and belief that some humans are inferior to others. In fact, since Baer thinks some questions Plato raised are “unmentionable and undebatable,” one wonders if or why he is comfortable with NYU professors assigning the philosopher as course reading, let alone asking undergraduates to grapple with his ideas in class discussions.

Baer is presumably earnest in believing that declaring certain speakers and ideas beyond mention or debate “should be understood as an attempt to ensure the conditions of free speech for a greater group of people,” and that in so doing, he is acting as the righteous champion and protector of oppressed groups. But implicit in his understanding are lazy stereotypes common to many who share his views on speech.

To attend New York University, as I did for graduate school, or to converse with undergraduates at dozens of selective colleges and universities, as I have spent scores of hours doing, confirms what any observer of American life ought to know: that the opinions of African Americans, Hispanics, Asian Americans, gays, lesbians, trans people, undocumented immigrants, foreign students, people from minority religious groups, and those of members of every other identity group on campus are hugely diverse. There is no reason to believe (as some white supremacists do) that minority students need an experiential paradigm to thrive, or are less suited to reasoning or liberal values, views that Baer seems to imply but never quite states outright.

What’s more, in a failure to think intersectionally, Baer seems not to realize that there are millions of black and Hispanic Americans whose views on, say, illegal immigration or transgender rights run afoul of his standards for what is even mentionable. How much speech by historically marginalized groups will be stifled in Baer’s effort “to ensure the conditions of free speech for a greater group of people”?

To invoke a postmodern philosopher or the critical race theorists, and to proceed as if their views on hearing and suppressing speech are the consensus position of a generation, or students of color, or that members of some groups are inclined to thrive under a censorious model of speech, assumes group beliefs, inclinations, and psychological predispositions not in evidence. In fact, many members of minority groups prefer an education free from the soft bigotry of those stereotyping them as snowflakes who need protecting from ideas when they can more than hold their own.

There are students of color at Middlebury who are upset that Charles Murray was shut down; at Claremont McKenna who are upset that Heather Mac Donald was shut down; and at Yale who are upset at the treatment of Nicholas and Erika Christakis. Some are loath to publicly state their views, lest they be stigmatized by campus activists as “shady people of color.” And one needn’t long wander the streets of Berkeley, California, to run across one of the world’s most ethnically diverse collections of free-speech absolutists on the planet, among many other leftist factions.

When Baer asserts that “the idea of freedom of speech does not mean a blanket permission to say anything anybody thinks,” but that, rather, “it means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community,” he further traffics in a notion so pernicious that it is vital to reject it. If Richard Spencer or Ann Coulter or Milo Yiannopolous retired from public life tomorrow, I believe the world would be a better place; I am glad people voice their opposition to them; if I weren’t a journalist I would happily hold a protest sign outside one of their talks; and I wish conservative groups would stop inviting them as speakers. But it is inaccurate and disempowering to tell undergraduates that any bigot can render them unable to participate in public discourse merely by speaking on campus; or can render them less than fully recognized in their community merely by addressing it.

“What is under severe attack, in the name of an absolute notion of free speech,” Baer writes, “are the rights, both legal and cultural, of minorities to participate in public discourse.” In fact, minorities are not only free to participate in discourse on college campuses, they are doing so vigorously; organizations like the ACLU and FIRE stand ready to defend any abrogations of their rights; and even their protests face orders of magnitude less pushback from faculty and administrators than white college students faced in the 1960s, precisely because several generations of civil libertarians have fought like hell for extremely broad notions of free speech to prevail on campus.

That leaves one last pernicious formulation to address.

One insight many free-speech advocates share is that opining on what “should” or “shouldn’t” be up for debate is beside the point. Chattel slavery shouldn’t have been up for debate. Thank goodness that abolitionists joined and won the debate anyway. Gay marriage shouldn’t have been up for debate. Thank goodness Andrew Sullivan wasn’t acculturated to believe that merely engaging in that debate risked invalidating his existence. Baer believes the claim that some people are “illegal or unworthy of legal standing” shouldn’t be up for debate today. How does he suppose that unpopular position will advance and triumph over antagonists who presently include an overwhelming majority of Americans—and most elected officials from both parties—if the next generation of educational elites is prevented from debating or even mentioning the matter in the one setting where they are training to reason well? They’d benefit from being better prepared than that. Their antagonists will be.