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.