BY JOHN K. WILSON
The headlines declared a common story about how repressive students are today:
“Study Finds Majority Of College Students Think Government Should Punish ‘Hate Speech.’”
“U. of Wisconsin students not big fans of free speech, according to new survey.”
The headlines were about a Tommy Thompson Center survey of students at the University of Wisconsin at Madison, asking them about regulating hate speech. Unfortunately, the definition of hate speech given in the survey to students made a serious mistake in giving it a very broad meaning:
Some people have argued that there is something called hate speech. They define it as abusive or threatening speech or writing that expresses prejudice against a particular group, especially on the basis of race, religion, or sexual orientation. How much do you agree or disagree with the following statement: The government should be able to punish hate speech?
The problem with this survey is that it explicitly defines “hate speech” as including “threatening speech,” which is definitely something that the government should be able to punish. So, as a free speech absolutist, I agree that the government should be able to punish some hate speech.
This definition of hate speech is not wrong. Hate speech does in fact include threatening speech, a point that Nadine Strossen makes in her book, Hate. So we need to ban some hate speech and protect other hate speech.
But the goal of free expression surveys about hate speech is to find out if people support banning speech merely because it is hateful, even when it is not threatening. So when a survey explicitly includes “threatening speech” as hate speech, the survey becomes essentially worthless–or active misinformation when it is publicized as proof that students want to silence free speech. All of the questions about hate speech are affected by this initial definition.
It is possible that most of the students who responded to this survey would have also agreed to punish hate speech even when it is not threatening. But the questions about hate speech in this survey can’t tell us, because it’s inherently biased.
While I was writing this post, UW-Madison professors Mark Copelovitch, Jon C.W. Pevehouse and Jessica L.P. Weeks published an article today making this same point and revealing other flaws in the survey, and I highly recommend it.
Surveys about free speech on campus need to do a better job of revealing the nuances of what students actually think rather than trying to pursue an ideological agenda and generate headlines.
“Non-objective law is the most effective weapon of human enslavement: its victims become its enforcers and enslave themselves.” Ayn Rand, The Nature of Government
Where are students even getting these speech ideas? By ideas I mean influences and ideology. There is a dangerous ideological irrationality across much of our higher education complex, fueled by a number of influences including mass and social media, political hyperbole and opportunism and the biosecurity construct, and pitting one group against another. I’ve never seen anything like it. Rand’s warning can be seen to also address speech codes and free speech doctrine that seems to be increasingly removed from a larger, objectively-shared social consensus, and into a limited, special-interest agenda organized around a creeping encroachment into liberty, association, and thought itself; i.e. a “non-objective” law advanced by a very small minority. Regards. ’96, UChicago.
Well, maybe… The tricky bit is that far left progressives often define “threatening” speech as anything they disagree with, or speech that may point out that something they or someone else is doing may be unwise. Some examples include pointing out that obesity is unhealthy and thus behaviors need to change is “fat shaming”, pointing out that having children out of wedlock contributes to poverty is considered “racist” or trying to teach folks from poor backgrounds professional behavior is “toxic whiteness”, so that students need segregated “safe spaces” to protect them against that “violence” of words. Similarly, a subset of the far right, especially the religious far right, is constantly worried about having to engage with ideas that do not fit their philosophy (think having their children learn about evolution in school), or having to interact with folks they feel are “sinful” (think LGBTQ folks as a big one) will somehow contaminate them or their children.
I absolutely agree that folks need to be protected against physical violence or threats of such, and it is completely appropriate with the first amendment to do so. The problem comes when the definition of “violence” is broadened to include hearing ideas or facts that do not fit into your worldview. I see enough concern about illiberal, anti-evidence based behavior from folks on both sides of the political spectrum that it is clear to me that the risks of blocking “hate speech” outweigh the benefits of blocking it since hate speech or “violent” speech can be so easily and conveniently defined as what ever the person in power wants to believe it is….
My buddy John K. Wilson seems to state contradictory beliefs: “As a free speech absolutist, I agree that the government should be able to punish some hate speech.” An “absolutist” makes NO exceptions, right? By definition, as they say.
Despite this ostensible semantic flub, I get what he means. I am a NEAR-absolutist myself and tend to agree with the exceptions to Free Speech spelled out in the criminal codes: incitement to riot, yelling “Fire!” when there is no fire, libel, etc.
More important than all this, “hate speech” HAS NO BASIS IN CASE LAW. The 9 Supremes (SCOTUS) have ruled on this at least 3 times. See: https://en.wikipedia.org/wiki/Hate_speech_in_the_United_States
Maybe some private universities can devise their own speech codes, which include using the word “hood” (urban neighborhood) as an instance of “hate speech” (as was used against me in a PUBLIC university, CCNY), but why should an institution of higher education be more restrictive than the Constitution? And do any of these “progressive” colleges actually list what words, phrases, and ideas are verboten — so profs and students will know what not to say? NO!!! My story?: https://www.academia.edu/23593134/A_Leftist_Critique_of_Political_Correctness_Gone_Amok_Revised_and_Updated
Finally, no one has EVER challenged this famous axiom of Justice Brandeis. I wonder why? “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.”
