Free Speech Does Not Require Civility (Updated)
On the latest Link Thursday there is a discussion of the meaning of UC Berkeley Chancellor Nicholas Dirks’ email about civility and free speech, and whether Popehat’s Ken White gave him a fair reading or not. Some think not, but my perspective is that the letter is so badly written, with such a perverse argument, that even if Chancellor Dirks intended to show support for free speech, the letter deserves the harshest condemnation, as does he for writing it.
Civility is a good thing, and like all good things, it is best used in moderation (there’s a double meaning there, for those inclined to take the time to catch it). But while free speech to some extent thrives in moderation, it also sometimes strategically uses incivility to really make its message heard.
As Ken White pointed out, Paul Cohen’s “Fuck the Draft” message on his jacket was not civil. While Justice Blackmun called it an ” absurd and immature antic,” Justice Harlan–writing for the majority–noted that
much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force.
Likewise, Greg Johnson’s burning of the American flag outside the Republican National Convention was not civil. And while Chief Justice Rehnquist argued that “flag burning is the equivalent of an inarticulate grunt or roar that…is most likely to be indulged in not to express any particular idea, but to antagonize others,” Justice Brennan argued for the majority that
“[t]he emotive impact of speech on its audience is not a ‘secondary effect'” unrelated to the content of the expression itself.
And Johnson himself argued at trial that no could have made “a more powerful statement of symbolic speech, whether you agree with it or not.”
The chant “Hey, hey, LBJ, how many kids did you kill today,” reportedly wounded Johnson deeply. But the awareness of how deep was the liberal opposition to the Vietnam war helped drive him out of office, and possibly played a role in his post-presidency, in which he developed great sympathy for the long haired protestors.
“Fuck Whitey,” is distinctly uncivil, but what else so succinctly, and in its way so eloquently, expresses black frustration with a white-dominated society?
Pleas for civility can serve a valuable function, of course: No one should be allowed to exercise a heckler’s veto through incivility. And the Chancellor was surely trying to express that in his message. But he got it wrong, badly wrong:
Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so, and this in turn requires that people treat each other with civility. Simply put, courteousness and respect in words and deeds are basic preconditions to any meaningful exchange of ideas.
No. Theoretically wrong; empirically wrong. Free speech is a legal concept, not a civil concept, and as the California Scholars for Academic Freedom said in their response, “the right to free speech not only permits but is designed to protect uncivil speech.” Knowing the government is not going to arrest you for your speech does allow us to feel more safe in speaking, but safe only from the government. It does not ensure we will feel safe from the responses of others, nor is it meant to. Civility may be conducive to controversial speech, but not specifically to the concept of free speech. And I don’t think we can seriously argue that all speech deserves a civil response, even when it is legal, and even when it is itself civilly phrased.
Rape ought not be a personal crime against women, but a property crime against the man to whom she belongs.
I would argue that the appropriate response to that is something like “fuck you, fuckball.”
And while it’s undoubtedly true that not feeling safe will depress the frequency of the expression of controversial beliefs, we know that people do in fact do so, frequently. I think no one can argue that black civil rights protestors felt safe holding protest signs
There are other reasons I find the UC Chancellor’s letter disturbing, even if it was just badly written and did not convey his intended message.
First, no leader likes conflict within her/his organization. University chancellors have a demanding enough job without having to deal with students screaming at each other, making each other emotionally distraught, having protests that result in certain segments of the community expressing their outrage at the institution for allowing, and so on. A university chancellor, whatever their personal beliefs in freedom of speech, have an understandable incentive to want a calm, peaceful, civil campus.
Second, despite the famous free speech protests at Berkeley in the ’60s, we have now had several decades of attempts by universities to constrain speech through “speech codes.” The codes are directly aimed at civility, being put in place with the understandable purpose of trying to protect female and minority students from offensive language. But their actual speech impact often goes beyond that, and even that goal can run afoul of the First Amendment (while a public organization has a duty to prevent a hostile workplace, isolated incidents sexist or racist comments do not, as a matter of constitutional law (as it is today) rise to that level). It is not clear to me that it would be wise to consider the Chancellor’s message without reference to that context.
