Free Speech Is No Diversion
Defenders of the First Amendment aren’t distracting from attention from racism—they’re preserving the tools necessary to struggle against it.
In January of 1987, flyers distributed anonymously at the University of Michigan declared “open season” on black people, referring to them with the most disgusting racial slurs. “Shortly thereafter,” Catherine B. Johnson noted in a law journal article, “a student disc jockey for the campus radio station allowed racist jokes to be told on-air. In response to these incidents, students at the University staged a demonstration to voice their opposition. The rally, however, was interrupted by the display of a Ku Klux Klan uniform dangling out of a nearby dormitory window.”
Students in Ann Arbor were understandably upset and outraged by the racist climate created by these events. Administrators decided to respond by implementing a speech code. Thereafter, racist incidents kept occurring on campus at the same rate as before. And before the speech code was struck down 18 months later as a violation of the First Amendment, white students had charged black students with offensive speech in 20 cases. One “resulted in the punishment of a black student for using the term ‘white trash’ in conversation with a white student,” the ACLU later reported, explaining its position that “speech codes don't really serve the interests of persecuted groups. The First Amendment does.”
Over the course of U.S. history, both the protections enshrined by the First Amendment and the larger ethos of free expression that pervades American culture have played a major role in every successful push that marginalized groups have made to secure civil rights, fight against prejudice, and move toward greater equality.
Despite that history, Jelani Cobb asserts in The New Yorker that to avoid discussions of racism, critical observers of student protests at Yale and the University of Missouri “invoke a separate principle, one with which few would disagree in the abstract—free speech, respectful participation in class—as the counterpoint to the violation of principles relating to civil rights.” The fact that race controversies “have now been subsumed in a debate over political correctness and free speech on campus—important but largely separate subjects—is proof of the self-serving deflection to which we should be accustomed at this point,” he declares.
Cobb calls these supposed diversions “victim-blaming with a software update,” and positing that they are somehow having the same effect as disparaging Trayvon Martin, he cites my article “The New Intolerance of Student Activism” as his prime example.
He writes as if unaware that millions of Americans believe the defense of free speech and the fight against racism to be complementary causes, and not at odds with each other. The false premises underpinning his analysis exacerbate a persistent, counterproductive gulf between the majority of those struggling against racism in the United States, who believe that First Amendment protections, rigorous public discourse, and efforts to educate empowered, resilient young people are the surest ways to a more just future, and a much smaller group that subscribes to a strain of thought most popular on college campuses.
Members of this latter group may be less opposed to speech restrictions; rely more heavily on stigma, call-outs, and norm-shaping in their efforts to combat racism; purport to target “institutional" and “systemic” racism, but often insist on the urgency of policing racism that is neither systemic nor institutional, like Halloween costume choices; focus to an unusual degree on getting validation from administrators and others in positions of authority; and often seem unaware or unconvinced that others can and do share their ends while objecting to some of their means, the less rigorous parts of their jargon, and campus status-signaling. For this reason, they spend a lot of time misrepresenting and stigmatizing allies.
Cobb misunderstands my motives, my body of work, and my article, which makes it doubly frustrating that he neglects to provide an outbound link to allow his readers to judge it for themselves. His erroneous assumptions render him less able to engage on this subject with millions who reject his ideology but are sympathetic to his concerns.
Let me underscore how erroneous his assumptions are. His article is premised on the notion that my piece on Yale and others like one I wrote a day later on Missouri are part of a “diversion,” an attempt to avoid talking about racism through deflection. “The fault line here,” he posits, “is between those who find intolerance objectionable and those who oppose intolerance of the intolerant.” Of course, it’s far more consistent to find intolerance objectionable across the board, and to speak out against it especially when its targets have historically faced discrimination.
It’s why I have written not only about recent events at Yale and Missouri, but also about Ferguson’s conspiracy against black residents; racial disparities in police killings; dangers of constructed white identity; the Campaign Zero agenda; the importance of declaring the Charleston attack to be racial terrorism; the long history of thugs attacking black churches; how video is confirming very old claims about prejudice against blacks; the brutality of police culture in Baltimore; radical experiments in converting racists; the importance of grappling with race, even imperfectly; Islamophobia and its deleterious effects; the perils of standing while Hispanic in the Bronx; the harassment of a black man tazed by a white police officer; carnage caused by drone strikes; the horrifying effects of profiling innocent Muslims, etc.
