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ОглавлениеLearning All the Wrong Lessons in High School
YOU ARE A FIFTEEN-YEAR-OLD SOPHOMORE IN HIGH SCHOOL and it’s the night before you take your PSAT exam. While you know it will be the most important test you have taken in your life, your mind is on something very different. You work for the student newspaper, and earlier this week the editor-in-chief was told by the principal that the paper could not run an investigative article about the student body president. The article was carefully researched and did its best to be fair, but found that the president had failed to deliver on any of his campaign promises. The principal told your editor that the article was “hurtful” and didn’t provide any further justification for rejecting it. The newspaper staff couldn’t help but believe this rejection had something to do with the fact that the student body president was the son of the vice principal. In an attempt to circumvent the clamp-down, your editor tried to hand out an underground edition of the article, but he had been caught doing so and was now suspended. None of this seems right to you, so now you are sitting in front of your computer, an instant away from publishing the entire article on a blog that you and a few students run.
You’ve spent the last few hours online and on the phone with classmates trying to figure out what you should do. Your closest friend warned you that you could get kicked out of school for posting the piece. She has heard about students being punished for what they posted on Facebook, what they printed in the student magazine, or even the T-shirts they wore to school. Soon you get an angry phone call from the vice president of the student government, who learned via Facebook that you’re planning on posting the article. He gives you a serious dressing-down, saying that publishing such an article would be “cyber bullying” and that you could be suspended for it. This sounds like self-serving nonsense to you, but then he says, “Do you seriously think you’ll get into a good college if you have a suspension for bullying on your record?”
You have been dreaming about going to college almost as long as you knew what the word meant. You are a serious student, which can sometimes make you feel like an outcast in high school, and college holds the possibility of being your “island of misfit toys,” a place where you will fit in. But you know that the competition for a good college is brutal, and could you really afford to suffer the wrath of the school administration?
You think about your grandparents, who went to college in the 1960s during the “free speech movement,” and about how different college must be—freeing and exciting. It will be such a relief to be able to speak your mind without having to worry about getting in trouble . . . if you can make it in. Maybe this isn’t your fight. You switch off your computer and crawl into bed.
High Schools and Unlearning Liberty
You can’t fully understand what lessons colleges are teaching students about living in a free society without knowing what students have learned before they even step foot on campus. The news isn’t good. By the time they graduate from high school, American students already harbor negative attitudes about free speech. A survey of 100,000 high school students by the John S. and James L. Knight Foundation in 2004 found that 73 percent either felt ambivalent about the First Amendment or took it for granted.1 This should not come as a surprise, given how little high school students learn about free speech rights and how many negative examples they get from administrators.
Lessons taught by example are most powerful, and high school administrators have offered students some of the worst examples of censorship. In the past few years, high school student newspapers have been punished, censored, or shut down on a fairly regular basis not only for being critical of their administrations but also for publishing articles on everything from abstinence education, to the popularity of tattoos among students, to abortion and gay marriage.2 Of course, some lessons are more direct than others. Take, for example, this quote from a high school principal explaining his decision to confiscate an edition of the student newspaper because of an editorial supporting marijuana legalization: “I feel like censorship is very important.” He elaborated, “Court cases support school censorship of articles. And we feel like that’s necessary for us to censor editorials in the best interest of our program and the best interest of our school and community.”3 I believe this statement reflects the opinion of many other high school administrators: not only may a high school censor opinions, but it should do so for reasons ranging from harmony, to patriotism, to convenience.
And here is one of the great truths about censorship: whatever reason is offered to justify a speech code, such as the prevention of bullying or harassment, time and time again the school administration ends up using the code to insulate itself from mockery or criticism. People in power bamboozle the public (in this case, parents and students) into supporting rules that will ultimately be used to protect the sensibilities (or sensitivities) of those in power.
With high school administrative censors claiming the moral high ground, it should be no surprise that the Knight study also found that high school students were far more likely than adults to think that citizens should not be allowed to express unpopular opinions and that the government should have a role in approving newspaper stories.4 After all, if protecting everyone from the hurt and difficulty of free speech is a laudable goal, shouldn’t the government be empowered to do that?
Meanwhile, there is precious little education in the philosophical principles that undergird our basic liberties, which might otherwise counteract these bad examples. Civics has not been stressed at high schools in recent years, and ignorance of the basics of American governance is widespread. In 2009, the First Amendment Center’s survey of knowledge about basic rights found that 39 percent of Americans could not name even one right protected by the First Amendment.5 An online survey by the Bill of Rights Institute in 2010 found that 42 percent of adult Americans identified Karl Marx’s “from each according to his ability, to each according to his needs” maxim as a line from America’s founding documents.6 A more recent large-scale study rated less than a quarter of twelfth graders as having a decent understanding of our system of government.7
A shameful level of civics knowledge, in combination with the miserable state of student rights in K–12, leaves students uninformed about the importance of free speech and distressingly comfortable with censorship. The result is that students show up at college with little idea of what their rights are and even a little unsure if this freedom is a good thing. So before we embark on our college odyssey, there are some fundamentals that every student, and every citizen, needs to know about free speech.
