How best to argue about free speech on campus?
April 20, 2017 1:59 PM   Subscribe

This is essentially a "do you find this persuasive, and if not, why?"

I had a (perfectly friendly, but a little exhausting) conversation with someone today about how they're turned off by SJWs starting shit on campuses, and how it's a freedom of speech issue, they should just be allowed to speak even if people disagree with them, etc.

I pushed back on the framing about who is doing this (good grief), and gave my standard response to why I don't think freedom of speech is particularly relevant to this issue: Schools are under no obligation to provide a venue for anyone, if so the school should be allowed to set the terms, the students who don't like it have as much right to protest as the students who invited it.

Finally, I always push back with the (to me) fairly simple point that the First Amendment simply says that state and local governments can't limit free speech, so the only context I can see in which a university/school/group would be infringing is if/when they were representing the government.

Is this correct? Is there a better way to frame it? Do you find it convincing?

The person in question didn't seem convinced.
posted by aspersioncast to Law & Government (30 answers total) 5 users marked this as a favorite
Many universities are publically funded.
posted by jenkinsEar at 2:13 PM on April 20 [7 favorites]

I do not find this in the least persuasive because I believe freedom of expression is a (very important) value to be cultivated regardless of whether one has a constitutional right to speak in specific circumstances and I'm not interested in being part of a society or milieu where destroying someone's ability to address supporters or interested members of the public is how we deal with political views not in vogue among a contingent that is able turn out a crowd.

In other words, I agree with your First Amendment point (at least in the case of private universities), but do not think that it constitutes a normative argument in defense of shutting down speech on college campuses.

Your mileage may vary.
posted by eugenen at 2:14 PM on April 20 [13 favorites]

The protest point is a red herring. No one is arguing that people shouldn't be able to peaceably protest speakers. They are arguing that they shouldn't be violently attempting to stop events or literally screaming so loudly that speakers can't be heard, and that there should be no hecklers' veto -- colleges cancelling speakers out of fear that there will be a riot if they don't.
posted by MattD at 2:17 PM on April 20 [14 favorites]

First, it depends if it's a public school or a private school. Make no mistake, public schools are an arm of the government (usually a state for higher education, local for K-12), and I believe there are court cases involving freedom of speech in public schools that have said as much. Government isn't just elected officials, it's anyone who works for the government and acts in that capacity. Private schools have much more latitude in restricting speech on campus.

Second, when you say "schools are under no obligation..." I think it's important to clarify whether you mean a moral obligation or a legal obligation. Private schools may have no legal obligation to let anyone speak, or present any sort of balanced view if they do, but I still believe they have a moral obligation to encourage a robust exchange of ideas among their students and faculty.
posted by DevilsAdvocate at 2:22 PM on April 20 [1 favorite]

Regarding the First Amendment: to what extent are you trying to make a specifically legal argument, as opposed to a moral one? For better and for worse, that's another kettle of fish.
posted by Sticherbeast at 2:25 PM on April 20 [1 favorite]

Hah, I'm a college student who has gotten into a fair share of arguments on this... mostly on the side of free speech, but I've argued the other way too.

Personally: have never found the argument that free speech should only limit governments convincing. Why do we think governments shouldn't limit free speech? Whatever reasons you think of also apply to why we should be very careful with any limitation on speech. Which doesn't mean that I advocate for no limitations on speech at all even by private individuals but I think we should take those limitations seriously.

I find your school argument a bit more persuasive, but I think a better way to frame it (and my preferred method of framing it) is this:

let's say a student organization affiliated with the university wanted to invite me to give a talk on geology. I know nothing about geology, and I am planning on giving a talk about my crackpot theory that, I dunno, the earth is secretly a turtle resting on top of a turtle.

If the university permits this, from this point on I can say I have been invited to talk at this university, and it confers some measure of prestige on the theory. It's one thing if I'm posting my crackpot theory on my blog online, but if Columbia or whatever has invited me to speak about it it must be at least worth considering, right?