Few outside a small part of the ideological left would mistake me for someone seeking to divert discourse away from racism. Moreover, my advocacy for free speech encompasses numerous articles about controversies having nothing to do with race, as well as advocacy for the First Amendment rights of people fighting racism (including high schoolers who sought to wear “I can’t breathe” t-shirts, Black Lives Matter protestors, and Muslims who sought to build a mosque near Ground Zero.) When a staunch defender of free speech in all realms, who writes about racism as often as I do in a national publication, is reflexively cast as using free speech to divert attention from racism, it suggests a charge rooted in ideological blindness, not careful observation.
I hope to bridge that gap, and help everyone understand that liberals, libertarians, conservatives, and individualists alike are just as engaged in the fight against racism as the campus left, but in very different ways.
We exist. Update the heuristics!
Our diverse critiques of the campus left are not a sign that we care too little about fighting racism, advocating for justice, opposing prejudice, or protecting civil rights, or that we’ve yet to be enlightened by the right theorists. They are, rather, a sign that these issues, and concerns that they touch on, free speech among them, are too important to be ceded to a narrow, ideologically insular subculture as prone to blind spots, mistakes, wrongdoing, and excesses as any other; and too fond of jargon that more readily facilitates evasiveness than analytic clarity. The activist left on campus no more benefits from blanket deference than any other political movement, and their defenders should stop conflating criticism of their means and contested assumptions with opposition to or a desire to distract from widely shared ends.
My articles “The New Intolerance of Student Activism” and “Campus Activists Weaponize Safe Space” evoked one critique more than any other: that activist excesses at Yale and the University of Missouri are misunderstood by outsiders who are unaware of the nuanced context of fraught race relations on those campuses.
I am, however, aware of the relevant context, including the fact that most every college campus in America has some racists; that this is awful, frustrating, unjust, and disproportionately burdens minority students; that eight years ago at Yale, several students painted their faces black on Halloween; that there are plausible—though contested—allegations that a fraternity at Yale turned black students away from a party, and that many black Yalies have, periodically, confronted racist remarks; that the University of Missouri was the site of anonymous hate speech against black students, and that earlier this autumn, in the New York Times’ telling, “the president of the Missouri Student Association, who is black, reported that he was walking across campus when a group of men in a pickup truck yelled a racial epithet at him.”
Cobb puts it aptly as he so often does:
The upheaval at Yale and the protests that forced the resignation of University of Missouri President Timothy Wolfe and of Chancellor R. Bowen Loftin are both a product of and distinct from the Black Lives Matter moment we currently inhabit. Students from the University of Missouri participated in protests in Ferguson last year; as the climate on campus became more fraught, activists from Ferguson visited and advised the students. Six weeks ago, I participated in a forum at Yale on the massacre in Charleston. When the historian Edward Ball pointed out that the shootings had occurred on Calhoun Street, named for the intellectual godfather of the Confederacy, students immediately pointed out that Calhoun was an alumnus and that a college is still named for him.
All of that is correct. Much of it is outrageous. (And really, to hell with John C. Calhoun.) Says Cobb, offering even more useful context, “Faculty and students at both Yale and the University of Missouri who spoke to me about the protests were careful to point out that they were the culmination of long-simmering concerns.”
Does any of that justify students spitting on people exiting a campus talk just because they object to what the speaker said? Does it mean that a professor should lose a job in residential life over an email about whether administrators or students should opine on costumes? Should it console an Asian American student whose civil right to take news photographs of a public, outdoor event was thwarted by white faculty and white and black activists who intimidated and pushed him?
Cobb doesn’t say. Instead, he stigmatizes the positions I’ve taken without bothering to rebut them. In place of a rebuttal are elegantly written but evasive paragraphs. They invoke history as if obvious conclusions follow, but never specify what they are.
Here is one of those paragraphs: “To understand the real complexities of these students’ situation, free-speech purists would have to grapple with what it means to live in a building named for a man who dedicated himself to the principle of white supremacy and to the ownership of your ancestors,” he writes. “That this issue has arisen on the rarified grounds of an Ivy League campus doesn’t diminish the example; it makes it a more pointed illustration that no amount of talent or resources or advantage can shield you entirely from the minimizing sentiments so pervasive in this country.”
