Burt Likko responds to Kristin Powers, speaking of how universities can walk the line between free speech and hostile-environmentalism. Powers says that official speech codes are the worst, and Likko goes into the legalities involved.

I don’t know what they taught at Georgetown, where Ms. Powers went to law school, but I know at my own law school, anti-discrimination law was not taught as something that had all that much Constitutional implication. A significant lacuna in my professors’ presentation of anti-discrimination law. As a newly-minted attorney I believed, because I had been taught, that anti-discrimination statutes were an unambiguous good and a moral imperative upon the body politic to enact. The corpus of larval lawyers of which I was then a member had been exhorted: “Go ye forth, and enforce these laws, through civil litigation!” Such preaching convinced me — a younger, more conservative version of me than the me actually practicing this brand of law today — that being a private attorney general like this would be a way to simultaneously seek both personal enrichment and public justice.

Turns out, soon after picking up that banner I encountered defendants who protested, “Don’t I have freedom of speech?” The answer is, “Not if your speech creates a hostile workplace environment, you don’t.” Which sat uncomfortably with me because freedom of speech is important, too. So there has to be some point of balancing if we are to have both a discrimination-free environment and freedom of speech for individuals.

I think Powers is wrong. Speech codes are talked about because they sound scary, ominous, and Orwellian. The bigger concern I personally have is among the student body, and more importantly how the universities respond to the views of the student body.

I’m less worried that schools are going to formally declare that certain words and thoughts are out of bounds than I am that administrators will indulge student bodies’ determinations of what’s reasonable by using the powers they invariably have. There’s no question that universities have the power to, for instance, decide who to pay to bring to campus to speak at a commencement or other event. They are responsible for recognizing clubs, and in many cases forming them. If they’re doing their job, they or one of their subsidiaries arrange student events of all kinds. They permit, or don’t permit, displays on campus. Often, as a practical matter, they have to limit who can do what, because not everyone can always be accommodated even if everything is completely viewpoint-neutral.

But it doesn’t have to be viewpoint-neutral. And if it’s not, it doesn’t have to come out and admit it.

Over at Ordinary Times, I briefly became the symbol of millenial-hatred by refusing to automatically grant the protests over American Sniper as being reasonable. Maybe they were, if it was just a matter of the time and place of the screening. That, you know, it wasn’t the showing of the movie but the showing of the movie at this particular mixture. But controversies erupted at the University of Maryland and George Mason over special screenings, and people at Eastern Michigan actively disrupted a screening there. So I still don’t think it’s unreasonable to interpret these objections not as “Can’t we have a mixer without this movie?” but “I don’t want this movie to be shown on campus.” You can “how about not doing that here” something into being nowhere.

The UMd and GMU stories have happy endings, only because the universities or other student groups stepped up to make sure that it happened. That only happened because of the backlash, and past performance is no guarantee of future results.

The left is experiencing a cultural apex at the moment, especially at universities, and seem to be wondering why they should have to tolerate speech that they’re not comfortable with when can theoretically have the tools at their disposal to displace it without actually having to go afoul of the First.

It can become even harder if things reach a certain tipping point, where people with unpopular ideas simply stop speaking up. The window of socially acceptable dialogue – even if protected by Freedom of Speech – can move to the point that young people who voted for the side that just won a national election feel the need to keep their views to themselves.

Here in the University of North Carolina student paper expressed grave disappointment that Duke University invited Mitt Romney to speak at their campus. Romney, who came within a few million votes of becoming the President of the United States and Commander-in-Chief of its military.

Just as they concede with Romney and David Horowitz, who the piece is primarily about, have a right to free speech, I will concede that the Tar Heel has a right to run stupid editorials. The University should not pull its funding and they should not be thrown in jail. Like I said, this isn’t especially about the First Amendment. It’s not that the Universities will shut down speech. It’s that they’ll stop stopping the students and some faculty from running speech off.


