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Monday, November 06, 2023

An Addendum to Howard's Post

I seem always to post when I want to disagree with Howard. I'm not sure this post quite falls into that category, and I should add that if Howard provokes me to write, that is to his credit. One reason I have not written about every recent incident is that I think my last two posts fairly represented my views and were fairly generally applicable, and I don't want to repeat myself unduly. As I wrote previously, I worry about the current speech dynamic, for views unrelated to the viewpoints on offer. I make no absolute claims about what prospective employers are or should be allowed to do, not least because as an employer I might make similar decisions. But I do think a generalized atmosphere in which a combination of public pressure and social-media leveraging are used repeatedly to encourage risk-averse institutions to fire, penalize, or reject people for even objectionable speech that would ordinarily be treated as none of those institutions' business is deeply unhealthy. And I don't think the invocation of McCarthyism is wrong or premature. McCarthyism, too, was largely a private enterprise, and relied substantially on employers' (including universities) aversion to bad publicity. That said, a couple of additional notes are in order. (I don't address the hypocrisy point 

Although I am not a fan of Mr, Ackman's actions, I think there is a more charitable reading available of the fourth recommendation in his letter. He writes:

Fourth, the University should publicly reach out to students in an effort to obtain other examples of antisemitic acts that should also be carefully investigated, and for which appropriate disciplinary steps should be taken. Because Harvard students are notoriously focused on their job and career prospects post-graduation, disciplinary actions by the administration for failure to meet the University’s standards for appropriate conduct that become part of a student’s permanent record should serve as an effective deterrent to overt antisemitic acts on campus. No law firm, corporation or graduate program will hire or admit an antisemitic or racist student. I note that the recent letter to the deans of law schools around the country signed by many of the top law firms in the U.S. has, I am told, already begun to have an effect in reducing antisemitic acts at the Law School.

Howard describes this as Ackman asking that Harvard "facilitate the process of identifying racist and antisemitic students for future employers or grad schools." That may well be what Ackman wants. And I personally find distasteful the first clause of his sentence, seeking student informers. I suppose it could be said, in tu quoque fashion, that this is just a specific form of encouragement of a "callout culture" or "culture of accountability." But then, and despite the many defenses that were offered for it, I also find callout culture worrisome.

Nevertheless, a charitable reading--or, perhaps, adaptation--of the core part of Ackman's claim is that universities should actually enforce whatever codes of conduct they have, that that should include disciplinary action, and that disciplinary decisions should not be hidden under a permanent veil. That, or at least some version of that recommendation, is not unreasonable. Students who openly violate university disciplinary rules should be, you know, subject to discipline. In particular, students who deliberately violate university rules that are part of that institution's infrastructure of free speech in a shared environment--say, by tearing down leaflets they disagree with, or attempting to prevent invited speakers from entering the room where they are scheduled to speak, or preventing them from being heard for the length of a speech, or pelting them with eggs or flour or other ingredients, or occupying university spaces improperly and preventing their use by others, or engaging in vandalism or property destruction--ought actually to be disciplined, at least in any university that cares about the exchange of ideas and that honors its own values. Universities should be fair and even-handed in applying discipline, but not supine--which they often are, and which emboldens students, professors, and other visitors on campus to entertain the absurd belief that they have a right to violate university policy without consequence. If the basic rules are sound and the conditions of fairness and even-handedness are met, and a student is disciplined for such conduct and as a result faces future employment consequences, it's hard to see that as a problem.

(I would add, since it seems oddly necessary, that even though I disapprove of mass efforts to identify various individuals and broadcast their identity, that does not mean those individuals have some absolute right of privacy, on or off campus. You do not, for instance, have a right to engage in a large public protest on the lawn of a university, a protest whose whole point is to be seen, while forbidding others from photographing you.  Expelling the person photographing you from the lawn so that you can publicly protest in private, including by means that in other circumstances would be called harassment or battery, is not a permissible response and should be met by university discipline. Likewise, you do not have a right to rip down posters in sweet solitude.)

Perhaps this is an overly charitable reading. It's certainly not intended as a blanket defense of any particular person or action, especially in light of my general concerns about the current environment and its effects on a culture of free speech. But it's worth engaging in, to help distinguish between actions that are destructive of that culture, and actions--including disciplinary actions resulting in adverse consequences for students who violate university rules--that are necessary conditions for such a culture, and in which universities have arguably been either timid or failed to be even-handed in recent decades. 

My second caveat has to do with his link to an interesting interview with Professor Genevieve Lakier. There's plenty I agree with there. But, even keeping in mind reasonable differences of opinion over matters of degree, I find it bizarre that Lakier seems to treat these phenomena as a sudden eruption. She draws a historical line that starts with McCarthyism, jumps suddenly to the immediate post-9/11 period, and then disappears again, only to magically reappear precisely at the moment in October 2023 when people began targeting students and others who have engaged in speech criticizing Israel.

A lot happened in that last interval! Civil libertarians and others concerned with free speech culture more broadly have been raising precisely these concerns about speech culture and its intersection with things like Internet mobbing that encouraged employers to cut people loose, publishers to cancel book contracts, and so on for the last ten years. Some of them, who have continued to express their concerns about these issues in the context of anti-Israeli advocacy, even wrote a letter about it in Harper's a while back; you could look it up. Lakier describes this moment as involving an "anxiety about political speech or the extent to which private organizations have participated" in these matters. That is precisely the concern that has been voiced all the while, and the speech that has been the subject of pressure and reprisal over the last decade was indisputably political in any meaningful use of the word. Certainly those advocating for "consequences" during that period saw those issues as political, not simply "cultural," if such a distinction is possible. And publishers, universities, and others who bowed to pressure over the last ten years have acted for exactly the same reasons that have been in evidence lately--some measure of sincerity or a sense of incompatibility with institutional values, and an awful lot of timidity, fear of bad publicity, fear of donor or client anger, fear of one's own workers, students, or other constituents, fear of being thought of as having taken the wrong side on an issue, and so on. During that period, many expressed concern that institutions like businesses--or universities--taking an ever-more-expansive position on what their "values" or "vision" are would have negative consequences for public discourse, as those institutions penalized more-or-less private speech that they could now label as incompatible with those values. Perhaps it is now clearer to more people that there is value in institutions sticking to their core purpose.  

Lakier tells the interviewer that "it just all feels like a repression of speech that we haven’t seen for a while." I share her concerns, but I'm decidedly not sure about the "haven't seen for a while" bit. I share her hope for "pushback" and a "return to normal," by which I take it she means something like the general settlement that usually applied (with countless violations) between around 1960 and 2015, one that we might characterize as believing in and defending a 'mythical' "vision of a neutral First Amendment." But I would note that people have been arguing for this for some time. And the fact that the ACLU has now apparently taken note may be of less comfort to some of us, given the views of some of its staff in the ACLU's Romero incarnation, than it seems to be to her. 

Posted by Paul Horwitz on November 6, 2023 at 04:01 PM in Paul Horwitz | Permalink


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