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The Case for Allowing Advocacy of Violence on Campus

photograph of University of Pennsylvania courtyard

Last week M. Elizabeth Magill, the University of Pennsylvania’s president, was forced to resign after she gave testimony before Congress concerning her university’s response to pro-Palestinian demonstrations on its campus. The controversy over her testimony has focused upon the following exchange with Republican Representative Elise Stefanik:

Stefanik: “Does calling for the genocide of Jews violate Penn’s rules or code of conduct, yes or no?”

Magill: “If the speech turns into conduct, it can be harassment.”

Stefanik: “Calling for the genocide of Jews, does that constitute bullying or harassment?”

Magill: “If it is directed and severe, pervasive, it is harassment.”

Stefanik: “So the answer is yes.”

Magill: “It is a context-dependent decision, congresswoman.”

Stefanik: “That’s your testimony today? Calling for the genocide of Jews is depending upon the context?”

After news broke that Magill had resigned, Stefanik, referring to Magill’s co-testifiers from Harvard and MIT, said in a statement: “One down. Two to go.”

As others have pointed out, what is astonishing about this episode is that Magill’s response, which (bizarrely) even some prominent law professors have criticized, was a straightforward recital of First Amendment law as applied to campus speech. The First Amendment protects from censorship advocacy of violence that falls short of verbal harassment or incitement — the latter defined as conduct intended and objectively likely to cause imminent violence. In line with this principle, Magill’s sensible position is that there are likely some situations where even advocacy of genocide does not rise to the level of harassment or incitement. But critics of Magill’s position would have us believe that the scope of permissible speech — that is, speech not subject to institutional sanction — on our elite campuses should not be as broad as it is in any public park, any periodical, or any public library in America. In this column, I will try to provide a rationale for Magill’s position.

The first thing to observe is that free speech is not only a legal, but also an ethical issue that extends far beyond the purview of First Amendment law. That’s because free speech concerns arise in a variety of contexts, from the family to the workplace — indeed, wherever one person or group has the power to sanction others for their speech. It is not my position that in all of these contexts, the scope of permissible speech should be the same. The value of free speech must be weighed against other values, and in different contexts, the results of that weighing exercise may vary. My claim is that in academic institutions, the value of free speech is unusually weighty, and this justifies maintaining a very strong presumption, in this particular context, in favor of not sanctioning speech. So, while the First Amendment is only directly implicated where the government seeks to use the coercive power of the state to censor or otherwise restrict speech, the First Amendment may serve as a useful model for how private universities like the University of Pennsylvania should handle speech.

Academic institutions are where knowledge is generated and transmitted. To do this well requires an open exchange of ideas in which participants can rigorously test arguments and evidence. Any institutional limits upon this exchange inevitably hinder this testing process because they entail that certain ideas are simply beyond the exchange’s scope. While some limits are nevertheless justifiable for the sake of encouraging maximum participation and preventing violence or other serious harm to persons, academic institutions should not draw the line at mere advocacy of violence or crime for a couple of reasons.

First, it would deprive faculty and students of the opportunity to openly and freely examine ideas that might, like or not, have great currency in the wider society. This is particularly lamentable given that a college campus is a relatively safe and civil environment, one much more conducive to productive conversation about difficult topics than others in which students will find themselves after graduation. It is also, at least ideally, an environment relatively free from the kind of political pressures that could make open and free conversation difficult for faculty. For this reason, if a point of view that advocates violence or crime is without merit, the best arguments against it may be generated at a university. If it has merit — I do not presume a priori that any position advocating any kind of violence or crime is without merit — it is likewise at a university that the best arguments for the position may be uncovered.

In other words, it makes no difference that pro-violence ideas may be intellectually indefensible, or that some might wish them consigned to the dustbin of history. Academic institutions perform a public service simply by publicly demonstrating that fact. Moreover, Hannah Arendt said that in every generation, civilization is invaded by barbarians — we call them children. Her point was that no generation springs into existence armed with the truths established by its predecessors; each must relearn the hard-won lessons of the past, reflecting upon and deciding for itself what is good and bad, true and untrue. To shut down discussion of ideas we have deemed to be without merit is to tell the next generation of students that we have made up their minds for them. There could be nothing less consistent with the spirit of liberal education, with what Immanuel Kant called Enlightenment, than that.

It may be objected that advocacy of violence per se, in any context, frightens or even traumatizes would-be targets of violence, whether student, faculty, or staff, and this justifies censoring it. But my position is not that advocacy of violence is permissible at any time and place, or in any manner. There are better and worse ways for an institution to handle speech that is capable of harm. My point is simply that the solution cannot be to simply restrict any discussion of ideas supportive of violence, no matter how it is conducted. I have previously made the point that we — that is, free speech proponents, including the liberal Supreme Court of the 1960s that was responsible for so many seminal free speech decisions — do not support free speech because we think speech is harmless. By arguing for the central importance of free speech as a value, we implicitly recognize speech’s power to do evil as well as good. Our position must be that we support free speech despite the harm speech can cause, although we can and should take steps to minimize that harm.

This discussion has, so far, been somewhat abstract. Let me close by considering a concrete hypothetical that illustrates the gulf between my view and Stefanik’s. Suppose that a substantial portion of Americans come to support the involuntary, physical removal of Jews from Palestine, effectively an “ethnic cleansing.” Pundits and politicians start advocating for this position openly. On my view, one role of universities in that scenario would be to serve as a forum for discussion of this idea. Proponents of that view should be invited on campus and debated. Students and faculty, including those sympathetic to the idea, should discuss it at length. The hope would be that by exposing it to the kind of scrutiny that universities can uniquely provide, the idea would be discredited all the more swiftly and comprehensively. There is no guarantee that this would happen, of course. On the other hand, those who hold to the view that advocacy of violence has no place on campuses must insist that, in this world, universities and colleges should shun proponents of the view, insulating their students from exposure to the treacherous currents of thought coursing through the wider society. This, I submit, would be a mistake.

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On Academic Freedom and Striking the Right Balance

photograph of campus gates shut

In a recent column, Eli Schantz argues that academic freedom is not absolute, and that “academic freedoms must be balanced against and limited by” academics’ other obligations, such as their duty not to engage in invidious discrimination. This is an important point. For example, while academic freedom plausibly requires some sort of commitment to permitting academics to speak freely, speech that constitutes verbal harassment should not be tolerated.

However, as Schantz recognizes, how the balance is struck is a matter of vital importance — really, the whole ball game. And many now seem to believe that the following standard strikes the right balance: academic speech can be legitimately proscribed when either (a) someone claims that the speech is demeaning or disrespectful or (b) there is some degree of likelihood that the speech will cause harm.

This standard is unworkable and, if applied consistently — as it must be, in deference to the moral equality of persons — it would undermine the academic enterprise.

Examples illustrating the broad sweep of this standard are easy to come by. Imagine a fervently Christian student, who prior to arriving on campus had never been exposed to atheist or anti-trinitarian arguments. Exposing the student to these arguments might very well be psychologically devastating for them, and might even make them feel disrespected. Or consider an academic who, based on her scholarship, makes a policy recommendation that is then implemented by a state government. Suppose the academic’s recommendation, while made in good faith, was mistaken, and the policy ends up causing serious harm. This outcome was surely foreseeable, given the ever-present possibility of error and the stakes involved; so, the standard would imply that the academic should have been restrained from making the recommendation.

The general point is that if a topic is of significance to human life, then speech about that topic likely can be harmful. Therefore, a standard that makes foreseeable harm sufficient for censorship would cripple any serious academic discussion of humanly significant topics.

This does not mean we should engage in such discussions in an insensitive manner or in inappropriate contexts. But such “time, place, and manner” restrictions are perfectly compatible with a robust commitment to academic free speech.

The Supreme Court’s First Amendment jurisprudence is instructive on the standards that should apply to potentially harmful speech. First Amendment doctrine recognizes that some categories of harmful speech do not warrant protection. This includes defamation, true threats, incitement, and speech integral to unlawful conduct, such as fraud or verbal harassment. But the Supreme Court — not the current Court, but mainly the liberal Warren Court — has held that the possibility, or even the likelihood, that speech will cause some form of harm down the line is not generally sufficient to justify government censorship. In Brandenburg v. Ohio (1969), for example, the Court held that speech advocating for the use of violence in service of political ends is protected by the First Amendment, so long as it is not intended and objectively likely to cause imminent violence. This ruling, of course, applies equally to left- and right-wing advocates of political violence. The Court’s rationale was not that such advocacy is harmless — if it were, the legitimate bounds of free speech would be an easy question — but that on balance, the costs of censorship outweigh the benefits.

