Freedom of expression is making a comeback.
That might not be immediately obvious in the age of disinvitations, shout downs, trigger warnings, speech codes, “bias response teams,” and the other components of leftist suppression of ideas and speech on campus. Nor if we look beyond campus to the assaults on public officials, the doxing of individuals who get crosswise with leftists, and the smear campaigns aimed at figures such as the new Supreme Court nominee.
We may have taken collective pause from tearing down statues that represent America’s past, but the librarians are busy demoting figures such as Laura Ingalls Wilder for the sin of having written in the idiom of her time.
Yet freedom of expression is indeed making a comeback. The Supreme Court gets some of the credit. It laid low the California law that required crisis pregnancy centers to advertise abortions. The Court ruled this was “compelled speech” and violated the First Amendment right to free speech. The Supreme Court’s decision in the Janus case followed similar logic. Workers were being forced, against their will, to pay for speech they disagreed with.
But it is not just the Supreme Court. State legislatures across the country have been debating and sometimes passing legislation aimed at bolstering the rights of students to express their views. Two different forms of model legislation are on offer, one proposed by the Goldwater Institute, and one by the American Legislative Exchange Council. The Goldwater approach has more bite, but both put state-level public authority on the side of free expression and against the combination of hecklers’ veto and administrative appeasement that have characterized most of higher education for the last few years.
FIRE (the Foundation for Individual Rights in Education) has sustained its winning streak against colleges and universities that impede free speech. In February, Senator Orrin Hatch introduced a bill, the “Free Expression in Education Act” that would prohibit so-called “free-speech zones” that tuck students who have something to say into remote locations at tightly constrained hours. The University of Massachusetts at Amherst just agreed to abolish its “free-speech zones” in response to a lawsuit brought by Young Americans for Liberty.”
And high on the list of positive developments is the decision by the Wisconsin Supreme Court in the case of McAdams vs. Marquette University. Marquette had fired McAdams from his tenured position because on his blog he had criticized a young woman who was both a graduate student and an instructor in an ethics course. Marquette put enormous effort into fabricating a reason why McAdam’s legitimate use of his academic freedom wasn’t legitimate after all. The university’s defense came down to the claim that there was an unwritten Jesuit principle that faculty members can never publicly criticize graduate students. A lower court had blessed this baloney, but the Wisconsin Supreme Court hauled that finding to the judicial trash dump:
The undisputed facts show that the University breached its contract with Dr. McAdams when it suspended him for engaging in activity protected by the contract’s guarantee of academic freedom. Therefore, we reverse the circuit court and remand this cause with instructions to enter judgment in favor of Dr. McAdams, conduct further proceedings to determine damages (which shall include back pay), and order the University to immediately reinstate Dr. McAdams with unimpaired rank, tenure, compensation, and benefits, as required by § 307.09 of the University’s Statutes on Faculty Appointment, Promotion and Tenure (the “Faculty Statutes”).
This was a state-level case, but the McAdams decision will weigh on courts and college administrators far beyond Wisconsin. Inside Higher Ed observed that the court, “broke with a long judicial tradition of deferring to colleges and universities on tenured personnel matters.” Exactly. The message of the decision to college administrators is: When you commit yourselves to “academic freedom” in your faculty contracts, you don’t get to make up an exception when a conservative faculty member gets on your nerves. When similar cases arise in other states, it is a certainty that the judges will read and carefully consider the Wisconsin Supreme Court decision. So will potential plaintiffs.
We have also seen outbreaks of common sense on other free speech issues. Last year an undergraduate student at the University of Nebraska at Lincoln, Kaitlyn Mullen, was harassed by a graduate student/instructor named Courtney Lawton, who called her “neo-fascist Becky.” Lawton was upset that Mullen was passing out information about the student group Turning Point USA. The incident was caught on video, and the public reaction against Lawton was strong. The university eventually barred Lawton from teaching. The AAUP, naturally, has censured the university for its action but there seems to be broad public approval for its defense of Kaitlyn Mullen’s right to peaceful self-expression.