In other words, a university speaking engagement amplifies and validates speech. I believe everyone has the right to speak their mind. I do not think everyone has the right to have their speech amplified and validated, and I believe students who are paying tuition have the right to object to their universities using their platforms to amplify and validate abhorrent speech.
posted by perplexion at 2:26 PM on April 20 [49 favorites]

I had a (perfectly friendly, but a little exhausting) conversation with someone today about how they're turned off by SJWs starting shit on campuses

Agreed that publicly funded spaces are subject to constitutional requirements and that's not a compelling argument.

That said, someone saying they're 'turned off' by 'SJW's starting shit' is actually a sub-argument. SJW is a pejorative term, and being 'turned off' isn't really a strong argument about the issue of free speech pro or con, and 'starting shit' is an incendiary and deliberately obtuse way of describing people's objections to having to put up with fascists holding rallies in front of them--so I don't find your argument compelling* but I think you're arguing with someone who isn't engaging in good faith.

*unless I'm misunderstanding and if I am sorry, I have the flu so I'm sort of stupid
posted by A Terrible Llama at 2:26 PM on April 20 [3 favorites]

Yeah, these arguments are not about good faith debate, they're about dominance. You will never change this person's mind, because keeping you spinning in circles is the entire point of the exercise for them. Make them convince you:

You: I think it's fine for a venue to cancel a performance by a person who routinely incites violence.
Them: What about the First Amendment?!?!?
You: I don't see any issue there.
Them: But what about ... ?!?
You: Eh, I disagree. ¯\_(ツ)_/¯
posted by melissasaurus at 2:35 PM on April 20 [6 favorites]

Specifics help focus the argument. Don't worry about convincing each other of a position, but you might be able to better understand your points of disagreement if you asked, "If you were X, what would you do in case Y?"

"If you led a student organization, would you invite [person] to come?"
"If you were the president of a private college, and a student organization invited [insert person of
interest] to speak, would you forbid them from holding the event? If you allowed it, would you make a statement condemning the speaker's message?"
"If you were a student at that college and [person] was coming to speak, would you try to disrupt the event? With or without violence?"
"If you were the president and became convinced that students were planning to violently disrupt the event, would you then cancel it?"
posted by Mr.Know-it-some at 2:48 PM on April 20 [4 favorites]

On mature reflection, I feel like it's difficult to convince on this one because it's not a very convincing argument as it's framed - you don't have to be especially terrible to think that a heckler's veto turns every controversial speech into a power struggle. (That is, we don't like it at all when the right exercises the 'shout them down and be ready to mix it up' veto on campus.)

I think there's a couple of things lurking, unaddressed:

1. The failure of civil society under political stress - we could all "just get along" when times weren't so bad, because the the social pressures that make people strongly attached to strong viewpoints were less. Right now there's real domestic political conflict on a scale that I did not experience when I was growing up in the nineties. "Anyone should be allowed to say whatever they want" works very well as long as there's strong unspoken limits on what can be said, and the incentives to push those limits are relatively weak. On this front, I think that what's happening is that there's real political conflict on college campuses that is being fought out by any means available, and "free speech" is just another power tactic, and most people understand this intuitively.

2. The abrogation of duty of care by the university. This is, to me, the strongest argument for limiting speakers on campus, and it's not a free speech argument at all, and has a significant drawback. I think that the university itself has the responsibility to provide a learning-condusive, safe, egalitarian experience to all its students, and this can't happen when university groups fund and publicize speakers who attack students for their intrinsic characteristics. Racist speakers should not be invited to the university because equality among university students is not up for debate by university bodies; speakers who have a history of threatening trans people should not be invited because the safety of all university students is not up for debate by university bodies. These speakers should never have been authorized by the university because the university has a duty of care for its students - the university isn't the agora. The drawback, of course, is that it displaces the political struggle to the university administration. I tend to think that this is probably a better place to have it, for both practical and strategic reasons - it's better to have to deal with a controlling and controversy-eschewing university administration than have a riot on campus when someone invites a white supremacist speaker.

