The Right has Weaponized Free Speech

BY JOAN WALLACH SCOTT

Joan Wallach Scott is Professor Emerita of Social Science at the Institute for Advanced Study and a member of AAUP Committee A.  These remarks were delivered at a panel on “Academic Freedom and the Historical Profession” at the annual conference of the American Historical Association in New York on January 6.  Other members of the panel were Carmen Harris of the University of South Carolina-Upstate, Jay Smith of the University of North Carolina at Chapel Hill, and Hank Reichman of California State University, East Bay.

When the Supreme Court majority in 2018 refused to uphold a California law requiring religious-oriented “crisis pregnancy centers” to provide women with information about abortion, Associate Justice Elena Kagan wrote in her dissent that conservatives were “weaponizing the First Amendment.”  Catharine MacKinnon, in a book of essays, The Free Speech Century, published in 2019, referred in a similar vein to the dramatic change that has occurred in appeals to free speech:  “Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful.  Legally, what was, toward the beginning of the twentieth century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”

At colleges and universities this change is evident.  In the past few years conservatives have relentlessly attacked the academy as what Turning Point USA founder, Charlie Kirk refers to, as “islands of totalitarianism”—that is places where free speech is notoriously absent.  Secretary of Education Betsy De Vos warns a meeting of conservative college students that “the fight against the education establishment extends to you, too. The faculty, from adjunct professors to deans, tell you what to do, what to say, and more ominously, what to think.” The vice president of the University of Tennessee College Republicans, expressing his support for a bill in the Tennessee legislature to protect student free speech declared: “Students are often intimidated by the academic elite in the classroom.  Tennessee is a conservative state.  We will not allow out-of-touch professors with no real-world experience to intimidate 18-year olds.”

Sponsored by deep-pocketed foundations (Koch, Amway, Heritage, Bradley, Goldwater), the campaign has made free speech its centerpiece.  By sending provocateurs like Milo Yiannopoulos and Ann Coulter, neo-Nazis like Richard Spencer, and marginally respectable types like Charles Murray, the point has been to provoke exactly the responses they’ve gotten—outrage, protest, sometimes violence—and to get huge publicity for their efforts.  These characters have depicted themselves as victims of discrimination, and this distracts from serious discussions of things like campus institutional racism and other problems faced by minorities and those seeking to promote social justice.  The conservatives have commanded enormous media attention in ways the Left has had a hard time doing.  In his book, The Future of Academic Freedom, Hank Reichman cites a study that shows that between May 2016 and January 2018, the NY Times “published 21 columns or articles decrying alleged silencing of conservatives on campus,” while only three pieces talked about the silencing of those on the other side (which included serious targeted harassment of left and minority faculty).  (186). Hank’s book has data that makes clear that incidences of violence against these speakers are rare, and that discrimination against conservatives is not a huge problem.  He concludes his chapter on outside speakers this way: “To suggest that leftist threats to outside speakers constitutes the main menace to free expression and academic freedom on campus today is to exaggerate and mislead, or worse.” (200).

There’s lots to say about the way this campaign has been conducted and the damage it has done, about the way in which an organization like FIRE has been complicit in some of its claims (even as FIRE helpfully defends those whose speech and academic freedom have been violated), about the way in which university administrators have badly handled the challenge (one called for “affirmative action for conservatives,” conceding an argument that needs to be refuted; others for “civility”—as if good manners was the answer to serious political differences).  And there have been some difficult, serious discussions of what the limits are that can be imposed on hate speech, on white supremacist recruiting on campus, on the renting of university buildings by outside groups looking to create controversy on college grounds.

What I want to talk about today, though, is the clear way in which power differentials are in operation.  They appear as contradictions to the professed principles of free speech being endorsed.  On the one hand, free speech is endorsed for conservatives; on the other hand it is denied for those on the left.  As public attention is drawn to conservatives as victims, those who protest them peacefully—in the name of equality, justice, climate—are often punished.  The right to dissent is not included in the University of Chicago’s “model” report on Freedom of Expression.  Discussion (the word is used over and over again in that report) is welcome as long as it “does not disrupt the ordinary activities of the University”—as long, it seems, as if it’s just talk.  Protest as a right of free speech is strikingly absent from the document; it is not considered an acceptable form of free expression (although historically it has been granted constitutional protection).  Administrative practice in colleges and universities all over the country is to act quickly to punish protestors and equally quickly to defend the “free speech” rights of conservatives.

The most recent contradiction of the claims to protect free speech for the conservatives while denying it to liberals and the left has come in the form of two presidential executive orders.  One warns colleges and universities to “avoid creating environments that stifle competing perspectives” and threatens to deny funding to institutions that don’t comply.  The signing of the order featured conservative students telling their victim stories; tellingly no minority students or faculty who have been victims of right-wing attacks, of on-line harassment and death-threats, were there to recount their experiences.

