Congress Finds Consensus on Free Speech on Campus

Witnesses tell legislators that lots of so-called hate speech is constitutionally protected, that harassing or threatening speech is not, and that white supremacists ought to be denounced.

Aaron Bernstein / Reuters

Last week, the House Committee on Oversight and Government Reform held a hearing on challenges to freedom of speech on college campuses. The testimony of elected officials and witnesses ran to three hours. If you’ve got the time, interest, and patience, unabridged video is available, and gives a better idea of what Congress is really like than any evening of cable-news coverage. But life being short, my abridged highlights may better meet your needs.

If you’ve been following the debate about free speech among administrators, faculty, and students on college campuses, this congressional hearing may be most striking as a reminder that, in Washington, D.C., almost no elected official in the Republican or Democratic Party agrees with the most censorious parts of the campus Left. Republican legislators emphasized the least defensible efforts to shut down speech, while Democratic legislators cautioned against passing any laws that might chill the speech of protesters and emphasized the threat white supremacists pose to minority students. But there was no support for the philosophy of Herbert Marcuse, or for censoring Heather Mac Donald, or for the idea that the safety of students is threatened by microaggressions, or even for denying open bigots the right to speak.

Representative Val Demings, a black Democrat from Florida, set the tone in her opening remarks. She spoke of attending college at a time when there were some who did not want her there, declared a willingness to risk her life to protect the rights of a Ku Klux Klansman to speak, and insisted that a line is crossed when white supremacists invoke free speech as a cover to threaten or harass minority students.

As she put it:

I've taken three oaths in my lifetime: one as a young police officer in 1984, another when I was sworn in as the police chief, and a third when I was sworn in to serve in the 105th session of the U.S. House of Representatives. In each oath I swore that I would protect and defend the Constitution of the United States against all enemies foreign and domestic.

I have taken each oath very seriously. As a law enforcement officer I had several occasions to provide security for groups as they exercised their first amendment rights, groups like the Klu Klux Klan and the neo-Nazi movement. There I was providing much needed protection, and if someone or anyone had tried to harm them in any way I would have risked my life to protect them, not because I agreed with their speech, but because I agreed with their right to speak, their right as guaranteed by the First Amendment.

I appreciate this opportunity to shine a light on the real clear and present danger facing colleges and universities around the nation. The problem is not high profile speakers like Ann Coulter. The clear and present danger is the increase in white supremacist hate groups on campuses, the targeting and harassment of students because of their race, religion, gender, and sexual identity.

For the 2016 and 2017 school year the Anti-Defamation League reported that students, faculty, and staff on 110 American college campuses were confronted by 159 separate incidents of racist fliers and stickers. The Southern Poverty Law Center reported that in 10 days alone after the last election there were 140 incidents of hate bias attacks on university campuses––most recently on May 1 of this year, at American University, bananas tied with nooses were hung across the campus after the school elected its first African American student government president, Taylor Dumpson, who I understand is with us today.

Now I was proud Taylor was elected because it demonstrated much needed progress as a nation. But words were written on the bananas referring to the African American sorority of which Taylor was a member. Taylor was also subjected to a cyberbullying campaign by a white supremacist group on social media. The FBI is investigating these unprotected, illegal expressions of speech that Taylor was subjected to as a hate crime.

The operative word here is crime. As Taylor explained, "I applied to college like all of our children do. When I applied I thought that I would meet new people and learn new things, not be the victim of a racially motivated hate crime and cyberbullying that would interrupt my academic life and disrupt my mental, physical, and emotional health." As stated earlier, what happened in Taylor's case is being investigated by the FBI.

Mr. Chairman, public safety trumps everything. For students like Taylor, the issue of free speech on college campuses isn't a right or left issue. Rather it's about criminal acts being wrapped in banners of free speech. It is knowing that the symbols and banners of 400 years of torture and terror are enough to strike fear in the hearts of every student of color. As we examine the issue of free speech on college campuses, let’s keep the focus on addressing the real danger which are any acts of violence, to threaten, intimidate, harass, or violate any laws that this nation holds quite dear.

How does one determine the difference between protected speech and criminal harassment or threats? The longtime free-speech advocate Nadine Strossen agreed that a noose menacingly directed at an African American student qualified. She explained:

We hear too many statements about so-called hate speech, which by the way, is not a legal term of art, it has no accepted definition, though it is generally used to describe speech that conveys hatred on the basis of some personal characteristic that has traditionally been the basis for discrimination: race, religion, gender, and sexual orientation, among others. We hear constantly statements that "hate speech is not free speech."

Absolutely wrong.

But we also hear equally incorrect statements that "hate speech is absolutely protected." Also wrong.

The genius of our Supreme Court decisions on this issue––here the court has been very unified from right to left, setting a model that we should all emulate in the rest of the world, this is not a partisan or ideological issue––they have laid down two core free speech principles... And I think they are brilliant and make great common sense, including in this context.

For one, speech may never be censored just because we revile its ideas. That's called viewpoint neutrality.

