Law & the Courts

Banning ‘Wrongheaded’ Speech in Hyde Park

The University of Chicago has issued a stirring statement, but notice the loophole.

In an effort to make sense of the terrorist attack at Charlie Hebdo, many in the West have been considering again the question of what kind of blasphemous or offensive speech should be tolerated. Fortunately, for us here in the United States, our First Amendment provides a salutary answer: All of it.

Yet, the First Amendment applies only to government, and there are many officialdoms in our society that do not feel obliged to abide by it in letter or even in spirit: companies, message-board operators, and, above all, universities. The list of what you cannot say on campus is long and often absurd, and there is an entire cottage industry in the conservative blogosphere devoted to chronicling it and lamenting it. But now one university has issued a statement on freedom of expression that drew these campus-watchers’ applause. The University of Chicago, in this telling, is a rare beacon of free thought, free inquiry, and free speech. If Chicago had hills, it would be a shining campus on one.

Two weeks ago, Bret Stephens praised the university’s Report of the Committee on Freedom of Expression in the most lavish terms: “I’m glad to see at least one university in the United States that still stands for something. Happier still that I’m an alum. Send your kids there; . . . they might yet turn out all right.” While not giving application advice, Peter Berkowitz joined in, calling the report “exemplary” and adding, “Rare is the university that clearly articulates the principles of free speech and proudly stands behind them.”

But before the University of Chicago becomes a cause célèbre among conservatives, it is worth examining the report Berkowitz and Stephens praise and noting what it leaves unsaid and how the University of Chicago still contradicts its praiseworthy sentiments.

The report was chiefly authored by the progressive law professor and First Amendment expert Geoffrey Stone, and it asserts, to quote one of Stephens’s favorite passages, that “debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed.”

Stone’s report, however, is neither a policy nor a ruling but rather a statement of principles on the model of the Kalven Report, issued during the 1967 student revolts. The Kalven Report elucidated the principle that

the mission of the university is the discovery, improvement, and dissemination of knowledge. Its domain of inquiry and scrutiny includes all aspects and all values of society. . . . It is a community but only for the limited, albeit great, purposes of teaching and research. . . . Since the university is a community only for these limited and distinctive purposes, it is a community which cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. 

The Kalven Report has been adhered to with reasonable fidelity. The University of Chicago lobbies and works with governments, but only for its institutional aggrandizement. It does not proclaim positions on “the issues of the day.” Most substantively, the University of Chicago is alone among peer institutions in not divesting from companies that campus activists target over issues like carbon emissions and the “living wage.” The university never made the empty gesture of divesting from South Africa, Sudan, or Iran. Nor, despite often virulent anti-Israel student groups, is there much threat of its divesting from Israel or Israeli companies on the opposite side of the Green Line. In this regard, the Kalven Report has been a great boon to Chicago.

Yet, the Kalven Report is also just a statement of principles, principles that the administration cites when it wants to. The university’s courting of the Obama Library, a venue that will undoubtedly hold future Democratic-party events and present a nicely polished, pro-Obama account of “the issues of the day,” would seem to contravene the Kalven Report.

Like the Kalven Report, the Stone Report is but a “parchment barrier.” In this case, its support for free speech is only as strong as the administration wants it to be. The president and provost will cite it when it supports their proposed action, and they will neglect it when their proposed action is contrary to the principles of free speech and free inquiry. Moreover, the administration will feel compelled to cite the Kalven and Stone Reports only so long as they are venerated by enough of the students, faculty, and (most importantly) trustees.  

Yet, even if the Stone Report is cited as much as the Kalven Report has been, its effect will be limited. It is a direct response to one instance last year when a student interrupted the columnist Dan Savage for, in a monologue about reclaiming offensive words, using the word “tranny.” The student demanded that the term “T-slur” be used in tranny’s stead. The student (of unknown sex — he or she prefers the pronoun “it”) proceeded to leave the room crying and then started a petition demanding that campus authorities actively stop the use of “hate speech” at events hosted by the university. It was after this event that the Committee on Freedom of Expression was convened for the purpose of writing the Stone Report.

