The inanity of "Debate Me"

Phillip Bump critiques the new demand for "debate," calling it a lazy cop-out and "a cudgel meant not to inform but to entertain, to validate our skepticism and to feed our dislike of our opponents."

As if on cue, we have L.M. v. Town of Middleborough, denying a preliminary injunction against enforcement of the school dress code as to a shirt reading "There are only two genders." The opinion includes this gem at the beginning of the analysis portion of the opinion:

One can certainly argue (particularly with hindsight) that the actions taken by the Defendants were not in the best interest of the students Defendants were seeking to protect. Had Defendants permitted L.M. to wear the Shirt, perhaps he would have listened to and heard other students’ explanation as to why they viewed his message as hostile. Perhaps he would have learned from those students that they do not use the word “gender” to refer to chromosome pairs or anatomy but to identity. As a seventh-grader — a time when students are beginning to consider views of the world that differ from those of their parents — he may have been more open to that understanding if the discussion occurred in school and was not drowned out by the megaphone of the media and the adult protesters outside the school. And in that event, perhaps LM. would have chosen voluntarily to cease wearing the Shirt and the students Defendants were seeking to protect would not have had to enter the school past protesters amplifying L.M.’s words.

This is nonsense.

First, this kid is not open to changing his views, nor is he parroting his parents' views. We know this because the opinion quotes his long social-media post defending the t-shirt as expressing his views and not "targeting" anyone, comparing it to how he feels seeing Pride flags and diversity posters. (Put aside the specious comparison between a message with which you disagree and a message that targets someone's existence and identity). L.M. is locked in and is not going to change his mind if other students "debate" him or civilly challenge his views. In fact, I expect he would scream that he had been targeted (if not canceled) if many students challenged him. Relatedly, I think L.M. has pretty good reason to be pissed at the judge for that statement, which basically suggests that he is parroting his parents views and does not really believe or share them and could be swayed with a bit of the right discussion.

Second, the school does not want to become a debate society--math class is for teaching math and gym class is for sports, not for debating the finer points of gender identity. So the judge's proffered solution--students engaging with L.M. about the error in his views on gender--disrupts the educational process. And even Tinker allows the school to limit student speech to avoid disruption. So the school should allow L.M. to wear the shirt, then allow the educational process to be disrupted--therefore justifying prohibiting him from wearing the shirt.

Third, accepting some essential constitutional commitment to debate, what is the purpose of that debate and who does the debate convince--my interlocutor or my audience? In challenging L.M. on issues of gender, does little Sally seek to convince L.M.? Or does she seek to convince other students that L.M. is wrong? The judge assumed # 1. But that reflects a different understanding of debate and speech, distinct from the marketplace and more-speech visions of Holmes and Brandeis. The question for them was whether a speaker's bad message could be countered and what message the public would accept--neither care whether Abrams or Whitney changed their minds.

Fourth, rather than giving students a chance to debate-and-persuade the Unpersuadable L.M., allowing the t-shirt gives students the opportunity to decide (if they so choose) that L.M. is a provocative jerk and that they want nothing to do with him. Or to criticize him for these views. While I expect L.M. and his supporters would shout "cancel culture," this case illustrates why much of what people deride as cancellation is "more speech." L.M. has a right to express his views--including, I believe, on a t-shirt in school. He does not have a right to speak free of other people adopting negative views of him and acting on those views.

Fifth, the result surprises me. I thought there had been a sea change in t-shirt cases, in which "people feel offended" and "people are talking about and objecting to the kid's t-shirt" was not sufficient. That is, the Tinker framework does not authorize an actual heckler's veto--the school silencing speech because it offends or angers the audience. But the court relied on First Circuit precedent allowing restriction on a showing of disruption or that the speech invades the rights of others. Although the shirt did not target any identifiable person, the shirt invaded the rights of students who identify differently to attend school without being confronted by messages attacking their identities.*

[*] Going back to my first point and to this post, does the judge believe it better for students who identify differently to allow the shirt and compel them to debate their identities, hoping to convince L.M. to change his mind about their humanity?