The Free Speech Chilling of Free Speech Protests

As some of you know, there's been a bunch of controversy recently about the "free speech culture" at Yale Law School, and particularly whether the school is hospitable to conservative speech. Several conservatives have argued that particularly raucous protests that have targeted conservative speakers have crossed over into effective censorship, negating Yale's claim to be a place where diverse views can be discussed.

On that note, David Lat reports on a recent talk at Yale given by an attorney for the right-wing, anti-LGBTQ group Alliance Defending Freedom (on a panel with former ACLU head Nadine Strossen and Yale Law Professor Robert Post). By all accounts, the talk, which had approximately 100 attendees, went off without a hitch. Far from the abuses of the past, this time there was not, in Strossen's words, "even a peaceful protest."

Now, I want to be very careful in articulating what I say next. I'm not a "protest" guy. I don't enjoy going to them, I don't find them especially inspiring even when I agree with them, and I'm probably predisposed to think of them as unreasonable. And I'm fully willing to believe that in the past some forms of "protests" at Yale (e.g., I don't think that protesters can be permitted to "shout down" views they disagree with).

All that said, it is also an element of free speech culture to permit some forms of peaceful, minimally disruptive* protests. Students quietly holding signs, or passing out flyers, or even booing the speaker when she's introduced -- those, too, are exercises of free speech, the protection of which is important just as protecting the ability of dissident speakers to come to campus and have a genuine, practical ability to present their views is important.

So when I read that there wasn't "even a peaceful protest", well, obviously one explanation for that is that no Yale students felt moved to protest this speaker, or that they were busy with other things. But given that this speaker is exactly the sort of figure who had been raucously protested in the past, and that presumably there are still a fair chunk of students who probably continue to deem her protest-worthy, what does it signify that no protest occurred? It seems highly likely that the steps Yale has taken to discourage illegitimate, censorial protest (and again, I'm inclined to think that there are such protests and Yale is right to tamp down on them) have had the additional chilling effect of deterring legitimate, non-censorial protest.

The conservative journalist who quoted Strossen as saying there were no "peaceful protests" also reported that "there were no ear-shattering chants, no profanity-laden signs, and no ad hominem questions." The first of these might be validly limited as a "shout down." The latter two, however, don't seem procedurally inappropriate (though of course one can agree or disagree with their on-the-merits substance). Free speech protects the right of attendees to have signs with profanity on them. Free speech protects the right of audience members to ask harsh or hostile questions. If those, too, were eliminated, then it seems Yale didn't just ban illegitimately disruptive protest; it also functionally squelched perfectly legitimate, normal forms of protest. As one sort of speech avenue opened, another closed.

The laudatory tone of the articles I've read praising Yale for successfully hosting this speaker suggest, however, that this ebb of free speech culture is not viewed as significantly worrisome. And perhaps the problems are not in equipoise -- one might think that obstructing invited speakers from presenting via "shout downs" is a more serious violation than deterring peaceful protests of speakers via perhaps overbroad or heavy-handed administrative initiatives. But it still worth recognizing that there appears to have been a free speech cost here as well as a benefit. A healthy free speech culture at Yale absolutely must allow speakers of diverse views the realistic, non-nominal opportunity to present their arguments. But such speakers are not entitled to be free from the normal pushback and protest that is also part of a culture of free speech. If the pendulum at Yale has swung so far back as to eliminate the latter, that cannot be deemed an unmitigated victory.

* Why "minimally disruptive"? Some take the view that any sort of "disruption" of a speaker's talk, even if de minimis, represents a form of censorship. This seems untenable: normally audience reactions like booing a poorly received point would fall into this category -- a speaker probably has to temporarily pause and regroup until the booing dies down, and so is "disrupted" -- but that can't be the standard for governing whether the speaker has functionally been obstructed from speaking.  On the other hand, some argue that protests are by their nature meant to be disruptive -- considerably more so than "minimally" -- which is what makes them a protest. I don't necessarily disagree with that point, but what I would say is that a protester who takes that approach is consciously refusing to submit to or cooperate with the prevailing legal or governance structures (that, again, is implicit in the disruption) and so cannot truly complain when those structures refuse to cooperate back (e.g., by imposing various forms of sanctions). "Minimally disruptive" I think walks the line appropriately.

The Counterrevolution Eats Its Own: Conservatives Turn On Yale Law Conservatives

A few years ago, I had the distinctly bizarre experience of being the target of a particularly devoted internet troll.

