In Opposition to Butler’s “Limits on Free Speech”

BY JOHN K. WILSON

Judith Butler’s essay, “The Limits on Free Speech,” has attracted a great deal of attention and numerous comments. Because it deserves a more extensive response than I could make in a comment, I wanted to offer this in-depth reply.

I think Butler makes two fundamental errors in her analysis. First, she argues that new technology requires changes in our free speech principles. Second, she urges a wholesale revision of free speech based on the specific case of Milo Yiannapoulos.

It is easy to hate Milo for his dumb ideas and his offensive way of expressing them. Butler focuses on a University of Wisconsin at Milwaukee speech by Milo in which he put up a picture of a transgender student who had been seeking access to the women’s locker room on campus, mocked her appearance, and attacked all transgender people.

Butler argues, “Perhaps shaming and berating someone against his or her will, however offensive, is protected speech as long as it does not constitute a physical threat to the person shamed and berated.  But it surely does constitute harassment of the kind that all faculty and student instructors know about through the obligatory training we take in compliance with Title IX (or what is now left of Title IX)”

Butler thinks that “shaming and berating” someone “perhaps” is protected speech. In fact, it definitely is protected speech. By contrast, she is certain that “it surely does constitute harassment.” I am far less certain. Not all forms of shaming and berating would constitute harassment, even in the classroom. I can imagine a professor publicly shaming students for failing to do the required reading, or for expressing bigoted ideas in class, and even if that’s wrong, it’s not harassment. But we also should not impose the standards expected of a professor in the classroom to every place on campus during extracurricular events. What makes something harassment is, in part, a reflection of the workplace status and the power of a professor to control the classroom and enforce grades and other punishments upon students. If a professor said to a student during an office meeting, “you ought to let me kiss you,” it could easily be harassment. But if a student said it to another student at a campus party, it wouldn’t be harassment, even though both events happen to students on university property. Outside speakers shouldn’t have the same limitations as professors because they lack power over students, and power is at the core of harassment.

Butler also argues that new technology should change our free speech principles: “Maybe we shrug our shoulders and say that this is expressive activity, but surely it crosses the line between expressive activity and threat, and that line was crossed in a new way – and is crossed all the time now in new ways – because of the way technology is now used to incite people to engage in cyber-bullying that did not exist before.”

Once again, Butler uses “surely” to avoid making an argument for a highly dubious claim. This is clearly expressive activity and Milo’s words clearly do not meet the legal standard of a threat, even if the attention he gave to the student might lead to threats against her. And it seems absurd to claim that new “technology” somehow turns mockery into a threat.

There is enormous danger in announcing that the new technology of social media has moved the line of free speech. That’s precisely the argument made by the Kansas Board of Regents in repressing social media, as well as the logic for firing faculty members such as Steven Salaita for their tweets. If we accept this new line, universities might ban a few Milos to make Butler happy, but they will also this as an excuse to ban leftist speakers and to fire professor after professor who offends someone by berating or offending political enemies on their personal social media accounts. The message I have here is this: Don’t bring a bazooka to kill a fly, and definitely worry about the collateral damage you might cause.

Butler argues, “the legal vocabulary we have for distinguishing expressive activity from actual threats, or an incitement to engage in illegal activity – those latter two are not protected as expressive freedoms under the First Amendment – changes when new technologies, or new uses of technology, produce new possibilities for incitement, harassment, and the commission of illegal activities.”

I think this is simply wrong. Incitement, harassment, and the commission of illegal activities have not changed their meaning because of the invention of the internet. These crimes remain exactly the same. It is possible for people to use new technology to more effectively inspire others to commit these crimes. But controversial figures have gotten threats by phone and by mail long before the invention of email, yet no one argued that the telephone should cause us to limit free speech. Inspiration is not the same as incitement. Frankly, even the term “incitement” is one I consider to be highly suspect, an archaic legal façade usually aimed at leftist protests with the assumption that protesters are an irrational mob as an excuse to target labor leaders and other organizers. Charges of incitement today are (and should be) extraordinarily rare, so using them as a category to justify campus censorship should be avoided.

