BY HANK REICHMAN

“. . . the opposition role of the university flows from its very nature as a center of free inquiry” — Robert Paul Wolff, The Ideal of the University, p. 56.

This is the third installment in a four-part series.  Part I may be found here; part II is here. 

Are Some Free Speech Claims Illegitimate?

In a widely read op-ed piece published in April by the New York Times, “What ‘Snowflakes’ Get Right About Free Speech,” NYU faculty member and administrator Ulrich Baer wrote:

The recent student demonstrations at Auburn against [Richard] Spencer’s visit — as well as protests on other campuses against Charles Murray, Milo Yiannopoulos and others — should be understood as an attempt to ensure the conditions of free speech for a greater group of people, rather than censorship.  Liberal free-speech advocates rush to point out that the views of these individuals must be heard first to be rejected.  But this is not the case.  Universities invite speakers not chiefly to present otherwise unavailable discoveries, but to present to the public views they have presented elsewhere.  When those views invalidate the humanity of some people, they restrict speech as a public good.

In such cases there is no inherent value to be gained from debating them in public. . . .

The great value and importance of freedom of expression, for higher education and for democracy, is hard to overestimate.  But it has been regrettably easy for commentators to create a simple dichotomy between a younger generation’s oversensitivity and free speech as an absolute good that leads to the truth.  We would do better to focus on a more sophisticated understanding . . . of the necessary conditions for speech to be a common, public good.  This requires the realization that in politics, the parameters of public speech must be continually redrawn to accommodate those who previously had no standing. . . .

The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks.  It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community.  Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned.

At first glance there is much to sympathize with in this argument, necessarily condensed here.  Roosevelt University’s David Faris, for example, asks us to “think about some of the things written and said by people like Milo Yiannopoulos, Richard Spencer or Ann Coulter” and provides some chilling quotes:

Coulter on murdering abortion providers: “I am personally opposed to shooting abortionists, but I don’t want to impose my moral values on others.”  Spencer on how American minorities should go back to their countries of ethnic origin: “It’s like presenting to an African that this hasn’t worked out.”  Yiannopoulos on trans people: “They are deeply mentally damaged, and they are failed by a liberal establishment obsessed with making them feel good about themselves.”

Though perhaps not even the worst examples, such statements are clearly so far from the kind of reasoned arguments that should characterize university discourse that it might seem only sensible to restrict them.  After all, if the university has an obligation to protect free speech it must also have an obligation to protect members of the scholarly community — and especially the community’s minority members — from attack, including via verbal assaults.

However, as Conor Friedersdorf responded in The Atlantic, if we reformulate Baer’s argument into the sort of speech test that would be necessary for its practical implementation we have the following:

1. It is forbidden to mention or debate the claims a) that some human beings are by definition inferior to others; or b) that some human beings are illegal or unworthy of legal standing.
2. Prior restraint on speakers is okay if they’ve violated rule one in the past.
3. Failure to adhere to rule one invalidates the humanity of some people.

“The last claim is most easily dispatched,” Friedersdorf writes.  “The humanity of every individual is a fact.  No one can invalidate it with speech.  Teaching undergraduates otherwise renders them needlessly vulnerable to bigots and trolls.”  As for the rest, Friedersdorf offers two persuasive arguments.  First, he points out that all sorts of people — Barack Obama, Bill and Hillary Cllinton, and Plato are offered as examples — have made remarks that either designate some people as inferior to others or deny legal standing to specific groups.

He quotes Jonathan Chait, who observed how “Nearly all American politicians in both major parties support some limits on legal immigration, and some measures to enforce those laws.  Virtually all of them define some human beings as ‘unworthy of legal standing.’”

Friedersdorf’s more interesting point, however, is that implicit in Baer’s argument “are lazy stereotypes common to many who share his views on speech.”  Friedersdorf stresses what

any observer of American life ought to know: that the opinions of African Americans, Hispanics, Asian Americans, gays, lesbians, trans people, undocumented immigrants, foreign students, people from minority religious groups, and those of members of every other identity group on campus are hugely diverse.  There is no reason to believe (as some white supremacists do) that minority students need an experiential paradigm to thrive, or are less suited to reasoning or liberal values, views that Baer seems to imply but never quite states outright.

What’s more, in a failure to think intersectionally, Baer seems not to realize that there are millions of black and Hispanic Americans whose views on, say, illegal immigration or transgender rights run afoul of his standards for what is even mentionable.  How much speech by historically marginalized groups will be stifled in Baer’s effort “to ensure the conditions of free speech for a greater group of people”?

Finally, Friedersdorf addresses Baer’s contention that freedom of speech “‘means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community.”  Such a view is “so pernicious that it is vital to reject it,” Friedersdorf declares:

If Richard Spencer or Ann Coulter or Milo Yiannopolous retired from public life tomorrow, I believe the world would be a better place; I am glad people voice their opposition to them; if I weren’t a journalist I would happily hold a protest sign outside one of their talks; and I wish conservative groups would stop inviting them as speakers.  But it is inaccurate and disempowering to tell undergraduates that any bigot can render them unable to participate in public discourse merely by speaking on campus; or can render them less than fully recognized in their community merely by addressing it.

“What is under severe attack, in the name of an absolute notion of free speech,” Baer writes, “are the rights, both legal and cultural, of minorities to participate in public discourse.”  In fact, minorities are not only free to participate in discourse on college campuses, they are doing so vigorously; . . . and even their protests face orders of magnitude less pushback from faculty and administrators than white college students faced in the 1960s, precisely because several generations of civil libertarians have fought like hell for extremely broad notions of free speech to prevail on campus.

A similar argument to Baer’s was offered in a May 25 piece, “Free Speech on Campus: a Critical Analysis,” by Traci Yoder, Director of Research and Education for the National Lawyers Guild, and posted on that group’s website.  She concludes: “When the views of speakers are actually dangerous to other people, universities should consider the implications and balance the need for a diversity of viewpoints with the consequences of invalidating the humanity or rights of entire groups of already disadvantaged people.”