“Seriously, Why Is Free Speech Important Again?”
Many of us are good at paying lip service to freedom of speech, but without having a fully developed idea why we should. Others, especially among academics, view it as a right whose importance is exaggerated and that might even stand in the way of progress. So let’s start with some fundamental questions that seldom get asked these days: Why is free speech such a big deal anyway? And why is it so important in college? Given that the age difference between a senior in high school and a college freshman is sometimes negligible, why should there be any difference in their rights? Isn’t protecting students from offensive or hurtful speech an important goal as well? To most high school students, the answers to these questions are not obvious. They can be found in areas of law, philosophy, and history that are seldom explored by today’s students, or even by high school or college administrators.
In law, there is a stark distinction between the free speech rights of college versus high school students. The law accepts K–12 as a sort of training ground for adulthood and citizenship, but higher education is the big time, with students from eighteen to eighty years old and beyond taking part. The function of high school is preparation, while the function of higher education is nothing less than to serve as the engine of intellectual, artistic, and scientific innovation. Any limit on the expression of college students is understood to endanger the entire academic endeavor. The Supreme Court has recognized this in unusually powerful language, declaring in 1957:
The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die. [Emphasis added.]8
Of course, some kinds of speech are unprotected even under our First Amendment, including child pornography, obscenity (meaning hard-core pornography, not simple swear words), and libel. However, the Supreme Court takes special pains to limit these restrictions to a handful of narrow categories in order to protect as much speech as possible and is hesitant to create new exceptions. Also, state officials, including administrators at public colleges, have the power to place reasonable “time, place, and manner” guidelines on some speech as long as it is done in a “content neutral” way. So a college is within its rights to stop a protest that is substantially disrupting the university. For example, nothing prevents colleges from stopping student takeovers of administrative buildings, from kicking a disruptive student out of class, or from punishing students for trying to disrupt a speech. (Throughout this book, you will see administrators exploit even that humble power beyond recognition.)
The First Amendment guarantees an exceptionally broad range of speech on campus. A unifying theme within First Amendment law is that those in power cannot shut down speech simply because they dislike the views being expressed. This is called “viewpoint discrimination” and it forms the very essence of what we normally mean when we say “censorship.” Despite the First Amendment’s clear prohibitions against singling out certain viewpoints for punishment, however, public campuses do precisely that on a regular basis.
Some of you may be wondering why I keep referring to public colleges and not private ones. The First Amendment does not directly bind private colleges. California is the only state (through a law known as the “Leonard Law”) to apply First Amendment standards to private universities.9 Yet, even though private colleges face different legal obligations than public ones, their actions are governed by their own promises and policies. The overwhelming majority of colleges promote themselves as intellectual centers that place academic rigor, free speech, and intellectual freedom at the very pinnacle of their priorities.10 Top colleges promise free speech in glowing language. Harvard, for example, advertises: “Free interchange of ideas is vital for our primary function of discovering and disseminating ideas through research, teaching, and learning. Curtailment of free speech undercuts the intellectual freedom that defines our purpose.”11 Schools make such promises in part because of the long tradition of freedom of speech on campus, but also because they know that most students will not be interested in attending, most faculty will not be interested in teaching at, and many alumni will stop giving to universities that choose sides on popular debates and silence dissent. Only a comparative handful of colleges, usually deeply religious ones, can get away with advertising themselves as schools that place other values above free speech.
Just like any other business, colleges have to be truthful about how they present themselves. They have to live up to their contractual obligations, and they cannot fraudulently induce people to attend their institutions. When a private college promises free speech, many courts have rightly found this to be binding.
Beyond the Law: The Grand Philosophy behind Free Speech
Learning the state of the law is all well and good, but it only scratches the surface of why free speech is so important. Today, many fall back on circular defenses of freedom of speech that sound something like, “free speech is important because it is protected by the First Amendment.” Far too few of us learn—let alone appreciate—that free speech is a crucial intellectual innovation that allows for peace, prosperity, liberation, creativity, and invention on an unprecedented scale.