What on earth do “free speech purists” have to do with the controversy at Yale? What wrongheaded claims are they purportedly making? What does it mean to live in that building? How would grappling with it cause one to change an opinion about spitting on lecture attendees or the chilling effect that would be caused by censuring a professor over a mild email? What is “the real complexity” of the situation? I’d gladly grapple with solid positions––when he takes them, I frequently find Cobb insightful––but try as I might, I cannot tell where he stands on any of this.
Cobb goes on to report that a Yale student captured on video shouting at a professor has now been subject to online harassment and death threats. That is reprehensible––not least because, as I noted in my article, which deliberately refrained from naming her, she is by all accounts a lovely, intelligent person who had a bad moment. Punishment for those issuing death threats is warranted in any case. “Surely these threats constitute an infringement upon her free speech,” Cobb writes, “a position that has scarcely been noted amid the outraged First Amendment fundamentalism.” I am noting it now, the moment I learned of the threats.
But what does he mean when he invokes “First Amendment fundamentalism”?Death threats are not protected by the First Amendment.The Yale professors have no First Amendment right to their institutional positions. And there is nothing “fundamentalist” about criticizing the students trying to get a professor fired, or those who spit on others. This is a strong word with no bearing on the matter at hand.
Given the way that Cobb excerpts and characterizes my piece, New Yorker readers will be surprised to learn that I didn’t, in fact, declare a Yale student’s denunciation of her professor, or anyone’s protest against racism, an example of “catastrophizing.” Had Cobb included the very next sentence in his excerpt from my article, they would have seen that I actually asserted that students were catastrophizing not when arguing with their professors, but when, having failed to secure the apology they demanded for an email, they reportedly declared that “they cannot bear to live in the college anymore,” and one Yale student claimed that friends had stopped eating and sleeping and were having breakdowns.
As I see it, when middle-aged adults indulge those reactions as reasonable rather than declaring them to be overwrought, they are doing students a disservice. Instead of empowering them they are indulging them, robbing them of resilience they’ll need to navigate society as adults. Does Cobb disagree? Is he not concerned by those reactions? Does he agree with the notion that Yale students would be better off personally and more effective advocates of social justice if they started acting more like adults?
Cobb reports that “Erika, the associate master of the college, wrote an e-mail encouraging students to treat Halloween costumes that they find racially offensive as a free-speech issue.” That fundamentally misunderstands the thrust of her position. In fact, she wrote that while one could think about costumes through the lens of free speech, she wanted to look at them “from a totally different angle.” She spent practically the whole email doing just that, then briefly mentioned, near the very end, that her husband had said, “if you don’t like a costume someone is wearing, look away, or tell them you are offended. Talk to each other. Free speech and the ability to tolerate offence are the hallmarks of a free and open society.”
Notice that her approach is not inconsistent with students harshly stigmatizing blackface. As I see it, if Yalies wear blackface on Halloween, it should be handled exactly as it was handled in 2007. In the Yale Daily News, Joshua Cox and Sharifa Love concisely explained the history of blackface and why it is offensive. Afterward, they mused about why a white person would possibly incorporate it in a costume:
One conclusion we’ve come to is that some white people are passively ignorant of the history of oppression and pain associated with minstrelsy and blackface. Because whiteness is normative, race is not as salient for white people as it is for black people. From early childhood, black children are forced to navigate a racially charged landscape, controlled by people who do not look like them. Black children grow up considering their blackness with every move they make, whereas white children are never forced to consider race because theirs is considered normal. This may explain why some white people are culturally ignorant of the possible ramifications of blackface and other racist actions. This passive ignorance is not an acceptable excuse.
Another conclusion we’ve reached is that some white people are consciously, willfully ignorant of the cultural ramifications of their actions. These individuals have some sense of the possible offensiveness of their actions, yet disregard them and decide that they’d rather continue existing in their own normative sphere. This problematic disownment of personal responsibility preempts engagement in offensive actions while shirking social responsibility. This brand of ignorance is more offensive than passivity because one understands the sociocultural ramifications of actions like blackface, but completely ignores them.
