Thinking About Speech
I would not go so far as to say that issues related to freedom of thought and expression have tormented me since the notorious House Education and Workforce Committee hearing on December 5, 2023, where Elise Stefanik baited and befuddled the presidents of three prestigious universities whose responses have been widely panned on both sides of the great divide. We can wish that the presidents had acquitted themselves better in a hearing that was a fiasco for those who hold dear principles of free speech, academic and intellectual freedom, and the role of the university, but they came up short. As my old French teacher Marie Laure used to say, as we tried to understand correctly what she had asked and formulate a fitting response, “So whacha gon’ do?” This has been much on my mind in the days since the encounter between Stefanik and the three presidents, and a source of frustration as attempts to formulate my thoughts about it all keep falling back into the bog of cliche: a pox on all their fool houses. That is not good enough.
Proper treatment of the subject lies beyond the scope of my scribbles in this space. What follows does not pretend to be rigorous analysis and argument. It is rather a sequence of impressions, reflections, thoughts, second thoughts, and relevant citations concerning a mess of related issues and questions that will never be amenable to final resolution. Maybe some faint light will shine on something.
The right to freedom of speech does not amount to much if it extends only to speech with which one has no quarrel. In a better world the encounter between Stefanik and the presidents might have prompted authentic reflection and debate about speech, its appropriate limits, and when institutions are permitted, even obliged, to place restrictions on it. Authentic debate on gnarly issues was never Stefanik’s intent. Nor were the presidents up to substantive engagement on the subject.
Stefanik’s confrontation with Claudine Gay (Harvard), Liz Magill (Penn), and Sally Kornbluth (MIT) provided the hearing’s “viral moment,” as Danielle Allen put it in her Washington Post column on December 10. The hearing’s ostensible purpose was to investigate “how Harvard University, MIT, and the University of Pennsylvania are responding to antisemitism on their campuses.” Allen proceeded to place the committee’s intent squarely in the headlights:
The opening statement of Chairwoman Virginia Foxx (R-N.C.) gave the hearing a broader frame. Foxx questioned the health of universities generally and called attention to “a grave danger inherent in assenting to the race-based ideology of the radical left,” arguing that we are at “an inflection point” requiring a reshaping of “the future for all of academia.” The chairwoman’s theme was not antisemitism alone but whether the diversity, equity and inclusion efforts of college campuses have been a wrong turn for America’s intellectual culture.
She also cast her clear-eyed gaze on the unversities that in pursuit of worthy “goals of inclusion and belonging” have lost their way “in the thicket of debates about the First Amendment and in the swamps of particular tenets of anti-racism” (Allen, We’ve lost our way).
Conservative criticism of the universities when warranted is not negated by the malign intent with which it is issued. Nor are values of diversity and inclusion negated by kneejerk defenses of goofy, absurd, and harmful actions by DEI commissars. As Allen put it, more tactfully than I, “Across the country, DEI bureaucracies have been responsible for numerous assaults on common sense, but the values of lowercase-i inclusion and lowercase-d diversity remain foundational to healthy democracy.”
Yascha Mounk writing at The Atlantic and David Cole in The New York Review of Books venture almost into Elon Musk territory as free-speech absolutists. I once considered myself at least a near absolutist on free speech and still believe the scope should be broad enough to make even myself uncomfortable at times, but am not quite there with Mounk and Cole. Both hold that the response to Stefanik’s hypothetical question, which carries its own load of dubious presumptions, was correct “in a narrow, technical sense” (Mounk, The Universities). Each president, writes Cole, “replied, in effect, ‘It depends.’”
…that’s actually the right answer if universities respect free speech principles. As a general matter, advocating for genocide or saying any number of other hateful things is protected by the First Amendment…Even hateful speech calling for unconscionable acts of violence is protected by the First Amendment unless it falls within very narrow exceptions, such as genuine threats of violence or “incitement” that is both intended and likely to produce imminent violence. (Cole, Who’s Canceling Whom?)
For them the problem lay in the presidents’ invocation of academic freedom as grounds for not penalizing “offensive political speech” in light of their record “of failing to stand up for those on their campus who have come under fire for controversial speech in the past.”
When pressed by Stefanik, the presidents kept claiming a supposedly ironclad commitment to free speech as the reason they would not be able to punish calls for a genocide of Jews. But each of their institutions has failed lamentably to protect their own scholars’ free speech—by canceling lectures by visiting academics, pushing out heterodox faculty members, and trying to revoke the tenure of professors who have voiced views far less hateful than advocating genocide. (Mounk)
Mounk and Cole provide examples of widely reported instances where universities have failed dismally to protect speech that ran afoul of progressive orthodoxy, with Cole drawing from the book under review in his article, The Canceling of the American Mind: Cancel Culture Undermines Trust and Threatens Us All—But There Is a Solution by Greg Lukianoff and Rikki Schlott, president and research fellow, respectively, at the Foundation for Individual Rights and Expression (FIRE).