While the philosophical case for freedom of speech has been compellingly made by authors as revered as John Milton, John Locke, James Madison, Thomas Jefferson, and Oliver Wendell Holmes, I always recommend the one presented in Jonathan Rauch’s 1993 book, Kindly Inquisitors.12 Rauch saw the West’s mixed and often unenthusiastic condemnation of Ayatollah Khomeini’s fatwa against Salman Rushdie on account of The Satanic Verses as symptomatic of a larger crisis.13 Jimmy Carter, for example, had lamented that the book had “violated” the beliefs of Muslims and caused them “suffering.”14 The chief rabbi of the United Kingdom opined that it “should not have been published.”15 While it was no surprise that a fundamentalist theocrat like Khomeini would so adamantly oppose free speech, it was a relatively new phenomenon that he would find sympathetic voices in the industrialized democracies among people who call themselves political liberals. Something had changed in the 1980s. As scholars advocated the suppression of pornography and “hate speech,” they launched a new, overarching commitment to fighting speech deemed “offensive” to historically disadvantaged groups. Thus, Muslim fundamentalists strangely found common ground with some liberal Western professors: the conviction that “insensitive” speech should be stopped.
So, what’s the big deal? What’s really at stake?
Everything.
If you take a step back and view history broadly, you see that free speech is an essential component of how we order our society and how we come to decide what is true or false. As Rauch explains, the intellectual system that gave birth to the Enlightenment—which in turn gave birth to the American economic and political system—has been around so long and has been so successful that we don’t even have a name for it. Rauch calls this system “liberal science.” (For conservatives reading this, don’t get too worried—he means “liberal” in its nineteenth-century sense, which was all about greater freedom and less control by government.) Often equated with the scientific method, this intellectual system is actually much broader, and possibly the most radical and brilliant system ever devised for resolving disputes and inching closer to the truth. Other systems too easily result in stagnation, ignorance, and oppression, or in division, tribalism, and warfare.
A society has to choose methods of settling disputes or deciding what is true, and the options are not infinite. Historically, the most common system for resolving these disputes was what Rauch labels “fundamentalist,” which is based on the supremacy of authority. Some people may associate “fundamentalism” with religion, but Rauch explains it as a broader refusal by those in power to recognize (at least publicly) the possibility that they might be wrong. Governments and social structures that relied on different kinds of “fundamentalist” systems dominate the world’s bloody history. Islamic theocrats, the pharaohs of Egypt, the emperors of China, the divine-right kings of Europe, the head priests of the Mayans, Stalin, and Hitler have all ruled with the conviction that they were uniquely attuned to the truth. Most importantly, a fundamentalist system places knowledge and the search for truth in the hands of the few—an order with horrible drawbacks. The history of fundamentalist systems at their worst is characterized by arresting and punishing or even wiping out people who disagree, often in defense of calcified ideas and often in pursuit of power for its own sake.
An alternative system is one in which all opinions are more or less equal. This is an asinine system because people believe contradictory things and everyone cannot be right at once. Two plus two equals four; people who say otherwise are wrong. Believing that all opinions must be protected allows for a flowering of rich debate, discussion, and artistic expression, but believing all opinions are true leads to nonsense. Unfortunately, a lot of students these days fall into this kind of uncritical relativism—in part because they are afraid of punishment, whether official or merely social, if they debate or disagree.
Among the scores of examples of mindless relativism on campus that I have seen, the one that haunts me the most comes from personal experience. During my time at Stanford Law School, when I took International Human Rights Law with Professor Thomas Ehrlich, there was a constant tension in the class between the value of human rights and a potent cultural relativism that insisted we had no right to judge the norms of other cultures. One day in class, this relativism was challenged by discussion of the practice of “female circumcision,” the euphemistic term for female genital mutilation (FGM), which in its various forms involves tearing or cutting out all or part of a girl’s clitoris or labia. The World Health Organization has rightfully described FGM as a horrific human rights violation, affecting between 100 and 140 million girls and women worldwide, according to the research.16 Nevertheless, one of my classmates disagreed that we should condemn it. The student was not a Muslim from a country that practiced FGM, but rather a white, probably upper-middle-class woman. She argued that there was no way we as Westerners could understand the “beauty” of this practice and its cultural meaning and therefore we should not oppose it. I was stunned by how few people in the class were willing to challenge her. She had evoked the “beauty” of another culture, and by some strange social compact we were not allowed to challenge that argument. Of course, perfect relativism makes it impossible to decide anything. But the class wasn’t canceled due to our newly discovered nihilism; instead, double standards became a virtual necessity. The very same student would thunder against far less horrific abuses as long as they were committed by people in America. A commitment to the idea that all opinions are largely equal is distressingly popular on campus, at least when someone wants you to drop your argument so they can make theirs. “Selective relativism” is a convenient tactic that educated people use over and over again to shut down debate and discussion, from the classroom to the cocktail party.
