The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
David Lat, "Against Free-Speech Hypocrisy"
"And in (partial) defense of Harvard President Claudine Gay's controversial congressional testimony."
From David Lat (Original Jurisdiction), a characteristically well-written and thoughtful analysis. Lat acknowledges that many universities have departed from what he (and I) think is the proper protection of speech:
[A]s my longtime readers know, and as the rest of this post will make clear—I abhor free-speech selectivity. So I do not defend, and in fact I condemn, the many, many times that university leaders, including law school deans, have run roughshod over free expression to advance certain (typically progressive) political perspectives. These are often the very same leaders who, in the words of Greg Lukianoff, "have suddenly rediscovered the value of free speech and academic freedom." Such inconsistency, even hypocrisy, is utterly unacceptable. And if you read through the Original Jurisdiction archives, you will see me repeatedly calling it out over the years….
But he argues (as do I) that the solution is equally protecting various views, not equally restricting them:
Some of my conservative friends expressed support for applying anti-bullying and anti-harassment policies to students who chant or hold posters saying "globalize the Intifada" or "from the river to the sea." Their argument: even if these chants or posters weren't directed at individual students, some individual Jewish or Israeli students subjectively felt threatened, bullied, harassed, or intimidated. And having read many harrowing accounts of what's going on today on American university campuses, I have no doubt that this is true.
But if subjective offense or upset is the standard—sufficient to override a lack of individual targeting, severity, or pervasiveness—then what about a conservative student writing an op-ed in the Harvard Crimson criticizing gender-affirming surgery? I'm sure such an op-ed would cause some individual transgender students to subjectively feel threatened, bullied, harassed, or intimidated.
Here's a second argument I heard, from a conservative friend who generally shares my strong pro-free-speech views. Antisemitic speech can and should be banned because—by denying the humanity of certain participants in discourse (Jewish people), effectively seeking to banish them from the forum—it is antithetical to the ground rules for free and civil discourse.
But let's put the shoe on the other foot. I wonder how my conservative friend would distinguish his argument from that of my former colleague Joe Patrice, who wrote in Above the Law (citing Karl Popper) that "tolerance demands the intolerance of intolerance."
Here's an example. Progressives would argue that anti-trans speech, such as criticism of gender-affirming surgery or questioning the participation of trans athletes in girls' and women's sports, can and should be banned. Why? By denying the humanity of certain participants in discourse (transgender people), effectively seeking to banish them from the forum, it is antithetical to the ground rules for free and civil discourse.
To be clear, I reject this intellectual end-run around free speech, whether deployed on behalf of Jewish people or transgender people. Tolerance demands… tolerance, including of the most vile, reprehensible opinions known to man….
I hope that recent free-speech controversies will make us more consistent—and more passionate—in defending free speech. If you have a strongly held view on the Israel-Palestine situation that you've been sharing in recent weeks, remember this: other people have equally strong views, and your ability to share your opinion depends on a free-speech culture that requires letting others share their views as well.
The whole thing is much worth reading.
