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.