At Concurring Opinions, visiting Penn State lawprof Erica Goldberg writes about the unfortunate and intellectually bankrupt intersection between free speech and content on campus. 

Almost everyone agrees that university campuses should be bastions of free speech. Fervent disagreement, however, exists just below the surface of that statement. Depending on how values are prioritized, individuals may differ on when speech becomes harassment, when speech becomes punishable conduct, and when speech is too controversial, extreme, or offensive to be permitted in the classroom.

Scholars love free speech.  Absolutely adore it. Unless it touches on a subject they don’t like, or supports a position with which they disagree, or hurts someone’s feelings, in which case they lock arms and scream to ciminalize it. 

Goldberg, who has demonstrated a penchant for both clear thought and strong and consistent beliefs, calls it out.  After her stint at Co-Op, I’ve really come to appreciate her views, though her writing is a bit too thick and heavy for a simple trench lawyer like me, but that’s the price I pay to be a Philistine who reads scholars.

Goldberg runs through a litany of campus hypocrisy, where every time the content of speech is deemed unpleasant to delicate academic sensibilities, the vaunted right of free speech gets tossed on the funeral pyre and the campus shows up at the speaker’s door with pitchforks and torches. 

What are your first (and then your second, and third) thoughts when you hear about a UC Santa Barbara professor who emailed his students graphic photographs comparing Holocaust victims to Palestinians in Gaza? Or, what is your reaction to students in a Yale fraternity, as part of an initiation, chanting “No means yes, yes means anal” while marching around campus. Do your views change when you hear about Georgetown University denying official recognition to a pro-choice student organization because of its Catholic and Jesuit tradition?

Prior to joining Penn State Law as a Visiting Assistant Professor, I worked at the Foundation for Individual Rights in Education, an organization that spoke out against the three universities that sought to punish the UCSB professor and the Yale fraternity, and refused recognition to the H*yas for Choice. (The asterisk is because Georgetown will not permit the group to attach the term Hoyas to its name.) While at FIRE, I, a committed feminist, personally argued that the Yale fraternity’s chants did not constitute actionable harassment. Although Yale, like Georgetown, is a private university, both promise their students free speech rights.

It looks pretty ugly when someone puts it altogether in one place, right?  Perhaps one can explain it away, or pretend it doesn’t happen, relying upon the old standby “isolated incident” defense, but the reality as reflected in Goldberg’s laundry list is that it’s a pervasive problem: There is no place where speech is more at risk than on campus.  There is no group for whom the sacred cows trump free speech than academics.

Goldberg concludes by confronting the free speech hypocrisy that pervades academia head on:

It is almost irresistible to censor those with opinions one finds particularly odious or wrongheaded. That is why speech advocates are often wrongly accused of being partisan. The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus.

At PrawfsBlawg, Howard Wasserman recognizes the validity of Goldberg’s point (with the caveat that it’s nothing new, which of course is true but fails to address the fact that it’s not getting any better, and appears to be getting worse).  He writes:

Finally, my conclusion from Erica’s last sentence (quoted above) is that we’re never going to be able to stop worrying about the state of free speech on campus (or anywhere else for that matter). The free speech principle is inseparable from the content of the speech being protected. And not only in the political realm, but also in the legal realm. Consider how often courts, in the course of protecting especially heinous speech, find it necessary to include some disclaimer either disociating itself from the speech or taking a potshot at the speaker.

Does this suggest that all those brilliant scholars, working within those Ivy covered buildings, are just too fragile to be expected to overcome their own hypocrisy, disingenuousness and cowardice?  Are they such slaves to political correctness that their delicate ears can never hear impolite words? Are the students who suffer lives ruled by their political ideology doomed to silence?

Apparently so. 

Free speech has come under massive assault of late, with legislatures passing anti-bullying laws criminalizing speech based on hurt feelings as the latest cure-all for low self-esteem.  But nowhere is this as bad as our bastion of intellectual pretense, academia.  Campus speech codes (not to mention notions of basic due process) are at monumental risk of turning any politically incorrect utterance into cause for imposition of the academic death penalty. 

Where are the scholars who stand up for the right to speak, even if they despise the content?  Meet Erica Goldberg.  And what of the ones who shrug and say that people have always conflated the right to speak with the content, so get used to it?

It’s perfect fair, and understandable, for someone to say that they despise a speaker’s content. ideas as manifested in speech can be wonderful or reprehensible. But the solution isn’t to silence ideas you despise, but to talk back and overcome bad speech with good speech. Yes, speech can hurt someone’s feelings or denigrate a beloved ideal, but even academics can toughen up a bit and stop sacrificing free speech on the alter of happy thoughts. 

There is no excuse for this hypocrisy from those who lay claim to intellectual superiority.  Everybody does it is not an excuse.