"The Trouble with Congress or College Presidents Policing Free Speech on Campuses"

Will Creeley (FIRE) and I have this L.A. Times opinion piece today. I doubt our readers will find anything new here (it's based on FIRE's past work explaining free speech, and on my posts about the absence of any exception for advocacy of genocide), but I thought I'd pass it along.

Comments

[Michael Ejercito]

The trouble is that it is policed at all.

the second trouble is that it is not policed in an even-handed manner.

Had Harvard declined to police speech at all, Gay coiuld have simply said Harvard does not punish peaceful expression, no matter how odious.

This is clearly not the case.

https://www.thecrimson.com/article/2017/6/5/2021-offers-rescinded-memes/

[Zarniwoop]

Michael E sez:

Had Harvard declined to police speech at all, Gay coiuld have simply said Harvard does not punish peaceful expression, no matter how odious.

(emphasis added)

And yet even that seemingly neutral formulation ends up comparing 1st Amd apples to 1st Amd oranges. Because you added a qualifier that different people have different thresholds for.

Go down the rabbit hole of your own creation:
1) What qualifies as "peaceful"?
2) Who gets to decide?

As odious as they were, the "Unite the Right" folks carrying torches and chanting "Jews will not replace us" qualify as "peaceful" according to some people but not others.

[Rev. Arthur L. Kirkland]

Did any Volokh Conspirator say a word about the Unite the Righters’ antisemitism?

Did any Conspirator register an objection to Elon Musk’s prominent, recent antisemitism?

Has Marjorie Taylor Greene’s vivid antisemitism been mentioned, let alone criticized, by the right-wing law professors who operate this white, male, conservative blog?

Carry on, unprincipled clingers.

[Darth Buckeye]

Applause. Applause.

[Longtobefree]

"Free Speech on Campuses"

That was then, this is now.

[Don Nico]

Unfortunately, the idea that odious speech is okay on campus was only discovered after October 7.

[Sarcastr0]

You haven't read this blog before then, I guess. Or anything by FIRE.

What I see is a lot of people whose ox is getting gored for the first time suddenly flipping on free speech right or wrong to safe spaces being important.

It's a good subject to discuss, except for how much they demand no nuance on their issue of choice and the concomitant enthusiastic baying for the scalps of students, professors, and school Presidents for seeking a discussion that includes context.

The blue hared SJW of years ago has come again, but focused on a single issue.

[Rev. Arthur L. Kirkland]

Conservative-controlled schools have long required odious speech on campus.

[Peter Gerdes]

That's totally correct as a statement of how universities should act. However, it doesn't deal with the thornier question of how to incentivize adopting that position.

Problem is that universities have been systematically intervening in ways that deviate from these free speech norms and now that it's antisemitism they suddenly said whoa, let's treat this differently. If those of us who favor free speech norms help them get away with suddenly raising free speech considerations to defend their actions here their incentives will be to just continue doing the same.

As such, I think it's necessary to demand that colleges apologize and acknowledge the ways they haven't done this in the past and admit that they were wrong to disfavor various kind of Xist speech in the past as the precondition for accepting appeals to free speech principles as an excuse for their behavior.

[Izzy1948]

The hypocrisy of permitting calls for death to Israel and Jews while punishing people who use male pronouns to refer to men dressed in women's clothes is unbearable.

[Rev. Arthur L. Kirkland]

What is your position on the frequent launching of vile racial slurs?

[Dr. Ed 2]

If she's who I think she is, she is more than capable of putting you in your place using only the King's English.

[Rev. Arthur L. Kirkland]

Putting me in my place? For mentioning the telling frequency with which this blog -- and its proprietor in particular and vividly -- publishes vile racial slurs?

[Dr. Ed 2]

No, for being a puta....

[Sarcastr0]

Lets lay down specific examples of anti-trans speech getting punished.

There's a pretty instrumental seeming lack of specific examples on both sides of this supposed double standard.

Hypothetical double standards are easy; what about bringing it down to earth?

[Bored Lawyer]

Students at Harvard University were told that failing to use a person’s preferred pronouns could be a violation of the university’s sexual misconduct and harassment policies during a mandatory online Title IX training last month.

https://www.campusreform.org/article/students-caught-using-wrong-pronouns-at-harvard-may-violate-harassment-policies/20328

[Sarcastr0]

'could be?'
Sounds like that hated Demon Context to me.

I asked for actual examples on either side. This ain't that.

[Bored Lawyer]

This isn't a motion to dismiss an indictment for selective prosecution. And university disciplinary committees tend to operate in secret, and don't publish detailed accounts of their decisions.

