Monthly Archives: June 2017

Police detain hundreds of demonstrators on suspicion of disorderly conduct during a protest on June 4, 2017, in Portland, Oregon. A protest dubbed Trump Free Speech by organizers was met by a large contingent of counter-demonstrators who viewed the protest as a promotion of racism. (Photo: Scott Olson, Getty Images)

When I asked students to explore the rules governing speech in the student manual, I realized campuses actually have no free speech, just more or lessregulatedspeech.

For two consecutive semesters, my students wrote letters to the colleges dean and its attorney. The administrators then discussed them with the students directly. Before long, two instances transformed the conversations from hypothetical, to practical.

In the first instance, a group of students spoke out against racist comments on the social media site Yik Yak. They countered with Black Yak, paper-covered bulletin boards on which students voiced their responses to the objectionable posts. The colleges president endorsed Black Yak as a college protest that reveals discomfiting realities while promoting free speech, dialogue and community. Other students, however, called for censorship of Yik Yak and punishment of the racist posts anonymous authors.

Secondly, some students alleged that a fraternity brothers Halloween costume was racist, as he put his blonde hair in corn rows and wore an orange jump suit typically worn by prison inmates. Student leaders organized a forum for students on both sides of the costume question to address hate speech, cultural appropriation and racism on campus.

Some of my seminar students argued the best response to the Yik Yak comments and to the seemingly inappropriate Halloween costumes was dialogue and education, not campus adjudication. Others argued that free speech concerns overlooked ways the marketplace of ideas was already unequal, such as hostile comments that reinforced marginalization by silencing some students.

My students decided to dispose of platitudes about free speech and scrutinize the schools policy about speech. Disciplinary hearings are confidential, therefore so are the rulings, but the students learned details of the colleges speech code that intrigued them. They wanted to know how the college enforces these codes.

Students learned that unlike state-run institutions, private colleges are not required to adhere to the First Amendment and can regulate speech on campus in a variety of ways. Nonetheless, the colleges student code espouses free expression in the form of careful and reasoned criticism of data and opinion offered in any course, which drew student criticism because it was muted. Why was the endorsement of free speech conditional?

Speech codes in the college life manual require students to understand federal civil rights laws, mainly Title IX, which emphasizes violence domestic violence, dating violence, and stalking but also covers speech. Harassment, the manual stipulates, includes advertisements or postings of offensive, indecent or abusive material of a sexual nature.

My students read the 1999 decision in Davis v. Monroe County Board of Education, and knew the Supreme Courts standards for defining a hostile environment:plaintiff must show harassment that is so severe, pervasive and objectively offensive, and that so undermines and detracts from the victims educational experience, that the victims are effectively denied equal access to an institutions resources and opportunities. Our schools speech codes do not mention severe, pervasive or objectively offensive.

My students found the college life manual does not refer to racial harassment or Title VI, prohibiting discrimination based on race, color and national origin at institutions receiving federal assistance. One student argued for a revised manual to include a similar approach to racial harassment as it does to sexual harassment.

The manuals vague language forbids conduct unbecoming of a Franklin and Marshall student. This phrase bothered students. They didnt know what it meant. The manual defines conduct unbecoming as conduct that threatens, instills fear, or infringes upon the rights, dignity and integrity of any person. Students rightly noted threaten and instills fear were struck down as too broad in a 1989 court decision regarding hate speech regulation at public universities Doe v. University of Michigan.

Our college manual gives administrators the flexibility to punish hate speech as conduct unbecoming, but racial harassment is absent from the student code. The dean defended conduct unbecoming, telling students the term is defined and interpreted by the campus community. However, the studentsassessed how regulation of speech actually worked on campus andwanted to see changes made to revise the speech codes and have students serve on the student misconduct panel.

As questions of free speech continue to arise on college campuses around the country, its time to move beyond rallying slogans and choosing sides. The campus speech controversies are more complicated than being for or against free speech. Students, faculty and administrators need to know the rules governing campus speech on their campus, including where the policies get it right and where they go wrong, and where they are outdated compared to recent judicial standards. This kind of engagement leads to meaningful change in how speech is regulated on campus.

M. Alison Kibler, professor of American Studies and Womens, Gender & Sexuality Studies, is chair of American Studies at Franklin & Marshall College. Her most recent book, Censoring Racial Ridicule: Irish, Jewish and African American Struggles Over Race and Representation, 1890-1930, examines race-based censorship.