Another organizing principle that Rauch considers is the “radical egalitarian principle,” which says that all opinions have equal claim to respect, but the opinions of “historically oppressed classes or groups get special consideration.” There is also the “humanitarian principle,” which can be combined with the relativist or fundamentalist systems, with the caveat that the first priority is to “cause no hurt.” The radical egalitarian and the humanitarian principle are both especially seductive on campuses, where they are commonly used to silence the very discussions a society most urgently needs. After all, most serious discussions may involve facts or ideas that someone could claim are “hurtful.” Yes, some words are genuinely hurtful. But colleges too often call upon some form of the humanitarian principle to justify speech codes that are then used to punish mild speech that simply annoys the administration. In this way, they manipulate students into supporting their own censorship.
The “liberal science” system, developed slowly over centuries, avoids the pitfalls of these other systems by adhering to this crucial principle: “checking of each by each through public criticism is the only legitimate way to decide who is right.” In other words, the path of progress is a system of free speech, public disclosure, and active debate. It follows two important rules: First, no one gets the final say; we all must accept that no argument is ever really over, as it can always be challenged if not disproved down the line. Second, no one gets special, unchallengeable claims of “personal authority.” No one individual is immune to the criticism of others and none can claim to be above intellectual reproach. No one is omniscient or infallible, so we are all forced to defend our arguments with logic, evidence, and persuasion. No one gets the final say, even if he claims to be the head priest of Zeus.
The radically open-minded “liberal science” approach to deciding what is right stands as one of the most important innovations in human history. In the broad view, societies that rely on this approach have flourished artistically, scientifically, and politically, while authoritarian orders have eventually languished.
The grand blossoming of philosophy and science in the modern academy began with the “liberal science” approach. Colleges and universities were built on the recognition that you have to leave knowledge open to continuous debate, experimentation, critical examination, and discussion. Ideas that don’t hold up to this scrutiny should be discarded. It is a ruthless and tough system in which ideas that once gave us great comfort can be quickly relegated to the dustbin of history. It isn’t concerned with your feelings or your ego, as it has a much more important job: discerning what is true and wise.
Interestingly, to succeed, liberal science relies on people being unafraid of being wrong on a regular basis.17 You are never going to get to the right answer if people aren’t constantly positing new hypotheses on top of new hypotheses. Even coming up with a “stupid” hypothesis is all part of the process of teasing out the truth—and sometimes those “stupid” hypotheses turn out to be right. Thought experiments are key to the system’s wild success. If you limit the process to ideas that are comfortable to everyone, you suffocate innovation and, yes, progress.
Beyond Rauch’s big-picture philosophy, there are many more reasons for believing in free speech, including:
THE SPIRITUAL: Free expression is especially important in the discussion of religious issues, since the desire to silence opposing spiritual views is very powerful. Amazingly, some people express sympathy on campus for “blasphemy” laws that prevent speech considered insulting to Islam, without understanding that almost everyone’s beliefs are blasphemy to someone.
THE POLITICAL: A system that allows for censorship must necessarily put actual, flawed people in charge of deciding what does not get to be said. This is probably the most important reason to take that power out of the hands of authority. Even if we think authorities should be empowered to regulate opinion, they are likely to be too self-interested and self-deceived to do it fairly or, even, competently. Time and time again, those with the power to censor see criticism of themselves as what needs to be banned.
THE ARTISTIC: Art without the ability to push boundaries and buttons can hardly be called art at all.
THE COMEDIC: Free speech is the comedian’s best friend. After all, how much of comedy is about saying what we all know we shouldn’t say? Censorship is the natural enemy of comedy.
THE PSYCHOLOGICAL: Free expression allows a crucial “safety valve” for society where people can vent frustrations. In less free societies, disagreements often fester to explode in violence or revolt.