Three presidents of very elite institutions affected to claim that their universities operate by First Amendment standards. (One even cited to the First Amendment.) Under which, speech is free no matter how odious the content, and no matter how offensive to its audience, so long as the speaker does not incite violence or actually engage in criminality. That's the legal standard for state actors under current SCOTUS law. The Nazis have the right to march in Skokie where numerous Holocaust survivors reside and will clearly be distressed by such a march, but tough on them, that's the law of the First Amendment.

Private entities are not obligated to follow that, but they claimed to do so. Their responses in the Congressional testimony was legalistic, as though they follow the same First Amendment principles.

But in the case of these universities, it's utter nonsense. The examples I have posted here show that, as to certain groups, they don't follow that. Harvard's official policy clearly was designed to chill debate in the area of trans issue. If it were a state law, it would be enjoined in a minute on First Amendment grounds.

That's the hypocrisy here. The universities have fostered an atmosphere, both by rule and example, that certain types of speech will get you in trouble. Might be formal discipline, might be social ostracism, might be something in between.

Other types of speech won't. Even something as odious as genocide.

[Bored Lawyer]

A Pennsylvania university has threatened that disciplinary “action could be taken” against students who misuse classmates’ preferred gender pronouns.

Point Park University in Pittsburgh’s Office of Equity and Inclusion informed its student body in an email on Sept. 13 of its policies for the 2021-2022 school year, which included a policy on “Misgendering, Pronoun Misuse and Deadnaming” and a “Preferred Name Policy,” according to the email obtained by Campus Reform. The misgendering policy threatens to punish students “if a complaint is filed” for repeated misuse of a fellow student’s preferred pronouns, or using a student’s “deadname,” or the name they had previously identified with.

https://nypost.com/2021/09/23/pa-university-threatens-consequences-who-misuse-pronouns/

[Sarcastr0]

Again, this is not an example.
Are you saying you want more threatens and coulds about antisemitism? No - you're demanding more concrete action.

Strike 2.

[Toranth]

The University set a rule, and you are claiming that because even though there is a formal rule in place to punish students, it might not be enforced? Therefore, it doesn't count?

[Michael Ejercito]

Wow, that ios a bit dimwitted for Sarcastr0

[Sarcastr0]

My ask: "Lets lay down specific examples."

This isn't that.

It is not only unresponsive to my ask, it is not useful in this discussion because it's not a parallel to student protests in favor of Palestinians/against Israel.

It's just a bog standard 'DEI bad' complaint. Which I'm sure you can rewarm when one of those threads next comes around.

[Toranth]

It's a very specific example of a rule that is used to threaten punishment upon the students.
Pretending it doesn't count as an example because there were no quotes of the exact words used in specific instances (which you've refused to count elsewhere in this thread) just shows how unwilling you are to accept any evidence against the position you've chosen to die for.

[Bored Lawyer]

University to pay $400,000 to professor who refused to use student’s preferred pronouns.

https://www.cnn.com/2019/10/02/us/virginia-teacher-says-wrongfully-fired-student-wrong-pronouns-trnd/index.html

[Sarcastr0]

So the school fucked up and paid the price. Do you want schools to act similarly wrongfully about anti-Israel speech?

Again, a failed example. A counterexample, even.

Strike 3.

[Toranth]

The school did the thing you claimed didn't happen, even though it was illegal.
Now you claim it doesn't count, even though it is an example proving you wrong?

Tell me, Sarcastro, do you know what the "moving goalposts" fallacy is?

[Sarcastr0]

This isn't a standard, much less an applied one.

You seem really into 'schools bad to speech' and have thus utterly lost the bubble of this particular topic.

This is the kind of rot a particular kind of reductive partisanship will do to the brain.

[Toranth]

It was a standard, it was applied. That's why there was a suit that the school lost.

Stop trying to distract. You are trying to attribute to me motives and statements I've never made. All I've done here is criticize YOU and your dishonesty. I can't have "lost the bubble" (what do you think that even means?) because I've only been focused on one thing - showing how you've been making bad and dishonest arguments here.

[Rev. Arthur L. Kirkland]

That's one wealthy bigot.

Carry on, bigots. At the Volokh Conspiracy, naturally.

[Bored Lawyer]

Special Needs Student PUNISHED For Using Wrong Pronouns

https://www.youtube.com/watch?v=TwDrEkFOjfA

[Sarcastr0]

Not listening to a #libsoftiktok take. They lie.

[Toranth]

I can tell you know quite well what this video contains, when you didn't even notice it's not a libs of tiktok video. It's a repost of a local news station recording of a school board meeting.