Yoder offers two arguments in opposition to what she labels “the commonsense liberal approach” advocated, for instance, by the ACLU.  That approach, she claims, “assume[s] that allowing all speech under any circumstances will ensure that the best ideas win out and that it is ideal to have even potentially dangerous ideas out in the open where they can be challenged.”  (This is a simplistic caricature of that position, of course, but I will let it pass here.)

First, she writes,

far right conservative and fascist ideology is not simply based on logical and reasonable arguments; rather, these movements depend on the irrational mobilization of hate, fear, and anger against some of the most marginalized and vulnerable populations.  Offering them an open forum and vigorously defending their right to promote harmful speech confers legitimacy on their positions as being equally as acceptable as any other.

Second, according to Yoder, “the liberal free speech model . . . does not take into account the asymmetry of different positions and the reality of unequal power relations.”

Arguments about free speech rarely address the significant imbalances in power that exist between, for example, a wealthy white speaker with the backing of a multi-million dollar organization and members of the populations affected by their words (i.e. immigrants, people of color, queer and trans people, low-wage workers, etc.).  What are lost in the abstract notion of free speech are the rights of those who do not have the connections or wealth to equally participate in public discourse.  The “marketplace of ideas” is like any other marketplace; those with the most resources dominate.

It is true, of course, that speakers like Coulter, Spencer, and Yiannopoulos appeal to irrational emotion and disdain reason.  But so what?  I fail to see how that is cause not to confront and demolish their appeals with bold and aggressive reasoned argument.  As I pointed out in the first installment of this series, there are very practical reasons why seeking to silence such speakers only fuels their irrationalist project.

As Frederick M. Lawrence, secretary and CEO of the Phi Beta Kappa Society, senior research scholar at Yale Law School, and visiting professor of law at Georgetown University Law Center, wrote in a carefully argued and thoughtful piece, “The Contours of Free Expression on Campus: Free Speech, Academic Freedom, and Civility,” in the Spring 2017 issue of Liberal Education, published by the American Association of Colleges and Universities (AACU),

The required response to hateful speech is to describe it as such and to criticize it directly.  Supreme Court Justice Louis D. Brandeis wrote in Whitney v. California that, except in those rare cases in which the harm from speech is real and imminent, the answer to harmful or hateful speech is not “enforced silence” but, rather, “more speech.”

And while Yoder fears that combating hateful speech with “more speech” will only legitimize the hate-mongers, in practice combating rather than denying such hate speech is precisely her recommended response:

Challenges to reactionary speakers have included putting up flyers with information about the speakers and their background, circulating petitions to have the event cancelled, organizing counter-events and speakers, writing op-ed pieces for campus and local publications, sending students to the event with a list of critical questions, and protesting outside or within the event by walking out or holding signs.

All of this amounts, more or less, to the “more speech” approach that Yoder ostensibly dismisses.  That even includes petitioning to have the event cancelled.  Of course, I can’t support demanding cancellation of a speaking event, but the right to raise that demand is also protected speech.  It is up to the institution hosting the event to reject such calls and to ensure that the event can proceed safely and with minimal disruption.  All of Yoder’s other suggestions are entirely legitimate, fully reasonable, and consistent with Brandeis’s proposed answer.  In short, they’re excellent suggestions.

“We bind ourselves to an impoverished choice set if we believe that we can either punish speech or validate it,” writes Lawrence.  “There is a middle position, expressed in Brandeis’s dictum of ‘more speech,’ that allows us to respond without punishing.  In the face of hate speech, the call for more speech is not merely an option; it is a professional or even moral obligation.”

Yoder’s second argument about the asymmetry of power relations is much more interesting and compelling.  One thinks immediately of the famous quote from Anatole France: “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”  One thinks too of the infamous U.S. Supreme Court ruling in Citizens United v. FEC, which granted First Amendment speech protections to corporations, objectively ruling that Mitt Romney was correct when he infamously declared that “corporations are people too.”

There can be little doubt about the disparity in resources between the powerful and the still to be empowered and about the potent impact this has on speech and discourse.  As I discussed in the first installment of this series, speakers like Coulter, Yiannopoulos, and Murray enjoy extensive financial support.  Even when their events are canceled, no reasonable person can doubt that their message is still being delivered and may be more accessible than the counter-arguments of their critics.  Moreover, it is not just that power relations are unequal.  Freedom of speech is by definition a right conferred on individuals (and associations of individuals).  But racism, misogyny, and other forms of oppression are collective and structural.

How can we ensure that all viewpoints may be fully aired, considered, discussed and either accepted or rejected fairly, when some viewpoints are so structurally disadvantaged compared to those with far greater access to power?  I will try to address this knotty problem, which calls into question the limits of tolerance in a diverse democracy, in more depth in the final installment of this series.  For now, however, let me simply recognize that it is not a problem easily resolved, if it can be resolved at all, either in the context of our actually existing society or in the abstract.  That said, it should also be recognized that nearly all solutions offered to this conundrum have proven as problematic as or worse than the imbalance they seek to remedy.

Moreover, we must be careful not to turn every political conflict into a free speech battle.  Writing in The Atlantic, Walt Hunter, assistant professor of world literature at Clemson University, points out that “the problem with turning to the free-speech argument is that it does not even get close to grappling with the material histories in which students are situated.”

Representing campus protests under the heading of free speech helps to obscure the actual struggles occurring over the allocation of resources and the revision of curricula—struggles being led by students.  In the context of campus rape, structural racism, gender-based wage discrimination, and skyrocketing expenses over student housing, battles over “free speech” might as well be waged on a different planet. . . .

Classrooms have long been the venues in which material struggles over redistribution are subject to vigorous intellectual debate and discussion.  What has often gone missing is the recognition that the university itself is contiguous with the rest of the world.  Campus politics—and they are politics, not “culture wars”—matter because they make visible the myriad ways that the university is inseparable from the state’s monopoly on violence and from the history of global capitalism.

The vitriolic pushback against today’s students exposes the fear that the university will be seen as what it always was: a place like any other, where (to paraphrase the philosopher Walter Benjamin) the dead are never safe and the enemy continues to be victorious.

