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Tuesday, May 01, 2018

File Under "The Scare-Quoting of 'Free Speech'"

I wrote recently about a seemingly popular (in some precincts) and, so far as I can tell, quite sudden trend in public discourse, which I called the "scare-quoting of 'free speech.'" Just as arguments about freedom of religion over the past several years have involved conversation-stopping rhetorical arguments that particular religious freedom claims are actually "religious freedom" claims that do not involve freedom of religion at all, and are really part of a more or less organized campaign to achieve other interests by various more or less shadowy groups, so we are seeing the argument that invocations of free speech are not about free speech at all, but organized and strategic arguments about "free speech." As I wrote in that post, "It is simultaneously remarkable and unsurprising to see the phrase free speech start traveling down the scare-quote path."

To repeat what I said there, I do not oppose the fact of serious arguments for revisiting and revising free speech law and principles arguing about their its scope and nature. That is because of rather than despite the fact that I disagree with them. I do oppose crude, propagandistic versions of these arguments, such as scare-quoting, which is not an argument at all but a rhetorical strategy meant to forestall opposition and conversation through meme-ification and persuasive definition. But serious arguments that candidly argue for a different approach to free speech, insofar as they are clear about the arguments they are making and represent a particular contemporary vision that must be confronted, are welcome. To the extent that they represent a genuine contemporary movement, as opposed to a fringe or relative minority view, they must be acknowledged, with respect, and confronted. Even if they represent the view of a small number of people, they should still be taken seriously if those people are likely to be influential, or if those who disagree with them (like some university administrators) are unlikely or unwilling to say so clearly, and especially if (as I believe is true) their implications are wide-ranging and would significantly affect existing law. Arguments about how big a threat free speech faces on campus, or conversely whether such alarums are exaggerated, are somewhat beside the point here. Insofar as we treat the people and groups making such arguments seriously and actually listen to and engage with what they say, we should take their arguments seriously--and if we do, we can see that they do indeed have significant law-changing potential. Whether that potential is positive or negative is precisely what that argument should be about. Although I have a definite view on that (and think in particular that many of these recent arguments display a remarkable lack of, or unwillingness to provide, historical perspective), it's not relevant here. What is important is to take those arguments seriously and, in doing so, attempt to arrive at a more precise understanding of what they are and what they imply for the law if they gain traction. That requires finding fuller and more candid versions of those arguments rather than the mere rhetorical elements of this movement, such as scare-quoting--although we should take the scare-quoting seriously, as a social and rhetorical phenomenon.  

This is the background that makes Michael Simkovic's post yesterday on Brian Leiter's Law School Reports, modestly titled "A well-organized campaign to bait, discredit, and take over universities is exploiting students and manipulating the public," and leading with the "key takeaway" that "Many lectures about 'free speech' are not really about 'free speech,' but rather are intended to provoke a reaction that will discredit universities," well worth reading. Insofar as Simkovic is a recognized expert in particular areas--specifically, "the intersection between law and finance, with a particular emphasis on credit markets, financial regulation, and taxation"--and he has argued for the importance of relying on "experts" with "relevant expertise" rather than generalists or non-experts or those merely claiming expertise, it is fair and not especially unkind to note that his post is rather wide-ranging in its descriptions and prescriptions on subjects such as journalism, universities and their functions, and free speech. We may therefore want to examine his arguments especially carefully and skeptically. I, for one, have no idea whether Josh Blackman is "muscular" or not--he keeps declining my invitations to an arm-wrestling contest--although I share Simkovic's admiration for Blackman's calmness under the circumstances. And although I have some background and expertise in journalism and have expressed great concern over its current state, I am less willing to make recommendations about what journalists should cover. 

Regardless, the post is important, in my view, both for spelling out his arguments at length and for its representative character. As a representative argument, but one that is clearer and lengthier than the mere rhetorical strategy of scare-quoting in a post on Twitter, it will certainly be useful to my current scholarship on free speech. (My desire to offer a full examination of those and other arguments compels me to avoid stating any conclusions about his argument here. The pace of academic time, thank God, is different than the pace of public cut-and-thrust, and should be. These arguments and issues are not going away any time soon, so I don't think that delay is crucial. Even if it were, sacrificing short-term public influence for the sake of clarity and seriousness is the cost, duty, and privilege and pleasure of being an academic.) More anon, then. In the meantime, here's another one for the files, and it's a post that people interested in the issue of free speech on or off campus should certainly read and keep.   

Posted by Paul Horwitz on May 1, 2018 at 08:30 AM in Paul Horwitz | Permalink


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