The interesting thing about him, though, was that he initially presented himself as an ally. He saw that I was publicly Jewish and was (at the time) a graduate student at UC-Berkeley, and was eager to hear tale of how horrible my life must be, stuck in such an antisemitic cesspool as Berkeley.

I answered honestly: my experience was mixed. There were definite problems with being Jewish at Berkeley, and I had little patience for those who denied it. I had some discomforting encounters, and I had a particularly tense relationship with my own graduate student union. But at the same time, being Jewish at Berkeley also was not nearly as bad as sometimes portrayed in the media. Berkeley is a big place, and every department is different. What happens in the anthropology department didn't necessarily travel to my home in the political science department. There were professors I had read about who had done terribly antisemitic things, but I had never met them (again, big place!). And my professors were generally quite supportive of my work on antisemitism, even when it may have clashed with some presumed progressive shibboleths. On the whole, the portrayal of Berkeley as a sort of warzone for Jews, where one could not reveal one's faith or (God forbid!) interest in Israel and antisemitism without being ripped to pieces by one's peers, was quite far from my experience; even as I could not say either that there was no fire whatsoever behind the smoke. As I said: a mixed experience.

This, I rapidly found out, was the wrong answer. My interlocutor quickly decided that the only way I could be a Jew at Berkeley and not be beaten down, miserable, and ready to flee for my life was if I was an antisemitic sympathizer myself. And so, a troll was born.

I'm reminded of this story via Josh Blackman's defense of Judge James Ho's announcement that, going forward, he will refuse to hire any Yale Law School graduates as clerks. Judge Ho objects to what he sees as Yale's indulgence of a campus protest culture which he believes has created a toxic and unproductive intellectual climate for campus conservatives. His boycott is an effort to induce and/or coerce Yale into adopting a harsher line (one wonders, if the boycott fails, will divestment and sanctions follow?).

The immediate irony, of course, is that the students most directly effected by Judge Ho's announcements are the putative victims of the campus culture he decries -- the beleaguered Yale Law conservatives. After all, the presumably liberal protesters likely were neither applying to nor would have been hired by Judge Ho even before now. And the irony goes deeper. Refusing to evaluate applicants from Yale "as individuals" and instead impute to them the sins of their broader group rests uneasily with the putative meritocratic individualism extolled by Ho and his allies. After all, isn't it precisely that form of rugged individualism that at least allegedly marks off the core of Ho's ideological disagreement with Yale liberals? Perhaps, channeling Ilya Shapiro, we might ask whether, by enacting a preemptive group-based exclusion that limits the pool of candidates to be considered, Judge Ho has ensured that the "lesser" clerks he does hire "will always have an asterisk attached" to their accomplishment (surprising no one, Shapiro has enthusiastically endorsed Ho's decision to depart from strictly individualist meritocratic consideration).

But so it goes. Perhaps these Yale conservatives, though victims, must necessarily be victimized still further for the greater good. Excluding them is a necessary sacrifice for the cause of restoring Yale's good name and academic reputation. There may be bigger values at stake here that meritocratic individualism.

Enter Blackman. Blackman does not view Yale conservatives as victims. Blackman wants them to know that they deserve what's coming to them. They deserve to be excluded, they are getting no more than their just deserts. 

How can this be? And how can it be reconciled with allegedly defending Yale Law conservatives from the predations of their peers?

The answer is simple. Blackman thinks there is one and only one reason why a conservative student would attend Yale in the year 2022: because they're prestige whores. That, to Blackman, is the singular and defining feature of a Yale conservative. And as prestige whores they can and should be punished for their failure of moral character.

That's harsh, but that's the argument. Read for yourself:

Imagine you are a senior in college. You were accepted to Yale Law School, as well as several other top-tier schools. Mazal tov! Now you have a choice. How do you choose between Yale, Harvard, Columbia, Stanford, Chicago, and Virginia? Perhaps there are financial constraints–some schools may give more aid than others. There may also be personal constraints, such as the need to be close to family. More likely than not, neither of these factors would tip in favor of Yale. I doubt that YLS gives substantially more generous financial aid packages, and New Haven is a pain to get to. Instead, I think an applicant would choose Yale over those other schools because of prestige....

Knowing how inhospitable Yale is to conservatives, why would an applicant still pick Yale over other more tolerant places? The answer, again, is prestige. And the desire to obtain that prestige trumps a commitment to values like free speech and academic openness.