Here the contemporary argument against privileging the free speech rights of alleged bigots merges with the ’60s-era radical critique of the university as an integral part of the establishment.  There is, of course, much truth to that position, as Hunter contends.  One of the most trenchant critics of the contemporary university, philosopher Robert Paul Wolff, acknowledged so much in his 1969 book The Ideal of the University.  “So long as the lion’s share of the money for universities comes from industry, foundations, and state and federal governments,” he wrote, “society at large can effectively dictate the form and content of the education within the academy.”

Nevertheless, writing in the wake of the ’60s student rebellions, Wolff ultimately rejected the radical critique of the university offered at the time by many student rebels, even as he found much of it “true and important.”  Instead, he also found it “wrong on several counts:”

To begin with, despite the pressures and constraints of contemporary higher education, it seems to me clearly the case that university life is liberating for most students, and that the liberation occurs because of what the university is rather than in spite of what it is. . . .  a great many colleges and universities are much freer, much more conducive to serious questioning and open debate, much more committed to human values, than any other major institution in the United States.  . . .

American universities today, despite their defense contracts and ROTC programs, their businessman trustees and Establishment presidents, are the only major viable institutional centers of opposition to the dominant values and politics of the society. . . .  There, if anywhere, new and deeper attacks on the evils of American society will be mounted.  Here again, the opposition role of the university flows from its very nature as a center of free inquiry.  . . .

. . . the next possible stage of social development may still fall far short of our dream. . . .  But the fact remains that only next steps are ever possible; final steps can never be taken.  So those of us who can still sustain a concern for the partial amelioration of social evils must rely upon the actual institutions which offer us the most assistance.  In America today, the university clearly heads that list.

Reading these words and the book they come from for the first time recently, nearly a half century after they were written, I found them both still relevant and even inspiring.  For while Hunter is correct that we cannot separate the university from the larger society — nor should we wish to do so; the “ivory tower” is neither Wolff’s model nor mine — it is also our job to defend the university as a center of inquiry, reason, and, growing inevitably out of these, critique and change.

Although I find the arguments I’ve summarized here by Friedersdorf and Lawrence more persuasive than those of Baer and Yoder, the argument I find most appealing is that properly conceived and functioning well, colleges and universities should not fear the entry of repugnant viewpoints and odious language.  Our institutions should be strong enough to meet the challenges these present.  But if the university stops being a center of free inquiry, it will have no purpose at all.  It will then indeed be just another part of the establishment.  And if that happens, it will be the important struggles for justice that protesting students have initiated that will suffer most.

The Kids Are Alright

Among those who see free expression under siege by protesting left-wing students, two contradictory images of those students have emerged.  On one side, they are labeled overly sensitive “snowflakes,” liable to melt away in the face of “mere words.”  On the other side, they are said to be violence-prone “thugs” — “little Robespierres,” according to one Wall Street Journal editorial — who would, if left unchecked, silence anyone who disagrees with their extremist agenda.

In reality, neither description is very accurate.  To be sure, as I’ve repeatedly acknowledged in this series, there have been excesses.  But by and large only a minority of protesting students have resorted to anything even resembling violence.  And far from being oversensitive, these students have demonstrated remarkable courage in standing up for their rights and seeking to persuade others, including university administrations, of the justice of their demands.  Given that most of the protesters seem to be of traditional college age (it does not appear that the significant portion of the American student body who are older men and women returning to school have been much involved), what is most remarkable is how mature their behavior has usually been.

Perhaps it would be best to begin with the events at Middlebury College, where conservative writer Charles Murray was heckled off the stage (he later completed his talk by video) and a professor escorting him after the event was roughed up by protesters seeking to block Murray’s exit by car.  In some respects this was one of the worst examples of student activism around controversial speakers.  While Murray is known for views that have been widely condemned as, at best, racially insensitive, he is no flame-thrower like Coulter or Yiannopoulos.  And his speech that evening wasn’t even about race.  Therefore public reaction to the protesters has been almost uniformly negative, across the political spectrum:  “The Mob at Middlebury,” announced the Wall Street Journal.  The New York Times editorial board came to Murray’s defense: “Free speech is a sacred right, and it needs protecting, now more than ever.”  On this blog John Wilson properly took the protesters to task, calling their actions “morally wrong, unprincipled, anti-intellectual, and utterly indefensible.”

But a closer look at the Middlebury events reveals that even in this instance, actions (or inactions) by the school’s administration and interference by outsiders may bear as much blame for the bad outcome as the acts of all but a handful of students.  As an account in Politico concluded,

During the week that led up to the confrontation, it’s possible to identify multiple points at which the administration and faculty could have defused the growing frustration of students who felt that school officials too easily dismissed their concerns in favor of extending every courtesy to someone they considered a flamethrowing pseudoscientist.  And the aftermath, in which students accused the college of stacking the disciplinary process, has only exacerbated their sense that the administration, and some of the faculty, were more concerned with appeasing conservatives than defending their own students.  Seen in this light, the episode is not just a case study in changing free speech norms but a generational power play acted out in an era of bitter political upheaval.

The conservative student members who invited Murray, whose talk was supported by the American Enterprise Institute, claimed they knew little about the controversies that had swirled around his books, Losing Ground, which argued that welfare programs increase poverty, and The Bell Curve, which critics assailed for overstating the evidence for racial differences in intelligence.  They thought he would be speaking on his latest work on the problems of the white working class, particularly relevant, they believed, in the wake of the Trump election.  “Honestly, and this is the funny thing, we did not think Murray was going to be controversial,” said Hayden Dublois, one of the students involved with the invitation.

Murray had spoken previously at Middlebury, in 2007 when his daughter was a student there, and although few students knew about that talk some faculty members recalled it and soon stories, some true, others exaggerated, about that appearance began to circulate on campus.  Moreover, the campus atmosphere was already strained in the aftermath of Trump’s victory.

The day after Trump was elected, two Muslim students at Middlebury walked out of their dorm room to find “Fuck Muslims #Trump2016” on their door’s whiteboard.  One week later, in town, two swastikas were found drawn on the door of a Jewish congregation center.

