The Costs of Free Speech

by Gerald Dworkin

ScreenHunter_2941 Jan. 22 10.48In October, 1961, I was sitting in The Jazz Workshop, a San Francisco nightclub, listening to Lenny Bruce doing his infamous routine Are there any Niggers here tonight?

It begins with asking that question and proceeds to make comments using racial slurs for every racial group he could–kikes, guineas, wops, spics, polacks, sheenies, etc. His point, as he explains in the routine, was to routinize the words, so that they lost their shocking impact and obtained the status, as he says, of "I swear to tell the truth, the whole truth and nothing but the truth" He was arrested that night not for the racial slurs but for obscenity—his "to is a preposition, come is a verb" routine.

Bruce spent most of his professional life being arrested and prosecuted by the police in various jurisdictions—always for obscenity. He was convicted in New York State, died during the appeals process, and in 2003 given a posthumous pardon by Governor Pataki.

I was therefore both amused and shocked to see in recent weeks that Bruce was under attack again. This time by some angry students and faculty of Brandeis University. An alumnus of the University had written a play about Bruce and it was scheduled to be performed on campus.

Some members of the theatre department raised objections and felt that more time was needed to produce the play "appropriately" and some students objected that the portrayal of its black characters was "ridiculous and vicious." The playwright decided to take the play elsewhere for its premiere.

This was one of the calmer instances of an attack on expression. In recent months student protests have led to cancellation of speaker talks, to disruption of invited speakers, to violence and destruction on campus. The names of Charles Murray, Milo Yiannopoulos, Ben Shapiro, Ann Coulter, Richard Spencer and the campuses of Evergreen State College, Middlebury, University of Michigan, UC Berkeley, University of Florida, Yale, University of Missouri, are known to many. For a view of what one such protest looks, and sounds, like, click here.

Less well known are impingements on the speech of faculty by their peers and administrations. Faculty at Bard protested Marc Jongen, a PhD in Philosophy, and affiliated with a far-right Nationalist party in Germany, being invited to be a participant in a conference at Bard College. The history faculty of the Federated History Department at New Jersey Institute of Technology (NJIT) and Rutgers University, Newark called for Jason Jorjani, a humanities lecturer at NJIT with a PhD in philosophy from SUNY Stony Brook, to be fired because of his alleged alt-right sympathies. Lest one think that the attacks on faculty come only from the left a recent article in Inside Higher Education lists Keeanga Yamahtta-Taylor, Johnny Eric Williams, Sarah Bond, Tommy Curry and George Ciccariello-Maher as recent targets of the right's campaign against higher education.

A graduate student teaching a tutorial on language to communications student at Laurier University in Canada was hauled into a meeting with two professors and an administration official and accused of having created a "toxic climate" on campus. Her crime was that in discussing the current debate over gender and pronoun use she had shown a film clip of a debate on the topic between two University of Toronto professors. One of them—it was a debate after all—was known as a provocative critic of campus culture and opposed a proposed bill that would protect gender identity from hate speech.

In this case the outrage against the student's treatment was so widespread that both the individual faculty member who brought her to tears and the President of Laurier apologized. When asked what she learned from the incident the student replied: "A university must be repeatedly publicly shamed, internationally, in order to apologize."

Although I think of myself as a "free-speech fanatic", and believe that John Stuart Mill basically got it right, even if he was more confident about the truth winning out in a free debate than he should have been, I do not doubt that there are sometimes legitimate limits to free speech on campus.

There are real costs to allowing speech to those who have mistaken, immoral, and hateful views. And so the argument is always going to be of the form that in spite of such costs we ought to allow the speech in question.

It is agreed by all that certain types of speech are not protected by the First Amendment. In particular as the Supreme Court held in Brandenburg v. Ohio, speech that intentionally and effectively provokes a crowd to immediately carry out violent and unlawful action may legitimately be forbidden. This is quite a high bar to hurdle and many have proposed that it be lowered. In particular students have argued that allowing white- supremacists to spread their views does not merely offend minority students but harms them.

The Supreme Court does make a limited exception for "fighting words." But it is quite limited. Only when speech is directed at a specific individual, face-to-face, and only when the speech is likely to provoke a violent reaction. It does not apply to speakers talking to an audience even if the speech causes offense or emotional pain.

What about the display of symbols of hate such as swastikas? They are also protected if displayed before an audience but not if displayed on private property, or painted on a student's door in order to threaten.

But these, it may be argued, are matters of constitutional law, not morality. Indeed, these laws only control state actions against speech so that while Berkeley cannot ban speakers based on their message, Harvard can. Should it?

The philosopher Jerry Cohen once said after listening to a philosophical talk: I would like to make a distinction here; but cannot think of one. On our topic I can think of many. I believe that the differences between those who support and those who oppose limiting speech because of its content are, in many, but not all cases, due to not distinguishing between different things

1) a) Not inviting a speaker (or dis-inviting her once invited).

b) Protesting a speaker in a manner which prevents the speaker from being heard.