Similarly, while First Amendment protection from civil liability does not extend to defamation, a plaintiff who seeks to recover from an alleged defamer nevertheless has the burden of proving that the statement was defamatory. Simply claiming that the statement injured their reputation is generally insufficient unless they can show that the statement falls under certain narrow categories of statements considered defamatory per se, such as an allegation that they were involved in criminal activity. The standard of proof is not the demanding proof beyond reasonable doubt, but rather proof by a preponderance of the evidence. Nevertheless, the burden lies with them to show that the statements were defamatory, and not with the speaker to show that the statements were not defamatory.

Some may argue that the standards which apply to government censorship are not relevant to the limits academic communities ought to impose upon the speech of their members. In my view, this is mistaken.

As I have argued previously, free speech is particularly important for academic communities because their fundamental purpose is to generate and transmit knowledge. Without a robust free speech regime on campus, academics and students cannot engage in the kind of probing, multi-perspective discussions most conducive to this goal. Such a regime requires not only that the institutional rules of the community not unduly burden speech, but that members not impose social and economic penalties on other members for their speech without a compelling justification. For this reason, there should be a high presumption in favor of free speech in academia. On most campuses today, that presumption is defeated, and properly so, only in the case of speech that harasses or discriminates. But “harassment” and “discrimination” should continue to be defined narrowly. They should not extend to good faith discussion of controversial topics, or to one-off remarks by thoughtless or immature students and professors.

Would a robust free speech regime on campus cause harm to its members or others? In some instances, yes. No speech regime, whether restrictive or libertarian, is without costs. The discussion we should be having about speech on campus is about the net benefits of different kinds of speech regime. Just as it is insufficient to invoke academic freedom to shield academics from institutional and social liability for their speech, it is also not enough to invoke the fact that academic freedom is not absolute to justify imposing such liabilities.

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What Are the Limits of Academic Freedom?

photograph of dividing line with shoes on opposite sides

In November of 2019, Indiana University professor Dr. Eric Rasmussen tweeted a quote — “geniuses are overwhelmingly male because they combine outlier high IQ with moderately low Agreeableness and moderately low Conscientiousness” — from an article titled “Are Women Destroying Academia? Probably.” After being picked up by students and various media outlets, Indiana University’s administration was flooded with calls for his dismissal — a response which was intensified by the larger patterns apparent in Rasmussen’s social media: in a letter sent to students, then-provost Lauren Robel described how Rasmussen’s social media activity reflected a variety of overtly sexist, homophobic, and racist beliefs. In an interview with CBS, however, Rasmussen argued that he could not be held responsible for the tweet or any of the other views which Robel ascribed to him, saying that “academic freedom should protect me, even if I believed all the things [Robel] attributed to me.” Though Robel found Rasmussen’s views “loathsome,” Robel noted that the First Amendment, and its protection of free speech, “is strong medicine, and works both ways.” Though he was forced to adopt double-blind grading, Rasmussen remained on faculty until his retirement in 2021.

Earlier this year, the tension underlying Rasmussen and Robel’s exchange was rekindled in a series of essays in The Chronicle of Higher Education. Amna Khalid (whose work I have discussed in these pages before) and Jeffrey Aaron Snyder argued that when concerns about diversity, equity, and inclusion come into conflict with academic freedom, “academic freedom must prevail.” Stacey Hawkins, who serves as Vice dean and Professor of Law at Rutgers Law School, argued against Khalid and Snyder’s categorical position, writing that administrators, in resolving such conflicts, must “measure the relative harms, evaluate facts and circumstances, and render judgments that elevate the needs of the many over the needs of the few.” This drew a significant response, including a cutting critique from Brian Leiter — the Director of the Center for Law, Philosophy & Human Values at the University of Chicago — which couldn’t have a more unambiguous title: False That Academic Freedom Must Sometimes Cede to DEI Objectives.

.  .  .

Political freedoms — such as freedom of speech, religion, or privacy — are not monolithic: rather than being independent from one-another, the various forms of freedom which we hold dear are deeply interconnected, with each checking and balancing each other. Though your doctor, for example, has a right to freedom of speech, they are not permitted to disclose your protected health information without your permission; though your teacher has freedom to practice their religion, they cannot proselytize in a public school. In both of these cases, the freedom of one is limited by the freedom of another: your doctor’s right to free speech is limited by your right to privacy, and your teacher’s freedom of religion is limited by your own freedom of religion.

Academic freedoms are no different: they exist in relationship to other rights and other freedoms. This simple claim, however, can be incredibly easy to overlook. Consider the definition of academic freedom advanced by the American Association of University Professors (AAUP):

Academic freedom is the freedom of a teacher or researcher in higher education to investigate and discuss the issues in his or her academic field, and to teach or publish findings without interference from political figures, boards of trustees, donors, or other entities. Academic freedom also protects the right of a faculty member to speak freely when participating in institutional governance, as well as to speak freely as a citizen.

Most of us would hold that, in most cases, a researcher should be free to investigate issues in their field; but this freedom is not absolute, and the AAUP’s definition fails to properly acknowledge the ways academic freedoms can infringe upon — or clearly violate — the freedoms of others. Researchers are not free to withhold life-saving interventions, and lie about doing so, in order to study the natural progression of a disease; researchers are not free to spread plague-infected fleas in order to study the efficacy of various biological warfare strategies. These were very real experiments, done in the name of generating knowledge and furthering a field of inquiry — to the absolutely horrifying cost of the human beings who were sacrificed. In response to these human rights abuses by researchers, an entire field of medical research (now known as bioethics) was created, and strict protocols were established through Institutional Review Boards (IRBs) to confirm that researchers did not infringe upon the rights of research subjects. This reflects a sensible picture of academic freedom: that academic freedoms, like all freedoms, are limited by other forms of freedom and the ethical obligations which they impose on researchers. I would not accuse the AAUP of supporting unethical research; their definition of academic freedom, however, completely ignores the balance which must be struck between any form of freedom and all others.

Further, an academic cannot merely invoke academic freedom to absolve themselves of their larger ethical obligations. In the context of research, professors are routinely fired, and research is routinely retracted, for failing to abide by IRB procedures — and few would argue that they shouldn’t be. What qualifies as teaching, similarly, is not left up to professors to decide: we do not, and should not, tolerate when professors are abusive to students as part of their “teaching” process. Whether it be in the context of research or teaching, holding academics accountable requires that academic freedom be limited.

If academic freedoms, like all other freedoms, are understood in this interdependent way, then the picture painted by the Rasmussen Controversy and the debate in The Chronicle of Higher Education is cast in a very different light. It’s plausible to claim that Rasmussen’s academic freedoms are limited by his student’s freedom from discrimination, rendering the claim that academic freedom entirely absolves him of responsibility inert (and Robel’s decision to retain him ethically questionable). It’s equally plausible to claim that universities have an obligation to not just protect students from discrimination, but also to proactively support diversity, equity, and inclusion — and, therefore, that academic freedoms must be balanced against and limited by these obligations. Where this balance is struck, and in what particular instances academic freedom should be limited, is a matter which will be settled over intentional and meaningful debate. But such limitations do exist, and such a debate must be had in earnest — however forcefully claims to the contrary are made.

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Why Academics Should Not Be Activists

photograph of lecture with crowd member recording on her phone

In his Theses on Feuerbach, Karl Marx famously complained that “philosophers have only interpreted the world, in various ways; the point is to change it.” Today, the prevailing ethos on American, European, and Australian campuses shows the same impatience with mere contemplation. “Engagement” is the academy’s mantra, and it is faintly shameful, particularly for humanities professors, to be unconcerned with politics. Some have even called for “recognizing advocacy as part of the work mandate of academic staff.” While understandable, the push to make academics activists — campaigners for social or political change — is a serious mistake because it threatens to deprive society of the goods that academic institutions, uniquely, provide.

The defining purpose of academic institutions is to generate, and then to transmit, knowledge. They undoubtedly serve other functions, but this function is what makes an institution academic. It is for this reason that institutions that share in that function, though to a lesser extent — e.g., think tanks — are sometimes called “quasi-academic.” And academic institutions exist because that function is, and is thought to be, useful to society.

Within academic institutions, professors are the ones upon whom the primary responsibility for generating and transmitting knowledge falls. Because of this, if they engage in pursuits that degrade their capacity to generate and transmit knowledge, to that extent they are disloyal to their institution and to their institutional role.

Of course, there are higher loyalties, and I’m not arguing that any professor’s highest obligation is to support her institution or fulfill her academic role. Nevertheless, it surely is the case that the bulk of what constitutes a “good” academic is the ability to produce high-quality scholarship, and the ability to convey that scholarship to others — that is, to teach.

