By Sam Wright at Above the Law
To the continuing annals of racism and its consequences in Missouri, let us add a new entry (previous entries include this and this).
As college and university students across the country have been ramping up protests claiming that their schools have long abetted systemic racism, students in Missouri have wrought an especially ferocious firestorm. At the University of Missouri, student protests led to the University President’s resignation on November 9. In the aftermath of that resignation, the activists whose work led to the President’s resignation took over various public spaces and used force to exclude the press. This was bad, and the activists realized this and reversed course the next day. But at the same time, the University’s Campus Police put out an egregious e-mail calling for “individuals who witness incidents of hateful and/or hurtful speech or actions to: Call the police immediately.” That email has been roundly condemned, but as far as I know it has yet to be repudiated. And in the meantime, various pundits have complained (including on these pages) about how students these days are whiny babies with no tolerance for opposing viewpoints. Many have couched the situation in terms of a claimed “right not to be offended” versus free speech; others, however, have challenged that framing.
As both a progressive in favor of actively combating systemic racism and a card-carrying member of the ACLU (though admittedly I’ve let my membership lapse), I believe it’s actually pretty easy to reconcile anti-racism tools — things like “safe spaces” and the dreaded “political correctness” — and a robust view of free speech.
Let’s start with the proposition that anti-racism tools like political correctness and safe spaces do not inherently conflict with free speech.
Indeed, writes Lindy West in a thoughtful Guardian piece, “the fact is, political correctness doesn’t hinder free speech — it expands it. But for marginalised groups, rather than the status quo.” West’s constant barrage of Twitter trolls have derided as Orwellian her claim that political correctness expands free speech. But think about it: Political correctness is not enforced by law but by social consequences. Political correctness encourages relatively privileged speakers to pause and think about how their speech will be received before speaking, but it doesn’t discourage them from speaking at all. And, by encouraging thoughtful dialogue, political correctness does indeed foster an environment where traditionally marginalized people can more easily speak and be heard.
In fact, it turns out the ACLU — the same organization that’s defended the KKK against government restrictions on their deeply racist and hateful speech, and in Missouri no less! — agrees with West:
“Ironically, the phrase “political correctness,” ostensibly invoked to promote free expression, is often actually the protest of being called to task for the first time for the consequences of previously unchallenged statements and conduct. Its purpose and effect is to belittle and demean the call for other people to recognize the humanity and feelings of others. Putting aside the too often forgotten fact that the First Amendment protects against state suppression of speech and assembly and not interactions between private citizens, the fact that you have the right to say something doesn’t mean you should. Sometimes healthy doses of humility and empathy are called for, values academic institutions should also foster.”
What political correctness does, by encouraging (not mandating) the use of positive or neutral language instead of terms with negative or derogatory undertones, is derail ad hominem attacks — even if they’re unintentional ad hominems — and bring about honest debate.
In the New York Times Magazine, Roxane Gay has made a similar argument defending safe spaces against charges of censorship:
“The students at Mizzou wanted a safe space to commune as they protested. They wanted sanctuary but had the nerve to demand this sanctuary in plain sight, in a public space. Rather than examine why the activists needed safe space, most people wrapped themselves in the Constitution, the path of less resistance. The students are framed as coddled infants, as if perhaps we should educate college students in a more spartan manner — placing classrooms in lions’ dens.”
Demanding a “safe space” in a public forum is something altogether different than enforcing a “safe space” in a public forum, and the demand itself makes some interesting points. These points can be distilled from Gay’s exploration of what a “safe space” is, or should be: “Safe spaces allow people to feel welcome without being unsafe because of the identities they inhabit…. Safe space is not a place where dissent is discouraged, where dissent is seen as harmful.” In other words, like West, and like the ACLU, Gay focuses on the “safe space” as a tool to having real conversations. And she suggests a safe space should occur as a result of social considerations, not force or government coercion.
And speaking of force and government coercion, of course West doesn’t suggest that government should enforce PC speech codes (nor does the ACLU). And of course Gay acknowledges that “there are some extreme, ill-advised and simply absurd manifestations of the idea of safe space.” Political correctness and safe spaces aren’t always their most extreme versions.
