This might come as some surprise to observers of our campus culture wars, but there was a time, not long ago, when the situation in American higher education was much worse. There a wave of vicious campus activism aimed at silencing heterodox speakers, and it was typically empowered by a comprehensive regime of speech codes that exposed students to formal university discipline for daring to utter dissenting views. Moreover, there did not (yet) exist networks of lawyers ready, willing, and able to defend speech on campus.
These were the days of the Shadow University, the days before Twitter and today’s vibrant conservative media, when campus free-speech outrages occurred time and again without attracting the slightest bit of public attention. Even as a civil-libertarian resistance formed and began litigating on campus, many of the fact patterns were almost comically insane. University officials would destroy newspapers, force students to change their religious beliefs as a condition of graduation, and even — in one particularly memorable case — try a student group for the crime of desecrating the name of Allah after its members stomped on the flag of Hamas.
When I look back at my old litigation files, I see case after case that would light conservative Twitter on fire if it happened today. But courageous students fought back, they filed suits in courtrooms from coast to coast, and they won. The era of the speech code is over. The few remaining unconstitutional campus speech policies lie largely dormant and unenforced, with university officials keenly aware of the risk of lawsuits. That doesn’t mean that substantial legal challenges don’t exist — the Obama administration’s Title IX guidance initiated a tidal wave of campus due-process violations, to take one example — but speech on college campuses is legally free. If you engage in unpopular speech on a public campus and angry students demand your academic head, they’ll lose if you have the courage to persist.
And that brings me to the core free-speech challenge on American campuses today: Students are free, but they don’t feel free. A recent Stanford magazine piece on the state of free speech on campus sums up the state of play quite well. Read the key words in a liberal’s and a conservative’s assessment of the campus climate.
First, here’s Ralph Richard Banks, the liberal:
Students are unlikely to make useful intellectual contributions if they are feeling attacked or if they feel that they don’t belong at Stanford. [Emphasis added.]
Second, here’s Michael McConnell, the conservative:
Students of a conservative persuasion tell me that they do not feel free to express their views—even mainstream, reasonable views shared by millions of Americans—in class or in common spaces, for fear of attracting a torrent of abuse from fellow students and occasional disapproval from a small minority of ideologically intolerant faculty. [Emphasis added.]
McConnell continued, noting that conservatives “simply self-censor; they keep their mouths shut.”
Ironically enough, the desire to ameliorate the feeling that students don’t belong or the fear of attack was part of the motivation for the initial wave of speech codes. Administrators wanted students from historically marginalized communities to feel that their views were welcome on campus, and that those who did not make them feel welcome would face sanction. The response from conservatives was decisive: Why do administrators believe that snowflake progressive students are too weak to live with freedom?
Now this question is put to conservatives. A legal battle has been fought and won. In fact, it was won in a rout. A battery of constitutional doctrines protects your right to speak. Even in private workplaces, conservative religious employees — those most impacted by PC intolerance — enjoy protections against religious discrimination just as robust as those against discrimination on the basis of race, sex, or national origin.
In this legal environment, the prevalence of conservative timidity is both worrisome and self-reinforcing. I’ve had multiple conversations with tenured professors — including some on the center-left — who say they’re “terrified” of their own students, despite enjoying the kind of job security most Americans could only dream of. On occasion I’ve talked to professors who not only shut their doors but spoke in whispers rather than risk outing their views on matters such as same-sex marriage.
As a consequence, conservatives often feel more isolated and alone than they truly are. A conservative sees the abuse that a colleague experiences and rather than thinking, “I need to stand by her,” thinks, “That would happen to me if I spoke up.” As a consequence, a few very public shame campaigns and terminations have an outsized deterrent effect.
Well, you can fight. Self-censorship isn’t real censorship. And if you suffer unlawful retaliation, there are platoons of lawyers willing and eager to take a swing at your antagonists, no matter how powerful they might be. Moreover, the advantage of your voice is that you control it. You don’t have to apologize for someone else’s tweets or rationalize another person’s excesses. You can tailor your message to your community, using words of calm conviction that are easy to defend not just in courts of law but also in the court of public opinion.
In the aftermath of Mike Pence’s recent, extremely public capitulation to woke capitalism after a short news cycle of outrage, I posited a question: Can the Christian faith that survived and thrived when its disciples faced brutal beatings survive and thrive in the era of nasty tweets? Judging from the wholesale silence of many people of faith in hostile quarters of American life, you could be forgiven for having your doubts.
The battle for freedom has been fought and won. Your speech may be free, but that doesn’t mean it is easy. Truly confronting illiberal political correctness requires personal courage. Without it, the battle for the First Amendment will have been fought in vain.
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