Being an activist makes both generating and transmitting knowledge more difficult. It makes generating knowledge more difficult because, as a matter of psychological fact, it is difficult to properly weigh evidence and arguments when one is also emotionally committed — and political commitments are always emotional — to realizing a substantive political goal, if the evidence and arguments bear on, or are connected to, that goal. And being an activist makes transmitting knowledge, or teaching, more difficult because it may undermine the quality of teaching and the teacher’s credibility, at least if what the teacher teaches about is related to their activism. It does this because it raises the real possibility either that the teacher is deliberately teaching the material in a manner that furthers, or is at least consistent with, their political convictions and goals, in the face of reasonable contravening evidence and arguments; or that even if they are attempting to be objective, they are psychologically less able to properly weigh the evidence and arguments than they otherwise would be.

This point about teaching is particularly important, because like it or not, the continuing existence and vitality of the academic vocation depends upon broad-based societal support for academic institutions.

If the latter come to be seen as re-education camps rather than purveyors of a genuinely liberal education, that cannot fail to negatively impact the institutions in the medium and long-term. Of course, there will always be a certain amount of hostility toward academic institutions, because there are plenty of people who do not really like liberal education — they want indoctrination, just not the kind of indoctrination they pillory academic institutions for providing. But that does not mean academics may throw up their hands and disregard the fact that what society thinks about academic institutions is important, and professors are the group within academic institutions most responsible for determining how the public thinks about them. They must be mindful that the relatively high status that academics and academic institutions still enjoy is not a given.

Although I think this argument provides good reasons for academics to be wary of activism, it’s important to note its limits. First, the argument only applies to academics whose subject of study is connected to their activism. For example, it clearly applies to a historian of the modern Middle East who actively campaigns for Palestinian rights. But a historian of the medieval Middle East who actively campaigns for Palestinian rights may not fall within its scope. And a physicist who campaigns against animal cruelty is clearly outside its scope.

It follows, paradoxically, that the academics who are best informed about political issues by reason of their research or teaching should be the most cautious about engaging in activism.

It might therefore be objected that my argument threatens to deprive society of the best-informed voices on particular political issues. But that academics should be wary of engaging in activism does not mean that they should not engage in public outreach of any kind. It is perfectly acceptable for academics to write or speak in public forums about the subjects of their research even if their research is connected to live political debates. They can even make policy recommendations on the basis of their scholarship. What they should be wary of is campaigning for those policies. The line between public outreach and campaigning is admittedly a blurry one, but not to the extent of rendering the distinction meaningless.

Second, certain kinds of academics — for example, political philosophers — are a special case because part of their job may be to argue for certain substantive political goals. I see no reason why a philosopher should not publicly advocate for a substantive political goal if they have done so in their scholarly work. Still, even here I think activism poses a danger, since we expect philosophers to take the “other side’s” arguments seriously until they have good reasons for rejecting them. Being an activist may dispose philosophers to dismiss contrary arguments too hastily. So, philosophers should still be wary of activism, even if they may translate their scholarly arguments for a substantive political goal into language fit for general public consumption.

Third, the argument in no way implies that academics should not engage in internal activism — activism aimed at effecting change to their own academic institutions. I see no reason not to classify campaigning for such internal change as a form of activism, and it is both necessary and desirable that all members of the academic community — including academics — should be involved in efforts to better the community. Such activism generally does not raise the same concerns as outside activism, and even when it does, it can be justified with reference to the academic’s role in the institution as necessary to furthering the institution’s primary goal of generating and transmitting knowledge. By the same token, academics may perhaps justifiably participate in outside activism on behalf of academic institutions — for example, campaigning against laws banning the teaching of certain subjects like critical race theory.

However, returning to an earlier point, it may be objected that even if an academic qua academic should avoid activism, academics are not just academics — they are also citizens and members of communities. Moreover, the obligations attached to these identities trump academics’ obligation to be good academics. Again, I have no real dispute with those who feel their civic duties trump their professional or vocational obligations. However, it is plausible to hold that an academic’s scholarship and pedagogy are themselves a means to fulfill her civic or communal obligations. By generating and transmitting knowledge, academic institutions make a fairly unique contribution to society, and for that reason an academic can reasonably believe that her academic work is the primary way in which she contributes to her society’s welfare.

There is a more general point to be made here. Human life is inherently tragic, in that not all values are co-realizable in a single life (or even, perhaps, a single society). Choosing one lifelong vocation invariably involves forsaking other, equally valuable ones; for this reason, all such choices can be reasonably regretted. Both activism and scholarship are valuable pursuits, but by undertaking both at the same time, a person may find that they excel in neither. Thus, while I entirely understand some academics’ belief that their civic and communal obligations require them to engage in activism, even if it negatively affects the quality of their scholarship and teaching, I believe that they sometimes have to make a choice to pursue one thing or the other. As I have already explained, my argument in no way entails that academics should avoid all activism. But when the subject of their scholarship relates to the goals of their activism, academics would be well-advised to tread with extreme caution.

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With Students Like These, Who Needs a Fatwa?

photograph of empty classroom

On August 12, 2022, a twenty-four-year-old man nearly murdered Salman Rushdie for something he wrote before the man was born. The assailant set upon Rushdie as he was about to deliver a public lecture at the Chautauqua Institute in New York, stabbing him multiple times in the neck, stomach, eye, and chest and inflicting over twenty wounds. That night, Salman’s life seemed to be hanging in the balance. But the next day, the world learned that he would survive, albeit with grave and permanent injuries, including the loss of sight in one eye and use of one hand. Nevertheless, Ayatollah Khomeini’s religious decree or fatwa, issued in 1989 and calling for Rushdie’s assassination, remains unfulfilled.

Yet reading about recent statements and actions of students and administrators at Hamline University in St. Paul, Minnesota, one could be forgiven for concluding that Khomeini’s message has, at least in part, carried the day.

Last fall, an adjunct professor there was fired for displaying a fourteenth-century painting of the Prophet Muhammed in her class after a student complained that showing the image was an act of “disrespect.” In the fatwa against Rushdie, Khomeini explained that Rushdie’s murder was warranted because his novel, The Satanic Verses, “insult[s] the sacred beliefs of Muslims . . . .” Of course, no one at Hamline was calling for the lecturer’s blood. But that showing the image was, as school officials averred, “undeniably inconsiderate, disrespectful, and Islamophobic,” or that avoiding “disrespecting and offending” Islam should always “supersede academic freedom,” are ideas that seem more at home in an Islamic theocracy than a liberal democracy.

Not being an expert in the history or theology of Islamic iconoclasm, I will not engage with the argument that showing an image of the Prophet is always and clearly Islamophobic. It’s worth noting, though, that the image was created for an illustrated world history commissioned by a Muslim ruler of Persia and written by a Muslim convert. That fact in itself suggests a further fact that, at least outside of Hamline’s Office of Inclusive Excellence, is widely acknowledged: there is a broad range of views within Islam about the propriety of such depictions. As Amna Khalid trenchantly observes, it is the assumption that the Muslim community is a monolith with respect to this issue that seems Islamophobic.

But besides bolstering the argument that showing the image served a legitimate pedagogical purpose and was not aimed at causing offense, the contention that the image is not insulting to all Muslim is somewhat beside the point. The real question is: even if it were, would that automatically make showing it in a university classroom impermissible?

Suppose that, in a class about the history of European political satire or journalistic ethics, a professor displayed the cartoons whose publication by the French satirical magazine Charlie Hebdo led to the murder of twelve people in 2015. These cartoons are undeniably irreverent and, yes, even insulting and offensive to some. But unless showing them has no pedagogical benefit under any set of circumstances — unless it is undeniably an attempt simply to insult students — academic freedom absolutely supersedes these students’ hurt feelings. The very idea of an institution dedicated to the production and dissemination of knowledge, through the exchange of ideas and arguments among diverse participants, each with their own unique perspective, depends upon this principle. If anyone’s bare claim to be disrespected, offended, or insulted is sufficient to justify censorship, then there is almost no topic of any human interest that can be discussed with the candor required to examine it at any level of depth or sophistication.

It seems, however, that a non-trivial number of students at Hamline disagree with me. When the university’s student newspaper, The Oracle, published a defense of the lecturer written by Prof. Mark Berkson, the chair of the Hamline Department of Religion, the ensuing backlash led its editorial board to retract the article within days. In an unsigned editorial explaining the move, the board wrote that because one of its “core tenets” is to “minimize harm,” the publication “will not participate in conversations where a person must defend their lived experience or trauma as topics of discussion or debate.” In other words, publishing the chair’s defense adversely affected other students by “challenging” their “trauma.”

There are two features of this argument I find interesting: the “minimize harm” principle, and the use of the term “trauma.” Both, I think, can be fruitfully examined in light of a useful distinction the philosopher Sally Haslanger draws between a term’s manifest concept and its operative concept.

