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The More Things Change . . . Harvard’s Sad Legacy of Free Speech Controversies


I’m coming late the Harvard Law School e-mail controversy covered by Carol and Robert here on PBC (with Eugene Volokh and Ann Althouse absolutely owning the story in the larger blogosphere), but this tempest reminds me of a much greater spasm of outrage that gripped the HLS community 18 years ago this April. I was just wrapping up my first year (yes, I know that dates me), and I woke up one morning to find a campus literally on the edge of hysteria. The reason? I’ll let the New York Times set the stage:

On April 4, 1991, Mary Joe Frug, a prominent feminist legal scholar at the New England School of Law in Boston, was hacked to death on the streets of Cambridge. Wielding a military-style knife with a 7-inch-long blade, her assailant, as yet unknown, stabbed her four times.

On April 4, 1992, the Harvard Law Review held its annual gala banquet, when the torch of the nation’s most prestigious legal journal is passed to a new generation of editors. Among those invited: the murdered woman’s husband, Gerald Frug, a member of the Harvard Law School faculty. Had he attended, he would have found on his plate a parody of his wife’s last article. The parody, titled “He-Manifesto of Post-Mortem Legal Feminism,” was produced by the Law Review’s editors and paid for by the school. It depicted Ms. Frug as a humorless, sex-starved mediocrity and dubbed her the “Rigor-Mortis Professor of Law.”

Yes, you read that correctly. Two students published a parody of a murdered woman’s writings and life on the very anniversary of her death and distributed their “work” at a dinner attended by her husband. When I heard what happened, I was simply stunned at the mind-blowing level of apparent malice or stupidity (or both) displayed by the authors.

A storm of understandable anger swept the campus. My campus inbox (we didn’t have e-mail back in those days) was stuffed with statements of outrage and hurt. I had no problem with that. After all, the cure for bad speech is better speech. And while I’m sure nothing can really heal the hurt caused by a spouse’s murder and subsequent mockery of the event, I hope that Professor Frug (one of my favorite professors) received some solace from the universal and heartfelt expressions of support from the HLS community.

But as time went on, the anger turned vicious and political. Here’s the Times again, writing ten days after the story above:

But a number of female students and professors, and even some male professors, suggested that the domination of the law school by white men had created an atmosphere that encouraged incidents like the spoof. For many women, the episode marked a turning point in their thinking.

Andrea Brenneke, a third-year student, said: “The parody is symptomatic of the hostility toward women who are taking over positions of power traditionally held by white males. This was their fraternity-like response to getting back at women who fought to publish Mary Joe’s article.”

Some law school students put up posters with photographs of Mr. Coben and Mr. Fenyo, containing the addresses of the Federal appeals court judges for whom the two have been hired to serve as clerks after graduation. (Emphasis added).

 . . .

“There is good reason to believe,” 15 professors wrote in one of the letters circulated this week, that the publication of the parody “is a symptom of a much wider problem” of hostility toward women at Harvard.

One of the signers, Prof. Elizabeth Bartholet, said in an interview that “this incident shows something very scary about male anger toward women in this institution.” Professor Bartholet said she was particularly disturbed by people like Professor Dershowitz who dismissed the parody as only an example of “somewhat poor taste,” as he wrote in his column.

In Professor Bartholet’s view, the students responsible for the parody may have violated both Federal and Massachusetts civil rights laws against sexual discrimination, and she, along with some other professors, have called for the dean to investigate the parody incident.

It wasn’t enough to be angry, the offending students had to suffer, and the incident had to be used to acheive larger political goals. This is, in fact, a common pattern at Harvard (and elsewhere). Larry Summers offended key members of the university establishment with his comments about women in science. Summers paid his penance with a massive (and expensive) new diversity initiative, but it wasn’t enough. He resigned less than a year after a faculty vote of no confidence. The same pattern shows up again and again: Anger, political exploitation, and retribution.

Compared to the Mary Jo Frug parody, the current e-mail incident is small potatoes. A private e-mail speculating about the possibility of racial differences in IQ is simply in a different category from lampooning a woman’s death on the anniversary of her murder — at a public event attended by her husband. Yet in spite of the nearly insignificant nature of the private e-mail, the same patterns may be emerging. Already, we’ve seen strong hints that the student’s employment prospects should be harmed, and HLS Dean Martha Minow’s public statement was tainted by strong indications that some views are simply not acceptable on campus. (Please read FIRE’s Adam Kissel’s excellent analysis). 

Before this goes any farther, all concerned should understand that there is a bright line difference between offering your own perspective on a public controversy (even if your perspective is nothing more than an expression of rage and anger) and seeking to punish the offending speaker or ban “offensive” viewpoints from campus. While I prefer civility and usually like harmony, I also know that a true marketplace of ideas will have its hard edges and tough moments. So give voice to your anger if you must. But, really, isn’t anger enough?


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