“After Trump was elected, there was really a lot of tension on campus,” said Alex Newhouse, a student journalist for the Middlebury Campus.  “There was a need for some outlet, for some sort of event, or demonstration that students could rally around.”

Unfortunately, Murray’s appearance was announced just a week in advance — a decision the sponsoring students later regreted — offering potential protesters little time to organize and plan and the campus as a whole virtually no opportunity for dialogue.  As students tried to agree upon a response, in two separate meetings “there was a divide between those who intended to challenge Murray a bit and then allow him to speak, and those who did not want him to speak at all,” according to a student reporter.  At one meeting a small group of about twenty split off to plan a shutdown of the talk in private.

Because of the short notice, many students began to suspect that scheduling of the talk was “a purposeful attempt by the administration to take students by surprise.”  To some students and faculty members it seemed that “the administration was less interested in free speech for the sake of intellectual exercise, and more interested in bolstering the school’s reputation as open to dissenting views at a time when public opinion of college campuses was at an all-time low.”  This feeling was exacerbated when it became known that the political science department was cosponsoring the talk, lending it a semblance of institutional endorsement.  More problematic, the college’s president had agreed to deliver opening remarks.

“Is this the ‘discourse’ and ‘debate’ and ‘intellectual diversity’ we want on our campus?” wrote Nic Valenti, a senior, in a Middlebury Campus op-ed.  “Are we back to the 18th Century—debating the equality of human beings?”

Students, faculty and alumni wrote open letters and signed petitions asking the political science department to rescind its sponsorship and the president not to speak.  One faculty letter calling for these actions was later lambasted by some as responsible for the inappropriate actions of the protesters, which, as Aaron Barlow has argued on this blog, it was not.  The political science department responded by scheduling an open meeting to explain their reasoning for co-sponsorship.

That meeting was a disaster.  Although the faculty members and the president argued that they did not endorse Murray’s views, they refused to abandon their involvement in the event.  As a consequence, their arguments, some of them rather clumsy, only aggravated tensions.  According to Politico‘s account,

At the beginning of the week, only a small number of students wanted to keep Murray from speaking at all.  Another equally small contingent wanted to protest outside, perform a walkout or intensely interrogate Murray during the Q&A.  But after a week of administrative missteps and perceived slights, student trust in their college had eroded to the point that nobody knew what would happen the next day.

What happened was that most of a packed audience greeted Murray by turning their backs on him and then repeatedly shouting him down.  It’s unclear whether this was the intention of more than a handful at the start, but as these things go others were soon caught up in the action.  It was then announced that Murray would be interviewed in a nearby room on a live video feed.  The announcement was viewed by some protesters as a trick sprung by the administration, but most of the audience left, some to watch the event on the feed in their dorm rooms.

About fifty people stayed inside to continue protesting.  Another twenty left the hall and joined a band of protesters from a nearby off-campus anti-fascist group that had assembled in the parking lot, hoping to intercept Murray when he emerged.  Some of the anti-fascists wore masks and one of them had a bullhorn.

“I think the Middlebury students were protesting, but in some ways the outside groups were leading it too,” said one student. “They seemed more organized and intent on continuing the protests.  It was a small but organized group.”

And that’s when the assault, reported widely as a riot, occurred.  It essentially involved a handful of the off-campus anti-fascist group, although a few students were also present, largely milling around and shouting.

In the aftermath, as reports of the event went viral in media, students and faculty complained that the much smaller “mob” from after the event had been unfairly conflated with the non-violent protest that prevented Murray from speaking.  Only a couple of dozen, at most, were involved in the attempt to block Murray’s exit.  And condemnation of the violence on campus was widespread, although disagreements continued over who was to blame.

What happened at Middlebury is perhaps a worst case scenario, yet, as this account reveals, even here the image of thuggish “snowflakes” is grossly simplistic.  None of the student protesters planned any action that was not non-violent and only a minority intended at first to prevent the talk.  But the intervention of militant outsiders and the ham-fisted approach of the administration led to things getting horribly out of control.

My intent here is not to apologize for the protesters, but instead to reaffirm an argument I first made in December 2015, in response to widely publicized student protests at Yale and Missouri.  I wrote then that protesting students

have made and will again make mistakes.  They will offend others even as they respond to deeper offenses against their own dignity.  They may demonstrate indifference to the rights of others, as protesters everywhere always have.  But, in doing so, they will learn.  And that, it seems to me, is the essential point.  Student academic freedom, in the final analysis, is about the freedom to learn. . . .

Faculty members should welcome the challenges the protesting students have posed.  Student movements offer countless opportunities for students — as well as their teachers — to learn.  To approach them in this way . . . is therefore simply to fulfill our responsibility as educators.

Many faculty members are indeed rising to this responsibility and even more students are learning from them and, most importantly, from their own experiences and from each other.  Social psychologist Jonathan Haidt, whose exaggerated assessment of the extent of campus intolerance I have criticized, has made some useful suggestions.  He acknowledges that “campus activists are targeting a lot of the unfortunate learned behaviors that inhibit mutual growth and underlie botched moral decision-making: racism, xenophobia, classism, sexism and gender discrimination.”  At the same time, he argues, both the protests and the pushback against them have been “characterized by a sort of ‘moral fundamentalism,’ a my-way-or-the-highway approach to right and wrong.  That’s a recipe for failed communication and bad decision-making.”

Haidt encourages the organization of “debates that are more open, collaborative and productive.”

If people with different perspectives actually talk to each other, they can also learn from each other.  That suggests a goal for colleges: Create more conscientious campus communities in which moral fundamentalism withers.  How to do this is of course the most pressing question for faculty, students, staff and administrators.

The evidence suggests that more than a few student activists are taking this advice.  Their views are far more complex and varied than the stereotypical coverage would have it.  Take, for instance, the remarks of Middlebury student Elizabeth Dunn in a forum published by the New York Times:

Conversations about free speech need more nuance, especially when it comes to what is at stake for marginalized communities. Speech is not just discourse: It can have very real, material effects. Those effects are not the same for everyone.