Also, dismissing the source that cites a distinct instance with easily verifiable names and dates, just because you don't like what you think the source is, is rather dishonest - even for you. It's an example, and you are proving only that you cannot honestly debate, rather than disproving Bored Lawyer's claims.

[Sarcastr0]

You can tell, eh?

[Toranth]

It's quite obvious.

Now, are you going to address the content of the video, or will you continue to pretend it doesn't contain exactly the content you falsely claim doesn't exist? You know, the victim testimony that shows you are wrong in every particular.

I can't imagine why you didn't choose to include any discussion of the video in your well thought out and argued response to my post.

[Bored Lawyer]

Harvard gets worst score ever in FIRE’s College Free Speech Rankings

For each of these seven incidents, Harvard was penalized in the rankings:

From 2019 to this year, Harvard sanctioned four scholars, three of whom it terminated.
In 2020, Harvard revoked conservative student activist Kyle Kashuv’s acceptance over comments he made on social media as a 16-year-old, for which he had since apologized.
In 2022, Harvard disinvited feminist philosopher Devin Buckley from an English department colloquium on campus over her views on gender and trans issues.
In 2019, Harvard was the site of a substantial event disruption when protesters interrupted a joint talk featuring former Harvard President Lawrence S. Bacow and Graduate School of Education Dean Bridget Terry Long by occupying the stage and refusing to leave.

https://www.thefire.org/news/harvard-gets-worst-score-ever-fires-college-free-speech-rankings

[Sarcastr0]

Sanction for what?
Comments like what?

Still failing to give context. Come on, man!

You're not getting better in the specifics, nor with drawing a parallels to how you would hope antisemitism would be treated.

Strike 4.

[Rev. Arthur L. Kirkland]

FIRE is a right-wing separatist organization that lacks mainstream credibility. Its claim that Harvard is the worst campus in America for freedom of expression -- in a nation that still is afflicted by Regent, Liberty, Wheaton, Cedarbrook, Biola, Franciscan, Ave Maria, and hundreds of similarly censorship-shackled, dogma-enforcing, nonsense-teaching, bigoted conservative goober factories -- is ridiculous.

[Bored Lawyer]

You Can’t Make This Up: A Speech Code that Investigates Students for Discussing the Freedom of Speech

Two student organizations at the University of South Carolina ran afoul of campus speech codes when, in promoting a pro‐​free speech event, they displayed posters and handouts that referred to censorship at other colleges. Although the students obeyed the school’s regulations about handing out materials, several people filed harassment charges because they didn’t like what the handouts said. In a bizarre turn of events, the students were questioned and investigated by school officials—for talking about incidents where other students were likewise questioned and investigated for exercising their First Amendment rights. To make matters worse, the university refused to clarify its policies and essentially imposed a gag order on one student, forbidding him from discussing this incident with the faculty or student body.

https://www.cato.org/blog/you-cant-make-speech-code-investigates-students-discussing-freedom-speech

[Sarcastr0]

Neither the story you link nor the amicus it links gets to the specifics here.

Strike 5.

I asked for specifics. You have repeatedly failed to find sources that do that.
There's a reason for that, I believe - the old 'which views? Oh, you know the ones.'

If you want to establish a double standard you need *specific* facts *on both sides of the issue*.

You've repeatedly failed when it comes to non-antisemetic speech. And not even tried when it comes to which specific antisemetic speech you would want banned.

[Toranth]

JFC, Sarcy, did you decide to give a clinic on live examples of the moving goalposts fallacy today? Four of your five "strikes" are you losing, but refusing to admit it.

How many more times will you "refine" your demand for specifics until you can be satisfied? Actually, we already know; you never will be. Paraphrases don't count, victim testimony doesn't count, punishment for running afoul of gender identity and pronoun rules doesn't count. What would count? Do you even know?

[Sarcastr0]

My goalposts are the same as they were at the top:

'Lets lay down specific examples of anti-trans speech getting punished.'

BL utterly failed. And you can't even see it because you are, by choice utterly blind to argumentation. It's all cheerleading for you.

Saves on brainpower, but is no way to go through life.

[Toranth]

You can't even be bothered to read the links or watch the videos, and yet you accuse me of being "utterly blind"?

Sarcastro, you have been shown specific examples of people punished for "anti-trans" speech. You've been shown that there were formal rules against such speech.
You have moved the goalposts repeatedly - for example, you changed them once to deny an example because the school lost a lawsuit years later. You moved the goalposts again when you decided that certain sources would not even be considered, even though you were wrong about what the source was.

