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The free speech problem on campus is real. It will ultimately hurt dissidents

Students sit on a green on Yale's campus.
Free-speech controversies at Yale University and other campuses prompted an investigation by PEN America
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Donald Trump is a divisive figure, but does writing his name in chalk on a university sidewalk amount to the harassment of minority students? Some students at Emory University claimed as much last spring, when the then-candidate’s name, along with phrases like "Build a Wall," appeared near the buildings where many student groups had their headquarters.

The pro-Trump messages were a "direct threat to their safety,” the students contended. Asked by some to defend the First Amendment and by others to side with the aggrieved students, Emory's president came down squarely in the middle. On the one hand, "we must value and encourage the expression of ideas,” he said. Yet on the other, the university must "provide a safe environment" for students. Then he announced Emory would devise new procedures for reporting of incidents of bias.

At the University of Colorado Boulder, meanwhile, a tenured sociologist named Patti Adler ran into trouble when she had students in a sociology class watch skits depicting aspects of the underworld of prostitution. When some students complained, the university ordered Adler to stop teaching the class, and the provost sent an email to students explaining that “[a]cademic freedom does not allow faculty members to violate the University's sexual harassment policy by creating a hostile environment for their teaching assistants, or for their students attend the class."

Freedom of speech is often misunderstood, frequently taken for granted, and always on the defensive against forces both within and outside of government.

On college campuses — nominally bastions of free inquiry, robust debate, constructive lessons in failure, and unexpected discovery — there exists a prevailing controversy over the scope and meaning of free speech.

Some believe the universal right to free expression should extend to all, even ideas that are deemed a threat to the public interest (as homosexuality was only a generation ago) or which are a threat to prevailing conventional wisdom and political norms (as miscegenation was in much of the country, as well). A competing viewpoint holds that free speech is just a cop-out code phrase, mostly working in the service of professional trolls or entitled jerks to abusively act out with impunity.

A prominent literary organization leaps into the fray

PEN America, the literary and human rights association that lists as one of its core principles a commitment to "protect open expression in the United States and worldwide," set out to explore the state of free speech on the nation’s campuses — reexamining several high-profile incidents and controversies. While not comprehensive, the report, published this fall, is impressively thorough, treating much of its content as teachable case studies, rather than a set of self-affirming anecdotes.

Some press coverage, however, suggested that the PEN America report — titled “And Campus For All: Diversity, Inclusion, and Freedom of Speech at U.S. Universities" — had exonerated campuses from the charge that they insufficiently protect free speech, and that it sided with students who think “cries of ‘free speech’ are too often used as a cudgel against them,” as the New York Times put it.

The report itself contributes in a small way to this confused take, largely due to a single line in its conclusion which (improbably) asserts that there is no “pervasive ‘crisis’ for free speech on campus.” But that same report exhaustively details dozens of cases where certain speech was inappropriately muted on campus.

More examples: Skidmore College’s Bias Response Group determined that the posting of Donald Trump's official campaign motto, "Make America Great Again," in classrooms where women and people of color worked constituted "racialized, targeted attacks." A tenured associate professor at Louisiana State University, Teresa Buchanan, was dismissed for the offenses of using off-color language (including "fuck no”) in class, and off campus (where she said “pussy” in a conversation with another teacher). Like the University of Colorado’s Adler, Buchanan was deemed to have created a "hostile learning environment."

The authors write of the "chilling effect" such administrative actions have on professors who fear reprisals for unintentional offense, and as a result, will avoid certain subjects, including rape law and even some aspects of Greek mythology, out of an abundance of caution.

An unflinching defense of free speech, coupled with sympathy

Taken in its totality, PEN America's report rejects the idea that free speech is a tool of oppression. Yet the report differs from the standard conservative anti-“PC” diatribe in that it also shows a great deal of sympathy for the concerns of minority groups on campus. Adding further nuance, the authors spend a great deal of time explaining how free speech is a vital tool for people removed from the traditional power structures at America's institutions of higher learning.

Given how much space the report gives to the testimony of students who feel marginalized and targeted on campuses, the report will surely displease certain free speech absolutists, who might be inclined to argue that today's college students need to get over their addiction to hurt feelings. Such people would also likely roll their eyes at the report's defense of the positive role of "safe spaces" (very narrowly defined) on campus.

But such critics would be missing the point. The report makes clear that colleges can acknowledge grievances, support reasonable efforts to protect the mental and physical well-being of its students, ensure students are protected from overt harassment — and also defend the right to free expression for all.

