Judith Butler worries that UC Berkeley risks dire consequences if it fails to put more limits on the sorts of speech and free expression that it allows on campus.
In remarks to a campus forum, “Perspectives on Freedom of Expression on Campus,” she argued against “free speech absolutists.” For instance, she believes incitements to violence should not be protected by the First Amendment. Of course, that view reflects longstanding law and is shared by the Federalist Society, the ACLU, the Foundation for Individual Rights in Education, and the vast majority of Americans, including most staunch free-speech advocates. Support for repealing all laws against incitement is almost nil, as is the constituency for literal free-speech “absolutism.”
More controversial were her suggestions that the Constitutions’s equal-protection clause is sometimes at odds with protected speech, and that Title IX and UC Berkeley’s Principles of Community should sometimes trump the First Amendment. As she put it:
If the commitment to free speech provisions under the First Amendment takes precedence over Title IX, the Equal Protection Clause, and the Berkeley Principles of Community, then I suppose we are being asked to understand that we will, in the name of freedom of speech, willingly allow our environment to be suffused with hatred, threats, and violence, that we will see the values we teach and to which we adhere destroyed by our commitment to free speech or, rather, to a very specific – possibly overbroad – interpretation of what constitutes expressive activity protected by that constitutional principle.
That passage is striking for its non-sequitur. For decades, the First Amendment has taken precedence over federal statutes like Title IX and campus codes of conduct. Yet public universities have not been suffused with hatred, threats, and violence as a result; and there is no reason to expect UC Berkeley to meet that fate.
Equally baseless is the notion that the values UC Berkeley teaches and adheres to will be destroyed unless certain kinds of speech are suppressed from its campus. No force-field prevents outside ideas from crossing Bancroft Way. Berkeley students will inevitably encounter many viewpoints contrary to those taught to them on campus. There is no reason to suspect that the worst of those viewpoints are more persuasive or more damaging when uttered in official events sponsored by campus Republicans than when heard on a podcast or seen on Reddit. And it seems to me that young people are least likely to fall for hucksters they encounter among peers and professors ready with a full range of critical retorts, as compared to stumbling on them alone or in an online echo chamber.
Butler’s instincts are different than mine in part because she believes that wrongheaded speakers wield extraordinary power over college students, and implies one cannot really oppose bad values without suppressing the expression of them.
If free speech does take precedence over every other constitutional principle and every other community principle, then perhaps we should no longer claim to be weighing or balancing competing principles or values.
We should perhaps frankly admit that we have agreed in advance to have our community sundered, racial and sexual minorities demeaned, the dignity of trans people denied, that we are, in effect, willing to be wrecked by this principle of free speech, considered more important than any other value. If so, we should be honest about the bargain we have made: we are willing to be broken by that principle, and that, yes, our commitments to dignity, equality, and non-violence will be, for better or worse, secondary. Is that how we want it to be?
But all people are created equal and endowed with dignity by virtue of being human. A trans student’s dignity—their quality of being worthy of honor or respect—is not something an anti-trans speaker can take away; Butler is wrong to write as if their dignity is so contingent that an anti-trans speaker can somehow abscond with it (but not if he’s denied a campus platform and says the same words elsewhere?). Trans students will spend decades in a world with folks who attack their dignity. They are done a horrific disservice if the message they get at university is that their dignity is thereby diminished every time.
(Straight white males are meanwhile tremendously advantaged by the cultural message that they receive on college campuses: that they should brush off any attack directed their way because no one has the power to alter their trajectory. A message contrived with their empowerment in mind could hardly be more effective.)
Butler is wrongheaded in implying that if one always permits speech that attacks a dearly held value one may as well give up on defending it as a primary value—as if one cannot hate something a person says, defend their right to say it, and employ other tools, like logic, or satire, or protest, or organizing, to ensure that their view doesn’t prevail. It is especially strange that Butler suggests excessive protections for speech might threaten Berkeley’s commitment to nonviolence; suppressing speech with the coercive power of the state is the position that not only threatens but is antithetical to principled nonviolence.
Finally, Butler ignores the likelihood, born out in history, that any speech restrictions that Berkeley employs will be disproportionately enforced against marginalized students, thereby exacerbate inequality rather than advancing equality.
Henry Louis Gates’s counsel is still right: “Let them talk.”