M. Alison Kibler is a member of the USA TODAY College contributor network.

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Want to solve this 'free speech' debate on college campuses? Look to the handbook. - USA TODAY College

REPORTS THAT Harvard College rescinded admission offers to students who had posted extremely offensive memes in a private Facebook chat come at a time of heated debate about free speech on campus. So it probably should have been expected that the schools decision would become ensnared in that discussion. It would be a mistake, though, to conflate the recent events at Harvard with any kind of attack on free speech.

What happened at Harvard is simply this: Misguided young people with an outsize sense of entitlement have been required to suffer the consequences about which they had received sufficient warning for ugly and inappropriate behavior. Harvard was right to insist that those who are granted the privilege of attending the private institution adhere to its standards.

At least 10 high school seniors, prospective members of Harvards Class of 2021, had their offers of admission revoked in April after administrators learned they had traded offensive messages and racist images. Screenshots of the chat obtained by the Harvard Crimson, which first reported the events, show images that mock sexual assault, the Holocaust and the deaths of children, including calling the imagined hanging of a Mexican child piata time. There has been no comment from Harvard, which, according to a spokeswoman, doesnt publicly discuss the admission status of individual applicants.

Critics of the decision were quick to accuse the school of censoring speech it doesnt like and they gleefully seized upon Harvard President Drew Fausts commencement address last month that was devoted to free speech and the dangers of censorship. But when students receive an offer of admission from Harvard, they are clearly told and must acknowledge that it is conditional and can be withdrawn for, among other things, behavior that brings into question their honesty, maturity or moral character. The information was repeated on the Harvard College Class of 2021 Facebook group. The offending students opted to splinter off into a secret group, showing they knew they were being offensive. Someone (good for them) tipped college authorities to the odious posts.

The students still have the right to post whatever garbage they like, but it is also Harvards right indeed, its obligation to its mission of developing leaders to exercise judgment in deciding who will be admitted to its educational community. Harvard gave these young people a needed lesson in civility, honor and personal responsibility. Lets hope they put it to good use and that others are paying attention.

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Harvard's revocation of admission offers is no attack on free speech ... - Washington Post

Anne Arundel residents who attend County Council meetings are barred from carrying balloons, signs and banners in the legislative chambers. They're restricted to two minutes of testimony on a particular topic. And they can be removed from public meetings for disorderly behavior.

But when it comes to the content of their speech, how much can the government limit?

The question came to a head at last week's council meeting, when several citizens who had come to testify on an anti-racism resolution were told they could not talk about Councilman Michael Peroutka's former membership in a pro-secession group.

The decision, by Council Chairman John Grasso, R-Glen Burnie, sparked an immediate uproar. More than once, the chambers erupted into a shouting match between Grasso and citizens who disagreed with his ruling.

Grasso justified his stance by pointing to the council's rules of procedure, which include a section, 4-106, that prohibits "personal, defamatory or profane remarks" during meetings.

"We are here to talk about resolutions that Councilman (Pete) Smith put in and attacking other councilmen is not going to be permitted," he said. "If you want to talk about councilmen, you can do it on your own time, but not here."

Audience members countered that the comments were truthful and relevant to the broader conversation condemning racism.

Peroutka, R-Millersville, was criticized during the 2014 election cycle for his involvement with the League of the South, which has been labeled a hate group by the Southern Poverty Law Center.

During the campaign, a 2012 video surfaced that showed him asking the crowd at a League of the South event to stand for the national anthem. He then played "Dixie," a song celebrating the South that became the anthem of the Confederacy during the Civil War. Peroutka later said the clip had been taken out of context.

In October 2014, Peroutka announced he had left the league because he disagreed with statements members made in opposition to interracial marriage. At the time, he said he had no problem with the group and still supported its stances on self-government and preserving Southern heritage.

Along with the rest of the council, he voted in favor of last week's anti-racism resolution.

Yasemin Jamison, who first broached the topic of Peroutka's League of the South links, said her intention was to ask the councilman "to publicly say the League of the South is a racist organization and apologize for his membership."

"He could have said, 'No, I refuse to do that.' That's his prerogative, that's his right," said Jamison, who is a constituent of Peroutka's and a founder of the progressive group Anne Arundel County Indivisible. "I did not defame anybody; I did not say anything negative about my Councilman Peroutka. This is my testimony and it is a fact that he was a member of the League of the South."

