There is no law school more progressive, and no law dean who better embodies the politics of his law school, than Erwin Chemerinsky’s UC Irvine. It wasn’t accidental, but precisely what was intended, as UC Irvine Law was created out of nothing in 2006 with Chemerinsky at the helm with a mandate. To his credit, Dean Chemerinsky built what he was charged to build, a “visionary” law school.
If there is anyone who can feel the blood coursing through the throbbing veins of passionate law students, it’s Chemerinsky, so if there is anyone capable of making sense of free speech on campus, he’s the guy. And in the LA Times, he takes up the cause, imploring us to teach students, rather than mock or ignore them.
Teaching a freshman seminar on freedom of speech on college campuses has made us aware of the urgent need to educate the current generation of students about the importance of the 1st Amendment. From the beginning of our course, we were surprised by the often unanimous willingness of our students to support efforts to restrict and punish a wide range of expression. Not a single student in the class saw any constitutional problem with requiring professors to give “trigger warnings” before teaching potentially disturbing material.
Well, if they’re arriving at Harvard with “minds of mush,” what did you expect at UC Irvine? It’s not Stanford. Though it is, frankly, shocking that not a single student took issue with restricting and punishing “a wide range of expression.” How could this be?
Young people’s support for freedom of speech has waned in part because of their admirable desire to create an educational environment where all can thrive. Our students or their friends have experienced the psychological harms of hateful speech or bullying more than they have experienced the social harms of censorship or the punishment of dissent.
Great effort at threading the needle, but contrasting freedom of speech, a legal concept that has, or should have, well-defined parameters, with the black hole of “an educational environment where all can thrive” is beneath a scholar like Chemerinsky. Surely, he must see the emptiness of his rhetoric, just as he sees the free speech problem and obfuscates the rationale behind a sweet hug.
But have students today “experienced the psychological harms of hateful speech or bullying”? Sure, they’re told so. They are told they’re entitled to an educational environment where every student’s opinion is valued and respected, where no student is ever made to feel wrong, or foolish, or stupid. It’s understandable that Chemerinsky would want that for students. It is not understandable, however, that Chemerinsky believes that no student is ever wrong, or foolish, or stupid.
Simply telling students to toughen up isn’t persuasive. Moreover, they were born long after the civil rights movement and anti-Vietnam War protests that gave their elders direct experience with the need for free expression. It is their education that’s lacking.
Whoa, dean. You kinda cruised right past the “toughen up isn’t persuasive part,” and leapt headlong into the “education that’s lacking part.” Let’s dig a little deeper, going back to your “psychological harms of hate speech” claim. Explaining the virtues of free speech, dissent, disagreement, has been done to death, and the only reactions it has evoked are cries of pain and tears of harm. That’s because the grown-ups have told them all their lives that they suffer “psychological harms of hate speech.” Is there a connection here?
Chemerinsky doesn’t define “hate speech.” For him, it’s likely too obvious to require definition, much as it is for the students who endure its harm, which is as close to a definition as it comes. Hate speech is speech that causes students harm, that hurts their feelings. It can be anything, whether offensive epithets or benign questions or an insensitive pronoun. It need not be the words spoken, but the words heard. It’s the feelings of the listener that dictate what constitutes hate speech, no matter what the intent or message of the speaker.
When the wrong for which “admirable” censorship exists is emotional, there is no factual, educational, pedagogical solution. They got a splinter, and their pain is overwhelming. Splinters happen, dean. Even at a school as progressive as UC Irvine, kids will get splinters, and occasional paper cuts, and maybe skin their knee. Or hear a word or idea they don’t care for.
In response, they demand leadership more attuned to their pain, an intersectional feminist queer dean of color. While Chemerinsky may be a colorful person, he is not a person of color. So your hung in effigy for your failure to look like them, as they check your knee for the bruises that they can no longer endure because the pain is too much to bear.
And that’s why the message is toughen up. The Vietnam war is in the history books now, and they were tested on it. These students are not uneducated; they’ve had all the facts drilled into them so they could pass the test. Their problem is not that no one has explained the First Amendment to them in excruciating detail, but that knowledge isn’t wisdom. Need proof?
At the beginning of the semester we took a vote in the class: Who would agree that the University of Oklahoma was right to expel students who had led a racist chant in a bus on the way to a fraternity event? All hands were raised. By semester’s end, many, but not all, had changed their minds, and those who still supported the university did so with a much more sophisticated understanding of the balance of issues.
These students were constrained to listen to your teachings, which puts you at a distinct advantage to other voices. And still, you failed. Your example was flagrant, and yet “not all” could be taught. How can there be a “sophisticated understanding of the balance of issues” that the world is flat, or the sun revolves around the earth, or there is no such thing as gravity?
You pretend that you’ve accomplished something by getting “many” to change their minds, even if you’ve failed to take responsibility for why their minds needed changing in the first place. But the big lie is that this has nothing to do with their minds at all. This is about their emotions, their feelings, and what you neglect to mention is whether they’ve toughened up.
Rather than mock students or ignore their concerns, we need to make sure they understand the context of the Constitution’s free speech guarantees. At stake is not merely the climate on our campuses, but the longevity of the great social benefits associated with the rise of modern free speech traditions.
The “context” of free speech has been explained to them ad nauseam. So too has the “great social benefits” of eradicating hate speech. While Chemerinsky, the great thinker of progressivism, may value free speech, what he fails to value is the unbearable pain felt by students. The problem isn’t that no one has taught them well, though the message is decidedly mixed, but that their pain threshold is so low that they can’t endure the suffering your pedagogy would inflict on them.
We can teach students why hearing an unpleasant word isn’t nearly as painful as, say, a cop’s boot in their teeth, but are they really unaware of that? Is this the source of their confusion, dean? Or is the problem that you, and your ilk, have empowered them to believe they’re entitled to a world where no little one should have to suffer a paper cut, and if they do, the pain entitles them to demand a world without paper so it never happens again? You’ve taught them that when you should have told them to toughen up and save their tears for the things they will encounter in their life that won’t be fixed with a Band-Aid and kiss on the forehead from mommy.
Update: Josh Blackman points out two additional faults with the op-ed that I missed:
Nonetheless, even Gillman and Chemerinsky offer the mildest endorsement of this campus censorship–in two places, they say that “legitimate” speech ought to be protected.
Unpopular speakers are victimized, and legitimate opinion silenced . . . .
Another key lesson was that censoring intolerant or offensive speech can be all but impossible to manage without threatening legitimate debate.
Then again, Josh appears to have bought into the notion that blame falls on the teachers, and the students have no responsibility for themselves.