Number two picks up on points that Ms. Demings in particular made. If the speech does contain what is often called a “clear and present danger” of harm, including instilling a reasonable fear that you will be attacked––the incident of the nooses––that constitutes targeted harassment and threats, which may and should be punished consistent with existing free speech principles. If people understood both the common sense distinction our law draws between protecting ideas that we hate versus not protecting, but strongly punishing speech that actually directly causes imminent, serious harm, there would be much more support for it.

A representative of the Anti-Defamation League, Frederick Lawrence, offered that one test ought to be, “Is the intent to communicate, no matter how hateful, the idea, or to intimidate the victim?" As he sees it, “Robust free expression and free inquiry are central to the missions of our colleges. The limits to such expression are way out on the margins of expressive activity, and they involve behavior that threatens or instills fear in a victim or victims. Hate speech is protected. Hate crimes are not.”

He added a vital coda:

Constitutionally protected hate speech still causes harm to members of our community. There is a moral imperative, therefore, for campus leaders to vigorously criticize hate speech––not to suppress it, not to prohibit it, but to identify it for what it is and criticize it … University administrators also have First Amendment rights and also get to speak. So in many cases the answer is not to run to the extreme of shutting down an event.

Even if there is a white supremacist on campus, if they are invited by a campus group, or at a state university if they are entitled to be there under university rules, then you don't shut it down. But you do counter it with comments of your own. The administrators have to say we have values at this university … and more speech is not just an option, it is a moral obligation.

Two other witnesses, the conservative commentator Ben Shapiro, whose events have been shut down on college campuses, and Michael Zimmerman, the former provost of the Evergreen State College, spoke on subjects including their respective theories for why student activists are trying to shut down speech on college campuses.

For Ben Shapiro, “Free speech is under assault because of a three step argument made by the advocates and justifiers of violence. The first step is that they say the validity or invalidity of an argument can be judged solely by the ethnic, sexual, racial, or cultural identity of the person making the argument. The second step is that those who argue otherwise are engaging in verbal violence. And the third step is that they conclude physical violence is sometimes justified to stop what they call verbal violence.”

There are surely campus incidents that follow something like that logic; but it does not capture the reasoning of every or even most attempts to prevent or punish speech––some student protesters focus on the racial, ethnic, or sexual identity of the speaker, to be sure, but others lodge objections inextricable from the content of a speaker’s past actions or ideas (or as often, unwitting misrepresentations of what they believe or have done). Being a woman of color does not guarantee that Condoleezza Rice or Ayaan Hirsi Ali can set foot on a college campus without an attempted no-platforming. Being a feminist intellectual did not spare Laura Kipnis her Title IX inquisition.

Zimmerman at first expressed a relatively standard view. He believes there are problems on college campuses that must stop, but that new laws aren’t the answer:

College administrators need the courage to do what is right, to stand for principles rather than expediency, and to risk alienating some in the name of those principles. Where such strong leadership exists conflict rarely escalates to crisis.

At the same time, faculty members need to hold their colleagues accountable. The problems we've seen are not, I am confident, supported by the vast majority of faculty. But most have opted to remain silent, to self-censor. They've ceded control of their institutions to a small but vocal minority. This silence is understandable. Speaking out distracts people from their important work in teaching and scholarship while often bringing them into conflict with colleagues. Asking faculty to encourage civil discussion and to celebrate a range of voices and perspectives is asking a great deal, more than we see in our political discourse. But if diverse opinions are not celebrated on campuses, where we're supposed to be trafficking in ideas, I doubt they'll find any welcoming environment.

Then he expressed a theory I’ve never encountered before:

Part of the problem on campuses, I believe, stems from a rise in the belief that all knowledge is socially constructed, and that there are no absolute truths, or the concept of postmodernism, as it is known in academic circles.

Why has this made a comeback now? One possibility is that the relentless disparagement many have leveled on disciplines in the humanities, arts and social sciences has led to a backlash. It shouldn't be surprising that when practitioners see their fields portrayed as useless by those who promote only STEM, or science, technology, engineering, and mathematics, they push back, and the resistance often manifests itself as antipathy towards science. When we marginalize certain voices we all lose. We need to recognize that disciplines each bring something important to our understanding of the world. Privileging some fields over others yields a fragmented, incomplete picture. I say this as a scientist. As important as science is, it certainly isn't all there is. Much of the tension on campuses today comes from a similar historical silencing of certain voices, voices of the marginalized, voices of people of color, the disabled, those with nontraditional sexual orientations, the poor, and many others.

The remaining witness was Adam Carolla, the podcast host, documentary filmmaker, and comedian. He grew up poor, failed out of community college, dug ditches, worked construction, and broke into show business by teaching a young Jimmy Kimmel how to box for a celebrity bout and doing character sketches for an L.A. radio station. He argued that the problem on college campuses isn’t the students, who are just kids, but the administrators and faculty members who are abdicating their responsibility as adults to establish order. He believes they are failing their young charges. “We're taking these kids in the name of protection, putting them in a zero gravity environment,” he said, “and they're losing bone density."

The Coddling of the American Mind” is a deep dive into similar thinking. “Why It’s a Bad Idea to Tell Students That Words Are Violence” is a worthy followup. For an analysis of the microaggressions framework see here. Critiques of that framework are here. And here is correspondence from Atlantic readers defending the concept.

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