How, then, should a judge assess a conservative applicant who chooses to go to Yale? This person knowingly walked into the traphouse for the sake of an elite degree. I think it is reasonable for a judge to conclude that the applicant exercised poor professional judgment. Indeed, the judge may not want to rely on someone who would sacrifice their principles for prestige. In this regard, the Judge would choose to not hire any conservative YLS graduates because they are unreliable, and maybe even untrustworthy. They have already sold out on their values to go to YLS, and will likely sell out in similar ways in the future. In this view, choosing to go to Yale, with full information, is a failure of moral character.

There are, of course, many reasons why a conservative student might elect to choose Yale over Harvard or other competitors. Perhaps there are particular professors they are eager to work with and learn from. Perhaps they are attracted to Yale's small size. Perhaps they are eager to test their beliefs inside a true bastion of liberalism (this, running in the opposite direction, was part of why liberal me decided to attend the University of Chicago, with its reputation as a conservative citadel). Or perhaps -- and I suspect this is the most unforgivable sin of all -- they do not find Yale's intellectual climate to be quite as inhospitable as it is portrayed in the sensationalist media. Perhaps they, while being conservative, disagree with the conservative orthodoxy on this subject. Perhaps they've come to a different conclusion from the "politically correct" answer, just as I came to my own conclusions about the state of life of being a Jew at Berkeley.

But just as with my assessment of Berkeley, all of these are, of course, the wrong answers. If you are a conservative and you are not fleeing Yale as fast as your legs will take you, the only explanation is you are a morally bankrupt sellout. As Blackman illustrates, there is no tolerance for deviation from the right-wing orthodoxy on this point. If you are a conservative and you do not subscribe to this orthodoxy via your continued attendance at Yale, you are a villain, you are a traitor, you are a RINO, you are an enemy of the movement, and you deserve what is coming to you. And this from the supposed allies of conservatives on campus! How quickly the alleged defenders of intellectual heterodoxy collapse back into singular, ideologically convenient explanations which can brook no departure.

We have seen how quickly alleged concern for "free speech" on campus collapses into calls for censorship, ostracization, and exclusion that dwarfs any of original sins allegedly enacted against campus speech in the first place. This is of a piece with that trend. The counterrevolution eats its own. It always has, and it always will.

Another Tentacle Roundup

The JTA just published my thoughts on the Israel Anti-Boycott bill (adapted from this post). Let's see -- I've done Tablet, Forward, Ha'aretz, and now JTA. We all know the Jews run the media, but what do you call the Jew who's taking over the Jewish media?

Anyway, world domination is distracting, and it's causing my browser to clutter up. Let's deal with that, shall we?

* * *

While the hook for my Israel Anti-Boycott bill is "everyone is going crazy", I should say that I found J Street's statement to be measured and thoughtful.

The Dean of Yale Law remarks on why law schools have largely avoided the anti-free speech hysteria that is (perhaps to an exaggerated degree) encompassing other sectors of academia. Short version: law school relies upon a series of deliberative virtues, like hearing out your opposition and considering both sides of an argument, that encourage people to take arguments seriously. Strongly endorse.

In Fathom (haven't gotten them yet!), John Strawson reviews a new book on Colonialism and the Jews.

Rep. Blake Farenthold (R-TX) blames "female Senators" for holding up Obamacare repeal, says if they were men he'd challenge them to a duel. Blake Farenthold kind of has a problem with women.

Sarah Ditum: Why Does Labour Have an Abuse Problem? A strong, thought-provoking essay.

Far-left French leader Jean-Luc Melanchon denies that the French (through the Vichy government) have any responsibility for the Holocaust.

Academic Incuriousity: Not Just a Liberal Problem

Apropos my last post on the Yale flare-up, Max Fisher has a good post at Vox about a similar free speech/safe-space type controversy at William & Mary a few years ago that didn't get anywhere near the attention that Yale's did. Part of the reason, Fisher suggests, is that it was conservatives doing the crying -- crying that a foot-and-a-half tall cross was taken down from a public building, and crying that an allegedly offensive art show played on campus. The result was ultimately the ouster of the college's President.

I remember that controversy well, and I remember that it certainly didn't have the cultural resonance of the contemporary "PC-liberals hate free speech" issues we're talking about today. Indeed, my first thought when reading the recent fusillade of articles denouncing liberal oversensitivity on campus was to marvel at how conservative writers had managed to shift from "campuses are brainwashing students with evil dirty sexy offensive anti-American propaganda that should be banned" to "whiny liberals don't understand that college shouldn't be comfortable" without skipping a beat.