So, given all this, let’s accept that anti-racism tools like political correctness and safe spaces are not inherently inconsistent with free speech — in fact, executed correctly, they arguably lead to both more and more productive dialogue.
That said, it is very much possible to execute political correctness and safe spaces incorrectly, and that’s a bad thing.
Ken White of Popehat highlights how the “safe space” demanded at the University of Missouri was derailed from Roxane Gay’s suggestion of what a safe space should be. As I’ve noted above, the demonstrators (including both students and faculty) used force to exclude media from their “safe space” out of fear of “twisted insincere narratives.” Here’s White’s characterization:
“This sentiment — that students could take over a public space, use it to express their views on a public issue, and shut other views out of it in the name of emotional safety — was vigorously enforced by a crowd threatening a photographer and a communications professor shouting for “muscle” to help her expel media.”
That’s the sort of extremism that both Gay — who’s writing in support of safe spaces — and White — who’s writing in support of robust free speech — agree is wrong. And so did everyone else: a faculty member who participated in the forceful expulsion of journalists apologized and resigned a courtesy appointment in the School of Journalism, and the demonstrators invited media into their “safe space” the following day.
So students overreact and then course-correct. This part of the story is not too troubling. The one part that is troubling? The University of Missouri police “asking individuals who witness incidents of hateful and/or hurtful speech or actions to: Call the police immediately.”
But again, there’s broad acknowledgement that this is troubling. That’s why the University Police have been called out by U.S. News and World Report (“Missouri Police Solicit Reports on ‘Hurtful’ Speech, Startling Scholars — A University of Missouri law professor calls the campus police request ‘absolutely jaw-dropping.’”). They’ve been called out by the Volokh Conspiracy (“Wow.”). And they’ve been called out by the ACLU of Missouri (“The ACLU of Missouri is disappointed with the recent request by the University of Missouri Police to report ‘hurtful speech,’ which simultaneously does too much and too little…. No governmental entity has the authority to broadly prohibit ‘hurtful’ speech — or even undefined ‘hateful’ speech, or to discipline against it.”).
And you can bet that if the University Police ever actually try to discipline a student for “hateful and/or hurtful speech,” they’ll be sued before the ink on the student citation is dry. (FIRE, the Foundation for Individual Rights in Education comes to mind as a likely source of any such litigation.)
So let’s go back to the tenet that free speech isn’t inherently at odds with safe spaces and political correctness. And let’s acknowledge that it’s possible to take the concepts of safe spaces and political correctness too far. Now all that’s left is to draw the line — what’s too far?
This question might be difficult to answer if we were drawing it up completely from scratch, but — good news! — we’re not. The law, including but not limited to the First Amendment, gives us a handy tool for discerning whether we’ve gone too far. Using force to exclude journalists from public spaces on the campus of a public university? Too far! A university police force asking people to report hateful and hurtful speech? Well, soliciting that kind of report probably isn’t illegal. But a public university actually disciplining a student for “hateful and hurtful speech?” Too far!
So hooray! We’ve solved the problem. By and large, students aren’t mollycoddled post-pubescent babies — many of them are actually trying to fight a longstanding problem in part by facilitating conversations that feature a more diverse set of voices. And by and large, political correctness isn’t stifling debate (and it’s definitely not “killing ideological diversity”) — it’s causing people to pause and think about how their words affect others when, in the past, they’ve never had reason to pause and think before speaking. Yes, sometimes people get carried away and cross the line. But the law gives us tools for dealing with this!
And forgive me for unoriginality, but I think I’d be hard pressed to come up with better concluding words than Lindy West’s in her Guardian piece (which, again, you should both read and reflect on):
“If you’re genuinely concerned about “free speech”, take a step back and look at what’s actually happening here: a bunch of college students, on the cusp of finding their voices, being publicly berated by high-profile writers in national publications because they don’t like what they have to say. Are you sure you know who’s silencing whom?”