Last year a professor at Hamline University in Minnesota was dismissed following a complaint by a Muslim student after images of the Prophet Muhammad were shown in an art history class despite reasonable efforts by the professor to accommodate students who would be uncomfortable with the images (Foody, Hamline University). The Yale Halloween costume controversy of 2015 led to the resignation of a faculty member who questioned “an official set of guidelines on costumes to avoid at Halloween” (Morey, One Year Later). At Stanford Law School students disrupted a speech by a conservative judge. During the event the school’s associate dean for diversity, equity, and inclusion spoke up to rationalize the disruption, saying “the judge's presence was painful for some students.” The students were not disciplined (Sloan, Raymond, Stanford Law official). Harvard lecturer on human evolutionary biology Carole Hooven committed the offense of stating on national television that as a matter of biology there are two sexes, male and female. She was denounced by a graduate student who happened to serve as the director of her department’s Diversity, Inclusion, and Belonging taskforce. Hooven’s “colleagues stopped talking with her, administrators failed to defend her, graduate students bullied her.” She left the university (Mounk).
Cole reports that FIRE “has learned of many more incidents, much less well known, and reading about them all in one place makes clear that these are not isolated instances.”
Transgressions of progressive orthodoxy tend to be handled within the academic community. As the examples show, there can be profound personal and professional consequences. Conservative orthodoxy is more often enforced by government restrictions on what can be taught, in public primary and secondary schools as well as in universities, and what books can be placed on the shelves in public libraries, with civil and criminal penalties for violations. Florida and Texas are textbook examples. The effect is chilling whatever its source. There are widespread reports of teachers hesitant to take up controversial topics or assign certain books and of librarians fearful of placing books on library shelves because they might run afoul of regulations that are not noted for their clarity and precision.
A similar dynamic plays out in the universities. Jeannie Suk Gersen is a founding member of Harvard’s Council on Academic Freedom who took part in a previously planned discussion of campus speech a week after the December 5 hearing.
She recalled private conversations with students who told her they were afraid to speak their mind in class for fear of being shamed or ostracized. Meanwhile, she said, some colleagues have removed controversial topics like gender, sexual assault, or racial discrimination from their syllabi. She said they have told her it’s not worth the potential problems those classroom discussions could cause. (Gibson, Free Speech on Campus)
Danielle Allen is a political philosopher and scholar of public policy at Harvard, Washington Post columnist, and contributor to The Atlantic. Her examination of the tension among competing values in conflict on college campuses is notable for its clarity and incisiveness. She does not shy away neither from reasoned critique of progressive orthodoxy nor from confronting a conservative assault that seeks to impose its own orthodoxy.
On campuses these days, too few people understand basic concepts of academic freedom and free expression and how they interact with the equally important commitment to making sure that students can “learn free of discriminatory harassment”…Because of that, we do not know how to protect intellectual freedom and establish a culture of mutual respect at the same time. But this must be our project.
Allen takes a hard line when it comes to protest in the classroom:
Any form of protest that disrupts the conduct of a class violates basic prohibitions against interference with the normal duties and activities of the university…Protecting the classroom from protest is necessary to protecting academic freedom—the right of those in the classroom to conduct the very activities of teaching and learning protected by academic freedom.
The greater difficulty lies with “generalized intimidation or a culture of intimidation” that she credits Stefanik with seeking “to pinpoint with her question.”
Clearly, we cannot allow a culture of intimidation to develop and perdure on our campuses. Regardless of what initial intentions student protesters might have for chants such as “globalize the intifada,” or any of the other slogans associated with eliminating Jewish people from Israel’s land, they can no longer pretend not to know that their use causes many people a reasonably felt sense of intimidation. On this matter, the Age of Innocence is behind us. If college campuses regularly had groups of kids chanting “White power,” I would not be comfortable sending my children there, even if those chanters never took a “targeted” action against a specific person.
…
In the classroom and out, it is perfectly within our rights to tell people (kindly) that their arguments are bad or their views weak or erroneous and then to work with them to correct them. We correct students’ math; we can correct their reasoning, and that includes correcting moral errors. Does a student think it’s reasonable to expel Israelis from their country as a part of freeing Palestinians? That’s a moral error that a teacher should require the student to confront and learn from. Does a student think the conflict can be addressed without asking how both peoples can thrive in this land they share? Ignoring that question is also a moral error requiring correction.
And on the subject of anti-racism:
I am as against racism as anyone, but I believe we can all be better together based on a positive vision. Yes, it is necessary to tackle challenges such as implicit bias. But, counter to the anti-racism agenda, we cannot create a framework for inclusion and belonging that is focused on accusation…Bringing out the best in all of us—to achieve a sum greater than the parts—is possible only if we cultivate a culture of mutual respect. Somehow the racial reckoning of 2020 lost sight of that core goal of a culture of mutual respect with human dignity at the center. A shaming culture was embraced instead.