2) a) Invitations to a speaker which are forms of honoring the speaker (commencement).

b) Invitations to a speaker which are intended to allow them to express their views with no endorsement attached.

3) a) Speech which is intended to convey ideas, opinions, views, etc.

b) Speech which is a form of performance intended to attract attention, or publicity for the speaker or speech which is intended to shock by being insulting, hostile, and/or abusive to groups or individuals.

4) a) Speech on a university campus.

b) Speech in other fora, e.g., workplace, town square, private auditoriums, etc.

5) a) Speech conveying factual and theoretical claims, theses, views about which there is (almost) total consensus among the relevant authorities in the field that they are unsupported and false. For example, holocaust or climate deniers.

b) Speech conveying moral or evaluative claims, views about which there is no or incomplete consensus. For example, abortion, capital punishment, assisted-suicide, gay marriage, etc.

6) a) Direct harm, or a call to direct harm addressed to particular individuals who hear the speech.

b) Indirect harm to those not in the audience. E.g., those students in the community who may be harmed because of the increased influence of the message of the speaker.

There is also the bedrock issue of what counts as speech. This will be a central question in the Colorado case of a baker who refused to bake a cake for a gay couple. The case will be heard in the Supreme Court this fall. The current administration has filed a brief on behalf of the baker's right to refuse his baking services on free-speech grounds.

We might be better off thinking about freedom of expression which is broader than freedom of speech. When Gandhi took salt from the sea and consumed it publically he was expressing his defiance of the British tax on salt.

I think that reflecting on each of these distinctions would be useful in thinking better about Free speech and its limits. It is not that the two sides would necessarily resolve their disputes In discussing these distinctions. But it would be helpful in clarifying what the real basis of their dispute is. It would complicate in a useful way the tensions in the debate.

I cannot examine all of these distinctions here but let me illustrate how things might go with respect to distinction 3.

I think there is an important distinction between inviting speakers such as Milo Yiannopoulos on the one hand and Charles Murray on the other. Yiannopoulos does not even claim to have expertise in some area of public policy. To the claim that he is a journalist consider the title of one of his contributions to Breitbart: Birth Control Makes Women Unattractive and Crazy. Some claim that his defense of pedophilia indicates he has views to propagate. But when some statements he made suggesting he supported pedophilia aroused much outrage he quickly defended them as the "usual blend of British sarcasm, provocation and gallows humour." I do not think that he is a "speaker" in the sense of one who asserts views, and attempts to provide reasons why others should accept them.

Murray is a different story—as is, in my view, the controversial Ben Shapiro. Murray has factual and normative theses he wishes to defend. Murray says that the strongest thesis he defends with respect to genetic differences among races is the following:

"It seems highly likely …that both genes and the environment have something to do with racial differences on IQ tests. What might the mix be? We are resolutely agnostic on that issue; as far as we can determine, the evidence does not yet justify an estimate."

Now there is a lot that could be said about this—seemingly innocuous—claim. It presupposes many things which the best science believes is false. But, unless one thinks that a critical discussion of such a view is beyond the pale, there is no case for disrupting his appearance. Which is not to say that no form of protest is legitimate.

There could be a lecture held at the same time which featured speakers who take a critical view of the normative and empirical assumptions and claims made by Murray. Classes in the relevant fields ranging from behavioral genetics to political philosophy could devote class-time to these Issues. Students could stand silently at the back of the room with placards.

There are certainly difficulties in defending the rather crude distinction made here between performance and thesis presentation. And relatively few invitations go to the Yiannopoulosi of this world. Even accepting something like this distinction does not address issues running parallel to it. If we grant rights to student organizations to invite speakers do we interfere with their invitations when they invite a performer rather than a speaker? Given the recent criticism of Larry David's SNL monologue which included jokes about concentration camps, what about inviting a comic whose entire act consisted of jokes about concentration camps, lynchings, and rape?

But what makes a campus a special forum, one in which there must be a very wide latitude for speakers and hearers to debate difficult, unpopular, possibly hurtful views, is an ideal of a university as a group of people devoted to the discovery and propagation of knowledge.

It is true that in many cases speakers are not invited to add to our knowledge of history, or science, or politics. They are there to affect attitudes, allegiances, and to promote future action of one kind of another. They appeal to our emotions, values, and commitments.

Even If one does not think these are matters of truth or falsity it still is the case that many of the arguments for free speech apply. Listening to others who differ from us in values, attitudes, moral commitments, Is necessary if we are to be reasonable in determining what to value, what kinds of person to become, which social policies to support or oppose.

This is not true of slurs, or the kinds of anti-semitic cartoons that were published in Nazi Germany. Insults, slurs, racial caricatures are not necessary , and are indeed counterproductive, to reflecting about how to believe and how to act. Their prohibition may be morally permissible.

They still may be legally unconstitutional as the court held in the case in which a demonstrator wore a "Fuck the Draft" message on his jacket. But this case arose in the context of whether the protester was disturbing the peace. Campuses are in the business of disturbing peace of mind. They should act accordingly.

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