William Rowel, who also attended the meeting, defended Jamison when Grasso told her she couldn't talk about the League of the South.

In Anne Arundel County, he said in an interview a few days after the meeting, "you have policymakers with informed constituents."

"If anything, you would champion that; you would say, this is great, people know what's going on in their communities, in their county and they want access to it," Rowel said. "The fact that they would discourage that, that they would shame people for doing it it's wrong. There's really no other way of looking at it."

Jamison said she is considering taking legal action against the council for restricting her speech.

Grasso said he stands by his decision to bar the topic.

"They were leading into a personal attack and the speaker will not address personal attacks towards the body; that's the bottom line," he said. "It wasn't on the subject matter."

Grasso said he shut down League of the South remarks in an attempt to keep order and decorum in his chambers.

"That meeting had clear rules in my eyes," he said. "What my opinion is and what others think might be different, but I was voted the chairman ... I'm in charge of keeping the meeting moving. It's my opinion that counts, and if they don't agree, they can run for office."

Limitations

The law does allow for some restrictions to be placed on speech in government settings, though they must be narrowly tailored. County Council meetings fall under the category of a "designated public forum," created by the government to allow citizens to express themselves to public officials.

The council has for years limited individual testimony to two minutes. In 2013, council members amended their rules of procedure to ban visual displays in the chambers, to prohibit "personal, defamatory or profane remarks" or "loud, threatening and abusive language" and to require speakers to give their name, address and any organizational affiliations before testifying. Grasso voted against the changes at the time.

The rules give the council chair permission to remove anyone who violates them and to clear the entire chambers in order to restore order.

Residents have challenged those limitations in the past. A Glen Burnie woman was removed from a council meeting in 2012 after she went over the time limit for testimony.

Many of the limitations are practical, said Councilman Jerry Walker, R-Crofton, who was council chair when the rules were updated in 2013.

"We banned posters because they would block people's line of sight," he said. As for testimony, he added, "it's supposed to be on the resolution."

As tensions rose during last week's meeting, Councilman Chris Trumbauer, D-Annapolis, asked Grasso to read the rules in an effort to calm the room.

Trumbauer said he believes the rules are "somewhat open to interpretation."

"Free speech means you can say whatever you want and not be penalized for that," he said, but "we have rules because we have to conduct business."

In designated public forums, "the government has the right to restrict what is being said, based on the purpose of the forum," said Eric Easton, a professor at the University of Baltimore School of Law.

But officials have to be careful not to bar certain topics based on politics, he said: "What they can't do is limit the conversation to believers of one side only in a controversy. Any restrictions on public speech have to be viewpoint-neutral."

It's common for legislative bodies to make rules against personal attacks, Easton added, but "the problem comes in: is this nothing but a personal attack or is it germane to the subject?"

In the case of discussion surrounding the anti-racism resolution, if the public's comments "were on that subject, they at least have an arguable case that maybe their rights were being restricted," he said.

In the view of Mark Graber, a professor at the University of Maryland Francis King Carey School of Law, Grasso's decision to bar testimony on Peroutka's past was "a very, very clear violation of the First Amendment."

Graber held a First Amendment workshop for Anne Arundel County Indivisible members and others before the start of last week's council meeting.

He said an example of a personal comment would be calling a councilman "ugly."

In contrast, Graber said, testifiers "spoke on relevant topics."

And, several pointed out at the meeting and afterward, remarks about Peroutka's past League of the South membership cannot be defamatory if they are truthful.

It is particularly difficult for public officials to argue they have been defamed. In the landmark 1964 New York Times v. Sullivan case, the Supreme Court ruled that an official has to prove a person acted with "actual malice," meaning they knew a statement was false or they acted with reckless disregard of the truth when they uttered the alleged slander.

"This was a comment of, 'You belong to the following groups,'" Graber said. "You're a public official; the groups you belong to are a matter of public interest."

The county's Office of Law did not return a request for comment.

Without a ruling from a judge, there's not much citizens can do to challenge Grasso's interpretation, Easton said.

"The one interesting thing about the First Amendment is you're never sure until a court rules on the exact facts that you have," he said.

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Sparring over testimony leads to free speech debate - Capital Gazette - CapitalGazette.com

Students and professors at UCLA said they think conversations about controversial issues have become strained since the election of Donald Trump as president.