Basically, it's difficult to convince people on this because the debate over "free speech" on campus is never a debate about "free speech"; it's a proxy for real political struggle between egalitarian and anti-egalitarian forces. In other times and other places "free speech" has been the left's argument, but there too it was a political proxy for another struggle. The right wants to use the university as a place to gain political traction, but has no qualms about, eg, threatening to kill that women who talks about gender and video games, because they don't want free speech, they want to use claims about free speech to access audiences and build movements.
posted by Frowner at 2:55 PM on April 20 [23 favorites]

Schools are under no obligation to provide a venue for anyone

They most certainly are. If the school - assuming it's public - allows campus groups to invite speakers or rents space to speakers then it can't discriminate based on the content of that speech.
posted by jpe at 3:03 PM on April 20 [3 favorites]

. I think that the university itself has the responsibility to provide a learning-condusive, safe, egalitarian experience

And that experience just happens to line up perfectly with your political views. What an amazing coincidence!

That line of argument isn't going to persuade, because it's inevitable that some speakers you approve of will offend some or make them uncomfortable.
posted by jpe at 3:06 PM on April 20 [3 favorites]

In other words, a university speaking engagement amplifies and validates speech

It doesn't, because the school is required to allow these speakers. A city that allows a protest to occur on public grounds isn't validating anything; it's simply doing what the constitution requires.
posted by jpe at 3:09 PM on April 20 [3 favorites]

Something that might help is talking about how it's a question of where you draw the line. "What would you think would be the appropriate response to a student organization inviting the head of the American Nazi Party to talk about the latest research he's commissioned that he's pretty sure will finally demonstrate that lesser peoples are morally inferior? Or a speech on how Christianity and the people who espouse it are irrational and should be stamped out?" Something like that would be worth, maybe not violence, but a vigorously non-violent attempt to make the talk either not happen, or at least be an event characterized by a fervent expression of disapproval from the campus community. You can probably talk most people into accepting that they aren't free-speech absolutists in this context -- there are some things that it is reasonable to expect should not be said in a talk by a campus organization, and if they're going to be, it's reasonable to protest seriously.

So you're fine with discriminating between speakers, and discriminating between viewpoints; the question is, for each speaker, if the protestors have made a good call about where the line of acceptability should have been drawn. And then... sometimes protestors are going to overreact, they're college kids. But 'free speech' generally isn't the issue, it's a case-by-case call.
posted by LizardBreath at 3:26 PM on April 20 [1 favorite]

Maybe it's that I'm a liberal who grew up in a Republican suburb and went to a Minority Majority State School, but I'm on the Free Speech side. My liberalism on campus wasn't shaped by the school. It was shaped by the riot grrl concerts student groups would host and the feminist groups it led me to. It was shaped by the black kids who would speak up in class. And to the extent that my professors were liberal, their viewpoints had evolved because they were constantly being questioned by young people with less privilege.

The ability to tell the administration that we don't need them to sign off on our world view gave me access to the resources I needed to be better than my deeply sexist family. And to the extent that I still need to become better, I don't trust an institution to make that decision. It freezes the social norms to those in power.

Of course, that also means that I support the students protesting. Political disruption at a school makes sense. Education is about learning to exist in the world, and a huge part of that is figuring out how to be a citizen. This clash is evidence of something real. Deferring it doesn't help anyone.
posted by politikitty at 3:29 PM on April 20 [3 favorites]

I know this isn't meant to be a back-and-forth, won't respond further.

to what extent are you trying to make a specifically legal argument

A greater extent than a moral one.

Curious about case law and specifics regarding the assertion that publicly-funded Universities are legally obligated to allow all forms of speech (I've certainly heard it before). If jpe or others have citations close to hand it would save me some digging.
posted by aspersioncast at 3:34 PM on April 20

There's an argument known as the middle-ground fallacy; it goes like this:
Crazy Extremist: "We have to kill all the kittens!"
Sane 'Extremist': "What?!? No! That's crazy! There's no need to kill any kittens!"
Moderator: "Now, now, none of that namecalling. Compromise is called for. We'll kill half the kittens."
Not all arguments are equal; not all "deserve" your attention and consideration; definitely, not all are worthy of a university's limited resources, access to (mostly) young minds working hard to learn how the world works, and the prestige of having been there.

