When did “hetero” become a dirty prefix? It means “different,” as does “diversity.” And yet, one soars on college campuses while the other is an epithet. The point arose in a twit yesterday, when a crim pro professor “chewed out” a student for suggesting that over-indictment was a problem. Never, the professor replied.
It harkened back to thoughts of non-lawyer lawprof Mary Anne Franks teaching criminal law at Miami law school, giving rise to the inevitable question of how someone so mired in her own politics could teach students, when she was incapable of surmounting her own intellectual dishonesty. What could she possibly tell students if she was shameless enough to write law review articles that were flagrant nonsense?
Nowhere is diversity more celebrated, and hetero more despised, than on the grassy quads of higher education. To call it an echo chamber is too obvious; it’s not merely that the intellectual “elites” believe in progressive values, but they go well beyond intolerant when it comes to any other political views. The offshoot is that the young, impressionable minds of mush placed in their care have been rendered incapable of hearing, no less thinking, of any other views.
Some scholars have decided to stop hiding behind rocks to avoid the sting of their colleagues’ slings and arrows, and to step into the sunlight at a new blog called Heterodox Academy. Jonathan Haidt explains:
We academics are generally biased toward confirming our own theories and validating our favored beliefs. But as long as we can all count on the peer review process and a vigorous post-publication peer debate process, we can rest assured that most obvious errors and biases will get called out. Researchers who have different values, political identities, and intellectual presuppositions and who disagree with published findings will run other studies, obtain opposing results, and the field will gradually sort out the truth.
While it’s not entirely clear that anyone ever arrives at “the truth,” or that there is a “truth” to sort out, exposure to thoughts and arguments favoring policy choices that differ, that are in conflict, allows us to think beyond whatever our bias tells us is truth.
If information is conveyed with an insufferable dose of political prejudice, the two become inseparable. Students are the least capable of challenging the stranglehold of academic dishonesty, where one flavor of politics is proffered as righteous and true, while all others as wrong and evil, to be shunned if not burned at the stake. And we all know what needs to be done to the heretics.
Then Josh Blackman sent over a law review article by Northwestern University lawprof Andrew Koppleman, entitled “Revenge Pornography and First Amendment Exceptions.” Lest there be any question as to where his sympathies lie, the first name on his “thank you” acknowledgement is none other than Mary Anne Franks. His first footnote is to:
- See Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 350-54 (2014).
He is, without a doubt, sympatico. Up to his eyeballs. Does this make him a biased scholar, suffering from the same intellectual dishonesty as Franks and Citron? Actually, no.
Not at all. Not exactly.
While Koppleman fully embraces the politics of Franks’ shrieks to eradicate revenge porn, and Citron’s belief that criticism of women on the internet so badly hurts their feelings that it effectively stifles their willingness to risk disagreement by speaking their mind, he refuses to indulge in deceit to achieve his end.
These laws restrict speech on the basis of its content. Content-based restrictions (unless they fall within one of the categories of unprotected speech) are invalid unless necessary to a compelling state interest. The state’s interest in prohibiting revenge pornography, so far from being compelling, may not even be one that the state is permitted to pursue.
There are exceptions to the ban on content-based restrictions: the Court has held that the First Amendment does not protect incitement, threats, obscenity, child pornography, defamation of private figures, criminal conspiracies, and criminal solicitation, for example. None of those exceptions is applicable here.
It’s not as if this hasn’t been said before, but not by an academic. And not by an academic who, intellectual honesty aside, fully supports Franks’ and Citrons’ cause. Koppleman proposes that the Supreme Court get back on the exceptions to the First Amendment horse, start legislating new holes to adapt to feelings of harm, so that political wrongs don’t “accumulate” and leave society helpless to protect the victims of speech deemed “low value.”
People are marvelously inventive in devising new ways to hurt each other. Some of these new ways involve speech. The Supreme Court has recently declared that speech is protected by the First Amendment unless it is a type of communication that has traditionally been unprotected. If this is the law, then harms will accumulate and the law will be helpless to remedy them.
Not that Koppleman can frame the exception that would accomplish his goal without causing deleterious harm to free speech, but that something must be done to protect the women.
Whether or not one agrees with Koppleman’s political goals isn’t the point. His views are certainly a potential policy choice, and they reflect his close agreement with the goals promoted by Franks and Citron. But he simultaneously refuses to lie, as they have over and over, and over, and over, to reach his favored result.
It’s easy to respect Andrew Koppleman’s position, as his politics reflect a fair point of view, and he’s said what everyone who wasn’t desperately trying to sell their scholarly credibility knew to be the case all along. His intellectual honesty merits appreciation.
As does the willingness of the scholars at Heterodox to come “out,” well aware that their refusal to adhere to the orthodoxy of their progressive colleagues will subject them to the potential burning at the stake. But without a hetero-view, a challenge to the intellectual purity that’s become the force-fed indoctrination in higher education, along with kittens and varying colors of Play Doh, thought will wither and die.