« Saturday Music Post - Yesterday | Main | The Genocide Convention and "Incitement" »

Saturday, December 09, 2023

A Few Comments on This Week's Free Speech Events [EDITED]

[I've made a couple of edits, partly in light of ongoing events.]

"A few" mostly because Howard has done the work, and partly because I cannot comment on all of it. Literally: I only read the transcripts today and while I have read some commentary I have no intention of wading through all of it. I would say in brief that I agree with Howard, albeit with differences of emphasis and leaving aside certain areas I am just not interested in (Democrats vs. Republicans; Who's a Hypocrite Now?; most questions about bad faith, especially if they are aimed mostly at political actors who are elected officials, and not also at powerful political actors who are the heads of multi-million or multi-billion dollar corporate enterprises that are sensitive to the winds of consumer, stakeholder, and public opinion--in other words, university presidents).

The university presidents' answers to (dumb, foolishly yes-or-no) questions were very poorly delivered and basically correct. (Their prepared statements were a little better. But they were written as if in the knowledge that they would be ignored. Most opening statements are. But a better approach would have been to encourage the presidents to speak not in bureaucratic form, but as if writing a letter to a friend asking them to explain what the hell is going on.) President Magill's subsequent volte-face was an abdication of her duty. (But not, so far as I can tell, the reason why she lost her job. Had she done the wrong thing much earlier, she might have kept it, for the wrong reasons.*) The First Amendment protects a good deal of the speech that was complained about--and rightly so. Universities that purport to follow the First Amendment should follow the same standard.

More broadly, words and slogans do have complex meanings and legal implications depending on the understanding of the speaker and the context of their delivery, with that context potentially including the understanding of listeners. (This seems both an obvious and an unpopular point. A good deal of the "dog whistle" literature and its capacious expansion, and much of the discussion of Confederate and other symbols, seems to reject this point, sometimes quite firmly and openly.) Universities, public and private, can, consistent with the First Amendment, regulate speech more and in different ways in particular contexts and for reasons directly related to their core functions. When it comes to professors speaking way off their brief or in improper ways in particular contexts involving the direct performance of their duties, such as in the classroom, for example, they should do so. But they cannot and should not willy-nilly regulate all speech on campus, such as student speech in protest, both for reasons of the First Amendment and because doing so is inconsistent with other purposes of the university, whether or not students enjoy a freestanding right of "academic freedom" regarding all such speech (they do not; it's a misapplication of the term). And the fact that they cannot and should not do so should not be altered on the basis of terms such as "community," "harm," "sensitivity," and the like, a conclusion that does not require disparaging those concerns but does require rejecting some of those arguments as bases for universities becoming more censorious. 

To beat a dead horse of my own, the most relevant question seems to me to be one of enforcement--consistent, even-handed, accompanied by due process, and also real, existing, and sometimes and quite properly punitive. There must be real enforcement even if that requires the expenditure of university resources, even if it requires police in extreme cases, and even if it outrages students or professors. For me, the most important sentence in Howard's several posts is this one: "Some unprotected speech and conduct--occupying buildings, interrupting classes,...lacks protection regardless of its antisemitic content." (I omitted two examples that I think are more complicated and less worrisome as such.) We could add other conduct to that list, such as vandalism, assault, and direct harassment. It's the job of universities that value their mission and that value both freedom of speech and academic freedom to enforce its rules barring such conduct. Without it, whatever statements universities make about what what is and isn't permitted are not much use. None of it should happen without due process, but it should happen. If that requires extra university resources--including using those resources to identify students, who understandably would prefer to do as they wish without the university identifying them--then so be it. And it should happen consistently without regard to the identity of the actors or the viewpoints they are advancing. I will add that one bit of good news that seems to have come out of the week's events is a wider recognition--or remembering--that it is actually a good and necessary thing to guard against heckler's vetoes. That realization won't mean much, however, without actual enforcement of the rules regulating or forbidding them.  

Universities ought also to make clear that they will unequivocally reject student demands that the university refrain from investigating and disciplining them for misconduct of this sort. "We will occupy this building unless and until you promise not to discipline us for occupying this building" should be met with a flat "No" every time. If that seems to go against the Spirit of '68, I can only say that some of what the student movements did in '68 was in fact simply wrong.    

