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Thursday, November 09, 2023

Sneaking in Early...

...to get ahead of my esteemed co-blogger on this front-page (or should that be front-site?) New York Times story on free speech on campus in the current environment, headlined, "After Antisemitic Attacks, Colleges Debate What Kind of Speech is Out of Bounds." Since journalism is only a first rough draft of history, and in many cases even good newspapers no longer aspire to that, it's shooting fish in a barrel to criticize any individual story. But I would like to point out some obvious gaps and missed opportunities in this one. 

First, and with the customary acknowledgment that reporters are not ultimately responsible for the headline--although the newspaper is responsible for putting the right headline on the right story--there's not much of a showing in the piece of colleges debating what kind of speech is out of bounds. Most of it is about students and non-students debating the question; very little is said about faculty or administrators debating the question, other than arguments about what statements to issue, the usual tedious exchange of faculty "letters" and "open statements," and the note that universities have established the inevitable committees to address anti-Semitism on campus.

That's especially unfortunate since the story omits one of the more salient recent examples of universities acting: Brandeis University banning the campus chapter of Students for Justice in Palestine. Brandeis, it should be said, is a private university. More than that, it has not formally pledged to treat itself as if governed by the same First Amendment rules that would govern a public university. But is has committed itself to "encourag[ing] the airing of the widest range of political and scholarly opinions and to prevent attempts to shut down conversations, no matter what their topic." My own reading of Brandeis's statement of principles on free speech is that none of the caveats it draws cover its reasons for banning the SJP chapter. Its statement of principles says speech that is "directly incompatible with the functioning of the university" may be restricted. The university statement banning SJP relies on superficially similar words with crucial differences: it says that the chapter's advocacy "goes against the values of Brandeis University." Incompatibility with values is not incompatibility with functioning. More specifically, even direct incompatibility with institutional values is not the same as direct incompatibility with institutional functioning--especially at a university, where arguing about institutional values is one of the key ways in which a university functions. But I come neither to praise nor to bury Brandeis's decision. I simply wish to point out that given the headline, this was an obvious news item to include in the story. 

Second, a key part of the story's framing is that the debate "is inflamed by a generational divide surfacing on campuses." What divide? The divide over whether voters approve or disapprove of Israel's actions in Gaza following Hamas's terrorist acts on October 7. Does it fail to include any other relevant generational divides surfacing on campus? Why, yes: changing views, which have been emerging and increasing for several years, over the scope of free speech on campus and elsewhere, and which are increasingly supportive of shouting down speakers, banning hateful speech or speech that offends minorities, and so on. Surely, to quote eminent activists, that is an important part of "historically contextualizing" the debate covered in the story. (Perhaps it doesn't get there because the only academic it quotes in the story is "a historian who studies and supports student activism," rather than one who just studies it.) 

What the story might do with that piece of the puzzle could vary, of course. But it would be relevant to at several other aspects of the story which are more or less omitted. The first, which I think is hinted at but not directly addressed in the piece, is the status of Jews as a religious or ethnic group: where they fit in the picture of "marginalized" or "minority" or "oppressed" groups for whose ostensible benefit contemporary students are more willing to restrict speech. If your picture of how, or how much, free speech applies varies based on such categories, then that status matters. (It does not matter to civil libertarians and used to not matter to the ACLU.) The second is the question of what sorts of "harms" count as relevant for free speech purposes: Clear and direct? Purely dignitary? Harms to safety and well-being, or harms to the feeling or perception of safety and well-being? And related to this is how clear the speech must be in endangering whatever is to be protected. Are "dog whistles"--a term that is almost as capacious as "harm" itself--enough?