I have never encountered an absolute free speech absolutist. But those of us who are near-absolutists are often referred to by that title, and I am happy to embrace it.
I’m happy to challenge Brandeis because I don’t think his doctrine is absolutist enough. I don’t think an emergency justifies repression. The issue is not having enough “time to expose” bad ideas. It’s that bad ideas should not be banned even if they are not exposed, and even if we cannot “avert the evil” by education. Education doesn’t always work, but that doesn’t mean we should resort to censorship. The key to understanding what speech should be punished is not “time to expose” or whether evil can be averted, but the inherent nature of that speech, and whether the speech is the expression of an idea (which is protected) or the speech is the functional equivalent of a crime in itself, such as an order to a subordinate to commit a crime, a violent threat, or an illegal act such as committing economic fraud or pulling a fire alarm (falsely yelling fire in a crowded theater).
Good for you, John K.! For years, I’ve been posting the Brandeis quote and NO ONE has ever challenged it, especially not because it did not go far enough to ensure Free Speech.
As you no doubt know, though, the very idea of “hate speech” has been taken up by academicians, students, and ordinary “civilians” so that we must all watch what we say these days for fear of being misconstrued or branded as “deplorable.” People have lost their jobs over such inadvertent micro-aggressions.
Here’s another example of what happened to me, along with some other professors:
https://www.academia.edu/31680392/Self_Censorship_of_College_Faculty
I would define a free speech absolutist as someone who holds that people have a right to believe whatever they believe and to express whatever they believe, regardless of viewpoint. By this definition I am a free speech absolutist (and I think John K. Wilson and Frank Tomasulo are too). This position is fully consistent with upholding viewpoint-neutral punishment of true threats, incitement to violence, or targeted harassment, but not with proposals to ban or punish specific words, ideas, or viewpoints because they are deemed hateful.
“Why should an institution of higher education be more restrictive than the Constitution?” That is an excellent question. At private colleges, the famous cases of Dicky and Dixon, v. Alabama, that established constitutional rights only on public campuses, is one reason. Another is general federal and state pressure, and interference, to respond to a universal sensitivity to any potential racial implication, subject to legal and financial sanction. University administrators seem to have much culpability in fanning the speech code flames as they worry about their careers, public opinion, and corporate and other donor demands. But this is all extremely dangerous as race is not merely an interest to protect, but a deep political cause to advance, and even “weaponize” in suppressive legislation, policy and broad social impositions. We may have been set back 50 years in civil rights. Pitting one group against another is how political power stays in power, and grows. That is another reason perhaps that free speech codes are pursued beyond constitutional guidelines: it empowers one group to actually believe they can control thought and behavior. The Constitution protects free speech, but speech codes impose control. It is purely “monkey house” primate behavior. My advice to students is to focus so hard on learning, and enjoying all the opportunities that are in a university, that these political issues and sensitivities fade into the background as you all see each other as natural colleagues, collaborators and friends. Don’t be played by political opportunists.
I agree completely. First Amendment law permits speech to be censored or punished in cases of true threats, incitement of violence, harassment, or defamation, and even the strongest defenders of free speech generally support these exceptions. But each of these categories is narrow, carefully defined in case law, and viewpoint-neutral. Hateful speech can be censored or punished if it falls into one of these categories but not simply because it expresses a hateful point of view.
That’s a good statement, but I don’t think it is a sufficient response. The law is constantly changing (harassment didn’t exist until the 1970s, and there wasn’t case law until it was created). So why can’t we also add hate speech as a narrow, carefully defined, viewpoint neutral regulation? The strongest defenders of free speech need a better answer. I oppose the defamation exception because I think defamation is a lot like hate speech: bad speech that expresses false ideas and harms how we regard others.
Yes, the law SOMETIMES changes “rapidly” and sometimes there is what Hamlet called “the law’s delay.” In either case, shouldn’t we advocate for legal changes and wait until they are enacted before ruining people’s careers with a “hate speech” exemption to the First Amendment — in part because it is almost impossible to create a “narrow, carefully defined, viewpoint-neutral regulation.”
If the word “hood” can be construed as hate speech in my case, and the fancy word “niggardly” can get a D.C. official fired for having a good vocabulary — and because listeners did not know what the vocabulary word meant (See the link), then almost anything can be called a “micro-aggression” or “insensitive.” BTW, in the “niggardly” case, the official was arguing that the Council was being TOO CHEAP with its funding for Black schools, the opposite of what people heard.
https://www.washingtonpost.com/wp-srv/local/longterm/williams/williams020499.htm
Given the existing exceptions to free speech, why can’t we just add one more: hate speech? It’s a good question but I think there’s a good answer. Hate is a point of view, so hate speech regulations cannot be viewpoint neutral. And I think history shows that hate speech regulations are inevitably broad and vague, and are interpreted and applied by those in power. For more on this, see Nadine Strossen’s excellent book on hate, cited in the post.