Like Fisher, this is not an apologia for liberal students being similarly close-minded. As I observed in my last post, what we're seeing is not a uniquely liberal vice, but rather a convergence on a bad equilibrium whereby everybody has the right to be epistemically incurious and close-minded (as opposed to just the dominant groups). That's bad, but it's not a specifically liberal bad. It's a far more pervasive and more dangerous problem precisely because it is a vice that now everyone seems to feel entitled to (even as they are appalled to see it exercised by others).

Trading a Virtue for a Vice at Yale

I'm currently reading Jose Medina's truly outstanding book The Epistemology of Resistance. I'm only through the first chapter, but one of Medina's core arguments is that the social position of privilege can (does not always, but can) lead to certain epistemic vices -- for example, close-mindedness or overconfidence. Privileged persons who do not often experience others challenging their views (or, when such challenges do emerge, are assured by other societal actors that these challenges are inconsequential) may be hampered in their ability to self-reflect and think critically about the merits of their own position. Since nothing forces them to engage in such (potentially distressing) behavior, they may simply abstain from it, preferring to bask in the comfortable security of "knowing" that they've got it all figured out. And accordingly, Medina argues, persons under conditions of oppression can (do not always, but can) exhibit certain epistemic virtues -- they may be more open-minded or curious about the world and positions not their own, simply because they have to be. They are not in a position where they can simply not listen to the views of others, they often have to grapple with and be fluent with perspectives and experiences that are different from their own.

Medina is no fundamentalist: he obviously does not think we must be radically open-minded and uncertain towards any and all beliefs we might hold (a position that would lead to epistemic anarchy, if not outright paralysis). Nor is he essentialist: he believes that plenty of oppressed persons can display the vice and plenty of privileged persons the virtue, and he clearly hopes that all of us will strive to do a little less of the former and a little more of the latter. But I worry that we're beginning to see the opposite. Instead of encouraging more virtue -- asking people to emulate the particular epistemic virtues of curiosity often fostered by oppression -- people are asserting a right to the vice. They want the power not to listen, they want to not have to think discomforting thoughts. The equilibrium seems to fall exactly where we don't want it to be.

In a sense, this is unsurprising. Virtues are very often no fun to live out -- that's if anything a cliche --and the virtue of epistemic curiosity is no different. It is uncomfortable and disorienting for one's worldview to constantly be under threat, to never be quite sure if one's views (including passionately-held ones) are on target, to always have to encounter and reckon with voices and perspectives that seem radically alien from one's own. How much nicer is it to occupy that space of privilege -- to not have to endure such challenges, to be secure in one's correctness, to be surrounded by fellow-travelers in solidarity. The virtue is not recognized as a virtue but is recognized as a burden; the vice is not recognized as a vice but is recognized as a comfort.

The recent controversy over Yale students protesting over a college assistant "master's" email critical of administration-promoted suggestions regarding proper Halloween costumes (the master suggested that students should not need or desire the administration providing such "guidance" because they should be able to come to good conclusions on their own; and if in certain circumstances they came to bad conclusions that would not be the end of the world) seems to resonate with this concern. The usual caveats apply: this incident did not occur in isolation, there is a long history of college students making poor choices (itself not the worst thing in the world), no social movement can be perfect all the time, and so on. But nonetheless, the conduct of the students -- surrounding the master and verbally abusing him, seemingly enraged that he might have a different view from theirs, finding it outrageous that one might think his arguments are "worth listening to" (I'm actually less concerned with calls that he resign from his post as master than with the verbal confrontation, oddly enough) -- seemed to be about trading the virtue for the vice. The email in question may be wrong, but it did not seem to be outrageously so, the sort of statement that was so obviously out-of-bounds as to warrant exile from the realm of legitimate discourse. It did not exhibit the markers that should have rendered a lack of curiosity (indeed, a sense of offense towards the idea that one might be curious towards them) about its claims a virtuous stance to take.

So what is going on here? Well, obviously a lot is, and again it is clear that this email alone was not really the critical factor in triggering this outburst. Nonetheless, I think it is possible to understand why these students seemed to frame their claims in terms of their right not to listen. Though Yale students come from a variety of backgrounds and many continue to face significant degrees of oppression (on and off campus), all have at least some privilege simply by virtue of being Yale students. And having tasted that privilege -- experienced how good it feels to just be instinctively, reflexively validated -- it's no wonder that they want more of it. If virtues are stereotypically a burden, vices are often a blast. And there is no reason to suspect that people -- when given a naked choice between living out the virtue or living out the vice -- will typically select the former. In many circumstances, epistemic virtue (like any other) must be inculcated.