Incitement is a term that refers to “imminent” illegal acts, and typically violence. And the standard for incitement is very high, and goes far beyond encouragement. Mockery certainly doesn’t meet that standard. Yet Butler asserts the following “crimes” by Milo at another campus should have resulted in Milo’s permanent ban from Berkeley and all other campuses: “screening the image without consent, verbal incitement to harass that person, and calls to invade that person’s privacy.” None of these are crimes. Putting up someone’s image without consent is not illegal. Incitement to harass has never been prosecuted or banned. And public criticism is not invasion of privacy.

I watch a lot of late night political comedy, and there’s a common formula: Put up a picture of someone without their consent, insult their physical appearance, and attack their political views, What Milo did was dumb and bigoted by attacking all transgender people, but it should be condemned, not banned. I wish everyone would focus on the ugliness of Donald Trump’s ideas and actions, and never attack him for the ugliness of his physical appearance, but doing so should not be prohibited.

If I speak at a campus where a proud white supremacist is a student, should I be allowed to show a picture of that student in his KKK robes, mock his appearance, speculate on the purity of his blood, insult his intelligence, and encourage people to contact him and tell him what they think of him? I believe I should. Yet this (and much more) could be banned under the principles that Butler is espousing.

Butler also has a strange theory about the violence at Berkeley after Milo’s speech earlier this year: “Those of us who oppose violent tactics then asked whether we have to wait for violence to start before shutting down such an event? If we know that the violence is planned, and that it is coming, as many of us did, and as many of us communicated, why was it that only with the onset of violence did the administration gain a justification to act?“

If you believe that events should be shut down in anticipation of violence, the answer would be to shut down the protests that include violent actors, not to shut down the speaker who is being protested. Does Butler believe administrators should allowed to ban any protests whenever they anticipate possible violence? I don’t, especially because administrators find it very easy to imagine possible violence if it helps remove an inconvenience. Only actual violence can justify shutting down a protest, and even then only under extreme circumstances where there is an ongoing threat of personal injury that cannot be contained by other means.

Butler claims, “If we have to wait for the community to be imperiled, either, say, by the violence of white nationalists or their opposition, then are we not requiring that violence in order to gain the justification to cancel an event widely predicted to become violent.” This is a strange argument. Butler seems to be saying because we must censor speakers who attract a violent response. And, because we hate violence, we must censor all speakers who might provoke violence by censoring them before the possibility of violence occurs.

If this practice is followed, Berkeley will have a lot of threats and not many controversial speakers. Suppose a white supremacist emails Berkeley to say that he will commit violence at any event with a non-white speaker on campus that year. Should Berkeley ban all non-white speakers from campus to protect the safety of the campus? What if the threat is against people with a particular political viewpoint? Should they be banned? Obviously, the only way to discourage violence is by refusing to let violent threats succeed in stopping speakers.

Butler worries that “we will, in the name of freedom of speech, willingly allow our environment to be suffused with hatred, threats, and violence.” But these are very different concepts. Hatred is protected speech because the risk of banning what someone thinks is “hatred” presents an enormous danger to free speech of all kinds. I think we should encourage some forms of hatred–for example, the hatred I feel for Donald Trump’s racism, sexism, and evil policies. Violence (and threats of violence) are prohibited because they are categorically different from free speech. As deplorable as many of Milo’s comments are, none of them can be called threats of violence.

Butler declares, “If free speech does take precedence over every other constitutional principle and every other community principle, then perhaps we should no longer claim to be weighing or balancing competing principles or values.”

No, we should not claim to be balancing competing values, because we shouldn’t be balancing values. There is no need to balance free speech and equality because there is no contradiction between the two, and censorship does not create equality or social justice.

Butler wonders, “So what happens when by honoring freedom of expression we permit an attack on the dignity of some individuals and groups on campus?”

The answer is that some individuals and groups feel attacked. And the proper response to that is neither to shrug with indifference nor to silence the criticism. The answer is, instead, to use our free speech to respond and defend people wrongly under attack and criticize those who would attack them.

Butler seems oblivious to the ways in which her principles could (and almost certainly would) be used by universities to suppress ideas that she would not like to see banned. What if fundamentalist Christian students complain that they are demeaned and their “dignity” is denied if people mock their belief in dinosaurs and humans living on earth together and criticize their Biblical belief in homophobia? What if Republicans on campus complain that they are demeaned and their “dignity” is denied by people like me who call their president a lying, racist, sexist, moronic criminal and say that anyone who voted for Trump is a morally repugnant idiot? What if white people say that they are demeaned and their “dignity” is imperiled if someone points them out and accuses them of white privilege?