Polarization, and the Special Importance of Free Speech in the Internet Age
If you told me a few years ago that I would find fresh reasons for why free speech makes the world (and knowledge itself) better from the author of a book called Democracy and the Problem of Free Speech, I might have looked at you funny. But when I read several of the works of Cass Sunstein, a law professor at Harvard, I was surprised to find a treasure trove of new research on the importance of protecting dissent and a diversity of viewpoints.18 Most importantly, take Sunstein’s book Infotopia.19 It was written in the early days of what we call Web 2.0, way back (in Internet time, that is) in 2006, and Sunstein’s enthusiasm for advancing information technology is palpable throughout. In Infotopia, he explores the remarkable potential opened up by the communications revolution of the last several decades, whether it be in the form of open-source software, Wikis, prediction markets, or simply the access to thousands and thousands of opinions aggregated and presented to you on websites as basic as Zagat and Rotten Tomatoes.20
Infotopia, however, also emphasizes something that might seem to be bad news for free speech advocates: much research shows that group deliberation (that is, discussion of topics among groups) often does not do a very good job of making opinions better or more accurate. Group deliberation sometimes amplifies a particularly vocal member’s incorrect opinions, it sometimes makes us more vulnerable to various logical fallacies, and it often results in group polarization.21 Several famous studies have shown that when you bring together like-minded people and have them discuss a topic, they tend to become even more extreme in their positions.22 It has been demonstrated that when a group of mixed viewpoints is broken into liberal and conservative groups that are then left to talk among themselves, the liberals emerge decidedly more liberal, and the same happens to conservatives, even when the individuals in the larger group had initially been much closer to agreement on the issues discussed. Infotopia illustrates how group deliberation may be no better at getting to the truth or to a wise course of action than other methods, including a simple vote among all the members of the group, and often it is worse.23
The importance to free speech of Cass Sunstein’s voluminous research is what it reveals about why group decisions go wrong. Repeated throughout Infotopia is the idea that groups often fall short because they fail to get the full benefit of the wisdom and information of their individual members. When groups start to grow cohesive, they often discourage and even silence dissenting voices or ones with contrary, but potentially important, information. The result is what another social scientist, Irving Janis, famously dubbed “groupthink,” which is lethal to good decision making since it blinds us to holes in our logic, or to potential bad consequences of our decisions.24 Sunstein and others have diagnosed this problem in historical mistakes from the Bay of Pigs disaster, to the tragedy of the Space Shuttle Columbia, to the wild underestimate of the difficulties that would come with the war in Iraq.25
Groupthink can result from forces as subtle as social pressure, an emphasis on group cohesion, the perception of someone’s status, or even who speaks first. The techniques that Sunstein recommends to reduce or eliminate these effects are precisely the remedies to uncritical certainty. They include appointing a devil’s advocate with the explicit role of taking the other side of any position, breaking up a group into opposing teams, and stressing critical thinking as a goal of greater importance than group cohesion.26
Given the subtle forces that can stifle candor and impede the exchange of ideas, adding an outright threat to punish speech—which happens all too often on campus—is poison to the process of getting to better, more interesting, and more thoughtful ideas. After all, how on earth can you have someone play devil’s advocate on thorny public policy issues if everyone knows that the “wrong” point of view can actually get you in trouble? If we want our universities to produce the best ideas, we must do more than just protect diversity of opinion; we must train and habituate students to seek out disagreement, seek out facts that might prove them wrong, and be a touch skeptical whenever they find a little too much agreement on an issue. Campuses, however, are often doing the precise opposite: rewarding groupthink, punishing devil’s advocates, and shutting down discussions on some of the hottest and most important topics of the day.
Universities take our best and brightest and put them through what is supposed to be an intellectual decathlon that helps our entire society develop better ideas. We are squandering this opportunity if we discourage dissent and if we do not train students to be brave in the face of ideas that upset them, to welcome challenging ideas, and to engage in endless thought experimentation.
I cannot emphasize enough the importance of comedy, satire, and parody to the whole process of experimenting with ideas. Today, students can get in trouble for making jokes (admittedly, sometimes the jokes aren’t funny), but even a bad joke can have a remarkable ability to get people talking about issues they would otherwise never have discussed and to draw conclusions they would otherwise never have reached. I suspect that many readers can think of genuine insights they have gained from the work of Woody Allen, Gary Shteyngart, Lenny Bruce, George Carlin, or, for that matter, South Park, Seinfeld, or Curb Your Enthusiasm. These sources might even provide more real-life wisdom than anything we ever studied about Hegel, George Berkeley, Heidegger, or Foucault.
To be smarter, to be wiser, we need to accept the roaring rapids of information we now live in and learn to navigate them better. Colleges could be teaching us how to fully utilize today’s unprecedented flow of data, opinion, emotion, and art to make for a better, smarter world. Hiding from it, pushing it away, looking for some safe harbor free from challenge or pain will only result in more illiberal ideas and fewer students prepared to live in a breathtaking, chaotic, tumultuous world.
J. S. Mill and a Warning to Colleges
In his transformative work On Liberty (1859), John Stuart Mill brilliantly makes the case for maximizing human freedom for the benefit of all human-kind.27 His arguments regarding free speech are timeless and yet especially vital today. Mill pointed out that dissenting voices must be protected because of one simple fact: any of us might be wrong. But he also went several steps further, pointing out that open debate is useful even when we are right from the start. The process of open debate and discussion can refine your understanding of the issues and help you recognize in detail why you believe what you do. An opposing argument may hold some kernel of truth, and even if it doesn’t, it may deepen your understanding of your own beliefs.