According to Haslanger, a term’s manifest concept is determined by the meaning that language users understand a term to have; it is the term’s “ordinary” or “dictionary” definition. By contrast, its operative concept is determined by the properties or entities actually tracked by the linguistic practice in which the term is employed. In her work on race, Haslanger observes that the manifest concepts associated with the term “race” and similar terms include some biological or physical components, yet the way we actually apply these terms does not track any physical characteristic (think of how the term “white” was once not applied to Sicilians).

Using this distinction, we can see how the editorial board performs a neat sleight of hand in its use of the term “trauma.” The dictionary definition or manifest concept of “trauma” is something like Merriam-Webster’s “a disordered psychic or behavioral state resulting from severe emotional stress or physical injury.” When The Oracle’s editorial board uses the term, and further, implicitly asserts that no one should question whether a person’s trauma is warranted or justified, this sounds eminently reasonable because of the term’s manifest concept. But when we look at how the board actually uses the term, it becomes clear that its operative concept is something like “insult, offense, or a feeling of being disrespected.” Once we see this, the claim that a person’s “trauma” should never be questioned begins to look quite doubtful. A person may be mistaken in feeling insulted or offended, and in such situations, it may sometimes be permissible to respectfully point this fact out to them. This is precisely what Prof. Berkson was trying to do in his defense of the lecturer. And once again, I must insist that it is even sometimes justifiable to cause offense in the classroom in order to achieve a legitimate pedagogical goal.

There is another sleight of hand at play in the board’s “minimize harm” principle. The board invokes the Pulitzer Center’s characterization of this principle as involving “compassion and sensitivity for those who may be adversely affected by news coverage.” On its face, this seems beyond reproach — particularly since the Center’s definition clearly implies that newspapers may justifiably publish material that adversely affects others, so long as they do so in a sensitive and compassionate manner. But the board’s application of the principle to this case reveals that for it, “minimize harm” really means “cause no harm,” or even “cause no offense.”

While the principle of minimizing harm implicitly calls for exercising moral judgment in weighing whether the harm caused is justified by the benefits to be gained, and moral courage in defending that judgment when it is challenged, the principle of causing no harm is, for journalists, equivalent to a demand that they not do their job.

For example, if The Oracle published an article uncovering massive corruption in the Office of Inclusive Excellence that led to multiple school officials’ termination, it would cause concrete harm to those officials. “Cause no offense” is, of course, an even more craven abdication of the journalist’s vocation.

There is a final point that I think is worth making about this sorry affair. Before showing the painting to her students, the lecturer reportedly took every possible precaution to safeguard their exceedingly fragile mental health. She made that particular class activity optional. She provided a trigger warning. And she explained exactly why she was showing the painting: to illustrate how different religions have depicted the divine and how standards for such depictions change over time. She behaved like a true pedagogue. None of this prevented the mindless frenzy that followed. This suggests that instead of actually helping students cope with “trauma,” trigger warnings and the like may actually prime students to have strong emotional reactions that they would not otherwise have. Indeed, the complainant told The New York Times that the lecturer’s provision of a trigger warning actually proved that she shouldn’t have shown the image. What a world.

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Academic Freedom and the Kershnar Case: A Partial Dissent

photograph of pole vault crossbar

American appellate court opinions often include one or more concurrences, where judges register their agreement with the majority or plurality’s decision but disagree in part or in whole with its reasoning. Judges are also free to concur with parts of the majority or plurality’s decision, but dissent to other parts. When this happens, it can be pretty unclear where the judge stands with respect to the majority or plurality opinion. As I read Rachel Robison-Greene’s excellent column about the Stephen Kershnar controversy, I felt something like this complicated patchwork of concurrence and dissent thread together in my mind. The following is an attempt to articulate these thoughts.

To quickly recap the controversy, late last month Kershnar, a philosophy professor at SUNY Fredonia, was interviewed for “Brain in a Vat,” a philosophy-themed podcast. In the interview, Kershnar claimed that adults having sex with children is not morally wrong. The argument he offered for this startling claim was fairly weak, as Robison-Greene shows in her column. Unfortunately, the interview has been removed from YouTube, which makes it difficult for people who haven’t watched it to evaluate the argument for themselves. In any case, clips of the interview went viral, and in response to the controversy, SUNY Fredonia barred Kershnar from campus or from contacting students pending the results of a formal investigation. Free speech advocacy organizations and not a few prominent academics have since protested SUNY Fredonia’s move on the grounds that it violates its own commitment to academic freedom, as well as First Amendment protections that apply to Kershnar as a state government employee.

Robison-Greene provides a clear summary of the academic freedom argument against sanctioning Kershnar, but I want to draw out a few strands that deserve closer attention. If society is actually committed to free inquiry in universities, it must be willing to tolerate academics questioning even its firmest convictions. Indeed, the case for academic freedom is arguably strongest with respect to those areas in which one viewpoint is overwhelmingly dominant, if not universal. It is here that a particular viewpoint comes to seem like the only possible viewpoint — where belief, claiming the mantle of self-evidence, petrifies into dogma. Examples from history are legion: the belief in the unsuitability of women for public life, or in the immorality of homosexuality.

It might be replied that surely, we know that pedophilic sex is wrong, just as we know that slavery is wrong. And even if we don’t know that these claims are true — and especially if, as some philosophers argue, these claims are not knowable, strictly speaking —why allow them to be publicly questioned given all of the deleterious effects that could result, as Robison-Greene plausibly argues? Here, I think, we come to the nub of the issue. The question is this: are the net benefits of allowing academics to freely inquire into the merits of any socially dominant opinion greater than the net benefits of requiring that someone — perhaps the academic herself, her academic department, or school administration officials — weigh up the costs and benefits of each line of inquiry ex ante before allowing it to proceed?

This is not an easy question to answer. Complicating matters is that some of the goods that can be obtained by free inquiry are arguably different in kind from those that can be obtained through censorship. But we can make a few general observations. First, it is very hard to know, ex ante, what the value of a line of inquiry is. It seems probable to me that questioning the moral wrongness of adult sex with children is, on net, a valueless or disvaluable line of inquiry. But my confidence that this is the case is too low to warrant quashing it ex ante. There are simply too many past examples of lines of inquiry that have seemed valueless or disvaluable ex ante to most people, but that have turned out to be enormously beneficial both epistemically and in terms of human welfare. Where the future is concerned, experience always seems to counsel humility.

Even if we were perfectly rational, the limitations on our knowledge would furnish a reason not to attempt to evaluate lines of inquiry ex ante. But we are not perfectly rational — far from it. In general, the more firmly held a belief is, the less disposed the believer is to entertain evidence that points to its falsity. This means that we are likely to systematically underrate the value of lines of inquiry that could threaten our deepest convictions. Thus, our knowledge of our own biases should make us even more skeptical of the possibility of accurately evaluating lines of inquiry ex ante. 

The argument so far assumes that academic censors would act in good faith — that they would not use their authority to advance their own political agendas by, for example, interpreting the rules in such a way that lines of inquiry they disfavor for political reasons would be proscribed. This is far from clear. Moreover, given the inherent unknowability of the future value of lines of inquiry, empowering people to make decisions about which ones ought to be allowed based on a prospective cost-benefit analysis seems particularly likely to lead to abuses.

There is also the problem of the so-called “Streisand Effect”: in liberal democracies with robust civil societies, attempts to censor opinions actually tend to amplify them. The vast majority of “Brain in a Vat” episodes have view counts in the hundreds. Now, thanks in part to SUNY Fredonia’s attempt to punish Kershnar, his ideas have been discussed in dozens of news articles and blog posts, and a far larger number of tweets. It is likely that had the podcast dropped without comment, thousands who now know about Kershnar’s views would have never heard of him. Authoritarian governments with much greater control over the production and distribution of information might be able to censor successfully, but it is doubtful that in the United States, depriving someone like Kershnar of his platform will make his ideas disappear. Censorship via de-platforming might not even be a viable strategy for quashing objectionable claims.

Robison-Greene writes that “the existence of so much support for [Kershnar’s] case by so many (mostly powerful male) [academics] is likely to make victims of childhood sexual assault feel unsupported and potentially unsafe.” This might be true, but I think it’s worth interrogating why. If victims feel less supported when other academics support Kershnar, it must be either because they think (a) that such support is tantamount to approval for Kershnar’s ideas or (b) that pedophiles view such support as tantamount to approval for Kershnar’s ideas, and the consequence of their viewing it this way is that they will be emboldened to satisfy their sexual desires. Either way, the key idea here is that opposition to punishing Kershnar for his ideas implies support for his ideas. There is, indeed, something highly counterintuitive about the idea of hating what Kershnar says but fighting for his right to say it; it produces the same dissonant sensation as hating the sin and loving the sinner, or appreciating the artistic genius of a moral monster. Human beings have a well-documented aversion to ambivalence; academic freedom and similar rights require us to be ambivalent. If society had a stronger commitment to free thought and free speech, it might be easier for people to accept that supporting a speaker’s right to speak does not imply approval of his ideas.