Suzanne Nossel, PEN America's executive editor, told the Times that the organization’s stance is not the “doctrinaire ‘free speech or bust’ position.” Striking an admirable balance, the authors present a stalwart defense of free speech but also discuss the “chilling effect” that bigotry, both casual and overt, can have on the free expression of historically marginalized identity groups.

The American Bar Association's (ABA) analysis of speech that crosses the line into harassment is used as a reference point. The public expression of the view that homosexuality is a sin — which would strike many as bigoted, hurtful, and on some level intimidating for gay people to be confronted with — remains protected speech. However, the ABA notes that the repeated personalized use of a derogatory slur, directed at a person "so often and so publicly that it impacts his or her peaceful enjoyment of the school or campus," enjoys no First Amendment protection.

At the same time, the report’s authors also detail dozens of cases where free speech was inappropriately muted on campus, and how such incidents create chilling effects on speech.

The authors express the need — “in an increasingly multicultural nation” — to foster a campus atmosphere suitable for allowing students to “communicate across vast divides in experience and world view,” noting that this can’t happen if respect for civil discourse manifests itself as "ratification of an unequal status quo.” But nor can it happen when “calling out offensive behavior shades into an oppressive atmosphere of political correctness and even censorship.”

You can practically see the authors tiptoeing through a minefield, always aware of the very legitimate social concerns that are too often cavalierly dismissed as political correctness run amok. Yet the authors never waver from their essential principle, which is a rock-ribbed defense of both the moral and practical need to defend free speech as both the most vital tool available for the disenfranchised — and essential for the preservation of honest intellectual inquiry and debate. That conclusion may seem uncontroversial, even obvious, to some — but in today’s campus climate, it’s an important intervention.

A limited defense of “safe spaces”

The discussion of "safe spaces" has become one of the most divisive subsections of the debate over free speech on campus. PEN America’s partial endorsement of that concept may come as a surprise: The group describes the creation of "small, self-selected groups united by shared views," which could be anything from a group of five Iranian-born students kicking around stories from back home in a dormitory common room to a chapter of the Hillel club, which on some campuses consist of hundreds of Jewish students as members.

But the report opposes making entire campuses "safe spaces" from discomfort. The authors argue against such a "hermetically sealed intellectual environment where inhabitants could traffic only in pre-approved ideas."

This is key. Students of all political and identity stripes should be permitted to form their own independent groups for any reason, whether it’s just to feel "at home" or express sentiments that wouldn't be as popular in the broader campus community. But these students should not expect their safe space to extend to every minute of their day or every inch of the school.

Unfortunately, some students have demanded campus-wide safe spaces, leading to such self-spiting actions as closing the campus from deliberately provocative speakers such as Milo Yiannopoulos, the Breitbart technology editor/notorious internet troll. Rather than allowing Yiannapoulos's noxious grandstanding to serve as its own indictment, several campuses have preferred to keep their students “safe” from his outlandish views.

But pretending "problematic" thought doesn’t exist won't make it so; such perspectives should be engaged, defeated, in the public arena of ideas.

In perhaps the most cogent line of the entire report, the authors write: “Overreaction to problematic speech may impoverish the environment for speech for all.” In the name of social justice, some students are demanding administrators become the arbiters of what speech is legitimate and what isn’t. These students don’t seem to grasp that by granting authority figures the power to adjudicate which speakers have the right to be heard, they will inevitably find their own speech silenced when opponents claim offense, fear, or discomfort.

Calls for crackdowns on “offensive” speech inevitably boomerang

It’s already happening. Just ask the Palestinian activists whose boycott campaigns against Israel have been deemed hate speech by a number of public universities, and whose future political activities could be endangered by an act of Congress. Just this month, the Senate unanimously passed the "Anti-Semitism Awareness Act,” which directs the Department of Education to use the bill's contents as a guideline when adjudicating complaints of anti-Semitism on campus. Among the speech-chilling components of the bill, the political (and subjective) act of judging Israel by an "unfair double standard" could be considered hate speech.

To cite other examples of unintended consequences of the crackdown on “offensive” speech, a black student at the University of Michigan was punished for calling another student “white trash,” and conservative law students at Georgetown claimed they were “traumatized” when an email critical of deceased Supreme Court Justice Antonin Scalia landed in their inboxes.

The PEN America report also notes the Foundation for Individual Rights’ analysis of hundreds of campuses with “severely restrictive” speech codes. While a number of these campuses don't aggressively enforce their speech codes, the rules remain on the books; more than a dozen such codes have been overturned in the courts.

