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More Commentary on ‘New York Times’ Piece

On Wednesday, Greg expressed his disappointment with Joseph Berger’s column in The New York Times, which discussed Evan Maloney’s film “Indoctrinate U” and painted a picture of the status of free speech on campus using a much sunnier color palette than we would have chosen. Apparently, we weren’t the only ones bothered by Berger’s conclusions.
Berger’s article singled out a 2005 incident at Vassar College in which a student publication was denied funding for one year and prevented from publishing after printing an opinion piece criticizing what the anonymous author perceived as tension on campus based on race and sexual orientation.
Ultimately, Berger decided the crisis at Vassar wasn’t as terrible as free speech advocates would label it, and wrote:

Still, Vassar deserves credit because, as students explained, the dispute was not focused on whether The Imperialist could argue that a center exclusively for minority students fragmented the community; it was over whether the language used to express the idea was offensive.

The wider society, after all, has not resolved the issue of abusive language. Limits are evident in hate crime laws, the firing of Don Imus and this week’s Supreme Court ruling against a high school student who displayed a “Bong Hits 4 Jesus” banner.
Todd Zywicki’s post on The Volokh Conspiracy took issue with “the utter confusion by the reporter…about the central point of the article—the distinction between controversial ideas on one hand and abusive or derogatory language on the other.”
Zywicki further explored this idea, writing:

Accept for the sake of argument that the treatment of the newspaper should turn on whether the problem here was the “offensive language” that could be subject to punishment (“ghettos” and “zoological preserve”) rather than the controversial ideas that should not (the college should not encourage students to separate themselves by race). The distinction seems somewhat tenuous to me in the first place, but especially so here as the precise words in question were being used for a rhetorical point and not with an intention to insult or harass fellow students. But let’s set that aside and accept the premise that offensive language can be punished (as opposed to offensive ideas) and that in fact the language used here was reasonably offensive. In fact, it does appear that there were some other egregious facts that were omitted from the Times article and for which the newspaper actually apologized, so I am not intending to defend the content of the publication here.
If this distinction between language and ideas is the premise, however, then Berger’s argument quickly descends into confusion.

In a later critique of Berger’s commentary on the Imus case and this week’s Supreme Court Morse v. Frederick decision, Zywicki commented:

Again we see Berger’s confusion. The objection to Imus was actually his use of derogatory language and which was used simply to insult and ridicule. But the “Bong Hits 4 Jesus” case was premised on the idea that the message was inappropriate for school, not that the language was offensive.
Again, this whole discussion is predicated on taking as given Berger’s distinction between abusive language on one hand and “offensive” ideas on the other. But if that is a distinction that is supposed to have analytical force, it is important to understand what exactly it means.

Even though the Times article set out to analyze “Indoctrinate U” and determine whether “the film offer[s] a fair picture of campus life in 2007, or is…just a pastiche of notorious events,” filmmaker Evan Maloney objected to Berger’s use of Vassar as a shining example of the preservation of students’ rights.
On the Vassar incident, Maloney wrote:

The paper was de-funded and shut down for a year after publishing a piece criticizing the school’s funding of special “social centers” for minority and gay students. But because the paper was eventually allowed to start publishing again—the following year—the Vassar case is presented as one in which “[u]ltimately, free speech was respected.”
Sorry, but shutting down a paper for a year is not a benign event, and it is certainly not one in which we can say “free speech was respected.” If Homeland Security shut down the Times for a year after exposing ways that we track terrorist financing, I’m sure they’d understand my position on this.

It is unfortunate that Times readers may have walked away from the column lacking a full understanding of the ongoing struggle for free speech on campus. Some may possibly even believe, as Berger seems to, that the fight for freedom isn’t that bad—a belief that could be quickly dispelled with just a glimpse at FIRE’s case archive.

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