And then, when confronted with the flaws in your faulty claims, you retreat to evidence free personal attacks. While typical for you, is does nothing to support your position.

However, since you've started it: Shut the fuck up, you pathetic lying incompetent buffoon. You are exactly the same idiot that spent multiple days trying to convince everyone that the Somin post you were arguing about it didn't have the exact words in it that people were quoting to you. A brain-damaged 7 year old would have been able to realize their fault, but you are so much of an idiot that you can't even spend the brainpower to read what you are supposedly commenting on - a feat you, once again, decided to duplicate here in your push for the gold medal of internet fuckwaddery.

You have utterly failed to make an argument against either Bored Lawyer's or my posts, and instead chosen to deflect, distract, and deny. To an shit-brained moron, this may seem like the same thing, but to anyone but you, it is obvious that you have nothing to go on. Even a lifetime failure like you may have been able to make an argument, if they'd bothered reading the links and watching the videos, but that's beyond the capability of the brain cell you dedicate to "Defend leftists" - a single cell, because the other half of your so-called brain is overloaded trying to handle wiping your ass.

[Dr. Ed 2]

Gaslighto, what you (and sadly, FIRE) fail to understand is that the latest stunt is to let the student win on the free speech issue but then use that as evidence that the student is not only mentally ill but also dangerous.

That's what happened at UMass in the end -- and I was literally hiding undergrads so that the cops couldn't lug them off to the psych ward.

It's a far more effective means of silencing speech....

[Sarcastr0]

You have no credibility, Ed. Particularly when it comes to your theme of mental health diagnoses being weaponized for political purposes on campus.

It is very clear you had some kind of run-in and try to turn it into some broad prosecution by The Liberals via telling tails.

No one is buying. Though we are all entertained by the endlessly innovative nonsense you come up with.

[Dr. Ed 2]

I don't fucking care what you believe or not, it happened and it involved undergrads, which I was not.

[Dr. Ed 2]

OK Gaslighto, from FIRE's own files:
https://www.thefire.org/news/umass-ras-are-not-amused-your-harambe-memes

The Harambee is Black-only -- Black MALE only, but cute Blonde White females can live there....

[Sarcastr0]

not about trans issues but that wasn’t load bearing to my ask.

But even allowing that, This is about an email from some RAs. No action was taken. My ask is still not met

‘specific examples of…speech getting punished’

That this is so hard should tell all of you something.

[Randal]

punishing people who use male pronouns to refer to men dressed in women’s clothes

As Sarcastr0 aptly demonstrated, that has never happened. So you already lose.

But you lose for an additional reason. Misgendering someone is a hateful attack on a specific person. To make a case of disparate treatment, you’d need to find an example of someone getting punished for generic anti-trans advocacy, like “trans women aren’t real women.”

How many of you are living in an alternate universe where the laws of physics have been replaced by the laws of grievance politics? It’s pathetic and sad.

[Rev. Arthur L. Kirkland]

.

Antisemitism on campus is a real problem

Two Federalist Societeers finally found a form of intolerance they concede is real, and to which they object!

Well, when they can use it to snipe at liberals and the mainstream, anyway. Antisemitism from the likes of Elon Musk, Marjorie Taylor Greene, and other ideological allies didn't seem to bother them.

If this is a step toward improvement from these two with respect to racism (maybe fewer racial slurs from a guy who hands them out like candy toward the end of Halloween), Republican gay-bashing, conservative misogny, right-wing Islamophobia, Republican hatred of immigrants, and similar persistent bigotry, that would be great.

If not, it's just more selective, partisan polemics from these guys, devoid of principal and heavy on the hypocrisy and cowardice.

[Bored Lawyer]

Right, because "Gas the Jews" is the on the same level as "Affirmative Action is a Bad Policy."

[Rev. Arthur L. Kirkland]

Prof. Volokh cultivates, then permits, comments that regularly call for liberals to be gassed, exterminated, placed face-down in landfills, sent to Zyklon showers, pushed through woodchippers, shot in the face, etc. at his white, male, right-wing blog.

Neither Prof. Volokh nor any of his colleagues or fans has any credibility with respect to this issue.

Just ask UCLA.

[SimonP]

There are times, in my practice, where I kind of have to marvel at what I am saying. People look to me for an expert opinion; I have to give it to them. I have no one else to hide behind or any way to dodge the question. I base the opinion on the best available guidance I can find, which also doesn't provide a clear answer.

There are others in my field with more experience, but we're all just thinking hard about questions where no particular view is obviously right or wrong. Call it a kind of "imposter's syndrome," except where one has reached the top echelon of a career path and discovered that it's all imposters up here.