To ignore this element of the issue is to ignore United States history.

I hear a lot about a popular straw man — the coddled college “snowflake” who can’t deal with ideas that are different.  This does not accurately describe student protesters, many of whom are queer, female, or of color, or a mix or all of the above.  We are not sheltered from ideas.  We are far too aware of the ways they can inform prejudice and hateful action.

Or listen to Weston Sims, a student at Auburn University where white supremacist Richard Spencer spoke after a court ordered his appearance, describe what happened there:

There is a Catch-22 with inflammatory speakers: A campus visit may embolden their supporters, but so does barring the visit.  Fortunately, as we saw when Richard Spencer spoke at Auburn in April, a visit from such a speaker also rallies those who are opposed to his ideology.

It’s easy for white people in Auburn, Ala., to convince themselves racism isn’t as prevalent or potent as it actually is.  Letting racism have a real, speaking face on our campus identified a problem that exists with or without Mr. Spencer’s visit.  In a slightly paradoxical twist, it put social pressure on those who are stuck in inaction to speak out against his words.

The hours leading up to Mr. Spencer’s arrival felt tense.  Just about every person I walked by was talking about it.  I found myself analyzing people’s clothes.  The anti-Spencer groups and Antifa, or anti-fascist activists, wore all black, while the alt-right was dressed in business casual.  I don’t think Auburn is an especially politically conscious campus, so I had the impression that a large number of the people at the protests (especially the ones right outside of the event hall where Mr. Spencer spoke) were just there as spectators.

The auditorium where the event was held was filled with people:  About a third of them were Spencer supporters, and the rest were hostile to his views.  Both factions were loud, and I’m not sure much was done to promote understanding between the opposing parties.  Yelling obscenities at Mr. Spencer — however cathartic and warranted — also didn’t do much to untie the evil, complicated knot of his ideology.

But the main protest was a peaceful event that had live music, free food and speakers.  It took place on the opposite side of campus from where Mr. Spencer spoke, and the atmosphere there felt warm and accepting.

Allowing inflammatory speakers on campus does not need to imply acceptance of a speaker’s views.  The peaceful protests and counter-events did much to facilitate dialogue and let everyone feel heard.

When one moves beyond the confines of the free speech debate and considers the substance of what protesting students are saying, it quickly becomes clear that it is they, and not the Coulters of the world, who most need to be heard.  Here is Middlebury student Samantha Lamont:

Now that diversity is a virtue in higher education, many universities admit students of color, but they haven’t changed the structure of academia to support these students.  There are very few women of color on Middlebury’s teaching faculty of over 250 educators, for example, and we still lack an ethnic studies program that would examine the histories and perspectives of people of color.  Is it any wonder that racist provocateurs on campus make many students of color feel excluded?  Why is it surprising that we would organize protests? . . .

Students are not asking to be protected from ideas.  We are asking that colleges live up to their commitments to diversity beyond lip service.

For every hyped protest against a controversial speaker, there are scores of unsung student activists mobilized to make a difference.  Here’s one example:  In response to campus hate speech and harassment the Southern Poverty Law Center (SPLC) organized a program called SPLC on Campus.  They report that since 2015 students on nearly thirty campuses, mainly in the south, have organized chapters.  P.J. Price, a senior at Clemson University in South Carolina, founded a chapter on his campus in August 2016.  Its activities gained urgency after white supremacist literature began circulating.

Since the inauguration “hundreds of Clemson students have turned out for events organized or co-organized by SPLC on Campus, including a demonstration against the so-called ‘Muslim Ban’ in January and a rally for a student who had been unable to enter the United States because of it,” SPLC reports.

At the University of Kentucky, graduate student Leslie Davis decided to create an SPLC on Campus chapter, which officially opened in March with about thirty members.  University of Alabama senior Joshua Hillman has served as president of his SPLC on Campus chapter for a year.  The chapter’s focus has been on confronting offensive campus building names.  Hillman says that at least a dozen buildings at ‘Bama are tributes to historical figures with ties to segregation, the Confederacy or racist ideology.  His group hopes to change that.

There has always been a tendency for protest movements to become insulated and inbred, to tune out legitimate criticisms and hunker down rather than expand their reach.  But some of the young radicals are taking that tendency on as well.  Here is Freddie deBoer, a radical leftist (no longer a student, however) reflecting on the importance of free expression and campus activism for socialists like himself:

Freedom of speech has been a cherished left-wing virtue for decades, advanced by people like Karl Marx, Friedrich Engels, Rosa Luxemburg, and many other radical luminaries.  But lately the concept has come to be associated with the right, thanks to the vagaries of our political culture.  If we were smart, we would recognize not only that freedom of speech is consistent with left-wing principles, but also that appearing to be against freedom of speech is a sure-fire way to lose the support of potential adherents. . . .

Campus activism can be a site of a lot of really important work.  But campus activism has really powerful constraints, too.  For one, it’s seasonal: college politics are deeply constrained by the cycle of summer, spring, and winter breaks.  Momentum is constantly lost as students head out to Cabo or back home to Virginia.  What’s more, college students are constantly cycling in and out thanks to graduation, making it hard to build durable groups or have consistent leadership.  Most uncomfortably, college campuses in the United States have a class composition that is not in keeping with typical left priorities.  When Middlebury College students protested Charles Murray violently, many leftists nominated them as the vanguard of today’s left movement.  But this is a curious attitude, given that more students at Middlebury come from families in the top 1% by income than from the bottom 60%.  That’s not a reason to dismiss them entirely, of course.  But it is a condition that we have to ask serious questions about.

Finally, it is often argued that protesting students are not interested in dialogue with their critics.  But while that may be true of some, it hardly applies to all.  So let me close this section of the post with a short video of a young minority woman activist at a demonstration in Berkeley debating patiently with a Trump supporter about Islam.  Conversations like this one — and brave activists like this young woman — should inspire hope.  I’m convinced that for every incident in which a speaker is silenced there are dozens of conversations like this one taking place.  As faculty members we should be encouraging them.