Without free speech and discussion, people cling to their beliefs the same way people maintain prejudices, holding them to be true but not critically examining why, and never learning to defend them. The resulting inability to articulate why we may be right makes us even more emotional and hostile when anything questions our certainty. In Academically Adrift, Richard Arum and Josipa Roksa found that precious few college students knew how to argue or think critically and that they lacked the ability to argue more than one side of an issue. Students had a depressingly poor ability to “make an argument” and then “break an argument.”28
So what would Mill predict for a system that has fallen away from a culturally enshrined process of debate and discussion? He would expect a society in which people of different beliefs do not talk to each other, because doing so might harm their certainty about what they believe. He might guess that opposing camps would surround themselves only by media sources that reflect and reinforce their views, which was possible even in Mill’s day but is a thousand times easier today. He might argue that we would be unable to reach common ground, and we might even doubt that a common ground could be possible. He would predict that those in one camp might regard the name of the other camp as a dirty word, yet often be unable to describe the views of the other side (or, often, even their own side) very accurately. Does this sound familiar to anybody? It sounds like the America I live in. And it will continue to be this way if the institution that should be our best hope of remedying uncritical certainty—higher education—is only making the problem worse.
How the Road to Censorship Is Always Paved with Good Intentions
History may be the best weapon to overcome some of the most seductive and common arguments made these days to defend censorship. Probably the simplest but most successful argument for restrictions on speech I hear today is that censorship can protect people from hurtful or bigoted speech. The implicit question I run into all the time on campuses is, “Can’t censorship be acceptable if one’s intentions are pure, compassionate, and generally good?”
History tells us that the answer is flatly “no.” I cannot think of a single anti-free-speech movement in American history that did not sprout from someone believing that they were fighting for truth, justice, decency, and goodness itself. This is so common a friend of mine has an acronym for it: the “GIRA Effect,” standing for “Good Intentions Run Amok.” John Adams thought he was saving the country from ruin by instituting the Alien and Sedition Acts. Northerners who believed that abolitionists needed to be silenced thought they were preventing a bloody civil war. The Victorians who censored everything from the use of curse words to the merest mention of contraception assumed they were saving the nation’s soul. The communist-hunters of the two Red Scares thought they were guarding the nation from totalitarianism and, eventually, nuclear destruction.29
Having pure intentions, steadfast goals, and an unwillingness to consider that you might be wrong is the formula for some of the worst evils mankind has ever wrought upon one another, from inquisitions to the twentieth century’s disastrous experiments with totalitarian utopias. As pushy as those of us who defend civil liberties may seem, the right to freedom of speech and freedom of conscience rests on a deep-seated humility: I know I am not omniscient, and I suspect you aren’t either. Therefore, I have no right to tell you what you can’t say, certainly no right to tell you what you must say, and I wouldn’t even imagine telling you what you must think, believe, or hold in your heart.
Intentions matter little if you are still doing the wrong thing, and there is no need to genuflect to good ones. Prohibitions on hateful speech do nothing to stop hate, but they let resentments simmer, and they also prevent you from knowing who the hateful people even are. “I want to know which people in the room I should not turn my back to,” says FIRE cofounder Harvey Silverglate, who was raised Jewish, speaking about the principle of allowing anti-Semites or other bigots to express themselves. It may be very tempting for high school students entering college to have sympathy for the advocates of speech codes, but that is only because they misunderstand the purpose of the First Amendment and lack knowledge of the legal, philosophical, and historical principles that support it. The First Amendment exists to protect minority points of view in a democracy, and anything that undermines it necessarily gives more power to the authorities. It is ultimately the best protection of the weak, the unpopular, the oddballs, the misfits, and the underdogs. If the only price that we have to pay for this freedom is that we sometimes hear words that we find offensive, it is well worth it.
Another historical fact that students need to know is that just because we have a First Amendment doesn’t mean that the country has always enjoyed or will always enjoy robust protections of expression. People are often surprised to discover that prior to 1925, the First Amendment was considered to bind only the federal government, and even then it was interpreted so weakly as to have little practical effect. But in a line of cases extending from the 1925 decision in Gitlow v. New York to the present, the Supreme Court has interpreted the First Amendment as strongly protecting political dissent, satire, and parody—the very types of speech that are most often attacked on campuses.30 Free speech, therefore, has not always been the rule, and we should not assume it will always remain the rule.
The Acceptance of Censorship by College Students
That most students don’t care a great deal about freedom of speech and sometimes are even hostile to it has been evident in case after case at FIRE. Here are just a few cases where you might think students would have risen up in outrage, but they didn’t.
A student at Auburn University was told by the administration in late 2011 that he could not put a Ron Paul banner in his window.31 When the student pointed out that other students had been allowed to put up banners, the university claimed (like they typically do) that this policy had always been in place—even though it was only being enforced, coincidentally, against this particular student. While the student continued to produce evidence that Auburn was not enforcing this policy against other students, the attempt to prevent him from engaging in the election process was met by an eerie silence on campus, except for objections from a libertarian group.32 Imagine telling students in the 1960s or ’70s that they could not be openly political; those students probably would’ve literally rioted.