What’s even more concerning is the increasingly popular notion that some ideas, such as opposition to abortion, should simply be “non-platformed" — that is, deemed unworthy of even being heard on campus. Although the trend of denying contentious speakers such as former Secretary of State Condoleezza Rice or refugee turned Dutch politician and critic of Islam Ayaan Hirsi Ali public platforms by "disinviting" them from campus is disconcerting, it is not censorship.

However, a pro-choice group physically blocking the display of a pro-life group on the campus of the University of Georgia is a form of censorship. As is the case of University of California Santa Barbara professor Mireille Miller-Young, who assaulted a young woman holding a pro-life placard including graphic imagery in a "free speech" zone on campus and stole her sign. When the young woman objected to the theft of her property, Miller-Young replied, "I may be a thief, but you're a terrorist."

Like it or not, almost half of all Americans consider themselves pro-life. Banning their perspective from campus won't win over converts, and it’s both immoral and counterproductive to declare completely legitimate political perspectives beyond the pale. Think of antiwar protests or demonstrations in support of integration when both causes were broadly unpopular, and then try to consider a majority on campus declaring their school a "safe space" from such "offensive" expressions of free speech.

Comedy can’t exist without room to offend

The report recognizes the need to provide room for artists to provoke and not be hindered in their ability to take chances. This argument cannot be made enough. Iconic comedians such as Richard Pryor, Lenny Bruce, and George Carlin all deployed language and epithets that were edgy in their time and would be considered beyond the pale today. Yet each used the power to shock in service of fighting against war, bigotry, and the status quo. If today’s sharpest comedic minds are constricted to the point they are unable to even attempt pushing boundaries, all we’ll get (and deserve) is a generation of safe-as-milk karaoke comedians tousling the hair of the powerful instead of challenging them.

Of course, many attempts at subversive satire will fall flat, coming off as more tasteless than witty. But the punishment for a bad joke shouldn't be official disciplinary action or banishment from campus, which is a fate that has befallen a number of college campus comedy publications.

To cite an example not included in PEN's report, Chris Lee, an African-American student at Washington State University, staged a take-no-prisoners comedic musical — which he went out of his way to explain would offend delicate sensibilities, including on the play's ticket and on prominent signs. (The play, a South Park–esque parody of The Passion of the Christ, featured a song called "I Will Always Hate Jews" sung to the tune of Whitney Houston's "I Will Always Love You," babies being shot out of a Mormon mother's womb and caught by Jesus, and plenty of other outrageous material.)

Lee was subsequently subjected to a school-approved "heckler's veto." Students physically disrupted his show's performance, shouting death threats at the author. That they could have just skipped the show seems to have not occurred to these socially conscious students, or the administrators who encouraged their mob-like actions by telling students to stand up and declare "I am offended" during the play if they felt like it. Campus police reportedly told Lee they would not protect the actors if protesters stormed the stage. (Once this incident was publicized by free speech advocates, the university reversed its position.)

On a larger political stage, the "heckler's veto" tactic was praised by those who enjoyed seeing a Donald Trump rally in Chicago disrupted and eventually canceled, but would they really defend it if a mob of raging Trump supporters crashed a Hillary Clinton rally?

PEN America argues that too often “protests and forms of expression are treated as if they are incursions on free speech when they are manifestations of free speech.” But the group rightly draws the line at shouting down speakers.

The left needs more free speech advocates

The report challenges free speech advocates “to articulate how to reconcile unfettered expression with acute demands for greater equality and inclusion,” suggesting they often ignore the second half of that formulation. However, the authors also argue that “liberal to left-leaning organizations" need to do a better job of "integrating free speech awareness into their agendas."

UCLA grad student and pro-Palestinian activist Rahim Kurwa is quoted in the report as saying: “One cannot have diversity and social justice speech in spaces without free speech … free speech is not incompatible with our campaign but essential to it.” He adds: “Social change isn’t frictionless. It only happens with friction. You have to engage.”

Perhaps because Kurwa is part of a rare subset of progressive political activism that finds itself imperiled by top-down censorship imposed in the name of sensitivity, he understands how free speech amplifies his voice — even as it provides his opposition with a platform, too. Kurwa needs more of his allies on the left to come to that understanding.

The same rights that can be put "in service of a right-wing agenda" (as the Times put it in its piece about the PEN report) are also the best tools available for marginalized voices on the left and everywhere in between. As we approach the "Trump era," perhaps student activists will be less inclined to put their faith in rigidly defined policies executed by faceless authority figures — and more inclined to embrace free speech, in all its unwieldy, essential glory.

Anthony L. Fisher is an associate editor at Reason.com, and a columnist for the Week. He is also the writer and director of the feature film Sidewalk Traffic.


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