When your friend says, "I'm tired of that SJW bullshit shutting down free discourse," the reaction shouldn't be an argument about what SJW "really means" or whether the first amendment blocks some discourse. It should be something like:
"So, do you think the school should host a speaker who thinks the planet is overcrowded, and 85% of Americans need to be forcibly sterilized, so we can return to the opportunity and growth levels we had in 1800?" (Or: Choose a hypothetical that will dismay your friend. Dominionist who thinks the bible needs to be the literal law of the land - right down to the forbidden foods lists from the OT; flat-earthers or sasquatch-hunters; anti-intellectual who believes all universities need to be burned and we should start with this one. Whatever.)

Once they recoil in horror and insist that no, that kind of talk wouldn't be welcome, you move on to: "Okay, we've established that There Should Be Limits. Now... who sets those limits, the corporate board of directors trying to make money for the university, or the people expected to either listen to the speeches or talk with classmates who've listened to them?"

The answer is more nuanced than that - but you've gotten away from "is this a free speech issue" and onto "how do we set the standards for the kinds of speech we will allow in our community?"
posted by ErisLordFreedom at 3:42 PM on April 20 [8 favorites]

Anybody who's upset about SJWs "starting shit" is not really entering a debate about free speech in good faith. They often don't like that a belief of theirs has been challenged and rather than defend it on its own terms or taking responsibility for it, they deflect to a broader, higher authority. Language that promotes racist, homophobic, transphobic, anti-reproductive rights etc. ideologies don't really need more prominent platforms. They have more than enough institional, cultural and political support. So their defense of "free speech" is really a defense of power.

And considering the level of wealth inequality in the U.S., "free speech" should not mean everybody has the right to pay or be paid to speak on the largest possible platforms. Surely the speakers could come and speak for free, in an informal setting, on campus if they like. Students can get together and discuss the topics without worrying about the campus police kicking the door in or arresting everybody at the lunch table.

I don't think you'll successfully change their mind in one argument, especially if you're only discussing the topic as they've framed it, solely as an issue of free speech. Your best bet would be to figure out why they personally want to see this speaker appear on campus in an official setting and why the campus denying that possibility limits their access to that information and knowledge.
posted by AtoBtoA at 3:48 PM on April 20 [4 favorites]

As to the request for case law on public universities, I think you will find this compilation from the Foundation for Individual Rights quite helpful. They obviously have a much different perspective on speech-on-campus issue than you do, but the compilation is quite sizable and accessible.
posted by dpaul at 3:54 PM on April 20 [1 favorite]

Yeah, if you're trying to make a purely legal argument than the law is on your side with regards to private universities but against you with regards to public. The question for public universities then turns to what is "acceptable" protest- legally at least violence isn't permitted of course, but things like obstruction, screaming are all still very grey areas as far as I'm aware.
posted by perplexion at 4:00 PM on April 20 [1 favorite]

The Brandenberg test is the standing constitutional law as to when the government can restrict freedom of speech.

An act of speech may be restricted if it intentionally calls for immediate (and specific) lawless action that is likely to occur.

To use a specific example, people were protesting Milo Yiannopolous in part because he was specifically calling for the targeted harassment of students at the schools he visited for being trans or possibly undocumented immigrants. One can both argue that freedom of speech is very important, and that this man's words count as enough of a call to action exceed the constitutionally mandated protections. He is certainly intentionally targeting individuals for harassment, and they are certainly receiving harassment after he visits. Heck, one of his followers even shot someone in the middle of a crowd up here at the University of Washington.

Furthermore, said individual is a foreign national, and it is certainly within the rights of American citizens to demand that he be denied permission to be in the country if they believe he poses a threat to them, much less just a university.

The reason people are suddenly more wary about letting neo nazi types into their schools now is because they believe that the *likelihood* of these people inciting violent actions has increased. And even in a legal sense, that does factor in to whether an act of speech calling for harm to another is protected or not.