I wonder sometimes if you ever feel that kind of intellectual humility, Eugene.

[Don Nico]

Simon,
Your comment is insufferable arrogance and pride.

[Rev. Arthur L. Kirkland]

SimonP is insufferably arrogant and prideful.

You're a nonsense-believing right-wing bigot.

Where is the hope for America, Don Nico?

[SimonP]

Nicky, doll, I feel sorry for you.

[The Margrave of Azilia]

CONGRESSCRITTER: "Yes or no, does your university forbid advocacy of genocide?"

UNIVERSITY PRESIDENT: "Congressman, our rules forbid our students from advocating genocide, to the extent such advocacy violates federal law."

CONGRESSCRITTER: "But I'm not sure if federal law forbids advocacy of genocide."

UNIVERSITY PRESIDENT: "Then you're a fine one to hector *me* about it."

[Bored Lawyer]

Federal law is constrained by the First Amendment. Private universities aren't.

As I said above, they can claim to follow the First Amendment, but that's a lie in practice.

[DRM]

The issue really isn't whether there should be free speech on campuses. It is instead, given that free speech plainly does not exist on many university campuses -- like Harvard and Penn, the worst and second-worst on FIRE's ratings -- what should be the government reaction to that fact.

And, well, my analysis is that if a speech-policing university tolerates demonstrations calling for the expulsion of blacks from the United States, and does not tolerate demonstrations calling for the expulsion of Jews from Israel, that university is clearly engaging in racial discrimination in the form of fostering a hostile educational environment, and accordingly should be denied federal grants, eligibility of its students for federal financial aid and student loans, and (under Bob Jones) donations to the university should not be tax-deductible.

And, of course, the exact same is true if you reverse which one the university tolerates and which one it does not.

[Sarcastr0]

Man who has hated higher education for a long time reluctantly comes to the conclusion that it's bad and he hates it.

It's sad how many on here have flipped to the anti-higher ed side on this, but for many on here there was no flip and no surprise.

[Rev. Arthur L. Kirkland]

Prof. Volokh is butthurt because he's no longer welcome at UCLA, having bigoted his way off campus.

I don't know why Creeley disdains our strongest institutions of higher education, but his Federalist Society credentials point toward disaffectedness and culture war casualty syndrome.

[The Margrave of Azilia]

Isn't Stanford more prestigitious than UCLA?

[Dr. Ed 2]

WAY more, and he's not just at Stanford...

[Rev. Arthur L. Kirkland]

The Hoover Institution is like the the special needs section at Stanford. A partisan operation, not a school, let alone a legitimate educational institution. .

[The Margrave of Azilia]

Are you criticizing the Stanford administration for how it runs the university? Aren't there some backwater right-wing institutions for you to criticize?

[SimonP]

It's a think tank, Margrave. Maybe a well-regarded one, as think tanks go, but a think tank.

[The Margrave of Azilia]

It’s technically part of Stanford. I really don’t know how good it is, I’m mocking the idea that certain universities are immune from criticism so long as there’s a Bible seminary somewhere which can be attacked instead.

But there seems to be a bit of overlap between Hoover and regular Stanford, e. g.:

“Condoleezza Rice is the Tad and Dianne Taube Director of the Hoover Institution and a Senior Fellow on Public Policy. She is the Denning Professor in Global Business and the Economy at the Stanford Graduate School of Business.”

https://www.hoover.org/profiles/condoleezza-rice

Which isn't to say I'm a fan of Rice, but she meets whatever regular Stanford's standards are.

[Randal]

"Technically."

[Rev. Arthur L. Kirkland]

The important point is that Stanford will let Prof. Volokh occupy an office at a related partisan think tank but appears not to be inflicting Prof. Volokh on its students. Stanford appears to have learned from UCLA's mistake.

[Darth Buckeye]

The problem is that these university DEI policies have been used to punish innocent, innocuous speech because such speech constituted microaggressions. This would have been comical if it had not been tragic. But now the universities are applying a different standard when faced with harmful speech aimed at Jews.

The problem is that these university speech policies are wrong from the get-go.

[Ed Grinberg]

https://reason.com/volokh/2023/12/06/should-universities-ban-advocacy-of-genocide/?comments=true#comment-10346274

[David Nieporent]

Kirkland doesn't read. Also, he still thinks that because he was repeatedly fired from his jobs for being an asshat that everyone else who changes jobs must have been fired.

[Rev. Arthur L. Kirkland]

Who fired me, clinger?

Have you made partner at a large (100 or more lawyers) law firm yet?

Carry on, clinger.