I should think that all of these questions would affect the issues addressed in the Times story. In particular, they would help illuminate one of the central issues, and divisions of opinion, in the piece: the question of which speech is anti-Israeli, which is anti-Zionist, and which is anti-Semitic. The broader your conception of what counts as harmful speech, both in terms of how explicit the speech needs to be and in terms of what counts as harm, the more of this speech would count as anti-Semitic, if you were applying the kinds of tools and metrics that have been increasingly common on campus and increasingly popular with students. If you are inclined to be stricter in your definition of harm, and stricter in your evaluation of when speech is directly versus indirectly offensive, then you would take greater care to separate anti-Semitic speech (which might still be protected, albeit subject to strong condemnation) from much anti-Zionist speech and even more anti-Israeli speech. (To be clear, while these distinctions suggest that not all the speech complained about these days is anti-Semitic, it's not like one has to look hard these days for speech that is clearly, vilely anti-Semitic, on or off campus. It's certainly there and not exactly hiding.)  

Where one would go from there is up to the reader. One path, of course, is the "hypocrisy" route. I find it valid but uninteresting, and certainly unhelpful in suggesting useful and principled responses going forward; only short-term strategic responses. But it is one possible avenue of discussion. 

My own inclination in responding to the story would be to suggest something like the following: 1) If universities face embarrassment and difficulty at the moment, they are reaping what they have sown over the past decade as they have embraced expanded definitions of harm and safety, shown timidity in responding to any number of free speech issues, and whole-heartedly cooperated with a vision of students as vulnerable, juvenile, and familial in their relationship to the university instead of one of students as responsible, and thus potentially culpable, adults who are one constituency in a community devoted to vibrant and potentially upsetting discourse. 2) As the "over the past decade" suggests, one can hardly treat the current moment as one that appeared out of nowhere. It, like, totally didn't. 3) In examining the debate and their own obligations, universities that purport to be devoted to free speech should take care not to conflate the different categories of hostility listed above--to Israel, to Zionism, and to Jews. Even if all three categories might be protected in the abstract, it would certainly help lend clarity to their responses and to the discussions of others. 4) Even so, they would probably be still better off focusing less on the content and more on the conduct. Threatening or assaulting a student, ripping down her leaflet, preventing her from speaking, or occupying a campus building that she has an equal right to enter and use violate basic campus disciplinary rules, which are preconditions for a useful, uninhibited, robust, and wide-open free speech environment, regardless of whether the poster is being ripped down because the vandal is anti-Zionist, opposed only to Israel's current actions, or a Jew-hater. (It is easy to misread "uninhibited" and "wide-open" as suggesting a world of public discourse without rules of order. They mean no such thing.) 5) Once they have focused on what constitutes misconduct, they should actually grow a spine and discipline students who violate those rules. Of course they should do it even-handedly and fairly, but they should do it, and should not pretend that they're utterly defeated by a gauzy face mask. Nor should they be cowed by the possibility of student anger in response. Nor should they worry that if a student is identified--by the university--as engaging in misconduct, and penalized--by the university--for that misconduct, that student might find it harder to work for McKinsey or the Third Circuit. That falls under the category of "tough luck," even for those of us who worry about the larger speech dynamic and about public pressure to identify and penalize individual actors. (That any and all of this is referred to as "doxing" suggests how vapid that term is.) 6) Universities that maintain and actually enforce the kind of disciplinary structure needed to facilitate an environment of active, pluralistic speech, regardless of whether the misconduct is carried out in service of "good" or "bad" views, will find that more speech is possible and can actually be heard. Those that duck their disciplinary responsibilities, for whatever reason, will find themselves in a continuing mess. At best, they will find themselves having to parse what counts as "good" or "bad" speech, which they will do badly and under pressure. At worst, they will find that there continues to be more "bad" speech, less "good" speech, and possibly, even probably, less speech altogether. 

That's just my take. Other conclusions could be drawn from a better story. But it ought to have been better. The failure to include some of these obvious items rendered it less successful in fulfilling the mission of a modern newspaper: to facilitate largely pointless debate on social media.    

Posted by Paul Horwitz on November 9, 2023 at 09:53 AM in Paul Horwitz | Permalink


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