Butler’s core argument is this: “We should perhaps frankly admit that we have agreed in advance to have our community sundered, racial and sexual minorities demeaned, the dignity of trans people denied, that we are, in effect, willing to be wrecked by this principle of free speech, considered more important than any other value. If so, we should be honest about the bargain we have made: we are willing to be broken by that principle, and that, yes, our commitments to dignity, equality, and non-violence will be, for better or worse, secondary.  Is that how we want it to be?  Is that how we must be?”

Yes, this is how we must be, if we want freedom of speech. Commitments to dignity and equality are not secondary to free speech. They exist within the principle of free speech. Free speech does not wreck us.

28 thoughts on “In Opposition to Butler’s “Limits on Free Speech”

  1. What about free speech that potentially puts someone in harms way/ subjects them to harmful behavior from others? Like outing someone for being gay or for having an abortion? As Butler argues, sometimes one constitutionally-protected right comes into conflict with another (like the right to privacy). I believe that legal scholars have also recognized these conflicts and argued that there are limits. See, for example, Alice Clapman’s excellent work in Yale Law Journal proposing using common law torts to protect abortion patients and staff from such acts of outing–which is, after all, free speech–but puts such people in danger, both personally and professionally…and not just from shaming….people have lost their jobs following being outed after choosing to exercise their constitutionally-protected right to have such a procedure (https://www.yalelawjournal.org/note/privacy-rights-and-abortion-outing-a-proposal-for-using-common-law-torts-to-protect-abortion-patients-and-staff). Moreover, I strongly disagree that free speech–without the kind of limits that Butler proposes–“does not wreck us.” See, for example, a description of the dangers of outing someone who is gay here….http://www.thetaskforce.org/why-outing-can-be-deadly/. Again, it is free speech, but it is speech that has the ability to cause a great deal of harm (potentially death). The schoolyard taunt that we all learned as children that goes “Sticks and stone may break my bones, but words can never hurt me” is simply not universally true; such a simple idea requires more nuance.

    • Many kinds of free speech can harm other people, but that’s not a good enough reason to ban those words. (For example, Donald Trump would like to ban people from outing his sexual misconduct, and punish the news media who report the truth, but the fact that it harms Trump’s reputation is not a good reason to prohibit it.) If we have the government ban people from telling the truth about others, I would regard that as a terrible infringement of free speech, even when I think it’s morally wrong to tell that truth (and the ethics of outing is hotly debated). I am generally skeptical of common law torts, particularly when they are used to punish free speech. It should be noted that in his speech, Milo didn’t out anybody as far as I can tell(he denounced someone who was already publicly known to be transgender). When words lead someone to do physical harm to others, the person who deserve punishment is the one causing that harm, not the person providing information. Words can indeed hurt people. But that in itself is not sufficient reason to let the government ban those words.

      • The First Amendment has never protected obscene comments or personal insults that “tend to incite an immediate breach of the peace.” Cyber-harassment is illegal in Wisconsin. Calling someone “tranny” is considered an epithet (he also made obscene comments about her). Kramer was present for the invective. Case law so far would support an argument that Milo’s speech act in connection with Kramer is without protection.

        You are wrong about the legal status of harmful speech, also. The Court has ruled that “fighting words” include “those that by their very utterance inflict injury.” Whether the Court would decide that the words have done that in some case will depend, of course, but it’s not true that words that harm are still protected.

        • I would strongly object to anyone arresting and prosecuting Milo for his transphobic hate speech. I think it’s long overdue for the Supreme Court to recognize that obscene language and fighting words should never be illegal (they already impose very strong protections for such speech). It’s worth noting that the Chaplinsky case establishing the “fighting words” doctrine (“incite an immediate breach of the peace”) upheld the conviction of a man for calling a police officer a “damned fascist.” Should we arrest people for calling someone a fascist? But even if Milo had broken the law in Wisconsin (and he obviously didn’t), that doesn’t mean he should be permanently banned from all college campuses due to a presumption that he will break the law whenever he speaks.

          • The distinctions that are being made is whether the insult is personal (directed at a person present), and injures or incites an immediate breach of the peace, and in my (and the Court’s) view, that is going to depend somewhat on context and reaction (reasonable person standard).

            In the Chaplinsky case, it may well be that calling someone a fascist in 1942 America, which was in the midst of fighting a massive war against fascists, was “injurious”–now, it’s not, really. Before very recently, calling someone a “tranny” was not considered a slur because trans people had no rights that the state considered itself bound to respect. Now, it is.