The last conclusion we’ve come to is that the most heinous brand of ignorance is that of the white person who knowingly takes culturally sensitive material and wields it in an insensitive fashion to openly mock minorities. Those who understand the ramifications of actions like blackface, yet purposefully engage in such actions for the sake of tasteless humor, are utterly despicable. Such premeditated actions are akin to the use of racial epithets because, like slurs, blackface is meant to demean and dehumanize. White people who knowingly commit such actions do so easily from the safety of the racial majority, without regard for those who face the difficulty of life outside of the normative assumption of whiteness.
Their analysis is impressive. And it suggests that given the autonomy to shape campus culture, Yale students are as capable of promulgating norms that are opposed to racism as administrators. Because they were empowered to do so on their own, the students presumably accrued knowledge and experience that will serve them well in the future. Yet people arguing for the relative benefits of that demonstrably workable approach are cast as either racially insensitive or ignorant of nuances. In fact, they’re as fully committed to the well-being of students, including those who suffer from racism, as anyone else, but disagree with some student activists and their ideological allies in the press about the best way forward.
That is hardly surprising.
Examine any cause taken up by 18-year-olds on a college campus and you’ll find ideologically diverse observers who think that they’re mistaken about various assumptions and tactics. I share the notion that young people with stories about racial injustice should be heard, and that their descriptions of their experiences are owed a degree of deference, especially by those of us who’ve never navigated college as the member of a minority group. But thoughtless or patronizing deference can be prejudicial, too; and when activist assumptions and tactics elicit intense disagreement even among members of groups victimized by the racism at issue, the notion that deference to “students of color” is even possible requires one to pretend that they constitute a monolithic group who uniformly agree. Little wonder that black, Hispanic, and Asian American collegians who depart from progressive orthodoxy often keep quiet, knowing that they’ll be called race-traitors (as one student at Yale was just called) if they are more vocal.
What should be done about racist acts at Yale and and the University of Missouri?
I’ll hazard some suggestions. A student who defaces a dorm with an excrement swastika should be expelled. Anonymous bigots who yell racial slurs from a pickup truck should be condemned. A frat that discriminates on the basis of race at its parties should have its charter revoked by whatever national organization conferred it. Anonymous threats should be reported to authorities; if possible, the perpetrators should be jailed; and the threatened students should be given protection by campus security.
I don’t think that Cobb and I disagree about any of that. (And I have no view of whether the president at Missouri was justly removed or not. He may well have been an abject failure.)
The thorniest question of all: What should be done about the fact that many black students at institutions as different as Yale and the University of Missouri feel that they inhabit campuses with racist climates where they are less welcome than others? Insofar as free speech is invoked during such controversies about racism on university campuses, it is because many leftist activists believe one necessary remedy for racism is for administrators to punish speech that they regard as problematic.
But the First Amendment flatly prohibits that remedy at the University of Missouri and at all public institutions. For observers like me, there is tremendous interest in zealously defending that civil right, not only because it protects the vocation that Cobb and I share, but for a reason articulated most powerfully by the ACLU:
Free speech rights are indivisible.
Restricting the speech of one group or individual jeopardizes everyone's rights because the same laws or regulations used to silence bigots can be used to silence you. Conversely, laws that defend free speech for bigots can be used to defend the rights of civil rights workers, anti-war protesters, lesbian and gay activists and others fighting for justice. For example, in the 1949 case of Terminiello v. Chicago, the ACLU successfully defended an ex-Catholic priest who had delivered a racist and anti-semitic speech. The precedent set in that case became the basis for the ACLU's successful defense of civil rights demonstrators in the 1960s and '70s.
The indivisibility principle was also illustrated in the case of Neo-Nazis whose right to march in Skokie, Illinois in 1979 was successfully defended by the ACLU. At the time, then ACLU Executive Director Aryeh Neier, whose relatives died in Hitler's concentration camps during World War II, commented: "Keeping a few Nazis off the streets of Skokie will serve Jews poorly if it means that the freedoms to speak, publish or assemble any place in the United States are thereby weakened."
Cobb would do better to engage that argument, if he finds it wrongheaded, than to charge that free speech is being raised disingenuously to divert attention from racism or to absurdly compare defenses of free speech to defenses of George Zimmerman. The closest he comes to constructively engaging on the subject is here:
Last year, at the University of Connecticut, where I teach, white fraternity members harassed and purportedly shouted epithets at members of a black sorority; the incident generated an afterlife of hostility on Internet forums, where black female students were derided and ridiculed. Eight months ago, fraternity members at the University of Oklahoma were filmed singing an ode to lynching.