These examples don’t add up to a sudden revocation of all the illiberal suppression of free speech in America or in American higher education. The campus left, in particular, is fiercely determined to forestall any expression of views that run counter to its preferred narratives, and to punish those who disobey. Shout downs are a blend of forestalling and punishing. The tactics used against Charles Murray at Middlebury College and Heather Mac Donald at Claremont College, to cite two of the most famous instances, were aimed at preventing speech but also at humiliating the speakers. The spirit of such disruption is theatrical anger in service of what the protester takes to be righteous indignation.
Those feelings are not going to evaporate like the morning dew. They have become ingrained among the protesters. And yet the protesters are losing the dark glamour they enjoyed when shouting-down, taking over, and spitting outrage seemed somehow authentic and cool. The protesters seemed for a while to be immune to all the rules because leftist administrators just couldn’t bring themselves to impose serious consequences for lawlessness in the name of “social justice.” But something has changed.
The moral authority of the campus left is starting to dwindle. We see that in the sudden emergence of the “walk away” movement. A gay New York hairdresser, Brandon Straka, has given the movement its manifesto in a YouTube video. Straka denounced what he calls “liberalism” as “tyrannical groupthink,” and described it this way: “For years now, I have watched as the left has devolved into intolerant, inflexible, illogical, hateful, misguided, ill-informed, UnAmerican, hypocritical, menacing, callous, ignorant, narrow-minded, and at times blatantly fascistic behavior and rhetoric.” It is a system, he says, that allows a mob “to suppress free speech, create false narratives, and then apathetically steamroll over the truth.”
I can think of any number of conservatives who could say (and have said) much the same thing, though perhaps focusing more precisely on the progressive social justice zealots, rather than liberalism per se. But Brandon Straka brings to the message the burn of a Carolina Reaper chili pepper.
Straka’s sense of betrayal turned down a notch or two was also on display at the recent Heterodox Academy “Open Mind” conference, where 25 of 28 speakers came from the liberal left to voice their complaints about the left’s suppression of free speech on campus. As Heterodox Academy head Jonathan Haidt observed at the end of the conference, “This is everybody’s issue now. It’s all professors’ issue. It’s all administrators’ issue. It’s all students’ issues.” Liberal faculty members who have been burned by the far left—think of Laura Kipnis, Alice Dreger, and Bret Weinstein—have begun to speak out forcefully.
The American left has plainly begun to register the changing climate. The best evidence of that was the front page story in The New York Times titled, “How Conservatives Weaponized the First Amendment,” by Adam Liptak. Liptak’s main focus is the growing body of Supreme Court decisions based on First Amendment principles that defend the use of free speech by non-progressives. He observes, “Some liberals now say that free speech disproportionately protects the powerful and the status quo.”
Well, yes. That’s what many on the left are now saying in their Marcusian moment. Free speech and intellectual tolerance can, in fact, be used in support of traditional values, and the affluent do have the same First Amendment rights as anyone else. The theory—if that isn’t too dignified a word for the leftist ideology that lies behind all the recent thuggery—is that the “marginalized” have a right to silence those who enjoy all the “power” and “privilege,” so the hell with free speech.
The Times isn’t alone in sounding the alarm that Americans may no longer be willing to play along with this pretense. Liptak cites a gaggle of law professors and activists who see the coming trouble. Even the ACLU has decided to back away from its once spirited defense of First Amendment freedoms and to focus instead on progressive interpretations of “social justice.” Former ACLU board member Wendy Kaminer has denounced that betrayal—which is further evidence of the divisions on the left.
What this all means is that a cultural shift is on its way. The curtain has not yet come down on the campus anti-free speech craziness, but if you look up, you can see it dropping. And few of us in the audience are asking for an encore.