Certainly, it is fair to say that it is probably ideal for both camps to move closer to other -- more epistemic confidence for oppressed persons, more epistemic humility from privileged ones -- but that leaves the question of where in the middle the two will meet. People who argue that the claim of marginalized persons to access this place of epistemic security are only demanding what the majority has long possessed aren't wrong -- somebody (I forget who) observed that the conservative freakout over Starbucks' red cups is nothing but a safe-space-style demand that their preferred worldview continue to be the unchallenged default -- but they do overlook that this majority-possessed space is not a virtuous one. The risk is what people will seek out is somewhere that's more on the vice side of the ledger, and that is not a desirable (nor, I'd argue, a sustainable) place to be. Not every college movement that seeks to alter the dialogic norms of the community does this, but some of them do, and the Yale case seems to be closer to a pursuit of the vice than the virtue.

Now, I think in many cases the problem here is misidentified as a "free speech" problem, when often it isn't: it's counterspeech. I've tried to delineate the difference in my posts on academic freedom vs. academic legitimacy (see the latest for links), and while arguably that doesn't apply in the Yale case (where one could plausibly maintain there was intimidation at play), often times people complain about "censorship" when in reality all that's going on is people expressing a contrary  message. The idea that certain ideas should not be socially accepted (so long as social disapprobation is all that's at stake) is entirely consistent with free speech rights. When students say (and do no more than say, though perhaps say quite loudly) "I don't want to listen to this argument" or "I don't think this speaker belongs on our campus", the potential vice in play (and it isn't always a vice) is not censorship, it's a lack of curiosity. This problem -- if it is one (and I think it is one) -- should be addressed on its own terms. And the solution -- whatever it is -- will need to balance the genuine need for bolstering the epistemic confidence of outgroups who are often mistrusted, while preserving the virtues of curiosity and open-mindedness that epitomize an ideal deliberative space.

UPDATE: Please see the follow-up I wrote to this post, which reconsiders some of the critical points and provides additional context.

YIISA Shuts Down

The Yale Interdisciplinary Initiative for the Study of Antisemitism (YIISA) is shutting down after Yale University decided not to renew the program, citing low course enrollment and a dearth of quality, high-placing scholarship produced from the Initiative. The decision has engendered some controversy, with people insinuating that YIISA is actually closing down because academics want to suppress the study of anti-Semitism (and particularly anti-Semitism in the Muslim world).

I mentioned once that one of my scholarly ambitions was to do work at YIISA, so I'm obviously disappointed it is closing. That being said, I'm inclined to accept Yale's explanation for not renewing the program. As I wrote over at Engage:

I’m not happy that YIISA is closing — I was very much an admirer of their project, and in particular I thought David Hirsh produced some stellar work for them. But I, too, recall being surprised at how little published scholarship was coming out of the institution. It seemed to be punching academically well beneath its weight, and I can’t be too surprised it isn’t being renewed as a result.

Is there a solid claim that the inability of scholars of anti-Semitism to place their work in top journals is in part a function of academic norms whereby anti-Semitism isn’t seen as a “real” topic worthy of study? Yes, perhaps. But I don’t think this is the whole story. For one, we’ve definitely seen a fair number of scholarly monographs being published on the topic, giving an opportunity to bypass perhaps biased journal editors. For two, Hirsh’s great work notwithstanding, a lot of the published academic work on anti-Semitism I have read has not been particularly impressive in quality. Reading the contents of the Journal for the Study of Anti-Semitism, I haven’t been blown away by many of the pieces, or wondered why the pieces haven’t been placed in more reputed journals.

The fact of the matter is that a lot of the scholarship I've read in this field has not been of particularly high quality. Professor Hirsh is a notable exception, and his article Anti-Zionism and Antisemitism: Cosmopolitan Reflections is simply magnificent. But when I had browsed YIISA site I had found myself seriously disappointed in their overall product. And ultimately, Yale isn't going to keep funding a center that isn't world-class. It's up to those of us who do work in this field to start producing good work, and get ourselves noticed for the quality of our scholarship.

Back Home

Thanksgiving at my place! Everyone's invited (not really).

Meanwhile, a club shut down a pre-paid party for Harvard and Yale alums because too many Black people were on the guest list.

The Other Stories

This is a great article documenting the experiences of other Black law students at Yale around the time that Justice Clarence Thomas attended (Thomas famously regretted attending Yale, claiming his education was worth "15 cents" and that firms would not take him seriously after graduation, assuming he got in via affirmative action).

Thanks to PG in the comments for the pointer.