Discussions about free speech on college campuses are made all the more difficult because many of the controversies that ultimately become framed as controversies about speech begin as controversies about racism, racial equality, sex discrimination, sexual assault, and rape. These are not easy issues to discuss – especially when we disagree. And yet the current state of the “Free Speech” debate on college campuses amounts to little more than a fruitless exchange about who is silencing whom, which distracts us from the issues that require our attention.
A concrete example from this academic year may help to frame the issues. In the wake of campus controversies about Halloween costumes considered racist and culturally appropriative, just prior to Halloween, the Yale Intercultural Affairs Committee sent an email to the student body asking students to avoid wearing “culturally unaware and insensitive” costumes that could offend minority students. It specifically “advised” them to steer clear of outfits that included elements like feathered headdresses, turbans, or blackface.
Some students were offended by this advice and said that this is the typical kind of silencing practiced by the “left” in an era of political correctness. In response, a residential college adviser composed a thoughtful email inviting the community to consider the idea of cultural appropriation in the context of much younger children and the importance of pretend play.
Still other students thought this advisor’s email amounted to siding with race domination and rejecting racial equality and inclusion for students in residence at Yale. Some of these students called for the professor to be removed as a residential college advisor believing that their residence — where they live — should be a place where they felt safe. And finally, these students — the ones who originally hoped for an environment in which they would not be silenced — were vilified again for creating an environment that chills free expression. Yes, it is confusing.
The example is important because it is typical of the kind of incident that we see around speech and equality on college campuses. But how did we get here? By “here,” I mean a place where: “advice” to not be offensive is characterized as censorship; a productive discussion about cultural appropriation is taken as threatening and declared “silencing;” and the expression of disagreement about that discussion is said to be chilling. In the end, the argument about who is the most censored replaces the important discussion of racial equality and how to accomplish that on a college campus. And no one is hearing what anyone else has to say.
My argument here is that, in the United States, we routinely balance equality with other important foundational principles, that we often balance speech and harm and that the balance is still very weighted in favor of people in power, but by taking the substantive discussion of the difficult issues that underlie these debates seriously, we could actually progress on agendas we probably all agree on.
Subordination, Speech, and Space
Before thinking about the college context specifically, consider the importance of social context to our understandings of (and laws) about the regulation of speech. Space is not just location. Rather, space is a social construct that affects how we understand race and gender relations, sex, consent, speech, and violence.
For example, consider the home. Our homes are a particular, special, and protected kind of space. There are jurisprudential and philosophical rationales that put the home in a special zone of law. Concepts of privacy, liberty, and property make state intrusion into the home (or into our affairs when we are in the home) subject to higher standards.
This conception of the home, the private space it evokes, and the relationships it assumes used to be premised on a male-oriented conception of property. A man’s home (and his wife and family) were his castle. Property rights still play a role in constructing the home as unique, but we now tend to think of this unique space as guaranteed by privacy and liberty. Inside the home (and the relations of marriage and family that exist there) is where we think of ourselves as the most secure from government intrusion.
And yet, feminists have made great strides in the past 50 years in changing how we think about relationships in the home as well as the bright line of public versus private that previous conceptions supported. The criminalization of marital rape, for example, fundamentally rejected the idea that uninterrupted consent to sex is part of being married and in the home. Similarly, the laws against and prosecution of domestic violence also represented an interrogation of the idea that the privacy of the home should not be breached even when bodily integrity (most typically of women, although targets of domestic violence can be of any gender) is at stake. The results of these hard-fought feminist movements mean that — while enforced imperfectly — simply being in the private space of a home or the institutional relationship of marriage does not render a woman unable to revoke consent to sex or to be abused.
Some scholars argued at the time (and a few still might) that laws against marital rape and domestic violence represent an erosion of some conception of privacy and property, but most Americans understand these laws as protecting a vision of liberty and bodily integrity that we can appropriately balance (with some struggle to be sure) in society and in courts.
In the workplace, we have seen a similar change. The establishment of sexual harassment as a cognizable claim of sex discrimination under the Civil Rights Act of 1964 means that consent to sex or sexualized activity is no longer just “part of the working conditions” that people (mostly women, although again, targets of sexual harassment in the workplace often include men and among male targets are disproportionately LGBTQ) face if they want to work. We know sexual harassment and discrimination remain rampant in the workplace and the legal treatment of it leaves something to be desired, but ordinary people’s expectations about freedom from workplace sexual harassment have changed dramatically in the last 20 years. My undergraduates at Northwestern University and public opinion polls demonstrate that most Americans understand that sexual harassment is a type of discrimination that the law has a legitimate role in prohibiting.