This earnest conversation between left and right wing protesters at Berkeley will give you hope. pic.twitter.com/Iubq4DUEby

— BuzzFeed News (@BuzzFeedNews) April 28, 2017

Some Cures Are Worse Than the Illness

In response to controversies involving outside speakers, some conservative and libertarian organizations have proposed legislation that allegedly aims to “restore and protect freedom of thought and expression” on college campuses.  The “model bill,” entitled the Campus Free Speech Act, was prepared by the Goldwater Institute, a libertarian think tank, and Stanley Kurtz, senior fellow at the Ethics and Public Policy Center, who has opined that “campus free speech is more besieged nowadays than it’s been in decades.”  The proposed legislation would prevent public colleges and universities from disinviting controversial speakers, require institutions to abolish speech codes and “free speech zones,” and require colleges to publish a formal statement affirming that its “primary function is the discovery, improvement, transmission, and dissemination of knowledge by means of research, teaching, discussion, and debate.”  In addition, the proposed bill would instruct institutions “to strive to remain neutral, as an institution, on the public policy controversies of the day.”

The model legislation also states that colleges should create disciplinary policies for students “who interfere with the free expression of others” on campus.  “When protestors disrupt visiting speakers, or break in on meetings to take them over and list demands, administrators look the other way,” a report describing the bill claims.  “Students have come to take it for granted they will face no discipline for such disruptions.”

Since the model legislation was unveiled, a crop of bills broadly based on the Goldwater Institute model have been introduced.  In Tennessee, proposed legislation was amended in such a manner that, according to John Wilson’s analysis on this blog, it became “a really good law that strongly protects free speech on campus.”   But the picture is more muddled in other states.

In response to this flurry of proposals, the AAUP on May 31 issued this statement:

Several state legislatures have recently passed or introduced legislation that addresses issues related to campus free speech.  Given the important role of colleges and universities in debate, dissent, and the free exchange of ideas, the AAUP strongly supports freedom of expression on campus and the rights of faculty and students to invite speakers of their choosing.  We oppose, however, any legislation that interferes with the institutional autonomy of colleges and universities by undermining the role of faculty, administration, and governing board in institutional decision-making and the role of students in the formulation and application of institutional policies affecting student affairs.  The appropriate institutional regulations on campus free speech and protest, the invitation of outside speakers, and student discipline should be adopted through normal channels of institutional governance, and such regulations should be consistent with Association-approved statements on Freedom of Expression and Campus Speech Codes, Academic Freedom and Outside Speakers, and the Joint Statement on Rights and Freedoms of Students.

These legislative efforts have gained traction nonetheless.  In mid-May the Chronicle of Higher Education offered a rundown of proposals by state, highlighting bills in California, Colorado, Illinois, Louisiana, Michigan, North Carolina, Texas, Utah, Virginia, and Wisconsin.

In Illinois, where a three-year budget battle between Republican Governor Bruce Rauner and the Democratic legislature has brought public colleges and universities to the brink of financial catastrophe, the House of Representatives is considering a bill that would require public colleges and universities to suspend or expel students who twice infringe on the “expressive rights” of others.  The Louisiana House is considering a bill that would create a committee on free expression and a freshman orientation focused on free-speech issues.  Those who violate free-speech policies twice would face expulsion or suspension.  In Utah the governor signed a bill in March that outlines a free-speech policy and states that those who violate it can face legal action, including fines.

The bills are allegedly viewpoint neutral, and their sponsors generally stress that they want to defend all forms of speech.  “We would be doing it regardless of what’s being said,” claimed Jonathan Butcher, the Goldwater Institute’s education director.  But many faculty members are skeptical.

“Will these same state representatives also support the football player taking a knee during the National Anthem, burning of the U.S. flag at an ROTC ceremony, protests by the College Atheists at a campus memorial service, or a student-body president asking graduates to stand and turn their backs to a state official during commencement?” asked William Schultz, a mechanical-engineering professor at the University of Michigan at Ann Arbor who is the immediate past chair of the Faculty Senate.

Most of the bills either take portions of the Goldwater Institute model or simply regurgitate it whole.  That is the case in Wisconsin, where the proposal has been opposed by faculty leaders in the AAUP and others.  Under the Wisconsin bill (which has since its introduction undergone a few iterations, but the thrust remains essentially the same) “protests and demonstrations that interfere with the rights of others to engage in or listen to expressive activity shall not be permitted and shall be subject to sanction.”  Students who have twice been found responsible “for interfering with the expressive rights of others” would face a one-semester suspension at minimum, up to possible expulsion.  A companion bill would spell out mandated punishments.

Another provision would require institutions to stay neutral on political issues — something that’s puzzled more than a few administrators who wonder if that could mean refraining even from political discussions with direct implications for their campuses, such as budgets.

The authors of the Campus Free Speech Act — who include Assembly Speaker Robin Vos and the leaders of the Legislature’s higher education committees — claim it is meant to preserve the free exchange of ideas at universities in response to protests against conservative speakers, including one in Wisconsin.  When conservative pundit Ben Shapiro spoke this year at UW Madison, he was heckled and interrupted by protesters, but completed his talk and managed to hold an hour-long question-and-answer session afterward.  Nonetheless, one legislator, Rep. Scott Klug, a Republican, claimed the talk was “completely shut down,” using this as a rationale for supporting the proposed legislation.

Gov. Scott Walker, who previously spearheaded the effort to remove tenure protections from state law, signaled his support for the bill during a television appearance, saying people on college campuses should not be able to “shut down” others with whom they disagree.

“In any public forum, and particularly at a public university, any attempts to limit expression must be done with extreme caution, reflecting compelling institutional interests and respecting the First Amendment,” David Vanness, an associate professor of population health sciences at the University of Wisconsin at Madison and former AAUP chapter president, told legislators during a higher education committee hearing on the bill.

Vanness told lawmakers that state universities should serve as “the great supercolliders of ideas.”  Although he agreed with much of the bill’s intent, Vanness told the legislators that he was “extremely concerned that, as drafted, a combination of ambiguous language and mandatory sanctions will have the perverse effect of chilling constitutionally protected expression” on campus.

