With Progressives increasingly condoning censorship of conservative views as “hate speech,” conservatives are responding with an increasingly absolutist freedom of speech.
Demonstrators arose at last week’s American Political Science Association annual meeting with signs exhorting their fellow members to “Stand Up to Torture” by bodily turning their backs on John Yoo, late of the George W. Bush administration, who presented to two sessions on wholly unrelated topics. The protests’ premise was apparently that some views so exceed the pale that those who espouse them ought not to be given a scholarly hearing even on other topics. One might have more confidence in their judgment that Yoo—of whose views on presidential authority and the legality of torture I have been sharply critical—resides beyond that pale if the pale’s scope were not permanently shifting.
Throughout the two-year history of the Massachusetts case in which a young woman was charged with involuntary manslaughter for encouraging her boyfriend to commit suicide, there was a nationwide discussion of the implications of the case for free speech under the Constitution’s First Amendment.
The idea of the “marketplace of ideas” in which truth wins out through competition with error has a strong tradition in the U.S. Suggested in nascent form by Milton and Mill, US Supreme Court decisions appeal to it in free speech decisions, and it frequently appears in commentary and everyday conversations. It continues to hold axiomatic status in the U.S., at least outside of a set of college campuses.
Until my own wedding five years ago, I had never recognized how many modern craftsmen and craftswomen considered themselves artistes. Our wedding photographer labored over angles, like a film director, to make the pictures a joint production of our day and her style. And even the wedding cake maker in our interview with her said she wanted to capture our “spirit” as a couple in her design. I reflected then that in a wealthy society even many people who make material things think they are ultimately are in the business of creating meaning, where they mix their expressiveness with their clients to make art in the workaday world.
Our expressive age provides the social context for the Masterpiece Cakeshop, in which a cake baker couple is challenging an antidiscrimination law that requires them to bake a cake for a same-sex wedding ceremony. Mark Movsesian has written an excellent post, in which he is doubtful about the success of such claims because they run afoul of the egalitarianism of American society–a feature first noted by Alexis de Toqueville. But America is also dedicated to free expression. And just as egalitarianism has increased over time to embrace the equality of same-sex and traditional marriage, so has the breadth of expressive activity. Thus, the First Amendment question in Masterpiece Cakeshop sets up a clash of two powerful currents coursing through America–equality and expression. And to make the clash even more striking, Justice Anthony Kennedy, often the swing vote on the Court, is both the creator of constitutional rights for same-sex couples and the most stalwart defender of free speech.
The Senate Judiciary Committee held a hearing on free speech on campus last week. During the question and answer period Senator Diane Feinstein complained that public universities, like Berkeley, could not be expected to assure that unpopular speakers were heard on campus. They simply did not have the resources to protect them. One witness, Eugene Volokh, the UCLA law professor, pushed back, lucidly arguing that universities must protect unpopular speakers, because permitting agitators to prevent speech gives them a heckler’s veto.
Feinstein’s question points up one of the greatest problems of governance today. Our public institutions often do not deploy the resources to protect their core mission, because money is wasted instead on matters that are outside that mission and indeed undermine it. The University of California is a perfect example. As Heather Mac Donald has noted, the university keeps spending millions of dollars to hire bureaucrats devoted to various aspects of diversity. Yet these kind of bureaucrats frequently poison the atmosphere for free and open debate on campus. And dispensing with them would pay for more security that could protect Berkeley’s core mission of free inquiry.
Maintaining law and order is the government’s most essential function.
Drew Faust, the President of Harvard, is concerned about the plight of free speech on college campuses and hers in particular. She says all the right words about the importance of free speech to a university. But her suggestions about how to secure it are vague and anodyne. For instance, Faust exhorts those at the university to be “generous listeners.” For a college President, that is a bit like a preacher exhorting his congregation to oppose sin.
It is easy to be a generous listener when you are listening to people who agree you with you. But the ideological and partisan homogeneity of Harvard makes generous listening to sharply dissenting views harder, because it is easier to regard them as irrational or evil when none of your friends and colleagues share them. The problem is a structural and institutional one and cannot be solved by sermons.
Thus, if Faust were serious about free speech and free inquiry on campus she would announce some initiatives to make sure that conservative and libertarian voices punctured the campus bubble. A school as wealthy as Harvard could announce a speaker series to bring in a serious conservative or libertarian scholar once a week to speak to the entire university on an issue of public policy or political philosophy.