How Colleges Promote Censorship and Undermine Free Speech

In Brave New World, Aldous Huxley writes: “There isn’t any need for a civilized man to bear anything that’s seriously unpleasant.”  In his sanitized future, general happiness and social stability are achieved not via threats of legal action but rather through perfect genetic and behavioral engineering, endless indoctrination, anodyne feel-good phrases and drugs, and organized outlets for intense emotion and lust.  “That is the secret of happiness and virtue–liking what you’ve got to do,” explains Huxley’s Director of Hatcheries (where test-tube babies are produced).

Alas, we’re not there yet, hence the recourse to crude legal instruments backed up by moral grandstanding is still essential. Given the pesky First Amendment, however, thus far valid in contemporary America despite ever more frequent attacks, not just any claim to hurt feelings can be used to shut down others’ speech. Learning which words are most effective in preventing the expression of views and comments we don’t like is, therefore, a crucial step if one wants to be successful in ushering in the utopian future.

In more legalistic terms, offending words and gestures can be said to deprive college women of the right to an equal education, thus constituting illegal discrimination. That is the language of Title IX of the Education Amendments of 1972, prohibiting discrimination on the basis of sex in educational programs that receive federal funds.  Expanded over the years to include such categories as “hostile environment harassment,” Title IX turned out to be a godsend to those determined to go through life free of unpleasant words, vulgar jokes, suggestive glances, and, as has become clear, ideas and viewpoints they dislike. In today’s academy, insisting that one feels unsafe or threatened is a routine and usually effective opening move in attempts at controlling others’ words and attitudes.

A recent example:  A student group called Feminists United has filed a Title IX lawsuit against the University of Mary Washington, alleging that by declining to ban access to Yik Yak, the school failed to protect them from disagreeable posts on the anonymous app.  The requisite linguistic expertise was on full display, with the suit referring to the “overtly and/or sexist/threatening” anonymous messages on Yik Yak, which allegedly created a “hostile environment” for the group.

True, there are slight glitches in the group’s charges. The Supreme Court standard (established in the 1999 case Davis v. Monroe County Board of Education) stipulated that harassment becomes discriminatory conduct for which schools are liable only when it is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”

Susan Kruth, staff attorney at the indefatigable Foundation for Individual Rights in Education (FIRE), a non-partisan organization defending the First Amendment on American campuses, has explained why the university in the Yik Yak case did nothing wrong.:

Universities should respond to true threats and to serious allegations of sexual harassment, and they can provide non-punitive resources to people who encounter offensive speech. But to the extent that remarks are merely sexist or offensive, a public university must recognize that such language is protected under the First Amendment and decline to take unlawful steps to censor it. Throughout their complaint, the plaintiffs conflate alleged threats and a pattern of conduct that they claim deprived them of educational benefits with remarks or behavior that made them uncomfortable.

In commenting on the lawsuit recently, another FIRE staffer, Communications Manager Daniel Burnett, cited the 2003 Supreme Court case Virginia v. Black, which defined  “true threats”—valid  exceptions to the First Amendment–as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

However, because courts have regarded intimidation as a type of true threat, it becomes advantageous for complainants to assert that they indeed were placed in fear of bodily harm or death. These magic words then set in motion a series of potentially draconian consequences, with the alleged perpetrator usually denied due process as schools, trying to save themselves from lawsuits or perhaps joining in with current campus orthodoxies, cave in to complainants in short order.  Ironically, it is only when sued by those charged with such offenses that universities are likely to rediscover the beauties of First Amendment protections.

A further irony of the current campus climate is that it is not speakers who incite the audience to violence but rather outraged students who threaten speakers and their supporters with violence. Yet universities are acting as if this potential for violence is a reason to prevent unpopular views from being heard – a perfect example of the power of a “heckler’s veto” to silence speakers in an arena where free and full discussion ought to be promoted: the university.

The result is that campus speech censors have a positive incentive to overreact.  They become agitated, claiming they feel unsafe, and threaten violence—in response to which administrators and even campus police rapidly capitulate.  And in the downward spiral that has been played out on numerous campuses over many years now, students ironically demonstrate ever greater physical and verbal aggression as they insist on their discomfort, vulnerability, and fear.

