Christina Hoff Sommers called it “fainting couch feminism,” the allusion being to fragile Victorian women swooning at a breach of civility. While calling themselves strong, fierce, brave and bold, they do nothing to earn these glowing adjectives. Indeed, they demand protection of their every sensitivity.
But they’re oppressed, having “survived” bad dates, their chosen college studies that provide no access to useful occupations and rude jokes, and demand that others stop erasing their lived experiences of misery. They could have said no, chosen STEM and either shrugged off words that upset them or, if they were truly fierce, told off their oppressors. But they preferred to faint.
At a meeting of the National Association of College and University Attorneys, Rodney A. Smolla, dean of Widener University’s Delaware Law School, explained the shift in speech that has gone in lockstep with the shift in female sexual fragility.
Smolla sought to pull back the frame and remind the audience that the last 100 years of American law have reflected a competition between two conflicting interpretations of free speech — or, as he put it, a “battle between two magnificent, sublime ideas that are in tension with each other.”
For much of the 20th century — until the 1960s, when “the whole country changed,” Smolla said — the dominant legal theory surrounding free speech was what he called the “order and morality” theory. That approach, most famously framed in a World War II-era case involving a Jehovah’s Witness and the marshal of a New Hampshire town, cast a highly critical eye on speech that either challenged the keeping of the peace (literal “fighting words”) or speech that was readily viewed as immoral (because “by their very utterance [they] inflict injury”).
What he’s referring to is the Supreme Court’s 1942 opinion, written by Justice Frank Murphy, in Chaplinksy v. New Hampshire,
There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.
More particularly, the phrase, “by their very utterance, inflict injury.” While this has since been repudiated, Smolla’s point is that this was, until the 1960s, the prevailing view of the First Amendment. For those who can’t imagine a free speech regime that protected words which, “by their very utterance, inflict injury,” there it is, in a Supreme Court decision, saying exactly that.
The sharp bifurcation Smolla laid out has been finessed in recent years, he noted, by embrace of the idea that the setting where speech occurs matters. “In the vast open spaces of our society” — in the streets, on the internet — “marketplace theory runs the show,” and the courts have strongly protected free speech.
But in certain places, “order and morality trumps the marketplace,” Smolla said. Those places include the workplace and public schools, among others.
For those shaking their heads furiously, bear in mind that the Second Amendment had been uniformly held to be a municipal right, not an individual right, until Heller changed everything. Constitutional interpretations can be completely, unquestionably settled, until they’re not. This doesn’t happen often, and causes massive upheaval in society’s understanding of rights and authority, but it does happen on rare occasion.
So even if the Supreme Court maintains its strong protection of free speech, its marketplace theory on the streets and the internet, what about on campus?
Many students and their supporters on the faculty, troubled by what they perceive as attacks on students who are members of certain racial or ethnic groups, gay students, or others, believe “the campus should not be the kind of anything-goes, raucous, hate-filled, angry, over-the-top marketplace that exists in the rest of society,” Smolla said. “It should be a community of scholars,” where “rational discourse” — order and morality — rules.
Underlying Justice Murphy’s opinion in Chaplinsky were the rigid views of appropriate social interaction, an assumption that we were all in general agreement about what was “proper” such that it required no further explanation. If you needed rules of etiquette, there was Emily Post. Now, it’s left to scholars to decide whether words meet their approval, “order and morality,” to eliminate from “rational discourse” those words that, “by their very utterance, inflict injury.”
Smolla claimed agnosticism about whether this was the right course, contending merely that it is not ungrounded, but very much an accepted part of our First Amendment jurisprudence going back to Chaplinsky, until it wasn’t. His point wasn’t that it was better for censorship and eradication of heresy on campus to prevail, but that the kids weren’t completely nuts.
His main point, though, was that it’s “not that this generation doesn’t get [free speech], they just buy into one particular version of it.”
Smolla has a point, that young people are rediscovering their Victorian roots of propriety, of etiquette, of fragility. The sensibilities are remarkably similar, even if the list of offending words is entirely different. Whether this means bustles will blossom on campus is doubtful, but the fashion sense certainly seems to favor the time-honored tradition of the fainting couch.