Vanness and other critics of the bill argued that its ban on infringement of “expressive activities” is overly broad, legally and otherwise.  Such a requirement is “unnecessarily draconian and actually chills the potential exchange of ideas that controversial speakers provoke,” said Larry Dupuis, legal director for ACLU-Wisconsin.

Faculty leaders and other free speech advocates also questioned the portion of the bill that appears to tell university officials not to take political stances.  Two of the bill’s authors, Rep. Jesse Kremer and Rep. David Murphy, have said the section is meant to prohibit UW from requiring students or employees to agree with certain viewpoints, and does not seek to stop universities from lobbying on issues such as the state budget.  But another author, Assembly Speaker Vos, said he believes the universities should not take political stances in any instance.

UW-Madison professor emeritus Donald Downs, a First Amendment scholar who helped draft a 2015 Board of Regents statement on free expression and has expressed concern about the spread of campus intolerance, said he appreciates that the bill seeks to protect controversial speakers and open debate.  But Downs also said he is wary of using state law to accomplish that goal, and of telling UW officials their institutions can’t officially comment on issues.

“It’s a good idea for the university to be neutral, especially when it’s an issue that has nothing to do with the university,” Downs said.  “But to make this a formal part of legislation, I think that could be an issue.”

One problem with such a provision was highlighted by this extraordinary exchange at a hearing on the proposal, as reported in the Madison Capital Times:

Rep. Terese Berceau, a Madison Democrat, was quizzing Rep. Jesse Kremer, her Republican colleague from Kewaskum, at a hearing for his proposed Campus Free Speech Act before the state Assembly’s Committee on Colleges and Universities recently.

Berceau wondered what would happen under the bill — which requires University of Wisconsin System institutions to be neutral on “controversies of the day” — if a student in a geology class argued the Biblical theory that the earth is only 6,000 years old.

“Is it okay for the professor to tell them they’re wrong?” Berceau asked during the lengthy session on May 11.

“The earth is 6,000 years old,” Kremer offered.  “That’s a fact.”

But, he said, “this bill stays out of the classroom.”

Yet Kremer immediately speculated that students who felt intimidated from expressing their opinions in class could bring their complaints to the Council on Free Expression, an oversight board created in the bill.  So the law could potentially cover things that happen in the classroom, he suggested.

At one point Speaker Vos also chimed in: “Probably the biggest debate is global warming,” he said.  “A lot of people think it’s settled science and an awful lot of people think it isn’t.  I think both sides should be brought to campus and let students decide.”

“How are we to be taken seriously as an institution of higher learning and research if our professors can be called before a ‘Council on Free Expression’ to defend their teaching of geology?” Professor Vanness wondered in response.

In a powerful editorial published May 10, the Capital Times denounced the legislation:

No one who appreciates the high value Wisconsin has historically placed on academic freedom can accept the restrictions state Rep. Jesse Kremer, R-Kewaskum, state Sen. Leah Vukmir, R-Brookfield, and their co-authors have proposed in a pair of speech-code bills that outline schemes for punishing students and restricting the ability of the UW and its administrators to take stands on major issues.

The Kremer bill would force the UW Board of Regents to devise punishment strategies that could chill dissent and threaten honest discourse.  The Vukmir bill outlines punishments. What they have in common is a willingness to diminish debate and penalize dissent. . . .

The Kremer and Vukmir bills assault the First Amendment so aggressively that, if enacted, we expect that both would be struck down by the courts.  So why are they being advanced at this point?  It is not because Wisconsinites are demanding draconian responses to complicated questions of how to maintain lively and respectful debate on our campuses.

The editors answered their question by pointing to the influence of outside money:

These proposals are in play because of aggressive campaigning by wealthy interests that seek to narrow the discourse and to tip the balance in favor of their economic and social views.  As the Milwaukee Journal Sentinel explained in reporting last week on hacked files of the Bradley Foundation, the right-wing foundation “has been quietly using its vast resources to construct state-by-state networks of activist groups to win support for its conservative agenda from coast to coast.” . . .

One of the priorities of the Bradley Foundation and other wealthy right-wing groups is an ongoing effort to constrain speech on campuses.  The exceptionally well-funded Bradley Foundation — “with $835 million in assets as of June 2016, the Bradley Foundation is as large as the three Koch family foundations combined” — is a major player in the group of funders that the American Prospect said “sustain a myriad of conservative campus-targeting organizations.”  These campus-targeting organizations have poured resources into putting a right-wing spin on the ongoing discussion about how to maintain a robust discourse on campuses that they see as too liberal.

Maintaining robust discourse at the UW is essential — not just for students, faculty and administrators but for all Wisconsinites.  That’s why it is important to reject the efforts of the Bradley Foundation, the Koch brothers and their allies to dumb down the debate.

These big donors are not merely targeting campuses in Wisconsin and other states with their rigid agendas.  They are threatening the “continual and fearless sifting and winnowing by which alone the truth can be found.”

It is, of course, not only the Wisconsin legislation that has been backed by deep-pocketed conservative interests.  Decrying the “The Corporate Assault on Higher Education,” Gordon Lafer argues that attacks on tenure, free expression, and university autonomy “are part of a coherent and well-coordinated agenda that is fueled by the largest and most powerful political forces in the country: the nation’s premier corporate lobbies.”  After an exhaustive review of the role played by such business-oriented lobbies as ALEC, the Koch Brothers, and the Chamber of Commerce in state legislatures, Lafer concludes that

For the corporate elite, the institution of mass higher education has become an expensive and unnecessary luxury.  To the extent that university graduates are needed to staff corporations, this is more easily accomplished by targeting funding to specific programs.  Not only are the liberal arts themselves superfluous, but the very idea of liberal education — universities as a place outside the competitive pressures of the rat race, where students and faculty are protected by standards of academic freedom — has become a hindrance rather than a help.

The corporate vision of 21st-century higher education is simply professional job training.  This not only reduces the number of disciplines deemed deserving of funding, but also fundamentally alters the meaning of education.  Career training is not about broad-mindedness, critical thinking, self-discovery, or personal expression; it is about conveying facts and competencies.  These do not require academic freedom, hence tenure comes to seem like nothing but an undeserved perk. . . .