FIRE’s Susan Kruth has highlighted the role of the Office of Civil Rights (OCR), charged with enforcing Title IX, in promoting a redefinition of sexual harassment and sexual assault so broad and vague that it covers mere “speech or conduct of a sexual nature,” which in practice means whatever anyone finds offensive. The low standards encouraged by the OCR, in conjunction with colleges’ natural aversion to lawsuits, have resulted in the campus environment by now familiar to us all, even though these low standards would never carry the day in a court of law.

Apart from the unconstitutionality of such broad definitions, it is well worth asking whether we really want to live in a society where you can’t even make a sexual allusion or tell a joke, where any thoughtless, critical, or offensive comment—not to mention an unpopular viewpoint–can be construed as harassment.  According to many would-be censors, the answer is yes, provided it’s the other guy whose speech is to be curtailed, never mine.

One has to marvel at the touching innocence of so many American students. Lacking experience of what it’s like to live in a society in which some speech is prohibited ostensibly for the greater good, they apparently have little imagination of what such a society would entail. It seems not to occur to them (or to their faculty and administrative abettors) that the very vagueness of what could cause offense means ever more words will need to be avoided, just to be on the safe side.  Yet numerous accounts exist of all the countries around the globe where speech is or has been curtailed by the state and its institutions, with frightening and violent consequences.

It’s an old observation, but nonetheless routinely ignored by campus vigilantes.  More than twenty years ago, for example, FEMISA, an electronic list devoted to feminism, gender, and international relations, was discussing kicking out some men who posted comments women on the list didn’t like.  I was among the very few who argued on that list for the importance of free speech, which–in that particular context–meant tolerating the messages of male contributors whose words were making them unpopular.

Excluding those whose views we did not like, I said, would soon enough lead to instituting censorship, public humiliation, shunning, ganging‑up‑on, etc., so as to protect the feelings and views of the rest.  I contended that even men thought to express obnoxious views should not be struck from the list, and that intolerance of ideas we dislike can quickly move into the prohibitory mode as if the people with whom we disagree had no right to speak freely.  This was a dangerous turn, as I knew then and have had confirmed numerous times since.

Kate Zhou, a political science professor originally from China, sent a long message to FEMISA supporting my position and explaining her own:

I am a feminist from China. For many years, sexist language was banned by the Chinese state (at least in the urban public sphere). Urban Chinese women were very much “free” from sexist verbal attacks. Many women including myself were willing to give up freedom for some degree of protection and security.  When everyone lost the freedom to speak, women’s independent voice was also gone. When women’s voices were silenced, women suffered.

 Yes, we did not have to be bothered by sexist language and pornography. But we could not complain that we had to line up two or three hours for basic food. We had to take less interesting work because we had to take care of the family.  It was not politically correct to complain about the double burden.

Is it clear to feminists that there has been no feminist movement in those countries that practice state censorship? My experience in China seems to suggest that women are often victims of any kind of censorship. As a feminist, I believe that women have the ability and power to defend their interests if given a chance. We should welcome complex and diversified debates. Difficult and complex debates help to train us. If we try to shut someone up because we dislike what he has to say, we just confirm our weakness and sexism.   [Kate Zhou, May 5, 1995].

Not surprisingly, FEMISA did not heed this sound advice. Instead, after more comments from argumentative men –who in some cases merely pointed out that women routinely posted hateful language about men, while men’s objections and rejoinders were treated as intolerable flames–the list owners barred various men from posting and moved the entire list onto “moderated” status, the better to control its discussions.

A similar case affected me directly. For nothing more than disagreeing with the predominant views on certain subjects on the Women’s Studies E-mail List (WMST-L), I (unlike virtually all the other 5,000 subscribers to that list) was placed on “moderated” status for ten years, so that no message of mine could be posted without first being vetted by the list’s overseers.  The result was, of course, as intended: Not eager to waste my time, I participated ever less on the list, to the point that my contributions decreased to almost zero. Why should anyone on the list have to be upset by divergent viewpoints?

Now, however, entire institutions do this dirty work for fragile feminists and others demanding protection from the verbal slings and arrows of people who dare voice dissenting views.  The state and its apparatuses must, of course, keep its grubby hands off our bodies, but please, please, let it control words, gestures, even thoughts.

We’ve come a long way, baby.