Vice Chancellor of Equity, Diversity and Inclusion Jerry Kangs office said in an email statement that national political discourse has become polarized and that certain conservative and liberal groups are trying to chill, intimidate and silence those they disagree with.

Ian May, a member of Bruin Democrats and a second-year political science student, said he thinks college campuses need to work on being more tolerant of free speech. May said he did not like that protesters tried to prevent conservative Milo Yiannopoulos from speaking at UC Berkeley.

While theres a lot of things about Milo Yiannopoulos (that) I dont agree with, I dont think its in the best interest of the left to silence of his opinion, May said. I think we truly cant be able to grow as a community unless we get different perspectives into the argument.

May added he thinks debates are won through logical counterarguments, not ad hominem attacks.

Several professors said they think free speech is not well respected on college campuses.

Keith Fink, a lecturer in the communication studies department, said in an email he thinks many students do not want to debate and exchange ideas. He added there is no hate speech exception to the First Amendment, even on college campuses.

Fink said that in 1973, the Supreme Court found that a student handing out a controversial school newspaper was protected under the First Amendment.

The (court) held that the mere dissemination of ideas no matter how offensive to good taste on a state university campus may not be shut off in the name alone of conventions of decency, Fink said.

Eugene Volokh, a UCLA law professor, said the government generally cannot restrict speech because of its content, with exceptions such as true threats or incitement of imminent lawless conduct.

However, Volokh added speech is regulated according to context and is subject to restrictions in some places, such as campuses or classrooms.

If UCPD has a policy that any unauthorized posters are to be taken down, then you can enforce that policy, (because the) walls of the campus belongs to the university Volokh said. (However), UCPD cant go after people based on the messages they express.

Though Volokh said he thinks physical safety is important, he added no one is entitled to be protected from offensive ideas.

Ive heard people say they are entitled to be safe from ideas that they view as hostile to them because of their identity, (such as their) religion or sexual orientation, Volokh said. The First Amendment protects speech regardless of whether it makes people upset or offends people. Nobody is entitled to be safe from hearing offensive ideas.

Volokh added he thinks people should argue against ideas they think are wrong or offensive, instead of trying to get the university to punish them.

However hateful and pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas, Fink said.

Kangs office said UCLA has worked to promote an environment that values dialogue and campus discussions on current events through projects like CrossCheck Live, which features panels of scholars discussing national issues.

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Faculty, students talk free speech, entertaining controversial opinions - Daily Bruin

Theres a disagreement in the planning group, about inviting you, an organiser told me hesitantly during a phone call this spring to finalise the details of my speaking slot in a diversity-and-inclusion event, an event one would imagine would prioritise free speech and diversity of thought. I sighed and prepared to respond, knowing the objection to my participation likely had to do either with my post 9/11 writings, critical of the U.S. empire, or my more recent essays challenging the ideology of the transgender movement from a radical feminist position.

This time the problem was 9/11. One of the sponsoring groups preferred to pull out rather than be associated with an event that included me, a reaction that was common in the years following the terrorist attacks. The debate over transgenderism is a more recent source of contention and a current constraint on free speech. Earlier this spring, a talk I was scheduled to give was cancelled when someone objected and another talk was interrupted by protesters who hoped to shout me off the lectern.

These incidents are only a minor annoyance in my life, hardly worth attention except for what they reveal about the cultures difficulty engaging in coherent and constructive arguments about issues that generate strong emotions. The health of a democracy depends on free speech and on peoples ability to argue, to propose public policies and articulate reasons why others should adopt those policies. Democracy atrophies when substantive arguments are sidelined by dogma, when claims are asserted with self-righteous certainty but not defended with reason and logic. Theres nothing wrong with people being emotional about politics so long as it doesnt shut down dialogue.

After several months of furore over high-profile conservative speakers who hadbeen thwarted in some way on college campuses (Milo Yiannopoulos, Charles Murray, and Ann Coulter all made news this way), its illuminating to reflect on the far less dramatic challenges to my writing, which have come from both the right and the left. My focus is not on concerns about free speech my constitutionally protected freedom has never been significantly impeded but rather on the danger of a political culture in which critical self-reflection and thoughtful debate become more difficult, perhaps impossible in some times and places.