Cutting education funding is not simply a means to facilitate tax cuts for the rich.  It also serves to lower expectations for the masses.  The institutions of public higher education embody the idea that people have a right — simply by dint of citizenship — to an affordable postsecondary education.  That sense of entitlement is itself a danger for the corporate elite. . . .

For all the reasons outlined here, then, the reconfiguration of higher education as job training — devoid of protections of academic freedom, with no need for tenure and no rationale for state sponsorship, conceived not as an escape from the rat race but an essential component of it — fits the self-interests of 21st-century American corporations.

Harvard Law School professor Jeannie Suk Gersen’s assessment of the situation is equally troubling.  In a recent piece for The New Yorker, she writes:

Across the country, state lawmakers are proposing bills that provide for public universities to suspend or expel students who engage in disruptive conduct that interferes with others’ free expression.  Though some versions of these bills are too vague to pass constitutional muster, they reflect the fact that, in service of their pedagogical mission, universities are dusting off their disciplinary authority against student protesters.  This time around, it is supposed to enable, rather than squelch, unpopular speech.  But universities face a thorny situation in which they must threaten discipline for disruptive conduct, including speech that forecloses other speech, while also protecting student speech that protests other speech. . . .

The problem, Suk Gersen suggests, is not limited to legislative interference.  She points out that the University of Chicago — which, as I have argued here before, is stellar at standing up for free expression in theory while regularly violating it in practice — has proposed creating “free-speech deans-on-call with special training to deal with disruptive conduct” and student training programs on free speech.  These, she correctly notes, “are bureaucratic responses that mirror what many universities have done in recent years to address bias and discrimination: appoint deans and administrative staff to run new offices for training and discipline related to diversity and inclusion.”

Hence, Suk Gersen concludes,

Not much clairvoyance is needed to see what is coming.  Many versions of diversity and inclusion put forth by campus administrations today do entail protecting students from speech that is considered offensive to marginalized individuals.  A clash is imminent—not just between ideas and students but also between the campus structures embodied in deans for diversity and inclusion and deans for free speech.  The training and orientation programs run by these dedicated offices will have to negotiate a tense balance to avoid coming to blows.

Finally, it must be stressed that proposals like the one modeled by the Goldwater Institute should be viewed in the context of a broader assault on the right to protest.  According to the ACLU, more than thirty separate anti-protest bills have been introduced since November 8, demonstrating “an unprecedented level of hostility towards protesters in the 21st century.”  The ACLU and the National Lawyers Guild have said many of the bills are likely unconstitutional.

“The proposed bills have been especially pervasive in states where protests flourished recently,” said Vera Eidelman, who works in the ACLU’s speech, privacy and technology project.  “This flood of bills represents an unprecedented level of hostility towards protesters in the 21st century.  And many of these bills attack the right to speak out precisely where the Supreme Court has historically held it to be the most robust: in public parks, streets and sidewalks.”

The flurry of legislation has even prompted UN experts to intervene, with two special rapporteurs from the UN’s Office of the High Commissioner for Human Rights – the UN body which works to promote and protect human rights –  complaining to the US state department at the end of March.  Maina Kiai and David Kaye, independent U.N. experts on freedom of peaceful assembly and expression respectively, have called on U.S. lawmakers to stop the “alarming” trend of “undemocratic” anti-protest bills designed to criminalize or impede the rights to freedom of peaceful assembly and expression.  “The trend also threatens to jeopardize one of the United States’ constitutional pillars: free speech,” they said in a statement, calling for action to reverse such legislation.

What Is To Be Done?

How can we act to protect the right to speak of controversial speakers, of any point of view, while still preserving the right of their opponents to protest and organize, all the while resisting as well more ominous threats to academic freedom?  Clearly legislation is not the preferred response, even if the Tennessee law came out better than expected.  For some strange reason I don’t much trust the Scott Walkers and Bruce Rauners of the world to defend free expression.

As suggested above, in the end the best response may simply be “more speech,” but also more strategic and effective speech.  In a fascinating and helpful piece that asked “How Do You Teach (Responsibly) a Racist Text in an Era of Rampant Racism?,” CUNY professor Cathy Davidson applied lessons from the classroom to also ask “How do we use the appearances on campus by right-wing speakers . . . to teach tactics for disarming racism, for a pedagogy of anti-racist activism?” 

Recognizing that when a speaker like Yiannopoulos or Coulter comes to campus “media attention to the event is proportionally greater than the event itself,” Davidson concludes that “if there are protests, riots, and violence, this shows how higher education and ‘youth today’ are the intemperate ones and the speaker is rational, his/her ideology is the right, good, one and we need to be ‘open minded’ and listen.  The structural inequality supporting everything about the event is ignored.”  So if such tactics don’t work, she asks, how about trying other methods.  And so she poses a series of questions:

What if every visit by such a speaker became routinized by students and faculty on campus as an occasion to generate a “Freedom School” the way the Black Panthers did in the 1960s, spontaneous teach-ins and forums of counter-education?

What if tactics such as those pioneered by Act Up were routinely used by peaceful protestors to garner maximum media attention to an anti-racist message (like the most clever signs at protest marches)?

In the same way my class contextualized racist texts to introduce anti-racist ideas, what if every such occasion were routinized into a catalyst for organized anti-racist alternative education?

How can we use active learning and active pedagogy for social justice, even in this extreme situation of provocation?

What if student and faculty protest followed the routinized forms of grassroots political action groups like Moral Mondays in North Carolina, led by Rev. Barber, such that, whenever a right-wing speaker showed up, everyone would know–including the media–that a countering Town Hall with a countering speaker would also emerge.  This would take the buzz out of the right wing speaker and possibly even require joint media attention.

What else is possible?

Indeed, what else?  A lot, I suspect, powered by our scholarship, our learning, our respect for inquiry, and our dedication to academic freedom and free expression for all.

This is the third of a four-part series.  Part I may be accessed here; part II may be found here.