I would say do your research, get into the specifics of the complaints of the protestors if you have the time, too. Specifics beat out vague crowing about "freedom of speech," especially when you are talking about specific protests over specific people and issues.
posted by Zalzidrax at 5:20 PM on April 20 [1 favorite]

Curious about case law and specifics regarding the assertion that publicly-funded Universities are legally obligated to allow all forms of speech (I've certainly heard it before).

Sorry for being too lazy to pull up specific examples, but state universities are government institutions and they get protected by (or subjected to, if you like) corresponding laws. (he same generally wouldn't apply to Stanford, which merely receives government funding for various purposes, unless the funding is contingent on compliance.

Laws that apply to state universities range from the first amendment to FOIA requests for professor's emails. This article hits on this a bit this in the context of Berkeley and Milo Yiannopoulos's invitation.

Note that being subject to the first amendment is not exactly the same a needing to allow "all forms of speech." But they are covered by the first amendment for sure. As the link makes clear, though, it also covers protesters. They are more restricted in silencing protesters as well.

There's a lot going on though. The university itself, public or private, is *not* required to invite anyone. In the Yiannopoulos case the invitation was apparently offered by a university group under neutral rules the university had set up. If you are talking about the university itself inviting someone for a commencement speech, lecture, etc. it's a different situation (IMHO on both the legal and philosophical merits.)
posted by mark k at 7:33 PM on April 20 [2 favorites]

This Socialist Worker article re-frames the "free speech crisis" in a very interesting and potentially useful way:

Who's behind the free speech crisis on campus?
There is indeed a crisis of free speech today, one that is steadily eroding the rights of students, faculty and staff in thousands of institutions of higher learning all across the country. But the blame lies with university administrators and bosses, not the student activists they loathe.
posted by Joseph Gurl at 8:22 PM on April 20 [1 favorite]

Choose a hypothetical that will dismay your friend.

I don't know if you're going to find an example as abhorrent to your friend because there is nothing that realistically threatens him (it's a white guy, right?). Real trans people, real undocumented immigrants, real Muslims, real Jews, etc. are currently actually physically threatened by people like Milo and Spencer. There is no analog. An anti-Christian, anti-white, anti-male speaker has no teeth because your friend does not feel an imminent danger.

If he doesn't have empathy for people who are in danger (I'm guessing to him they're "special snowflakes who need a safe space") then there's no point in having a conversation, you cannot win.

Incidentally, that's exactly why people are no-platforming Spencer et al. It's fruitless to have a conversation with people incapable of empathy.
posted by AFABulous at 8:36 PM on April 20 [7 favorites]

I think you'll find these links helpful or at least substantive:

ACLU: Hate Speech on Campus
Stanford: Ban Outside Speakers? Not on Our Watch
American Association of University Professors (AAUP) statement on Academic Freedom and Outside Speakers
AAUP: Freedom of Expression and Campus Speech Codes
AAUP statements after campus groups attempted to ban speeches by Obama, Richard Dawkins, Bill Ayres, Desmond Tutu
posted by Miko at 8:54 PM on April 20

My university has been in the headlines about this recently. The actual reason people were opposed to this person's appearance didn't get a whole ton of attention.

The legal arguments that I've seen have centered around whether the content of a person's speech constitutes harassment. Objectionable ideas count as free speech, and a student group is free to invite someone to spout bullshit if their little hearts compel them to do so. If that speaker harasses students, then that's no longer protected speech. Arguments against a speaker appearing at my school rested on the assumption that they would actively harass people. It's not objectionable ideas alone that people wanted to silence at my university, it was harassment.

Can you make a judgment call ahead of time that someone will harass students based on prior harassment, or do you give them the benefit of the doubt, and deal with any damage after the fact? That's where the debate really is. It's not "will he say shitty stuff," because obviously he will, that's why the little shits invited him in the first place. The question is, does past harassment give you a compelling argument that he will engage in unprotected, harassing speech at this venue, or would blocking him on that assumption violate his right to speech, and the rights of the students who totes wanted to hear what a white supremacist had to say about our lovely campus?