Robison-Greene reminds us that speech can do real harm, in this case by potentially “empower[ing] [pedophiles] in their conviction that their behavior isn’t actually morally wrong, it’s just commonly viewed that way by society.” Too often, free speech advocates seem to deny that speech harms at all. Given that most of them also point to the U.S. Supreme Court’s First Amendment jurisprudence as a model for how to draw the boundaries of free speech rights, this is somewhat ironic. Even as it strengthened protections for speakers over the course of the last century, the Supreme Court never denied that speech can do serious harm. For example, if a state makes speakers potentially liable for intentional infliction of emotional distress because of what they say, that is fully compatible with the First Amendment. The Court has also held that the First Amendment does not bar liability for defamation. In carving out these exceptions from First Amendment protection, the Court tacitly acknowledged that speech can cause profound emotional and reputational damage.

At the same time, however, it’s important to recognize that when people exercise any of their important individual rights, harm to others frequently results. For example, criminal defendants have constitutional rights that, by making it harder for prosecutors to secure convictions, often harm crime victims. Unlike the citizens of some authoritarian states, Americans are free to move about the country and travel abroad. But this freedom comes at a cost: tens of thousands die on the roads every year, and travel produces substantial greenhouse gas emissions. Parents have extensive rights over their children, and this can cause enormous harm even when parents do not transgress the bounds of law.

Thus, a successful argument for constraining the right to freely inquire — incidentally, the right that SUNY Fredonia guarantees for all of its professors — must do more than show that exercising that right can cause harm. It must show, at minimum, that a policy of constraint both (a) is practically feasible and (b) would produce outcomes that are, on net, better than those that issue from permitting truly free inquiry. I think there are serious reasons to doubt both. That is why, although I agree in some sense with Robison-Greene that this is an “unfortunate case,” at the same time, the fact that our society supports someone who questions its deepest moral convictions is a profound collective achievement. And in the end, I do not think that cases like this pose a serious ethical challenge to our society’s commitment to academic freedom.

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Testing the Limits of Academic Freedom

photograph of SUNY Fredonia sign at dusk

On January 30th, 2022, SUNY Fredonia professor Stephen Kershnar was interviewed for the podcast “Brain in a Vat” in an episode titled “Sexual Taboos.” In the interview, Kershnar claimed that adult sex with children is not morally wrong. When asked about the cutoff point for when adult sex with a child becomes impermissible, Kershnar did not concede that such activity was wrong even with a child as young as one year old. He responded to the question by saying, “The notion that it’s wrong, even with a one-year-old, is not quite obvious to me.” The argument that he articulated in the interview is that we let children make all sorts of decisions for themselves: they decide what to wear in the morning, what to eat for breakfast, etc. We don’t challenge their ability to give free and informed consent to those things. He argues that sex is no different and claims that there isn’t anything significant about sex that changes the standards for what counts as giving consent. Therefore, if a child seems to be a willing participant to a sex act with an adult, it is not morally wrong for the adult to engage in a sex act with the child.

A short clip from the video circulated on social media and the content of the interview soon got back to administrators at SUNY Fredonia. Kershnar was reassigned pending an investigation of the case. As part of an official statement, the President of SUNY Fredonia said the following,

SUNY Fredonia is aware of a video posted online involving one of its professors. The views expressed by the professor are reprehensible and do not represent the values of SUNY Fredonia in any way, shape or form. They are solely the professor’s views. The matter is being reviewed.

In response to the news that action might be taken against Kershnar, The Foundation for Individual Rights in Education (FIRE) crafted an open letter in defense of Kershnar’s academic freedom. At the time of this writing, the letter has 115 signatories. A significant majority of the signatories are male and include such powerful and prominent figures as Peter Singer, Alex Byrne, and Brian Leiter.

The main argument in support of Kershnar is that the tenure system protects academic freedom, and such freedom is crucial to the functioning of democracy as well as to the give-and-take of reasons and evidence that knowledge attainment requires. The system depends on the broadly liberal idea that bad arguments and ideas are best addressed in open conflict with the articulation of other, more compelling arguments and ideas. It is only when people are free to express all ideas openly and without fear of reprisal that we can understand, as individuals and as communities of knowers, which conclusions the evidence or argument supports.

Those defending Kershnar’s speech may well find it repugnant, but may defend it as a matter of procedure, not of substance. We have a history of harshly punishing people with ideas that diverge from the mainstream. On many occasions, those ideas have turned out to be accurate (or at least more accurate than the views that preceded them). Once we start picking and choosing the thought expressions that will be cause for punishment, the domain of the exchange of ideas falls under the control of whoever is in charge of the punishment. Everything may seem fine when one is in agreement with punishment norms, but winds shift, and one day it is likely that the norms will be controlled by very different people with very different values.

The current political context only makes defense of academic freedom more urgent. For example, seven states currently have laws on the books banning teaching Critical Race Theory in local schools. In an additional sixteen states, similar laws are working their way through the legislature. New waves of book bans are surging through the country. Many states are considering legislation designed to hold public school teachers and their lesson plans up to unprecedented levels of scrutiny, up to and including laws that require video cameras in the classroom and laws that allow for parents to sue teachers if they dislike the material teachers are presenting in their classrooms. At a time when education is under attack and the country is grappling with rampant anti-intellectualism, we can’t afford to whittle academic freedom away. Academic freedom is a bulwark against fascism.

Regardless of whether one finds the arguments for academic freedom compelling, it is clear that there are also strong arguments on the other side of the case. The first argument acknowledges the fact that academic freedom is under attack but raises a concern for how protecting Kershnar in this case might potentially make things much worse. Many states have significantly weakened the tenure system by making it easier to fire tenured professors and giving the power to do so to entities outside of the academic community. Some states are pursuing getting rid of tenure altogether. The tenure system is supposed to protect the free exchange of ideas, which sounds like a lofty goal until it is used as a justification to argue for the permissibility of child rape. When administrators defend even a case such as this on the grounds of academic freedom, it might weaken support for the whole concept among the population in general and may make getting rid of tenure politically easier for lawmakers who were already inclined in that direction. Contributing to the firepower in this regard is the fact that Kershnar seems to have made his career as a sophist, engaging in the kinds of pursuits — attempting to make the weaker argument the stronger — against which Socrates frequently and famously argued. People may simply fail to see the value of a system that protects such activity.

Second, the arguments that Kershnar is making in the podcast aren’t just bad arguments, they’re bad arguments in support of a repugnant and potentially dangerous conclusion. If people accept the conclusion on the basis of the arguments and were already inclined toward pedophilia to begin with, Kershnar’s claims may serve to empower them in their conviction that their behavior isn’t actually morally wrong, it’s just commonly viewed that way by society. This could potentially increase the number of children who are victims of sexual abuse.

Third, Kershnar’s argument, and the existence of so much support for his case by so many (mostly powerful male) signatories, is likely to make victims of childhood sexual assault feel unsupported and potentially unsafe. Beyond a doubt, some people who feel this way will be students and colleagues of Kershnar. The situation may create a toxic work environment for colleagues and a distracting and challenging learning environment for students. A significant number of people who feel uncomfortable in this environment will be women, since 1 in 9 women are victims of sexual abuse as children. The number of men who report being victims of sexual abuse as children is 1 in 53. There are reporting challenges here, but there is a legitimate concern that the circumstances created by Kershnar’s comments will be extremely uncomfortable for many female students and faculty members in particular. In the podcast, Kershnar explicitly challenges the idea that the risk of doing serious long term psychological harm is significant enough to make sex with children wrong. Students and colleagues will both feel misunderstood and be misunderstood, since Kershnar undermines the significant damage sexual abuse can do to a person’s life and well-being. All this is occurring in an environment which gave rise to the MeToo movement in response to concerns that sexual misconduct was not being taken seriously.

There are other cases with a similar distasteful flavor. In 2019, Indiana University Bloomington economics professor David Rasmussen was subjected to similar scrutiny for publicly arguing that women are destroying academia both in the capacity of students and professors. He argued that geniuses are overwhelmingly male, and that the production of geniuses is stifled as a result of women on campus. Some argue that cases like Kershnar’s and Rasmussen’s are ripe for critique as demonstrations of the shortcomings of Enlightenment Liberalism. A society that highly prizes individualistic values such as free speech and academic freedom above all others often does so at the expense of the well-being of traditionally oppressed groups like women and people of color. People frequently use their freedom of expression not only to make unconscionable generalizations about members of such groups, but also to advocate for policies that do active and substantive harm. The most vulnerable are left unprotected.

