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Friday, October 20, 2023

A Yes and a Couple of Noes for My Co-Blogger

One point of agreement, one point of disagreement, and point of, if not disagreement, then polite dismissal concerning Howard's post below. (As an update, I thank Howard for his gracious reply above. Whatever the scope of our agreement or disagreement, I feel honored to be sandwiched by him.) 

1) I agree that the hateful outburst of Jemma Decristo, who is a professor at UC-Davis, would not qualify as a true threat and therefore would be protected expression. (Not wholly incidentally, she is not a history professor, as Howard writes, but an American Studies professor.) Of course it should be treated as such, and one should resist the urge to move from a reasonable position--condemning it, pointing out that she is yet another person who proves that being a professor or having a doctorate may lead to a rebuttable presumption that one is educated but tells us nothing about whether one is or is not an idiot, and so on--to demanding her firing or even, in my view, her removal from the classroom. (I think the line is closer on the latter point. But I also think that arguments that extramural statements make students feel less safe, or are de facto harmful, and thus justify removing them from required classes specifically or classroom work more generally, are based on dangerously expansive conceptions of harm, are subject to the risk of abuse, and in fact are abused by ostensibly respectable universities and law schools.)

Howard stops short of specifying which sorts of actions by her department or university would or would not fall within the scope of either free speech concerns or speech culture concerns. I would worry about a dynamic in which Prof. Decristo was removed from her apparent position as an undergraduate advisor mostly to avoid bad press to the university or as a result of public pressure. I would worry a lot less about a dynamic in which her actions lead her department, or the dean of the UC Davis faculty of arts and sciences, to realize that they accidentally allowed an idiot to become an undergraduate advisor, and that they ought to rectify that error. After all, "free-speech maximalists," like "free-speech minimalists" or "cancel-culture minimizers," agree that speech has consequences--even, sometimes, state-enforced consequences. They simply believe that the state must be highly constrained in imposing them across a variety of circumstances and for a variety of reasons, and some believe that even where private consequences are concerned, we should be highly wary of a dynamic that is too willing to impose those consequences, often wildly disproportionately, through a combination of mobbing, no-platforming, social pressure, demands of conformity, leveraging financial and other forms of power, and so on.  

2) I think it is untrue to say, as I think Howard does on a fair reading of his post, that it would be unreasonable to believe that this speech crosses a First Amendment line that is not crossed by the other sorts of speech he describes--namely, "celebrating the October 7 massacre, the fire at the Israeli embassy in Jordan, the firebombing of the Berlin synagogue, etc." Of course there are perfectly sensible arguments for distinguishing between speech that celebrates violence and speech that threatens or incites violence. It is neither arbitrary nor irrational to distinguish between someone saying, "I'm so glad Mike is dead--serves him right" and the same person saying, "I'm going to kill you, Steve" or "folks should go out and kill Marcia"--even if (as I suggest is also true of Prof. Decristo's words) one concludes that in context, even the words "I'm going to kill you" ultimately don't end up qualifying as a true threat, or as incitement for that matter. 

I should say that to conclude that it is neither arbitrary nor irrational to draw a distinction between speech celebrating violence and speech threatening violence doesn't mean one can't argue that the line is ultimately less clear than that conventional wisdom suggests. And I might observe on the flip side that some critics of "free-speech maximalism" argue that First Amendment law has been too protective of threatening speech and too narrow in its definition of true threats, and that we ought to extend the category of unprotected speech to a wider set of online activities, including "doxxing," different sorts of online mobbing, and various online threats or harassing acts. Those writers might ultimately conclude in good faith that Prof. Decristo's words don't fall within even their generous recommendations for greater regulation or liability, just as some conventional civil libertarians might conclude--wrongly, I think--that her words do count as a true threat. But it ought to be a live issue for them. Presumably some of those writers ought to believe, as a matter of principle and of the application of their own work, that Prof. Decristo's speech is punishable and ought to be punished. After all, she suggests that the whereabouts of a host of journalists--and their children!--can be easily discovered, and that "they should fear us." That's the very meat and drink of any number of scholars who write counter-civil-libertarian pieces about the First Amendment and online speech. They might add therefore add Prof. Decristo's outburst to their list of things to write or tweet about--with, I trust, the same conviction they bring to other cases.

3) I am more inclined simply to dismiss Howard's "many people" move. I'm not so much doubting or denying it as suggesting it is unhelpful. I have indeed seen some writers, some of whom are civil libertarians as opposed to people with a commitment to free speech in narrow partisan circumstances, reacting to current events in a way that seems to depart from their usual views on free speech law or speech culture, either in terms of result or in terms of the level of scrutiny and concern they apply. We all use shorthand like "many people" from time to time, law professors no less than anyone else; newspapers, for instance, frequently resort to the phrase "many people" when a reporter wants to voice his or her own view. Sometimes it has value; sometimes it is accurate.

But especially with regard to online speech, it is a particularly unhelpful measure. It is probably equally true that "many people" who are dubious of old-fashioned free speech types, or have argued that students are particularly susceptible to "harms" from professorial speech owing to power imbalances, or who favor an expansive view of what constitutes online threats or harassment or incitement thereto, have not rushed to condemn Prof. Decristo or argue that she may justly be disciplined--and that, in fact, they have not even sauntered along to suggest that this might be true of any of the professors who have offered violent or bloodthirsty remarks in the last couple of weeks. But I assume that's not universally true. Perhaps some have condemned such speech according to their own standard; I assume others simply have lives, have not seen a story that's a day old at best, and may never see it; and I assume still others may feel that way but are busy frying other fish. I think it would be unfair to use a locution like "many people" to criticize those writers who treat a great deal of speech, especially online speech, as "harmful" and regulable but apparently have not found occasion to condemn any speech of this sort in the past two weeks.  

For the same reason, I find "many people" unhelpful here--somewhat glaringly so, when it is accompanied by a link to a single individual. Perhaps it would be better to return to Howard's earlier measure and ask something like, where has FIRE been now that the shoe is on the other foot? (Apologies for dipping into the cesspool of social media.)

Posted by Paul Horwitz on October 20, 2023 at 03:23 PM in Paul Horwitz | Permalink


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