I'm in the camp that there was compelling evidence indicating that we could have expected harassment. I understand there could be disagreement with that. What I cannot stand is the people characterizing objections as simply "ooh, cover my ears, I can't bear to hear something offensive."
posted by shapes that haunt the dusk at 8:57 PM on April 20 [4 favorites]

My additional $0.02, beyond the legal stuff, as a guy who does like "free speech":

I don't think freedom of speech is particularly relevant to this issue . . . the school should be allowed to set the terms

This, combined with the legalistic government point, would be anti-persuasive with me. I like free speech and this boils down to you saying it's not that important to you.

the students who don't like it have as much right to protest as the students who invited it.

This. I like free speech, why would I be troubled by students protesting? Maybe I disagree with them but free speech does *not* mean everyone sits down and keeps quiet until they're important enough to get invited to give a guest lecture commencement address.

It does depend a bit if you are willing to draw a line at certain protest types (i.e. threats of violence), but basically students trying to convince the university that certain people's arguments are so bad they aren't worth hosting is just "more speech," which is what is supposed to happen in response to "bad speech."
posted by mark k at 10:00 PM on April 20 [3 favorites]

Relevant National Review post, but Free Speech should not be a partisan issue anyway.

I agree with the final sentence of the post.
posted by LoveHam at 7:55 AM on April 21 [1 favorite]

I think it's important to break apart how we imagine that "free speech" is restricted. There are a lot of objections to the idea that the university administration should "silence" a person by saying that they cannot give an invited talk on campus just because they're, like, a white supremacist.

First off, the university administration is positioned as a "left wing" body in this kind of conversation, because it's figured as left wing special snowflakeism not to invite white supremacists to campus. And then there's the idea that it's the "left" which wants this to happen, as if university administrations are left wing. So the window shifts - university administrations, which are almost always center right in actual practice, get positioned in this conversation as left, meaning, meaning that the overton window moves rightward. It's "normal" to be to the right of the university.

Second, the fact of the right's stochastic suppression of speech gets entirely papered over. The university says "we don't want to hire a holocaust denier to give a talk" and it's the Worst Threat To Free Speech Ever; right wing movements organize death threats and harassment to silence and drive out virtually any non-right-wing person who catches their eyes, but that's perfectly in line with free speech. It's bad if Milo Yiannopolous can't get lots of money to threaten trans people, but it's perfectly acceptable that anyone who criticizes the right should go in fear of their life/livelihood/etc, because no institution is involved.

Basically, the right pretends that it is interested in the expression of ideas, but refuses to be accountable for powerful, stochastic methods of suppression that it employs.

You might ask your "free speech" buddy whether he's cool with sending people rape and death threats or threatening to shoot up their talks, as long as there's no actual on-campus protest. If he's not, what does he propose to do to guarantee the free speech of people targeted by the right? After all, Yiannopolous can still bloviate on the internet and profit off his brand, whereas many people targeted by the right cannot.

Additionally, you might see if you can get him to break apart notions of "comfort" from safety, and attacks on people's intrinsic identities from criticisms of their beliefs. The right tends to conflate "when we debate whether minority students are intrinsically inferior, it destroys the learning environment for minority students" with "I am uncomfortable because a professor said that Christianity was complicit in slavery and this makes me feel attacked as a Christian". The right wants to conflate those things, so that they can say "well, you want to talk about Christian complicity with slavery, so you have no choice but to let me invite a white supremacist" and "saying that women are intellectually inferior creates precisely the same effect on women as when you say that homophobia is bad - you're uncomfortable because I believe that women are stupid, and I'm uncomfortable because you're telling me not to hate gays".
posted by Frowner at 9:57 AM on April 21 [5 favorites]

I agree with you, Frowner, but this probably won't gain ground in discussion with an opponent:
And then there's the idea that it's the "left" which wants this to happen, as if university administrations are left wing. So the window shifts - university administrations, which are almost always center right in actual practice, get positioned in this conversation as left, meaning, meaning that the overton window moves rightward. It's "normal" to be to the right of the university.
Because you say others imagine univ admins are "left" (which people by and large do believe) but you provide no evidence when you claim they're "almost always center right." (I'd actually love some evidence for that!)
posted by Joseph Gurl at 3:26 PM on April 22 [1 favorite]

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