Wendy Kaminer on the Tyler Clementi Act

by David French

Over at the Atlantic, longtime civil libertarian Wendy Kaminer has written an excellent, in-depth piece about the Tyler Clementi Act. Wendy makes many of the same points that FIRE made and that I made regarding the Act’s redundancy, its constitutional defects, and its inapplicability to the actual facts of Tyler Clementi’s tragic story. But Wendy delves deeper, analyzing the Act as part of a broader progressive quest to essentially mandate equality:

That the Supreme Court has been more protective of speech in defining harassment than the ACLU reflects the persistent liberal failure to balance presumed threats to equality with a commitment to free speech. Verbal harassment cases often involve conflicts between civil rights and civil liberties, between an affirmative obligation to ensure equality and a laissez faire approach to speech. Sometimes the conflicts are difficult to resolve, as in cases involving vicious, targeted slurs against particular workers, students, or demographic groups. But, these days, the conflicts between speech and equality on campus often barely qualify as conflicts at all. Merely offensive speech, jokes, or language that someone condemns as an “interference” with a student’s well-being are only threats to equality if students are so fragile and vulnerable that they’re constitutionally incapable of functioning as equals, in anti-authoritarian societies that value the right to speak freely. 

We’re cultivating fragility in our youth, teaching them that any hurt they feel — regardless of the nature, merit, or objective severity of critiques — can and should lead to punishment. I wonder, however, if universities are doing this in the name of equality as much as they’re doing it in the name of power. After all, not all hurts are equal. Christian students and Christian beliefs are routinely vilified — in fact, most of their professors admit they don’t even like evangelicals — yet the higher-education establishment, far from wringing its hands, congratulates itself for “challenging” these students with “provocative” ideas.  

To be clear, I’m not calling for Christian students to be treated with kid gloves. Conservatives and Christians need to cowboy up if they’re going to participate in the marketplace of ideas and should be ready to engage all comers with grace and patience — regardless of the vitriol of the attack. But in a world where some students can be mocked with impunity while others enjoy a zone of emotional protection, I question how much “equality” really matters. After all, if the leftist university establishment were forced to mind its manners when dealing with conservative Christians in the same way that it demands Christians respect beliefs and practices Christians find abhorrent, I think you’d see the end of the speech code culture in mere months.

Wendy is exactly right that “equality” is frequently the justification for the speech-code culture. But it’s not the reality, and it never has been. After all, down at the farm, some animals are always more equal than others.

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