The other legislation has come in the form of an executive order that rules that any criticism of Israel be considered anti-Semitic.  In this order, free speech is explicitly denied to critics of Israel, it is deemed hate speech and therefore intolerable in our country.  There are already on the books in 27 states, laws that outlaw support of BDS.  Now there is an executive order that directs government agencies, including the Department of Education, to use the definition of anti-Semitism that defines it to include all criticism of Israel to monitor the activities of human rights groups and campus programs such as the one at the University of North Carolina at Chapel Hill that was deemed “biased” because it did not present enough “positive” imagery of Judaism and Christianity and because of a conference there at which some speakers were thought to be too critical of Israel.  A skewed and inappropriate definition of anti-Semitism is used to outlaw “hate speech” by Palestinian and other groups (they are likened to the Ku Klux Klan), while free speech is used to protect the likes of hate mongers such as Yiannopoulos and Coulter and Trump’s white supremacist supporters.  In other words, those in power get to define the terms and call the shots.  The critics of Israel are silenced by accusing them of racism, while the racists get to spew their hatred by invoking the protections of free speech.  There’s no coherence to it.  It’s nuts—but it’s what we’re living with now.

5 thoughts on “The Right has Weaponized Free Speech

  1. Yes, right-wing troglodytes EXAGGERATE the extent to which today’s academy has become “islands of totalitarianism—that is places where free speech is notoriously absent.” But selectively quoting Kirk and DeVos’s extreme views does not change the fact that MOST of the recent abnegations of Free Speech and Artistic Freedom on campus have come from the pseudo-left. Almost every day, there is some new incident of such censorious “P.C.” behavior including “MICRO-aggressions,” speakers, exhibitions, plays, and events canceled, professors suspended or fired — often without due regard for decency.

    It happened to me: https://www.academia.edu/23593134/A_Leftist_Critique_of_Political_Correctness_Gone_Amok_–_Revised_and_Updated

    And SO WHAT if “deep-pocketed foundations (Koch, Amway, Heritage, Bradley, Goldwater) [sponsor] a campaign [that] has made free speech its centerpiece? As a longtime Marxist, I happen to agree with devotees of the First Amendment, even if their purposes are conservative (or worse). The whole point of Free Speech is, well, FREE Speech, no? Yes, there are a few legal exceptions — libel, slander, incitement to riot, yelling “Fire!” in a theater, etc. — but there is NOS SUCH THING as a legal entity called “hate speech.” The Supreme Court has ruled on this SEVERAL TIMES:
    https://en.wikipedia.org/wiki/Hate_speech_in_the_United_States

    “Safe spaces” for ALL faculty!

    • As a “longtime Marxist” you should know that speech is limited for the powerless by deep-pocketed foundations and that free speech is mostly a myth. As a longtime Marxist you should also understand the economic and political forces that go into defining what are and are not “legal” entities. And you really think the minor and infrequent pc sanctions at a few colleges are more serious than outlawing support for BDS in 27 states? Are you absolutely sure you were learning Marxism? Maybe your professors were teasing you.

      • Yeah, I used to think like that before I became woke (or, better, awakened). And Marxists do not have to use cheap rhetorical tricks like pointing to other issues like BDS to distract from the issue at hand or assuming that “facts not in evidence” are true, like ” minor and infrequent pc sanctions at a few colleges.” If one of those minor, infrequent pc sanctions happened to YOU — and you lost your livelihood and dignity — you might not be so sanguine about the issue of Free Speech, which I fervently believe in, even if rightists use it to create what Marx called “false consciousness.” (“Politics make strange bedfellows”) Let Marxists use their Free Speech to counter the speech of the ruling classes.without interference from the cancel culture of pseudo-leftists on campus who nitpick semantics and do little or nothing in the way of community activism.

        I tend to agree with the statement attributed to Voltaire: “I may disagree with what you have to say, but I shall defend, to the death, your right to say it.”

        Likewise, my mother used to say, “Sticks and stones…” (You know the rest.) That’s a motto that millennial “snowflakes” should live by.

  2. Joan Wallach Scott is right that, for the most part, “those in power get to define the terms and call the shots.” On most campuses there are speech codes that protect students from speech deemed hateful and campus authorities get to decide what is hateful. Now we have a presidential executive order clarifying that Jewish students must be equally protected from speech they deem hateful, which is defined to include serious critiques of Israel.

    But it seems a mistake to point to free speech as the source of the problem in these sorts of cases. Free speech should cover all viewpoints equally, hateful or not, partly out of principle but also because if hateful speech is not protected it will be those in power who decide what speech is hateful. What we need is more freedom of speech, not less, precisely because without free speech it is “those in power who get to define the terms and call the shots” by deciding what speech should be censored or punished.

    • Thank you, David Moshman, for saying that “Free speech should cover all viewpoints equally, hateful or not, partly out of principle but also because if hateful speech is not protected it will be those in power who decide what speech is hateful. What we need is more freedom of speech, not less, precisely because without free speech it is ‘those in power who get to define the terms and call the shots” by deciding what speech should be censored or punished.;”

      I was out here alone in defending that age-old and constitutionally defined interpretation of “Free Speech.” It mirrors Justice Brandeis’s famous axiom: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is MORE speech, not enforced silence. Only an emergency can justify repression.”

      And without the Berkeley Free Speech Movement,the Vietnam War, segregation, and women’s oppression might have lasted much longer than they did (at least in their more overt incarnations). Mario Savio would be turning over in his grave to see today’s pseudo-leftist snowflakes trying to inhibit those human rights.

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