I always do my best to write clearly and precisely, but it seems I don't always manage to get my meaning across. So let's try a couple of ideas again. Please read carefully, and think about what I actually write, not what you think I might think or what other people think.
The First Amendment applies only to government. It constrains what government can do, it does not place any constraint of any kind on any other entity. The courts have interpreted it a bit more broadly than its literal language. If "congress shall make no law . . . " then the executive cannot have any legal authority to do what no law permits. The 14th Amendment extended the protections of the Bill of Rights to the states, so they are now also bound by the First Amendment.
So, as a matter of fact -- and I don't think this is complicated -- it is true that the government cannot ban what some people would define as hate speech. However, it can indeed ban speech that is an element of some other prohibited activity, such as fraud, extortion, incitement to violence, terroristic threats, or criminal conspiracy. Much hate speech, as commonly defined, does fall into one of those categories. Furthermore the courts have also held, at least so far, that the motivation for a crime can be taken into account in sentencing, which is where the idea of a hate crime comes in -- but it has to already be a crime.
So, did some of the founders -- i.e. signers of the Declaration of Independence, and the Constitution, and early holders of congressional office -- engage in what we would today call hate speech? For sure! A lot of them were racists, loud and proud. Politicians are still allowed to do that today, but perhaps less likely to be elected in most of the country. Nobody's stopping Ronald T. Dump from saying publicly that immigrants are poisoning the blood of the country and aren't even human. Maybe that will work for him. Racism worked just fine for Strom Thurmond and George Wallace. It's perfectly legal, but I can still say I don't like it, because I also have freedom of speech. Get it? Also, the New York Times doesn't have to publish it and CBS doesn't have to put it on TV, although Fox News may choose to do so.
Private employers, including universities, are not constrained in any way by the First Amendment. Even a soulless corporation like WalMart has an incentive to maintain a work environment that feels safe and welcoming, because they want to hold on to their employees even though they're paying them crap wages. And in fact, legally, if they don't enact policies to maintain a safe work environment, including being free from hate speech, they can be sued, and the courts have held that is perfectly legal. (They aren't responsible if people violate the policies, as long as they're in place and some reasonable effort is made to enforce them.)
The university is a whole different, well, universe. It has a mission other than just making profit for its investors. That mostly includes some concept of academic freedom, but that is not the same as free speech. Even so, it's entirely voluntary. They don't actually have to create a policy of academic freedom it or even pay lip service, although they generally do. And again, if you don't like the actual policies a university enforces, you have a First Amendment right to say so, but they have no obligation whatsoever to give you a platform or to pay any attention to you.
One important way that academic freedom is no the same as free speech is that academic disciplines have standards of evidence and of discourse. A biology professor can't stand up in class and say that God created all species in their current form 10,000 years ago, because that's not biology. Furthermore, faculty are bound by standards of mutual respect and respect for students, as are students. The university can, and in my opinion should, proscribe hate speech both because it generally is contrary to empirical reality, and it is destructive of the university environment and yes, of academic freedom.
The university would be well advised to carefully define what kinds of speech are proscribed, and the process for adjudicating complaints, lest it lose in litigation. That is all. Next, I'll discuss the concepts of the will of the people and democratic decision making, particularly with respect to divisive issues.
5 comments:
P.S. - Other than this blog, of course.
One caveat I have about speech in academia. It ought to provide a forum for debate. A professor should be free to argue for creationism if there is a competent voice to present the accepted counter theory. I suppose it is asking too much to insist on something like this in mass or social media. I for one, would love to find a source that provided intelligent arguments that didn't depend on name calling or rhetorical tricks.
Chucky, I really can't agree with that. Part of the university's mission is to seek truth, and science consists of a collection of methods for doing that, by testing propositions against observable reality. Debating creationists is a fool's errand, because they refuse to do that. There can be no debate within a biology department about the age of the earth, the long history of life on earth, and the empirically demonstrable fact of evolution. There isn't any respectable counter theory to that, and denial of plain, incontrovertible truth has no place in the university and is not productive in any way. Some things we just know.
I approach this issue from the perspective of teaching students to become critical thinkers.
A big part of that is developing a BS detector, which is where I was heading.
I have come to the understanding that a big difference between religion and science is that religion claims to tell you what is absolutely true; science only claims to tell you what is false. Top down vs. bottom up. The hope is that by exposing and eliminating errors we can start to a approach a sense of what is true. This idea is subtle and not very sexy; and folks need to see the process in action in order to appreciate it. Students who are not capable of detecting crap don't belong in a university. I just wish that more courses would have that as one of their stated objectives. If they don't they're just providing training, not an education.
Couldn't agree more, Chucky. An outrageously high percentage of dumbed-down Americans have been taught deductive -- and thus defective -- Instead of inductive -– reasoning. They've been taught what to think and what to believe, instead of how to think. As a result, there are an alarmingly high number of Americans walking around with absolutely no bullshit detectors. And, as Voltaire wrote, those who can make you believe absurdities can make you commit atrocities.
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