Third, Dirks explicitly distinguishes between speech and political advocacy. He speaks of
the boundaries between protected and unprotected speech, between free speech and political advocacy.
This is the old analytical thinking exam question: “free speech is to protected speech as political advocacy is to ______________?”
This is an exceptionally dangerous idea, which does not deserve a civil response. The most fundamental purpose of the First Amendment protection of speech is to protect political advocacy–to protect citizens’ right to criticize their government without retribution. Distinguishing speech from advocacy is an insidious way to pretend you’re protecting speech while retaining the ability to suppress criticism and advocacy.
The Berkeley Free Speech movement addressed this issue specifically in its response to Dirks.
In celebrating the half century that the UC Berkeley campus has been “a symbol and embodiment” of the idea of free speech, you are proudly and properly referring to the outcome produced by the Free Speech Movement in the fall of 1964. Your statement seems to miss the central point. The struggle of the FSM was all about the right to political advocacy on campus.
Those last two concepts play into the tendency for people to say that criticism of their group is not protected speech, but hate speech. For example, Ken White also recently critiqued a member of Yale’s Muslim Students Organization for saying, “The difference here is that it’s hate speech, [which] under the law would be classified as libel or slander and is not protected by the First Amendment.” That’s false–absolutely, fundamentally, irreconcilably inaccurate as a statement of American free speech law– but a lot of people want to believe it’s true, or make it so, including a sizable number of academics.
Fourth, Dirks creates an even deeper, and more deeply disturbing, conceptual foundation for limiting speech.
when issues are inherently divisive, controversial and capable of arousing strong feelings, the commitment to free speech and expression can lead to division and divisiveness that undermine a community’s foundation.
What is the community’s foundation, then? If the community is not founded on the type of political freedom and equality that allows vigorous free speech, is it the kind of community to which we aspire? The community foundation suggested here is one in which the majority can silence the minority, or demand that they speak more respectfully to power. It is a community that can require the minority to behave in such a way that it makes them–and their complaints–easier to ignore.
This subtle temptation to protect the group against its members ultimately serves only to protect the holders of power against the marginalized. Power will be exercised either by an elite who conveniently conclude that criticism of the status quo is uncivil, or by the majority, who want to hear nothing from the despised minority.
Chancellor Dirks’ missive comes into the public consciousness in an era where we ought to be concerned about freedom of speech. These days we have colleges setting up that insidious, Orwellian, idea of “free speech” zones, and even requiring students to get a permit to use them. Cities also create “free speech” zones during meetings of world leaders, or political conventions, or presidential appearances, carefully ensuring they are located where none of the subjects of the critical speech will have to hear them. That is how, in practice, we protect the community from the threat of free speech.
Only 70% of the public even know that free speech is a right found in the First Amendment. And 38% of Americans think the First Amendment goes too far in protecting our rights. Our rights are never secure unless we continue to fight for them against complacency and insidious attempts to make society a more aesthetically pleasing place by limiting them. The Stepford States of America ought not be our goal or our destiny.
The Chancellor’s message is almost certainly not an intentionally underhanded attempt to suppress legally protected speech. But it reflects a poor understanding of, and circumscribed support for, freedom of speech. The ideas expressed inhis message, whatever his intent, are dangerous, freedom-stifling, ideas. They deserve every bit of the vicious condemnation they are getting,
and so does Dirks, because they are his words, and he has yet to repudiate them or clarify that his intended meaning was other than the meaning of his text. [Update: As Jaybird notes below, Dirks has sent out a followup message. It’s much better, although I would have liked an explicit recognition that there is no boundary between speech and advocacy.]
In brief, Nicholas Dirks is not wrong to encourage civility in speech, but he is wrong–dangerously so–to elevate civility in speech above freedom of speech.
[Image source: Washington Times]