            The point here is not that the state should be able to put someone in jail *just* for calling someone a name. It’s that it the calling of the name is *just* not protected speech, and so might end up, say, getting you banned from a public space in future, as Butler recommends. And in Milo’s case, he also directly incited the crowd to break the law (cyber-harassment law) with speech adjacent and related to the direct insult. Are you also trying to say that “fighting words” that intend to incite violence should be free speech, with no consequences?

            I teach at Cornell. Recently, a student was arrested for badly beating up a black student while shouting racist epithets at him. He was charged under the local hate crime statute. He claims that he shouted the words, but didn’t beat up the kid himself. But according to him, he was there, shouting “F— you, n—–!” along with the other guys who were beating the kid up.

            This guy wants to be readmitted to Cornell. Regardless of how you feel about hate crime statutes: I leave it to you to think about whether if he were a public university student, and it were somehow proved that he only joined in shouting the words while watching the kid get beat up, he should be readmitted under free speech principles.

          • I think Wisconsin’s cyber-harassment law is unconstitutionally broad (it includes a ban on using “profane” language to “offend” someone, rather than being limited to threats). And I haven’t seen the evidence that Milo “incited” people to do anything. He certainly hasn’t been charged with any crime. By contrast, the context of the Cornell case makes it clear that using hate speech while participating in a violent crime is a punishable offense, but it is very different from what Milo did. It’s simply incorrect on every point to claim that Milo used fighting words, with intent, that incited violence.

          • Courts have not been inclined to strike down stalking laws, but cyber-stalking laws are a somewhat new frontier–it’s possible you might get your wish, and WI’s law will be struck down, and current doctrine regarding fighting words will thrown out, too, eventually.

            I assumed Butler isn’t totally making up the facts regarding Milo’s inciting people to harass Kramer–is she?

            I’m not being intellectually dishonest by bringing up the Cornell case. The point I was making was that the student claims he was not physically participating in the assault, and if that’s true, by your lights, he’s done nothing by yelling “F– you, n—!” during a beating that would deserve even mild consequences from a state actor.

            I wasn’t conflating the two cases (and whether Milo has been arrested, sued or otherwise is beside the point–people get away with all kinds of things that deserve action). I was simply pointing up the problem with deciding that all speech, including mere brutalities, should be treated the same and given airtime on college campuses. It might end up going this direction, since the Federalist Society and its ilk are trying hard to force different speech cases up through the courts and reshape the law to overprotect certain kinds of speech that favors conservatives of all stripes. Maybe you’ll find something to cheer soon.

            I do not–and weirdly, it might be Samuel Alito who would agree with me in the case of Milo.

            Thanks for reading.

          • One last time . . . Speech is not and never has been free. There is always a cost for speaking. The US Constitution is only about governments–what they can, cannot, and must do. It is and was never about rights, as those who wrote it made clear, repeatedly. Academic freedom is and was a myth which gets deployed by the privileged class of faculty in self-serving circumstances. Nonetheless, I hold to myself and anyone else, simple advice: if you don’t like what someone says, say something different yourself, but bear in mind that whatever you say has consequences, or costs if you will.

    • These are excellent points about an excellent blog post. I wonder, though, if people could say the same thing you say about the danger of outing gay people about the many insults hurled at Donald Trump. Will some people’s verbal/written attacks and the “outing” of Trump as a neo-Nazi potentially harm Trump, inciting others to attempt to attack him physically? Is it different because Trump is a president with bodyguards? That may be the case. Then what about outing a town mayor or one’s local school board president for being a neo-Nazi? Those people typically don’t have bodyguards protecting them from physical harm. How do we decide which people are potentially caused harm by criticism and/or mocking?

      • That’s one point I want to make. If criticism can be banned because it might make people feel unsafe, then that also applies to criticism of bigots and neo-Nazis. Everyone should be subject to criticism or mockery. We should punish the people who cause or threaten harm, not the people who criticize.