Category: Coffeehouse

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Mal Blue is a software design and implementation specialist. When he's not traveling the country for work, he lives in the Gulf Coast area with his flatmate, Neela.

11 Responses to We’re All Reasonable Here

  1. greginak says:

    In general i agree with this. However i think it is bit glib to just say “the Left” just doesn’t want to hear speech it doesn’t like. There are a few groups that really push the “hate speech isn’t free speech” idea. I’m not really the best person to frame their argument well since i don’t believe it but that hasn’t stopped me before.

    I’ve read lots of arguments from LGBT folk who buy this line that they don’t want to have people against gay marriage speak or from openly homophobic speakers. The very quick history, which i doubt you would argue, is that only in the last few years has it become comfortable to openly gay in general US society. And that doesn’t actually include much of the red parts of the US where LGBT would still face threats, violence and ostracism. I think they see hearing anti GM/ homophobic speakers as a very real and present threat to push back where they were just a few years ago or just a few exits off the highway at this time. It doesn’t feel like just free exchange of ideas, it feels like they better watch their back right now. That would be, i think, a more sympathetic framing of their argument.

    • bluem says:

      What qualifies as anti-gay? I understand that hate rallies are something we want to discourage by the most aggressive means we can justify, but what if they don’t think gays should be able to get married? What if they think that a florist doesn’t have to make flowers for their wedding? Not sure I see the boundaries all that clearly. Definitely not sure protesting students do.

      The Left is a pretty broad brush, but they don’t need the whole movement to agree. They just need a bunch of people and everybody else to have their back or keep quiet. That’s where some of the intraleft stuff is important, because nobody is going to do anything but have their back or keep quiet if they want to avoid a White-Off.

      • greginak says:

        Well yeah you hit on the problem. I don’t think disagreeing with gay marriage is equivalent to an actual threat or not baking a cake is the same as beating someone. I think the people who want to get rid of “hate speech” have their boundaries way off and don’t’ seem to get that their will always be gray areas. I was trying to express how some of those folk see things. They are acting out of tangible fear. They are also self-righteous and quite a bit to sure of their cause, but i think their fear is not something to dismiss.

      • Oscar Gordon says:

        First off, BSDI. Now that out of the way…

        because nobody is going to do anything but have their back or keep quiet

        This is important, because Greg’s response is a common one, that the Left (writ large) doesn’t agree with the whole HSIFS, but they aren’t really doing much about it except the equivalent of tut-tutting and, “eh, they’re just kids”.

        Which is true, they are, but could someone follow up with a Gibbs-slap to drive the point home?

        • greginak says:

          Gah i hate NCIS….so pooie on that suggestion.

          But to a great degree “they are just kids” is true. I mean college students acting like they know everything, being self-righteous and dogmatic isn’t exactly news. ex the 60’s. Colleges are where youngsters go to learn many things about growing up. I think people pay a little to much attention to some of these kerfluffles on campus. The Right loves to whinge about Evillll Leftists indoctrinating the yutes, when most of them are studying keggers, making fools of themselves over the opposite ( or same) sex and trying to figure out a good major. There is some tempest in a teapot going on.

          There also is a Left Pope to give the suggested gibbs smack.

        • trumwill says:

          I keep hoping that my own university newspaper sends my old columns down the memory hole. But they’re still there.

  2. Tod Kelly says:

    “Over at Ordinary Times, I briefly became the symbol of millenial-hatred by refusing to automatically grant the protests over American Sniper as being reasonable.”

    Man, you must have read a LOT into that post.

  3. Jhanley says:

    “Over at Ordinary Times, I briefly became the symbol of millenial-hatred by refusing to automatically grant the protests over American Sniper as being reasonable.”

    Heh, color me unsurprised. Despite the sincere desires of RTK, the place always seems to be just barely failing to not be an echo chamber.

  4. Mike Hunt Ray Rice says:

    Over at [redacted]

    I like to refer to it as Over There.

    It also saves you a few words.

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