The restriction on political speech defied parody in 2008 when the executive vice president of the University of Oklahoma announced that no university resources, including email and presumably Internet access, could be used for “the forwarding of political humor/commentary.”33 For those of us who have a hard time imagining what we would forward if we weren’t allowed to forward anything political or anything from The Daily Show and The Onion, this was a startlingly broad restriction. Nonetheless, it took an article I wrote in the Huffington Post and a letter from FIRE to get the university to reverse course.34 If there were protests over this policy, we can’t find them. Likewise, we can find no evidence that any student objected to Case Western Reserve University’s policy stating that “University facilities and services may not be used . . . to advocate a partisan position,” despite FIRE naming the code our December 2010 Speech Code of the Month and publicizing that fact widely.35 (More about our Speech Code of the Month project in the next chapter.)
On the even sillier side, the silence was deafening in 2006 when a university in Wisconsin tore down a quote from the humorist Dave Barry that a Ph.D. student had posted on his door. Marquette University claimed that the quote was “patently offensive”—a term reserved in law to refer to XXX pornography. The quote? “As Americans we must always remember that we all have a common enemy, an enemy that is dangerous, powerful, and relentless. I refer, of course, to the federal government.” Marquette has yet to back down from its decision, even citing sensitivity to the victims of 9/11 as justification.36 The censorship was absurd, and it garnered national attention and calls from reporters, yet the students and faculty did not register a peep.
But worse than ambivalence and apathy are the cases where students see free speech as an obstacle to progress, and censorship as the kind of thing that good, enlightened people do.
At San Francisco State University in 2006–2007, members of the College Republicans who stomped on hand-drawn Hamas and Hezbollah flags during an antiterrorism protest were brought up on charges of “incivility” by the campus judiciary.37 When Debra Saunders, a columnist for the San Francisco Chronicle, called SFSU to ask how it could be possible to punish the students when the Supreme Court has held that even burning an American flag is protected expression under the First Amendment, university spokesperson Ellen Griffin responded, “I don’t believe the complaint is about the desecration of the flag. I believe that the complaint is the desecration of Allah.”38 This is the first time I know of in American history that a public official tried to justify a violation of the free speech clause of the First Amendment by violating the First Amendment’s clause banning the “establishment of religion” by mandating an Islamic norm. Apparently, the word for God appears in Arabic script on one of the flags, but when the College Republicans discovered this, they let a Muslim student mark out the word. Because there really could be no question that the students had the First Amendment right to show their contempt for two designated terrorist groups in this way, the College Republicans ultimately prevailed in the campus judiciary and in a First Amendment lawsuit against the university.39
But what interested me most were student reactions to the protest. The non-Muslim student who filed the complaint asked this question of the disciplinary board: “How can we let the College Republicans have such a rally that was politically motivated and one-sided?” (I believe a non-politically-motivated rally is called a party.) The outrage machine at SFSU is powerful, and it was clear from the moment that the College Republicans engaged in their intentionally provocative protest that the students and administration were going to find something to charge them with.
The overwhelming majority of the cases in this book involve student bodies that didn’t care enough to react when they saw their fellow students’ rights being violated. More disturbingly, the victims themselves often didn’t know they have the right to be free from viewpoint-based censorship, from being pressured to say things they don’t mean, and from speech codes. The K–12 system has little interest in producing students who know they have rights, and college and university administrators take full advantage of that fact. In the short term, they gain tremendous power to avoid campus controversies, stifle disagreeable opinions, and dodge criticism. In the long term, however, they are neglecting to cultivate the difficult intellectual habits of robust inquiry and critical reasoning. By keeping students in the dark about their rights and about why they have those rights in the first place, schools are failing to prepare them for the rigors of being educated citizens in a diverse, dynamic, and powerful democracy.
A Personal Aside: How Multiculturalism Demands Free Speech
One thing that has always struck me as bizarre is that respect for multiculturalism and diversity is one of the most common rationales that people use when defending the policing of campus speech. I find this strange because my experiences growing up as a first-generation American in a multicultural environment are what led to my lifelong interest in freedom of speech. My second earliest memory relates to this very topic.
I was four years old and it was Christmas, and my auntie Rhona had given me a plastic drum as a present. It was the first gift I ever remember truly disliking. But as I looked at my mother and father, I didn’t know what to do. My father is a Russian refugee who grew up in Yugoslavia and who believes it is more important to be honest than polite, while my mother is ethnically Irish but was raised in England and always emphasized the absolute importance of politeness. I was stuck. I hated that drum, but when my mother asked me, “Do you like your present?” I didn’t know what to say. Under the cultural values of my father I had to say “no,” but under the cultural values of my mother I had to say “yes.” This dilemma bounced back and forth in my head, getting harder and harder every second that my mother waited for my response. So I did what any sensible four-year-old would do: I started crying. I remember my older sister saying, “Poor baby, doesn’t like his present, starts crying.” I didn’t have the vocabulary at the time, but if I had, I would’ve said, “No, it’s not that—it’s my first experience with a cultural paradox!”