These are not abstractions. And this is where the arguments about the freedom of speech become most tone deaf. The freedom to offend the powerful is not equivalent to the freedom to bully the relatively disempowered. The enlightenment principles that undergird free speech also prescribed that the natural limits of one’s liberty lie at the precise point at which it begins to impose upon the liberty of another.
All these incidents should be roundly condemned; harassment should be punished; hostility on Internet forums will exist regardless of what anyone does, as most working journalists can attest; and yes, the limits of liberty do lie at the point where one begins to impose on another. But excepting instances in which protected speech is not at play, blithely declaring a free-speech defense to be “tone deaf” is an evasion, not a position. And it is lamentably familiar to civil libertarians, who often take positions that most of their countrymen regard as tone-deaf.
Defending the “Ground Zero mosque” was seen as tone-deaf, but I defended it.
Defending accused criminals and their procedural rights is seen as tone-deaf. Should I stop?
Defending due process for Anwar Al-Awlaki, an Al Qaeda terrorist, was tone deaf. And it was vital, because a precedent now exists to assassinate Americans without due process.
The core liberties that protect all Americans, and that are especially important to the most marginalized, are much more important than “tone.” Suggestions to the contrary speak volumes about the elevation of rhetorical sensitivity over substance among those ostensibly seeking change. To me, it is bizarre that the same campus activists who declare their institutions and the United States to be rooted in white supremacy and hostile to students of color want to empower the very authorities in charge to punish speech at their discretion! The impulse to declare the First Amendment null and void when it interferes with punishing racist, hurtful speech may seem, in the moment, as though it shows compassion toward marginalized groups, salving their anger and pain. But it does so at their ultimate expense, and I’m not even convinced that the immediate anger and pain would be less.
My article on the controversy at Yale expressed the belief that people who feel like outsiders and belong to a minority group at the university have the toughest road, all else being equal. I agree with student activists that their frustrations should be heard.
In the torrent of email I’ve received over the last few days, I heard from one black Yalie who explained that, unlike his white classmates, he is regularly asked to show his ID on campus to prove that he is a student. My suspicion is that he is the victim of unconscious bias, or even deliberate profiling. Of course, there’s a chance he underestimates how often his white peers are stopped, but I doubt he’s wrong. Were I a Yale administrator, it’s the sort of complaint that I’d feel most able to address. I could and would arrange a rigorous inquiry to answer the empirical question: Are Yale security personnel stopping students of color more often than white students? If so, why? What would it take to remedy that prejudicial reality? My notion of how to make racial progress on campus is to tackle as many discrete injustices as possible as a start, knowing that many can’t be so easily studied, and that for multi-faceted reasons, no one can truly be at home while at college.
While hardly a cure-all, embarking on a series of discrete improvements strikes me as more beneficial than demanding that administrators validate student pain, especially since students are bound for adult life, where validation of authorities is unavailable. It is with painful awareness of racism’s persistence, not ignorance or apathy or a desire to divert attention from it, that I reaffirm a belief that resilience is among the most valuable things anyone can learn in an institution of higher education. I may be wrong that students are being robbed of resilience and disempowered by mistaken ideological assumptions, as I’ve argued in recent articles. But right or not, my position is not a distraction from the matter of their well-being. It is my notion of how young people might best secure it, and to frame it otherwise is the diversion.
As I put it to a roomful of impressive students at Cal State Long Beach, where I spoke last week on some of these themes, “You're all smart people. You're all capable of the strength that it takes to hear a wrongheaded idea, to react intellectually, even if you're also reacting emotionally, and to formulate a logical, persuasive response. Don't let peers, professors, or administrators convince you that you're incapable of that. If you're not there yet, you can get there, and it's worth practicing, because that sort of resilience will serve you well in your career, where no one is going to tiptoe around your feelings. And it is vital in civic life, because America is filled with horrific injustices. We need more people who are willing and able to look at them squarely and to persuade their fellow voters of sound responses.” To me, even after accounting for the history of race in America and racism today, that is still more empowering and validating than, “I feel your pain.”
© 2015 The Atlantic