    • From a legal standpoint, it is my understanding that the courts generally distinguish between public figures and private citizens in determining how much an expectation of privacy an individual can expect in the public sphere. The expectation of a right to privacy for a public figure–such as Donald Trump–is much less than it is for a private citizen (such as the transgender student who attended Milo’s Milwaukee rally). This is because the public figure has chosen the limelight–and, often, public service. Therefore, it is argued in the courts that it is in the public interest to know otherwise personal information about the public figure that has bearing on the public interest. For example, some people argue that it is ethical to out closeted gay politicians–especially if they are responsible for creating laws/policy that harm the gay community–because they are hypocritical (and, I would certainly agree that there might be some internalized self-hatred at work in such a politician’s stance and that bringing that to bear might, indeed, be in the public interest…although, personally, I would feel obligated to wrestle with the ethics of outing someone very mightily). However, I do think that there should be some limits to the kinds of information that enters into the public sphere even with these public figures, and the central question should always be whether the information revealed has substantial bearing on the public interest. Certainly, outing the fact that a certain politician is a Neo-Nazi or a sympathetic to white supremacy is in the public interest, but is ALL information about an individual fair game? For example (and I select a fairly innocuous piece of information, by design), the public recently was made aware that Donald Trump drinks 12 cokes a day. He received some teasing/mocking about this fact on T.V.–probably not enough to cause him substantial embarrassment…I don’t know). But how far do we–as the public–feel entitled to private information about a public figure? If we’re worried that his consumption of diet coke impairs his abilities as leader of the free world–like he may behave erratically and press the red button because he is hopped up on diet coke–then I do believe that this information is in the public interest. But, if not, then it is just gossip intended to harm the reputation of the individual. And, I believe that even public figures should have some expectations of privacy. Human beings cannot function properly without it. In regards to the transgender student at Milo’s Milwaukee rally–who is a private citizen and, therefore, has a greater expectation of privacy than a public figure–I do believe that student was, indeed, outed, based upon her reaction to her image being projected upon a screen and her identity as a transgender person being revealed to the audience (As Judith Butler recounts in her piece: “the trans student who found her image projected on the wall during the event…witnessed “in frozen terror” – her words – as the speaker incited the audience to harass her.”) One may argue that she was not outed because she was already “public” about her trans identity. But I might argue that there are different degrees of “outing” oneself (think concentric circles)…for instance, assume that I am a formerly closeted gay man…when choosing to out myself (again, as a private citizen…not as a public figure), I might out myself to a small group of family and friends. When comfortable, I might then choose to enlarge that circle of people in whom I confide my identity as a gay man to also include people within my professional network, and then, later, I might choose to expand it even further by letting any person of passing acquaintance know of my identity. My point being, it is always my choice how much information to reveal…I am left in control of my personal and private information (the individual right to privacy that Butler argues sometimes competes with the right to free speech).

      • Legalisms and abstractions are all irrelevant to the issue. Legal = Constitutional which pertains to government: “Congress shall make no law . . . ” extended to states shall make no law by the 14th Amendment. So, Harvard and Mt Holy Holies can restrict any speech they want. If speech is slanderous then victims can sue. Good luck working class students. If universities don’t want the hassle of piggish speakers, all they need do is ban outside money. That they don’t do so suggests to me that they in fact want piggish speakers. News flash: universities are not instruments of liberation. They are instruments of domination, always have been and always will be.

      • I don’t agree that privacy rights should silence freedom of speech. But in any case, it’s simply not true that the transgender student at UW-Milwaukee was outed by Milo or that she was not a public figure. Here is a media story published a few days before Milo’s speech with her photo which talks about her efforts to change the anti-transgender policies at the university:
        http://mediamilwaukee.com/special-projects/uw-milwaukee-transgender-locker-room-policy-remains-under-wraps
        Clearly, Milo has the right to comment on a matter of public concern and to discuss the person who is publicly leading the fight for social justice. That doesn’t change how vile his remarks were. But it does dismiss any notion that he was outing a private figure.

        • I think that it is highly debatable whether the transgender student being featured in one published story makes them a public figure, and I also suspect that you do not possess the legal expertise to make such an assessment/pronouncement (nor do I). But I do know that the courts have wrestled with exactly who and who is not a public figure, and that they continue to do so. Although somewhat dated, here is piece in the New York Times that provides the flavor of some of the arguments for who is and isn’t considered a public figure under the law: http://www.nytimes.com/1983/06/12/weekinreview/does-a-public-figure-have-a-right-to-privacy-well.html

          • There is no such thing as a right to privacy when it comes to public criticism, even if you are a private figure. The public/private figure distinction you cite applies only to defamation law, and even a private figure must prove statements are untrue and not mere opinion. And defamation law is civil, not a criminal matter, and universities should not be punishing people or banning them from campuses for civil violations (even if they are alleged and are proven, which never happened with Milo). If you’re going to appeal to legal doctrines to justify banning Milo, you have to point to a court ruling that he broke the law.

