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Academic Freedom and the Kershnar Case: A Partial Dissent

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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.

Testing the Limits of Academic Freedom

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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.

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.

Zoom, Academic Freedom, and the No Endorsement Principle

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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.

Under Discussion: Platforms of Power and Privilege

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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.

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.