The other kids my age in my neighborhood all came from different backgrounds. The coolest kid in my neighborhood was Peruvian, while some of the other children were Vietnamese, Korean, Italian American, Puerto Rican, or African American, and several of the other white kids were from the American South (which, to a first-generation Russo-British American, is certainly another culture). One thing that became crystal clear in this environment is that no two cultures and no two people entirely agree on what speech should and should not be allowed. Indeed, ideas about politeness and propriety differ from economic class to economic class, between genders, among cultures, between different regions of the country, and certainly from one era in history to another.
If we were to put someone in charge of policing politeness or civility, whose ideals would we choose? My British mother’s, which emphasizes politeness at all costs? My Russian father’s, which values honesty over politeness? Danny Nguyen’s? Nelson Beledo’s? If we tried to ban everything that offended someone’s cultural traditions, class conceptions, or personal idiosyncrasies, nobody could safely say a thing. It has been obvious to me ever since I was little that free speech must be the rule for any truly pluralistic or multicultural community. Far from requiring censorship, a true understanding of multiculturalism demands free speech.
What High School Students (and Parents) Need to Know before They Go to College
A high school environment that often portrays free speech as a problem, that does not teach the philosophy or law or utility of free speech, and that presents punishment of students for bad opinions as morally righteous is an environment that naturally produces students who are cautious about what they say and who may even favor pressure towards conformity or silence.
Here are a few things a student should know before heading off to college:
1. When it comes to rights, K–12 schools and colleges are as different as night and day. At a public college, you have far more constitutional rights to freedom of speech and due process than you did in high school. At private universities, you are generally recognized to have far greater rights and autonomy, and are often contractually promised these rights in the student handbook or other materials.
2. Crucially, these rights do not arise simply because someone put ink on paper ages ago. They are not mere legalisms, and they developed from a profound understanding of the processes by which we get to better and more reliable ideas, as well as more creativity and innovation. Pointing out to college administrators or classmates how they rely on freedom of speech every second of the day is helpful when you need to explain to them that they can’t just throw away the system every time it produces a thought or expression someone dislikes.
3. Colleges are supposed to provide at least as much, if not more, freedom of speech and thought as society at large, not the other way around. Campus administrators have been successful in convincing students that the primary goal of the university is to make students feel comfortable. Unfortunately, comfortable minds are often not thinking ones. Students should, however, be able to feel comfortable with engaging in devil’s advocacy and thought experimentation, and, perhaps most importantly, with the possibility of being wrong. Making it safe for people to be wrong is one of the first steps in creating an atmosphere that is intellectually vibrant enough to produce good ideas and meaningful discussion.
4. Wisdom comes from surprising places, and certainly no person in power is going to be able to guess which comments or demonstrations or satires will lead to an interesting discussion that you would not otherwise have had. University administrators will argue that some speech is simply “worthless,” forgetting that words and ideas exist only in interaction with other words and ideas. Even the stupidest joke you have ever heard can sometimes lead to an interesting discussion and call forth information or opinions that you would never have known about otherwise.
5. Be sure to read the university’s promotional materials and student handbook before attending. If you see that a public college has policies that limit pamphleteering or demonstrations to a tiny corner of the campus or has codes that prevent “annoying” language (more on these in the next chapter), ask how such policies can be squared with the college’s obligations under the First Amendment. If you are applying to a private college that promises freedom of speech in glowing language in its promotional materials but then find questionable policies that seem to impose arbitrary, vague, and broad limitations on speech buried deeper in the student handbook, write to administrators before applying and ask what this means. If you apply to a college with promotional materials that make it pretty clear that the college values, say, its Mormon identity or evangelical Christian identity, and in language that is stronger than any mention of freedom of speech, you should know that you’ll probably enjoy very few rights there, particularly if it publishes restrictions based on its distinct identity. By enrolling at such an institution, you have given your informed consent to forgo certain rights while you attend.
6. Be sure to check out FIRE’s Guides to Student Rights on Campus, including our Guide to Free Speech on Campus, which is available for free online, and research any school you’re considering applying to on our campus database to see its record on freedom of speech and whether it maintains a speech code. You can find these both at www.thefire.org. Again, the cases I discuss in this book are a small fraction of those listed on the FIRE website.
7. Remind administrators that the goal is to facilitate candid interaction between people who disagree and come from different experiences, and that making students fearful of disagreement, or holding out the threat of punishment for an unpopular opinion or even a joke, is undermining their intellectual experience.
Now, moving on in our march towards college, do you remember what it was like the first time you received one of those glossy college brochures in the mail?
