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The Right Has Weaponized Free Speech

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Institute for Advanced Study

WHEN THE SUPREME COURT MAJORITY IN 2018 REFUSED to uphold a California law requiring religious-oriented “crisis pregnancy centers” to provide women with information about abortion, Associate Justice Elena Kagan wrote in her dissent that conservatives were “weaponizing the First Amendment.”  Catharine MacKinnon, in a book of essays, The Free Speech Century, published in 2019, referred in a similar vein to the dramatic change that has occurred in appeals to free speech:  “Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful.  Legally, what was, toward the beginning of the twentieth century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.” 

At colleges and universities this change is evident.  In the past few years conservatives have relentlessly attacked the academy as what Turning Point USA founder, Charlie Kirk refers to, as “islands of totalitarianism”—that is places where free speech is notoriously absent.  Secretary of Education, Betsy De Vos warns a meeting of conservative colleges students that “the fight against the education establishment extends to you, too. The faculty, from adjunct professors to deans, tell you what to do, what to say, and more ominously, what to think.” The vice president of the University of Tennessee College Republicans, expressing his support for a bill in the Tennessee legislature to protect student free speech declared: “Students are often intimidated by the academic elite in the classroom.  Tennessee is a conservative state.  We will not allow out-of-touch professors with no real-world experience to intimidate 18-year olds.”  

Sponsored by deep-pocketed foundations (Koch, Amway, Heritage, Bradley, Goldwater), the campaign has made free speech its centerpiece.  By sending provocateurs like Milo Yiannopoulos and Ann Coulter, neo-Nazis like Richard Spencer, and marginally respectable types like Charles Murray, the point has been to provoke exactly the responses they’ve gotten—outrage, protest, sometimes violence—and to get huge publicity for their efforts.  These characters have depicted themselves as victims of discrimination, and this distracts from serious discussions of things like campus institutional racism and other problems faced by minorities and those seeking to promote social justice.  The conservatives have commanded enormous media attention in ways the Left has had a hard time doing.  Henry Reichman, in his comprehensive study, The Future of Academic Freedom  (Johns Hopkins U Press, 2019), cites a study that shows that between May 2016 and January 2018, the NY Times “published 21 columns or articles decrying alleged silencing of conservatives on campus,” while only three pieces talked about the silencing of those on the other side (which included serious  targeted harassment of left and minority faculty).  (186). Reichman’s  book has data that makes clear that incidences of violence against these speakers are rare, and that discrimination against conservatives is not a huge problem.  He concludes his chapter on outside speakers this way: “To suggest that leftist threats to outside speakers constitutes the main menace to free expression and academic freedom on campus today is to exaggerate and mislead, or worse.” (200).

There’s lots to say about the way this campaign has been conducted and the damage it has done, about the way in which an organization like the Foundation for Individual Rights in Education (FIRE) has been complicit in some of its claims (even as FIRE helpfully defends those whose speech and academic freedom have been violated), about the way in which university administrators have badly handled the challenge (one called for “affirmative action for conservatives,” conceding an argument that needs to be refuted; others for “civility”—as if good manners was the answer to serious political differences).  And there have been some difficult, serious discussions of what the limits are that can be imposed on hate speech, on white supremacist recruiting on campus, on the renting of university buildings by outside groups looking to create controversy on college grounds.  And I’m sure we can touch on some of this in the discussion that follows our presentations.

What I want to talk about today, though, is the clear way in which power differentials are in operation.  They appear as contradictions to the professed principles of free speech being endorsed.  On the one hand, free speech is endorsed for conservatives; on the other hand it is denied for those on the left.  As public attention is drawn to conservatives as victims, those who protest them peacefully—in the name of equality, justice, climate—are often punished.  The right to dissent is not included in the University of Chicago’s “model” report on Freedom of Expression.  Discussion (the word is used over and over again in that report) is welcome as long as it “does not disrupt the ordinary activities of the University”—as long, it seems, as if it’s just talk.  Protest as a right of free speech is strikingly absent from the document; it is not considered an acceptable form of free expression (although historically it has been granted constitutional protection).  Administrative practice in colleges and universities all over the country is to act quickly to punish protestors and equally quickly to defend the “free speech” rights of conservatives. 

Recent contradictions of the claims to protect free speech for the conservatives while denying it to liberals and the left have come in the form of two presidential executive orders.  One, warns colleges and universities to “avoid creating environments that stifle competing perspectives” and threatens to deny funding to institutions that don’t comply.  The signing of the order featured conservative students telling their victim stories; tellingly no minority students or faculty who have been victims of right-wing attacks, of on-line harassment and death-threats, were there to recount their experiences.

The other legislation has come in the form of an executive order that rules that any criticism of Israel be considered anti-Semitic.  In this order, free speech is explicitly denied to critics of Israel, it is deemed hate speech and therefore intolerable in our country.  There are already on the books in 27 states, laws that outlaw support of BDS.  Now there is an executive order that directs government agencies, including the Department of Education, to use their definition of anti-Semitism to include all criticism of Israel and to monitor the activities of human rights groups and campus programs such as the one at the University of North Carolina at Chapel Hill that was deemed “biased” because it did not present enough “positive” imagery of Judaism and Christianity and because of a conference there at which some speakers were thought to be too critical of Israel.  A skewed and inappropriate definition of anti-Semitism is used to outlaw “hate speech” by Palestinian and other groups (they are likened to the Ku Klux Klan), while free speech is used to protect the likes of hate mongers such as Yiannopoulos and Coulter and Trump’s white supremacist supporters.  In other words, those in power get to define the terms and call the shots.  The critics of Israel are silenced by accusing them of racism, while the racists get to spew their hatred by invoking the protections of free speech.  There’s no coherence to it.  It’s patently unfair and not at all in line with what the Constitution envisions as a right to free speech—but it’s what we’re living with now.


Joan Wallach Scott will appear on the panel, "Academic Freedom and Student Activism," at the Campus Free Speech Battles Conference on September 29, 5:00-6:30 pm.

Originally delivered as remarks to the American Historical Association Annual Meeting, January 6, 2020

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