This kind of problem had been addressed before. In October 2009, when I was an undergraduate at Chicago, former prime minister Ehud Olmert was harassed as he delivered a speech there (the annual King Abdullah II Lecture, to be exact) by a cadre of anti-Israel activists who, one by one, started shouting accusations at him until they were removed from the lecture hall. Eighteen in total were removed from the event. After the embarrassing affair, the university’s president, Robert Zimmer, and its then-provost, Thomas Rosenbaum, sent an e-mail to all students reminding them that “any stifling of debate runs counter to the primary values of the University of Chicago and to our long-standing position as an exemplar of academic freedom.” The Stone Report has simply formalized this idea in a more eloquent way.

This all goes to show that the Stone Report’s context is really only one kind of incident: The prevention of an invited guest from speaking his mind because an animated campus group for one reason or another deems his views beyond the pale. It is no mistake, then, that in its lengthy preamble the Stone Report cites only one specific instance in the university’s history, a decision to invite the Communist party’s presidential candidate in the 1930s despite some uproar. Again, the focus is on invited guests.

Furthermore, the principle the Stone Report finally announces has a loophole a mile wide: “Except insofar as limitations on that freedom are necessary to the functioning of the University,” Geoffrey Stone and his committee write, “the University of Chicago fully respects and supports the freedom of all members of the University community ‘to discuss any problem that presents itself’” (emphasis added). The limitations on free speech that might be necessary to the functioning of the University of Chicago are not enumerated. A few such limitations are named, such as false defamation of a specific person or “a genuine threat or harassment,” but the list is left open-ended.

The entire statement begs the question of what is permissible student speech, especially in informal settings that lack all the drapery of “discussion of ideas,” “inquiry,” or “debate and deliberation.” What about the conservative Christian student who remarks to his gay fraternity brother that he believes sodomy is sinful? What about the student who uses the word “tranny” in a Facebook post, and not even in a discussion of “the reclamation of words”? What about the student who makes posters for an event on “Islam in Europe” and includes Charlie Hebdo’s blasphemous cartoons of Mohammed?

All these are expressions of political views done clumsily and without the rigors of reasoned debate. They are all undoubtedly offensive to some on campus.

It is not clear that the Stone Report protects this kind of speech, given its focus on invited guests, its large loophole, and its description of the speech it seeks to protect as speech in its best form (“discussion,” “inquiry,” etc.); it makes no mention of speech in its sloppy, rudimentary, and most common forms. It is not hard to imagine an administrator arguing that keeping gay, transsexual, or Muslim students from hearing or viewing things that would offend them is “necessary to the functioning of the University.”

Complicating the matter is the continued existence of the (Orwellian) Bias Response Team, a group of administrators who serve as campus speech police. At any hour of the day, students can report “actions committed against a person or property that are motivated, in whole or in part,” by “a pre-formed negative opinion or attitude toward a group of persons.” In other words, there is a procedure for dealing with expressions that are found to be offensive. The workings of the Bias Response Team are often confidential, but it has reportedly put pressure on offenders to make formal apologies.

The Stone Report certainly defends in theory the right of a Dan Savage or an Ehud Olmert to speak his mind without disturbance. But it does nothing to defend students from the Bias Response Team.

That team was created with the aim of “fostering an environment free from racism, sexism, ageism, heterosexism, homophobia, ableism, and xenophobia.” The Stone Report’s sentiments are in direct contradiction to the team’s aim, because the report’s authors understand that one activist’s “cisgenderism” — to use a word that will soon be added to this list — is another person’s freely thought idea. If the Stone Report were really to defend the free exchange of speech on campus, it would call for the abolition of the Bias Response Team. It does nothing of the sort.

The ideal of creating a university without clumsy speech, wrongheaded speech, or plain vulgarity is what motivates something like the Bias Response Team. Like the modern campus’s kangaroo courts that seek to eliminate the downsides of sex free from courtship, campus organizations like the Bias Response Team insulate students from the demands of adulthood. A free society implies a willingness to be offended. Offense is a fact of life that adults simply cope with.

That an eloquent, if largely irrelevant, statement about free inquiry would earn the University of Chicago such plaudits from a Bret Stephens or a Peter Berkowitz only shows how low our expectations of universities have fallen. Sure, invited guests should not be censored by a few riled-up college students. But censorship of students still remains the order of the day, and it will remain so as long as the University of Chicago views its students as children to be coddled by grievance professionals. Geoffrey Stone should have gone further and insisted that the University of Chicago treat its students as free men and women.

— Jeremy Rozansky is a research analyst at the Tikvah Fund. He graduated from the College at the University of Chicago in 2012.

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