          • I haven’t (yet) argued anywhere here that Milo should be banned. Instead, I have simply expressed that I am in agreement with Butler in her contention that there should be limits on free speech when such speech comes into conflict with other constitutional principles (such as the right to privacy). Of this conflict, Butler writes: “The problem I had with his [Milo’s] planned talk was not that he was expressing conservative ideas; the problem was that he brought cameras into his lecture hall on several occasions, and projected images of members of his audience on a screen against their will and then proceeded to shame and berate people for being fat or for being trans or, indeed, for being ugly in his view.”

            Aside from the question of Milo’s presence speaking on university campuses, the event of which prompted Butler’s original piece, I am more interested in the broader questions that she poses when she writes as follows: “We can agree on that in principle at the same time that we might find that certain forms of expression are ambiguous: are they, in fact, expressive activity? Are they forms of harm? Are they verbal threats? There is no way around the fact
            that we have to form an interpretation of what we mean by expressive activity if we want to identify expressive activity with confidence and make good on our claim that all expressive activity is permissible.” To me, these questions seem very important, especially in light of the technological developments of which she also speaks. For instance, the phenomenon of online doxxing pits the principle of free speech against the right to privacy (if you’re unfamiliar with doxxing, there is more info here: https://www.propublica.org/article/so-what-the-hell-is-doxxing?utm_source=pardot&utm_medium=email&utm_campaign=dailynewsletter).

            The reason that I think that this issue is so important is that the ease of new technology has also unleashed new forms of harassment, harassment that has the potential to cause great harm (and already has…if you disbelieve me, you might take a look at Werner Hertzog’s documentary Lo and Behold: Reveries of the Connected World). It is now relatively easy for a person skilled in doxxing to obtain someone else’s personal information–such as a Social Security number–through an online search. If that person then chooses to post such information online for all the world to see, is that not free speech? After all, it’s just written information. Or, in the case of the Hertzog film, someone doxxed a family who had just lost a daughter in a horrific traffic accident by sending them photos of her decapitated body. Isn’t that free speech? After all, it’s just visual information. But the question in which I am interested is does posting such information cause another person harm, and, therefore, violate another constitutional principle? I think it does, and I think that we–as a society–will increasingly be forced to grapple with such issues, which is why I was interested to see Butler begin to take them on.

  2. Much of the academic debate about free speech makes typically academic errors. First, recent speech controversies arose around racist, sexist, and otherwise right-wing speakers. Notably absent are controversies around leftist speakers who would call for a revolt of the working class, abolition of patriarchy and White supremacy, smashing capitalism, destruction of the wage system, environmental harmony, etc.There are two important characteristics of the rightist speakers: they charge large fees and appear to be part of a concerted campaign by a rightist perspective that sees academe as excessively leftist or at least liberal. In almost every case, student organizations sponsored the rightist speakers, and those student organizations got outside money to pay the speakers fees. A simple solution for universities is to ban outside money laundered through student organizations. Without large speakers’ fees the Milo’s would not be interested. Only working class speakers would be likely to come. Therefore, there is no restriction on speech, unless the the US Supreme Court, one thinks money talks. But of course, we know money doesn’t talk. It screams. The typical academic error is to make almost every issue abstract. In the current cases, abstraction diverts fro the concrete reality.

    • A ban on certain speakers does make some strong restrictions on speech, even if money is involved. Often, outside groups supplement a speaker’s fees, rather than laundering the money through student groups. How would a university know if someone else is paying them? What would prevent conservative groups from hiring people as fellows to speak for free on college campuses? If this idea ever succeeded, donors and legislators would start giving money to university programs directly to have speakers funded from inside the university, or groups would sue colleges demanding equal money and equal time for conservative speakers. Trying to ban these speakers is a bad idea even if you could somehow find a way to do it.

      • What if the University required student groups, or the speakers invited by the student groups, to disclose the groups (both on and off campus) that funded the speaker? We certainly disclose the names of groups that funded our research. Why not disclose the names of groups that funded a campus speaker?