In the end, this is an unfortunate case with no easy answers.

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October’s Harvest: Threats to Academic Freedom

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With the month of October barely underway, we have already seen two incidents at elite institutions of higher education that underscore the continuing threats to academic freedom from both the right and left. A Twitter mob convinced MIT to disinvite a distinguished professor of geophysics from speaking at the school due to his views about Diversity, Equity, and Inclusion (DEI) policies. And at Yale, a prominent history professor stepped down from leadership of a prestigious program when right-wing donors insisted on selecting members of a “board of visitors” that would advise on the appointments of program instructors.

After publicly announcing earlier this year that Professor Dorian Abbot, a geophysical scientist at the University of Chicago, would be delivering the prestigious John Carlson Lecture, MIT rescinded his invitation and cancelled the event. The reason? Abbot is a harsh critic of DEI policies, which encourage representation and participation of diverse groups of people in higher education, including through preferential hiring of faculty and evaluation of student applicants. In a recent Newsweek column, Abbot wrote that DEI “violates the ethical and legal principle of equal treatment” and “undermines the public’s trust in universities and their graduates.” Abbot proposed an alternative framework he called Merit, Fairness, and Equality whereby “university applicants are treated as individuals and evaluated through a rigorous and unbiased process based on their merit and qualifications alone.” Apparently, graduate students and faculty at both MIT and Chicago were so affronted by Abbot’s words that they organized a disinvitation campaign, which ultimately convinced the chair of MIT’s Department of Earth, Atmospheric and Planetary Science to de-platform Abbot.

For MIT’s part, the school says that it merely disinvited Abbot from giving the Carlson Lecture, a public outreach talk aimed, in part, at engaging local high school students. The university says it invited Abbot to campus to address fellow climate scientists about his research instead. Apparently, Abbot’s views about DEI make his climate science research unfit for consumption by the general public, but not by his fellow academics.

There are a number of troubling aspects to this episode. First, Abbot’s views about DEI are decidedly mainstream. According to a recent Gallup poll, 74% of U.S. adults oppose preferential hiring or promotion of Blacks. The Republican Party’s platform includes this line: “Merit and hard work should determine advancement in our society, so we reject unfair preferences, quotas, and set-asides as forms of discrimination.” If the nation’s institutions of higher education are to remain effective as providers of civic education, forums for political debate, and incubators of novel policy ideas, the views of most Americans and one of the two major political parties cannot be made verboten. Note carefully that in saying Abbot’s views are mainstream, I am not saying they are right. Rather, I am claiming that if universities want to make a significant epistemic contribution to the larger society, they cannot seal themselves off from views that have wide currency in the general public.

Second, having determined that Abbot’s scholarship would make a valuable contribution to MIT and the local community — something which they have a plenary right to do — faculty and administrators should not have allowed objections to his political views to outweigh or override that initial determination. When the free exchange of ideas is obstructed by political actors — be they government officials or political activists — academic life suffers. The political views of a vocal minority are no justification for suppressing scholarly exchange. Those who object to Abbot’s ideas have every right to strenuously protest them, but not to try to exclude him from an academic community that has already validated his worth as a scholar.

Finally, rescinding the invitation will undoubtedly embolden activists who seek to harness the power of social media to silence speakers whose views they deem harmful or offensive. It would have been better if Abbot had not been invited at all, if the alternative was to truckle to the heckler’s veto.

That’s the view from the left. But recent events amply demonstrate that academia has something to fear from the political right, as well. The Brady-Johnson Program in Grand Strategy at Yale University takes a select group of two dozen students and immerses them in classic texts of history and statecraft while also introducing them to a raft of high-profile guest instructors. The program was until recently led by historian Beverly Gage, and is underwritten by large donations from Nicholas Brady, a former U.S. Treasury secretary under presidents Reagan and H.W. Bush, and Charles Johnson, a mutual fund billionaire and leading Republican donor. A week after the 2020 presidential election, a professor who teaches in the program published an opinion article titled “How to Protect America From the Next Donald Trump.” According to Gage, this led Brady and Johnson to demand the creation of a five-member “board of visitors” that would advise on the appointments of instructors, pursuant to a 2006 donor agreement that had until then not been followed. Worse, the donors insisted that they could choose the board. Again according to Gage, Yale president Peter Salovey and Pericles Lewis, vice president for global strategy and vice provost for academic initiatives, ultimately caved to these demands. This caused Gage to resign, effective at the end of the year.

The day after The New York Times reported the story, Salovey released a letter to the faculty affirming Yale’s commitment to academic freedom and promising that he will give “new and careful consideration to how we can reinforce” that commitment. No word yet about plans for the board of visitors.

It is a foundational principle of academic freedom that scholars should be insulated from, to quote Fritz Machlup, those “fears and anxieties that may inhibit them from freely studying and investigating whatever they are interested in, and from freely discussing, teaching or publishing whatever opinions they have reached.” One source of such fears and anxieties is left-wing Twitter mobs; another is powerful donors who seek to steer teaching and research in a particular direction, often for ideological reasons. Freedom from political interference entails that faculty ought to be free to choose, in the absence of outside interference or pressure, both who gets to do teaching and research in the academic community and what they can research and teach. A board of visitors of the kind envisioned by Brady and Johnson, with members appointed by them and whose “advice” would be backed by the threat of pulling the fiscal plug on the program, is anathema to these principles.

Despite these stories, there is reason for optimism. As Matthew Yglesias pointed out, some surveys seem to indicate broad, and indeed increasing, American support for free speech, particularly among college graduates. This suggests that threats to free speech mostly stem from vocal or powerful minorities. But such compact, determined groups can wreak havoc. For example, the cause of prohibition was never supported by the majority of Americans, but the Anti-Saloon League and the voters it galvanized nevertheless managed to amend the Constitution to forbid the “manufacture, sale, or transportation of intoxicating liquors.” As the weather turns cold, faculty and administrators at our institutions of higher education must commit to thwarting a profounder chill.

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Zoom, Academic Freedom, and the No Endorsement Principle

photograph of empty auditorium hall

It was bound to be controversial: an American university sponsoring an event featuring Leila Khaled, a leader of the U.S.-designated terrorist group Popular Front for the Liberation of Palestine (PFLP), who participated in two hijackings in the early 1970’s. But San Francisco State University’s September webinar has gained notoriety for something else: it was the first time that the commercial technology company Zoom censored an academic event. It would not be the last.

In November, faculty at the University of Hawaii and New York University organized webinars again featuring Khaled, ironically to protest the censoring of her September event. But Zoom deleted the links to these events as well.

Zoom has said that the webinars violated the company’s terms of service, which prohibit “engaging in or promoting acts on behalf of a terrorist organization or violent extremist groups.” However, it appears that the real explanation for Zoom’s actions is fear of possible legal exposure. Prior to the September event, the Jewish rights group Lawfare Project sent a letter to Zoom claiming that giving a platform to Khaled would violate a U.S. law prohibiting the provision of material support for terrorist groups. San Francisco State gave assurances to Zoom that she was not being compensated for her talk or was in any way representing the PFLP, but a 2009 Supreme Court decision appears to support Lawfare’s broad interpretation of the law. In any case, the Khaled incidents highlight the perils of higher education’s coronavirus-induced dependence upon private companies like Zoom, Facebook, and YouTube.

The response to Zoom’s actions from academia has been unequivocal denunciation on academic freedom grounds. San Francisco State’s president, Lynn Mahoney, released a statement affirming “the right of faculty to conduct their scholarship and teaching free of censorship.” The American Association of University Professors sent a letter to NYU’s president calling on him to make a statement “denouncing this action as a violation of academic freedom.” And John K. Wilson wrote on Academe magazine’s blog that “for those on the left who demand that tech companies censor speech they think are wrong or offensive, this is a chilling reminder that censorship is a dangerous weapon that can be turned against progressives.”

How do Zoom’s actions violate academic freedom? Fritz Machlup wrote that,

“Academic freedom consists in the absence of, or protection from, such restraints or pressures…as are designed to create in minds of academic scholars…fears and anxieties that may inhibit them from freely studying and investigating whatever they are interested in, and from freely discussing, teaching or publishing whatever opinions they have reached.”

On this view, academic freedom is not the same as free speech: instead of being the freedom to say anything you like, it is the freedom to determine what speech is valuable or acceptable to be taught or discussed in an academic context. By shutting down the Khaled events, the argument goes, Zoom violated academic freedom by usurping the role of faculty in determining what content is acceptable or valuable in that context.