Universities have a deeply checkered recent record on this point, in my view, and it is precisely for this reason that a) they are now facing these problems and b) they also face charges of inconsistency and hypocrisy. Howard asks: "Given that we cannot predict the future, what should universities do? Is an acknowledgement of the change--which no one has done--sufficient? Must it include a mea culpa (or kaper lanu--a detailed list of past improper firings, expulsions, and sanctions against faculty and students?" If you'll forgive the upward inflection, I would answer, "Maybe?" I'm not nuts about commissions of inquiry, which are generally tedious and often serve as acts of whitewashing. But an honest examination by universities, including the issuance of a public report, might be in order. The charge of such investigations might include how they have dealt with campus disruptions and violations, whether they have acted consistently, what process they have had in place for adjudication and enforcement, whether punishments have been meted out at all and, if so, whether they have been consistently and fair, whether they have acted consistently on such matters as the recognition or rejection of student groups, how they deal with "disruptive" or "controversial" speakers, whether they have a sound policy on funding for protection for such events or one that imposes chilling burdens on groups that invite those speakers, and how it intends to act going forward.

If it were undertaken seriously, such a report might result in some embarrassing results and make some news. It might also result in some learning and some leavening of criticism. I do not think universities have an easy job of it: it's tough to identify who is misbehaving in the moment, enforcement responses may be calibrated to avoid escalation, punishment shouldn't be excessively lenient but doesn't have to be draconian, and so on. But all these things should have (or have had) equal application, and some ex post complications could be anticipated and headed off ex ante. Maybe even an unsparingly honest report would look better than I expect; maybe it would look worse; surely sometimes it would identify particular officials who deliberately interfered with or manipulated these policies or stood by when their duty was to act, for reasons of politics or bias, and who belong in different work. It might also identify students who were disciplined, formally or informally, for protected speech. But yes, even if I think the primary question is one of looking forward, surely some retrospection and study is in order.

Two final points. First, this is all about what happens on campus, not off campus. I remain concerned about the dynamic off-campus, while noting my earlier point that it's the general dynamic and the resources involved that concerns me, and that this doesn't mean employers should be utterly barred from rejecting, say, a prospective employee who has a hobby of ripping down posters, among other things. (That example seems so two weeks ago, but there are still around 140 posters' worth of remaining hostages to go, and Hamas appears to be strangely reticent concerning the whereabouts, well-being, and fate of ten women still in captivity.) Students should neither be subjected to a McCarthyite campaign, especially one that fails to distinguish between the outrageous and the merely wrong or objectionable, nor categorically (and quite impossibly) protected from ever being publicly shamed for what they say or do. And although the story is more complicated by the fact that more or less internal stakeholders were involved, I would say something similar about university presidents. Perhaps some should stay and some should go, not so much in for last week's events as for the weeks, months, or years before that; but not because of mob pressure. 

Finally, I note the letter shared below by Orly. The Israeli university presidents are not wrong to find the American university presidents' testimony lacking; everyone does, even those who agree with important aspects of it. Their statement about what freedom of speech in the United States requires is much more questionable. I think the letter is best understood not as showing that the American university presidents were wrong on that point, but as revealing a fundamental difference about what free speech in general entails and what it must not protect. Indeed, I'm surprised I haven't seen that argument more in the American context. Of course I have seen general incorrect assertions that the First Amendment does not protect "hate speech." But I haven't seen many full-throated arguments that recent events on campus and elsewhere suggest that the regnant interpretation of the Speech Clause is wrong and should be rejected in favor of a more confined one. As long as so many people are changing places (but not everyone--right or wrong, some have indeed been both consistent and even-handed), it would have been much more interesting to hear Rep. Stefanik arguing that the First Amendment should not be interpreted to protect "words that wound." She would gain strange new respect in unusual circles, to the extent that the people in those circles have not themselves changed places.    

* And an extra note about President Magill's departure, which came as I was writing the post, and now about pressure to force the resignation of Harvard's president, Claudine Gay. I have no particular brief for or against the three university presidents who testified last week. There are ample reasons to be critical of universities' commitments to free speech and the consistency of that commitment regardless of the speaker or issue involved. Those reasons far precede last week's events. A good-faith course correction would be a good, even an urgent, thing. But, in keeping with the actual purpose of congressional hearings, last week's testimony involved three prominent universities, not necessarily three of the worst universities on these issues, Again, what the presidents actually said was correct, although tone-deaf and not necessarily consistent with their actions on other controversies and with other speakers or issues. Whether they should stay or go, their universities' response should certainly not be to alter university rules of conduct in ways that are even more destructive of free speech. And members of Congress are even poorer at making university staffing decisions than university boards of trustees. "One down, two to go" is not what I would consider a genuinely constructive step forward in getting universities back to basics.   

Posted by Paul Horwitz on December 9, 2023 at 01:59 PM in Paul Horwitz | Permalink


The comments to this entry are closed.