        • Disclosure of those who fund research is an important part of the scientific process. However, speakers on campus have a different, lower standard because we don’t expect unbiased presentations. I don’t really see a problem here that needs solving. I’ve never heard of anyone concealing the funders of campus presentations. Even if they did, it wouldn’t have much relevance to the arguments being presented. I am skeptical of trying to impose requirements (and punish those who fail to make them) on an issue where I don’t see any problem and the potential negative effects of a problem would be insignificant.

          • I agree, but I think many students are somewhat naive about speakers who give lectures on their campus. They don’t necessarily know that some political group might have funded the speaker and might assume that if the speaker has been brought to campus then they are legitimate academically.

  3. A good response. I agree with you that Butler elides rather than makes her argument at key points, which is kind of surprising for her. I think the problem is that there’s a rhetoric of “hate speech” that has developed on campuses is becoming hegemonic. I say this as someone not because I advocate “hate,” but because I don’t know who, on campus, is going to be the neutral arbitrator of its definition and force on campus. In addition, what worries me the most is how the argument for setting limits ignores that institutionally it is administrators who will be positioned to be that arbitrator. Butler is at UC Berkeley. Has she forgotten how many times pro-Israeli organizations external to campus but with allies inside have argued that robust criticism of Israel, including anti-Zionist arguments, constitute discriminatory speech and thus a “threat” to Jewish students, staff, and faculty?

    When the Milo incident occurred at Berkeley, I did wonder about F.E.R.P.A. If a student is “outed” during a visiting speaker’s presentation does this violate the university’s obligation to protect student privacy? Or does F.E.R.P.A. only cover educational/academic records? It seemed to me if there was any ground to defend keeping Milo from speaking it would be the potential for violations of student privacy, but I don’t know. What do you think?

    • On FERPA, it only applies to campus employees revealing educational records. So Milo could not violate FERPA, even if he had outed a student, which he clearly didn’t. And even if someone had violated FERPA, that’s not valid grounds for banning a person from speaking at that university (and particularly not to ban them from speaking at other universities). All sorts of people have criminal records and civil violations, and they should not be banned from speaking at colleges.

      • Thanks. I wasn’t sure about what FERPA did and didn’t cover. While I wouldn’t ban Milo for the reasons you stated, I did wonder if the university could request that he not “out” students. Of course, he’d be free to ignore, say “no I can’t promise that,” but then the university could give students a “heads up.” Although, I suppose, if a student attended they would probably know ahead of time that they could potentially be “targeted” by him.

  4. Butler is dead wrong about a number of facts in this case. Much of the reporting around the Wisconsin student has been inaccurate. The student claimed to have been outed, but too many people took that assertion at face value. She was interviewed on local media months before Milo came to town about not being allowed to use the women’s bathrooms on campus. It was the image from that interview that Milo used. Moreover, nowhere in the video of Milo belittling the student does he “appeal to audience members and those watching online to flood the email, expose personal information.” Butler also gets “trigger cameras” wrong. For an explanation of how Milo uses them, go here: https://medium.com/@evemoran/how-do-you-solve-a-problem-like-milo-9ba0bed80e1a Butler seems to think that such a “trigger cam” was used to project a live picture of the student. It it also highly significant that this student wrote an expletive-ridden email to the University Chancellor claiming (1) that she was shocked that Milo did this to her and (2) that she and others warned the university that Milo would harass students like her. Both of these claims cannot be true. The student chose to attend knowing full well what Milo likely would do. To be absolutely clear: her decision to attend does NOT mean that she deserves to be berated and humiliated. But it does suggest that we might be a bit skeptical about the hyperbolic claims of having been traumatized by Milo’s speech that this student alleges. In sum, Butler’s article lacks any context and shows no effort to research the basic facts of what happened.

  5. I agree with a lot of what you write here, John. But certain aspects of what Milo did at UW-Milwaukee do seem to me to at least border on sexual harassment. In particular, he commented that the student in question wouldn’t “pass” as a woman because “I’d almost still bang him [sic].”

    If a student can’t attend a talk by an invited speaker without fear of this sort of thing, isn’t she effectively being “excluded from participation in” or “denied the benefits of” an “education program or activity receiving Federal financial assistance”?

    • I think when it comes to an “education program,” there is a difference between the classroom and an extracurricular event. I also think that being criticized, even when the criticism is unfair and personal, is not being effectively excluded from participation

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