While there is surely good reason for Zoom to respect the value of academic freedom, it is also understandable that it would prioritize avoiding legal exposure. As Steven Lubet writes, “as [a] publicly traded compan[y], with fiduciary duties to shareholders, [Zoom was]…playing it safe in a volatile and unprecedented situation.” Businesses will inevitably be little inclined to take to the ramparts to defend academic freedom, particularly as compared to institutions of higher education explicitly committed to that value and held accountable by their faculty for failing to uphold it. The relative reluctance of technology companies to defend academic freedom is one important reason why in-person instruction must remain the standard for higher education, at least post-COVID.

A less remarked upon but equally important principle underlying the objections to Zoom’s actions is that giving speakers an academic platform is not tantamount to endorsing or promoting their views. Call this the “no-endorsement” principle. It is this idea that underwrites the moral and, perhaps, legal justifiability of inviting former terrorists and other controversial figures to speak on campus. It was explicitly denied in a letter signed by over eighty-six Pro-Israel and Jewish organizations protesting SFSU’s September event. The letter rhetorically asks, “what if an invitation to speak to a class—in fact an entire event—is an endorsement of a point of view and a political cause?” As Wilson noted, if that’s true, then freedom of expression on campus will be destroyed: “if every speaker on a college campus is the endorsement of a point of view by the administration, then only positions endorsed by the administration are allowed.”

Quite recently, the philosopher Neil Levy has added some intellectual heft to the denial of the “no-endorsement” principle. Levy writes that “an invitation to speak at a university campus…is evidence that the speaker is credible; that she has an opinion deserving of a respectful hearing.” Levy argues that in some cases, this evidence can be misleading, and that “when we have good reason to think that the position advocated by a potential speaker is wrong, we have an epistemic reason in favor of no-platforming.” Levy makes a good point: inviting a speaker on campus means something — it sends a message that the university views the speaker as worth listening to. But Levy seems to conflate being worth listening to and being credible. Even views that are deeply wrong can be worth listening to for a variety of reasons. For example, they might contain a part of the truth while being mostly wrong; they might be highly relevant because they are espoused by important figures or groups or a large proportion of citizens; and they might be epistemically useful in presenting a compelling if wrongheaded challenge to true views. For these reasons, the class of views that are worth listening to is surely much larger than the class of true views. Thus, it is not necessarily misleading to invite onto campus a speaker whose views one knows to be wrong.

The use of Zoom and similar technology in higher education contexts is unlikely to completely cease following the post-COVID return of some semblance of normalcy. But the Khaled incidents should make us think carefully about using communications technology provided by private companies to deliver education. In addition, the notion that giving a person a platform is not tantamount to endorsing their views must be defended against those who wish to limit academic discourse to those views held to be acceptable by university administrators.

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Under Discussion: Platforms of Power and Privilege

image of megaphone amplifying certains rays from an array of color bands

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: The Harper’s Letter.

Many individuals in the public sphere have signed an open letter referred to as the Harper’s Letter. The gist of the letter is that the free discourse of ideas is currently being hampered by what has been called “cancel culture” — the sudden and wide-ranging criticism that individuals in the public eye are subject to when private citizens find their speech or behavior unacceptable. The undersigned of this letter represent all manner of points across the political spectrum and a variety of professions.

The letter itself tends to fixate on contributors who occupy a privileged position in public debate: editors, authors, journalists, professors. In focusing on the figures with high-impact voices in public dialog, the letter misses important features of open discourse. As participants in dialog, there are responsibilities we have to one another as speakers, as contributors to our public discourse. We do not voice opinions, or indeed act, in a vacuum. We speak and operate in contexts where a great deal of our meaning is determined by our intended audience and the conversations we are entering into. In short, what we say and do depend on the world around us for its meaning and impact.

The public figures that signed the Harper’s letter have received public sanction for their speech and behavior, and the letter comes off as a complaint about the public consequences of their own behavior as it does their characterization of public discourse in general. When speaking as a public figure, or occupying a privileged position in public discourse in general, your voice has a context that is open to criticism by a broad audience, and, unfortunately for some, that audience finds their voices wanting.

No one deserves to occupy a particular space in the public sphere in our society, or to be above criticism. No one deserves to be in a privileged position, such as editors, authors, and other media figures who speak to the public. Such figures are open to criticism and bear the consequences for their behavior according to public judgment and standards just as private members of the community do, but at the scale of their privileged position. No one has to listen to them or subject them to “exposure, argument, or persuasion” (as the Harper’s Letter seems to demand of immoral and toxic, misinformed behavior and speech that is particularly damaging to society when amplified by these privileged voices).

We have categories that limit harmful speech, such as “harassment,” “libel,” and “slander” that handle those instances where criticism becomes out of line, but the Harper’s Letter equates publicly criticizing speech or figures being de-platformed with being “silenced.” If one’s livelihood depends on public opinion, then part of their professional expertise is managing their public image, and they have not performed it adequately when they are subject to the amount of public criticism that the undersigned describe.

However, it may be more or less appropriate to take public criticism as the standard by which the speech of individuals should be judged. As public figures, we can, for instance, consider what the standards are for your position as a public figure? Depending on the grounds for the attention and status you have, public criticism may be more or less warranted, or perhaps should have more or less of a degree of impact on your life and career.

An example from the letter regards issues with faculty in universities. On occasion, professors’ scheduled talks at other universities have been met with student protests, making them unable to present their speech. These cases are complicated, as faculty aren’t exactly public figures, but when they are asked to speak, they are being given a voice above other possible speakers — it is not part of their explicit job, and the inviting institution had options for which voices to promote. In that sense, criticism by the audience can be appropriate regarding the speech. Audiences are constituent members of acts of speech, and speakers don’t inherently deserve one. On the wider professional level in academia, your research is judged by your peers, and you are not a privileged speaker or public figure. When your peers find your scholarship wanting, your speech is silenced according to some loose standard. Such an incident happened recently with Daniel Feller, the historian who gave the Plenary Address at the 2020 Shear Conference. Professor Feller drew criticism when his speech diminished the atrocities committed by Andrew Jackson against Native Americans, with many of his peers submitting scholarly evidence countering the points in his speech.

There are further examples where individuals draw criticism for their speech and behavior that are in line with the undersigned’s personal grievances. With individual figures whose careers are primarily in the public sphere, the standards for criticisms can be more amorphous. Whether they should have a career, or whether their place in the public eye should be actively discouraged, could depend on a number of things.

For instance, one complicated example of publicity and criticism concerns businesses and the sudden, large outcry policies and statements can provoke. Large numbers regularly criticize business leaders in and the direction of their profits, calling for their removal from their positions or boycotting their companies’ goods. Chik-fil-A, Soul Cycle, and LaCroix are just a few recent examples. These leaders have a very privileged position; economic realities influence the political reality in an extreme way in the United States. As of 2015, corporations spend more money lobbying Congress than taxpayers spend funding Congress.

It might be helpful to consider other comparisons. Civil servants, for instance, depend on their constituents for their legitimacy. If their voters disagree with anything about their lives, conduct, opinions, or personality, it is sufficient for them to lose their justification for having that position. The grey area here is the connection between celebrity and political role. Often in order to remove someone from their role in politics, public messaging plays a large part and this involves open criticism that damages reputations and employs strategies that are frequently controversial. This is also the feature that makes public criticism and campaigning to remove individuals from the public roles they occupy difficult to parse.

News anchors and other media figures explicitly depend on their behaviors and speech to be understood in particular ways and to meet societal standards where sufficient amounts of their audience approve of their speech and behavior. When their speech and behavior elicits sudden and large public outcry, this is a professional rather than a personal issue, more similar to civil servants than academics.

For artists, the connection between creating art and the celebrity it can bring is more complicated than for civil servants and media figures. If artists take on the mantle of public figure, they also take on the potential for public criticism and blame.

There are two identifiable threads that people find alarming when sudden and marked criticism targets public figures. First, it can seem undeserved, or an overreaction, in which case the outcry seems unjust, or unfairly backing someone into a corner or painting one with too broad a brush. This leads to a defensive response by the object of criticism, and a vulnerable and defensive reaction by some of the audience of the events. The response this engenders denies that the wrongdoing was “all that bad.” It suggests that we should be more tolerant to the behavior that is being called out.

When the defensive reaction elicits a denial of the misstep or outright wrong of the public figure, this can obviously be very problematic. Everyone goes wrong at multiple times in their life be it through behavior, speech, or intention. Public figures *do* go wrong, just as private members of society do. We need to not only acknowledge that, but also take seriously the over-sized impact that public figures have in our society: they influence our communities more than private members do. The increased impact brings with it more responsibility for critical reflection.

