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.
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