To this I only add, in the spirit of my youth, right on.
As she calls on us to “never forget that basic requirement of mutual respect and our core commitment to human dignity for all people,” Allen offers hope that
this moment gives all of us…a chance to course-correct. Indeed, it is an essential part of the democracy renovation work we have been discussing all this year. The good news is we know how. A framework of confident pluralism—inclusion and belonging, academic freedom and mutual respect—offers a path forward.
That framework of confident pluralism, inclusion and belonging, academic freedom and mutual respect, may seem a dreamy ideal. Academics, intellectuals, and scribblers can be as argumentative, self-righteous, stubborn, thin-skinned, thick-headed, and viturperative as anyone else. Within the university and outside it there is a general breakdown of social order. Words are used for emotional impact with casual disregard for their actual meaning. Facts are up for grabs. Assertions are made with disdain for truth by those who should know better and accepted as fact by people whose reasoning I cannot comprehend. In less charitable moments I can only conjecture that they are in the grip of mass hysteria or delusion.
I wonder if there is an element of social conditioning in the readiness to be traumatized by the utterance of a forbidden word in a historical document from a time when it was in common usage, or in a work of fiction when the word appears because it is one the character would use, or by slights and insults to which the better response is to recognize that their source is a jerk not to be taken seriously. Or someone is thoughtless. Or having a lousy day. The imperative to treat others with respect is tempered by the reminder that we are human, not always our best selves, and other people are too. Distinguishing what should fall under protected speech, even when in poor taste, from what goes beyond the pale requires an exercise of judgment. There is more to it than ticking off boxes on a DEI checklist.
Many people do not take kindly to offers, however kindly they may be presented, to help them correct arguments that are bad and views that are weak or erroneous. It is not clear how one might engage such people in the robust debate and disputation about controversial issues that lies at the heart not only of the university at its best but also of civic life in a functioning democratic society. The next time Elise Stefanik looks to me for guidance on issues of the day will be the first time.
A liberal education was once in considerable part about learning to subject our ideas, beliefs, and values to critical examination, not about having them confirmed. What remains of that ideal can seem a quaint relic of a bygone era in a time when for many the university’s mission is to satisfy student customers purchasing access to desirable careers and positions of influence rather than to shape mind and character by helping students get to know
on all the matters which most concern us, the best which has been thought and said in the world; and through this knowledge, turning a stream of fresh and free thought upon our stock notions and habits, which we now follow staunchly but mechanically, vainly imagining that there is a virtue in following them staunchly which makes up for the mischief of following them mechanically. (Matthew Arnold, Culture and Anarchy)
This best which has been thought and said is not writ on stone tablets, immutable, handed down from on high, but is always subject to questioning, debate, disputation, and reevaluation, by which the principle is affirmed, not diminished.
The words “respect,” “decency,” and dignity” appeared in notes for this piece before I read Allen’s column. We are generally on the same page, in the same paragraph, about problems before us and goals worth pursuing. Taking them on is a Sisyphean project, its advances always incremental, subject to pushback and frustration, the rock rolling back down the hill, oftimes landing squarely upon us. Undeterred, or maybe just foolishly stubborn, we exercise our skill in the work to be done “Not in Utopia… / But in the very world, which is the world / Of all of us” (Wordsworth, “French Revolution”). Otherwise, we abandon the field to blockheads. We distinguish ourselves by the ideas for which we take our own faltering, imperfect, all too human stand.
Keep the faith. Stand with Ukraine. yr obdt svt
Memo from the editorial desk, January 31, 2024. Minor revisions were made after this piece was first published.
References and Related Reading
Are college campuses infringing on First Amendment rights? One liberal scholar says yes, Here and Now, WBUR, January 24, 2024
Danielle Allen, We’ve lost our way on campus. Here’s how we can find our way back, Washington Post, December 10, 2023
David Cole, Who’s Canceling Whom, The New York Review of Books, February 8, 2024
Kathleen Foody, Hamline University under fire for art professor’s dismissal, AP, January 13, 2023
Lydialyle Gibson, Free Speech on Campus, Harvard Magazine, December 13, 2023
Alex Morey, One Year Later, Erika Christakis Breaks Her Silence on Yale Halloween Controversy, FIRE, October 28, 2016
Yascha Mounk, The Universities That Don’t Understand Academic Freedom, The Atlantic, December 8, 2023
Emma Sarappo, This Is a Shakedown, The Atlantic, December 8, 2021
Karen Sloan, Nate Raymond, Stanford Law official who admonished judge during speech is on leave, dean says, Reuters, March 22, 2023
Meimei Xu, Biology Lecturer’s Comments on Biological Sex Draw Backlash, The Harvard Crimson, August 11, 2021