It is *wrong* for J.K. Rowling to promote transphobic and hateful positions, just as it is *wrong* for Louis C.K. to commit sexual misconduct. It was similarly wrong for Chik-fil-A to promote damaging and hateful treatment of LGBT+ people. Al Franken lost his political position over allegations of sexual misconduct, and Matt Lauer was removed from the “Today” show due to allegations of rape and sexual misconduct. These examples are of entities that exist in the public sphere, and who faced backlash and criticism based on their expressed views or behavior. Just as there’s not a justification for them to be in the public sphere in the first place, there is not a justification for them to be exempt from losing their place after enough people take issue with their behavior.

Second, it can seem as though there is no possible way to behave in such a way to avoid the strong backlash that some public figures have received. This amplifies the vulnerable, threatened feelings not just among the public figures, but also private members of society who might identify with those behaviors. It may seem that there is no getting away from some types of criticism, of going wrong in some sort of way. And this kind of condemnation cuts off further conversation about repair and progress.

Consider the months in 2019 when many public figures were exposed for having worn blackface in the past. Unfortunately, few who were revealed to have taken part in this obviously offensive and unacceptable behavior took responsibility for their actions. Few admitted to having done something wrong, expressed regret having since learned what made their actions unacceptable, or indicated that they were grateful to those who helped them grow and reflect on their former understanding, etc. The idea that there is no way to respond to criticism or wrong-doing does not help progress or understanding. Again, people will make mistakes. While nearly everyone will not make the mistakes listed here, it could be earnest dialog rather than defensiveness that is the focus when communal moral standards are not met. When private members of society see public figures being castigated, it is an important step past the fear of “cancel culture” to realize that they themselves are not under threat and that most likely they would not do what these figures did in the first place. It is also important to keep in mind that our moral missteps be approached with an attitude geared toward growth and repair.

Adopting such an attitude can be an extremely difficult task. As the Harper’s Letter attests, the criticism that occurs on social media — and that criticism’s real-life consequences — encourage defensive reactions. The threat wielded by such sudden and effective criticism evokes feelings of vulnerability and insecurity. But it is important to remember that it is the place in the public eye, or one’s professional reputation that is under threat, not the person’s safety or even freedom of speech. Further, threatening their place in the public sphere is frequently warranted, especially when their profession confers public status, as with politicians, news anchors, celebrities, etc.

In the end, the discussion of freedom of speech is a red herring that distracts us from our principal target. We should instead be focusing on why individuals receive the attention that they do, and whether the appropriate form of moral engagement when they fail to meet moral standards is to criticize their place in the public sphere. This can result in mutual progress, as opposed to mere removal.

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Under Discussion: Five Arguments Against the Harper’s Letter

photograph of computer screen displaying Harper's Letter

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: The Harper’s Letter.

On July 7, 2020, Harper’s Magazine published an open letter warning that “the free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more constricted” by a set of “moral attitudes and political commitments that tend to weaken our norms of open debate and toleration of differences in favor of ideological conformity.” The letter obliquely refers to several incidents in which, in the eyes of the letter writers, individuals have been subjected to disproportionate or inappropriate social sanction for perceived transgressions against left-wing norms of thought and speech. “Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class….” Signed by some 150 prominent educators, intellectuals, writers, and artists, the letter provoked a swift backlash by the left-leaning press. That reaction has crystallized around a set of arguments against the letter’s position that I propose to assess in this column.

The first argument, best articulated by The New Republic’s Otisa Nwanevu, is that the moral (and legal) right of free association gives private organizations, including newspapers and private colleges or universities, the right to decide what ideas they are and aren’t interested in promoting and what people they believe will or will not be an asset to them. Hence, no individual has the right to use such an organization as a platform for expressing their ideas, and these organizations, in turn, have no duty to be maximally permissive of ideas with which they disagree. The argument is surely correct that, for example, Tom Cotton had no right to be published in The New York Times, and The New York Times had no duty to publish him. Yet the wrongs that worry the signatories of the Harper’s letter are not, it seems, grounded in these alleged rights or duties. Instead, they are at least in part grounded in the conception of certain types of organization as aiming at certain morally worthy ends. For example, it can be plausibly argued that the role of private colleges and universities, just as much as public ones, is to generate knowledge and serve as forums for debate about pressing political issues. But these commitments seem to ground an obligation to promote debate and discussion. And while this obligation does not require giving a platform to any particular individual or group, it does require giving a platform to some individuals or groups that represent relevant, if ideologically heterodox views. Similarly, in cases of wrongful termination, the idea is not that the organization had a duty to provide a platform for any idea, no matter how offensive; rather, it is that termination of individuals who are not guilty of the offenses of which they are accused is wrongful.

The second argument is that the signatories overplay the importance of a handful of relatively isolated controversies, even if the latter do, in fact, involve wrongdoing on the part of left-wing activists or Twitter mobs. It is undeniable that most critical discussions of progressive identity politics focus on a handful of anecdotes, perhaps mainly because there is no central database of incidents from which to draw. However, the Foundation for Individual Rights in Education (FIRE) does compile large databases of free speech-related incidents and policies on college campuses, including disinvitations, free-speech codes, and so on. Whether these databases, together with the anecdotes, amount to a troubling cultural trend is for the reader to decide.

The third argument, which is even more dismissive than the second, is that the consequences faced by victims of so-called “cancellation” are relatively minor, particularly given the signatories’ elite status; moreover, they are usually deserved. As Jessica Valenti put it in a Medium.com article, the signatories “want to be able to say whatever they want without consequence and paint themselves as the victims even as they wield more institutional and systemic power than anyone criticizing them.” The Atlantic’s Hannah Giorgis agrees, writing that “facing widespread criticism on Twitter, undergoing an internal workplace review, or having one’s book panned does not, in fact, erode one’s constitutional rights or endanger a liberal society.” However, the anecdotes that seem to prompt worries about left-wing censoriousness feature consequences to individuals that go far beyond mere criticism, as the stories of wrongful termination referenced above attest. These individuals are usually not members of the cultural elite. Moreover, undergoing an internal workplace review, which is the outcome of so many of these cases, is very different from facing public criticism; it represents a potential threat to one’s livelihood. To have one’s livelihood threatened because of one’s personal speech is bound to have a chilling effect. Finally, there is a distinction between legitimate criticism of one’s ideas and attacks on one’s reputation or threats to one’s safety, tactics often wielded by social media users on both the left and right. These are serious and often disproportionate forms of social sanction, even when directed at powerful members of society.

The fourth argument is that there are much more pressing threats to free speech upon which the writers of the Harper’s letter ought to have focused their attention, such as violence against journalists, economic threats to journalism and academia, and so on. Logically speaking, this is not really an argument against concern about threats to free speech from the left. To see this, consider the argument that charity X ought to focus more attention on tropical disease Y rather than tropical disease Z, since the former kills five times the number of people. This is not an argument against addressing tropical disease Z, but an argument for proportioning attention and resources appropriately. Furthermore, it does not seem fair to claim that the letter itself does not acknowledge the threat from the right, or that those behind it have ignored that threat. At a number of points the letter alludes to the right-wing threat to free speech, although clearly the issue it squarely addresses is the threat from the left. Thomas Chatterton Williams, who spearheaded the letter, recently called President Trump the “Canceler in Chief”; and Yascha Mounk, a prominent signatory, has written that the primary threat posed to liberal democracy is from the populist right.

The final argument is similar to the last: it is that there are much more pressing political issues than the threat to free speech from the left. As Tom Scocca of Slate puts it, referring to Tom Cotton’s op-ed, “[i]n the world of the Harper’s letter, the threat that mattered was the one to the careers of veteran editors—not the threat that had bullets and bayonets behind it…” Again, this is not an argument against concern about the threat to free speech from the left, and it seems uncharitable to claim that simply because the letter concerns this issue, it is therefore the only issue that matters to its signatories.

The fourth and fifth arguments can also be interpreted as attacks upon the signatories’ motives. Giorgis writes that “it’s telling that the censoriousness they identify as a national plague isn’t the racism that keeps Black journalists from reporting on political issues, or the transphobia that threatens colleagues’ lives.” On Giorgis’s view, what this tells us is that the signatories don’t care, or at least don’t care enough, about the issues she identifies. But arguments about the motives of one’s interlocutor have no bearing on the merits of their position: if they don’t care about these issues that may make them morally bad people, but it does not mean that there is no threat to free speech from the left. In any case, it again seems uncharitable to conclude that they don’t care about some other issues simply because they’ve chosen to focus a certain amount of attention upon this one.

To conclude, my view is that among the arguments in the popular press against the Harper’s letter, the most difficult to answer is that worries about the threat to free speech from the left are overblown. It is simply difficult to tell when a series of incidents becomes a trend, and how concerned we should be about that trend. Beyond this, the arguments miss the mark for the most part. Of course, this does not mean that the letter’s claims are valid, and I have not defended them in this column.