One of those times and places was post 9/11United States. Like many in the anti-empire movement a grassroots global justice movement challenging U.S. military and economic policy and demanding that policymakers take seriously our shared moral principles and international law I argued that a mad rush to war would be counterproductive. When an op-ed making such an argumentthat the United States consider a more rational course of action, and that we reflect on a history of U.S. crimes in the developing worldwas published in a Texas newspaper a few days after the attack, I was the target of an ad hoc campaign (thankfully, unsuccessful) to get me fired from my teaching job at the University of Texas at Austin.

A decade later, a series of online essays about the transgender movement (available here, here, here, and here) led to another similarcampaign to exclude me from left/liberal spaces because I argued that the intellectual claims of the trans movement appear to be incoherent and the political program that flows from it undermines feminism. Like many in the radical feminist movement who take such a position, I didnt contest the experiences that transgender people describe but offered an alternative analysis that I believe provides a more compelling account of sex/gender politics.

These two cases are dramatically different in many ways, of course, but some similar features deserve attention. Challenging the foundational mythology of the United Statesthe claim that we have always been the moral exemplar of the world and today are the only force that can ensure a safe and stable world systemprovokes a predictable reaction from most of the right and centre in U.S. politics, which has made acceptance of those myths a litmus test for being a good American. When one invokes history to challenge the myths, conservatives rarely attempt to engage in real debate, preferring to dismiss critics as the blame America first gang and label any debate over policy as a failure to support the troops.

Challenging the biological claims and underlying ideology of the transgender movement that reproduction-based sex categories are somehow an invention and that cultural gender norms can be challenged separate from a feminist critique of patriarchy provokes a predictable reaction from most of the liberal and left end of the political spectrum, which has made acceptance of those claims a litmus test for being progressive. When one invokes basic biology and a radical feminist critique of the transgender movements individualist gender politics, left/liberals rarely attempt to engage, preferring to dismiss critics as TERFs (trans-exclusionary radical feminists) and label any disagreement about policy as bigotry.

Because I work for a public university, I believe it is part of my job to take my research and teaching into public. Because Im a tenured professor, I can exercise my right to free speech and engage in public debates without much fear of losing my job. In public writing and speaking, I dont shy away from provocative statements when I believe they are justified by the evidence and are important to democratic dialogue I always strive to support the claims I make with evidence and logic.

I dont mind being criticised and I invite challenges to my ideas. Whats disturbing in both cases, however, is that I was routinely denounced as being morally and/or intellectually inadequate, but rarely did those denunciations include a response to what I actually was writing.

For months after 9/11, any critique of U.S. foreign policy was rejected out of hand, taken by many as evidence that critics were colluding with terrorists. It wasnt until the failure of the invasions of Afghanistan and Iraq wasundeniably evident that such critiques were taken seriously, and even then the debate focused mainly on failed tactics rather than the fundamental question of why the United States pursues global power through imperial strategies.

Radical feminist critiques of transgender ideology continue to attract denunciations, especially after the Obama administration issued rules about transgender students rights, which seemed to settle what the liberal position should be. Conservative/religious objections to that policy have been widely debated and covered by journalists, but the more substantial analyses of radical feminists are largely ignored in the mainstream and vilified in left/liberal circles.

All of this is troubling, but even more disturbing for me has not been what wassaid in public but what people toldme privately. After 9/11, a number of faculty colleagues took me aside and told me that they thought the UT presidents denunciation of me was inappropriate, but only a couple of them spoke out publicly. The faculty council and the faculty committee charged with defending academic free speech were silent on the university presidents clumsy ad hominem attack on a professor.

Similarly, after a local radical bookstore issued a statement declaring me unfit for future association with the store, many left/feminist friends and allies told me privately that they disagreed with that decision, but, to the best of my knowledge, none of those people publicly challenged the stores statement. Rather than risk similar denunciation, people found it easier to say nothing.

Reasonable people can disagree respectfully about many things, including the appropriate analysis of U.S. foreign policy in the Middle East and how best to understand the claims of transgender people. But in a democracy, weighty public policy decisions such as going to war or endorsing the treating of trans-identified children with puberty blockers- should emerge from the widest possible conversation in which people provide reasons for their policy preferences and respond substantively to good-faith challenges.

If that process is derailed, whether by forces from the right or the left, the deterioration of responsible intellectual practice will only serve to undermine democracy. What good is the right to free speech if our current political and academic climate makes it impossible or dangerous to exercise it?

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Free Speech and Intellectual Witch-hunts: How Dogma Degrades Democracy - Conatus News