Like the “erosion” of property and privacy in the example of the home, some scholars thought (and a few still argue), that insofar as Title VII makes actionable “just” words, it is an infringement on private business interests or laissez fare capitalism. But Americans increasingly understand Title VII as advancing other important shared social goals of democracy, equality, and opportunity at work.
The policy driver here is a conception of “harm.” In other words, continually harassing an individual in the workplace is not just speech, it is do-ing something. It produces a harm and the harm is gender subordination. It is the harm of perpetuate-ing discrimination. Of create-ing inequality. The words can, in some circumstances, be do-ing discrimination by degrading white women, people of color, or gender non-conforming workers in ways that create inequality in pay and promotion for members of these traditionally disadvantaged groups.
A final example of debates about speech, government, and equality come in the context of public spaces. Like the home, American legal and popular culture hold dear the concept of public space and free speech. We learn in our civics classes that the public sphere is shared by everyone and can be entered without reservation for purposes of civic participation. And since civic participation necessarily involves the robust exchange of (even unpopular or offensive) ideas, free speech is at its nadir in public.
In the real world, being in public means something else entirely. Public space and interactions between strangers in public places are embedded in the locations in which they occur, the identities of the individuals involved, and the nature of the interactions.
Read ItLicense to Harass by Laura Beth Nielsen
Let’s consider street harassment. Although there are not yet laws, there is a burgeoning movement for equality and freedom from harassment in public spaces. My own research on harassing street speech situates street harassment within a system of complex and connected physical and psychological acts designed to intimidate, exclude, subordinate, and reinforce relative group status and hierarchy in the US. In addition to the magnitude and pervasiveness of street harassment, we continue to live in a world where members of non-targeted groups do not appreciate the magnitude or frequency of street harassment. Americans do not know what it is like to do something as simple as walk down the street in the shoes of another. More specifically, 38 percent of people of color report being targeted for racist or race-related street speech “every day” but non-targets (whites) estimate this at about eight percent. Similarly, men non-targets estimate that about 11 percent of women hear sexually suggestive comments from strangers in public places every day whereas about 20 percent reported that they do. These differences in reported and estimated frequency are statistically significant.
There is a group of young, smart, creative, social movement actors who have begun to press for equality in the streets. Hollaback! and Stop Street Harassment both are premised on the need to bridge this experience gap by featuring the pervasiveness and harms of street harassment to non-targets. Hollaback! began by asking women to photograph street harassers and post photos on the blog. The public shaming campaign received national attention when a target of street harassment turned to take a photo only to find her harasser exposing himself. When the police failed to arrest the individual despite the evidence, Hollaback! was thrust into the spotlight.
And of course, understanding public speech is not complete without understanding the most famous expressions of racism/free speech in public including the now infamous Nazis marching through (predominantly Jewish) Skokie IL, KKK rallies, and the ultimate demonstration of racial threat/free speech, a burning cross. Cross-burning is important because it gives us the latest legal standard for restricting racist speech: racist speech can be limited when it is “done with the intent to intimidate,” although generally it is protected speech.
What about speech that targets traditionally advantaged groups like businessmen and soldiers? There we see a regime of free speech that protects the powerful or popular. For example, although there is not a definitive Supreme Court decision about panhandling, there is a circuit court split meaning that restrictions on panhandling are considered constitutionally permissible in many parts of the country. Why? Because its targets have a legitimate purpose for being in public — to get to work. Chambers of commerce and city governments interested in presenting customers with tidy shopping and tourism districts also have laws banning begging that have been upheld in the federal courts.
And finally, in one of the most recent First Amendment cases, the Supreme Court sided with protesters using soldiers’ funerals to express their belief that homosexuality is a sin. One reading of Snyder is that the court upheld abominable speech targeted at revered members of society — soldiers — as a demonstration that our Constitution protects the “speech we hate” the most. Or, it could be read as another example of allowing hateful speech when targeted at members of traditionally disadvantaged groups (LGBTQ). Either way, the case inspired Congressional override in the form of the “Honoring America’s Veterans Act,” which prohibits any protests 300-500 feet around veterans’ funerals 120 minutes before the start and 120 minutes after the ending of the funeral.
Shifting the focus from the speaker to the target reveals a pretty clear pattern. We expect white women, people of color, and gender non-conforming individuals to tolerate public harassment, but we manage to look the other way when the targets are businesses, business people, or soldiers.
Without even discussing conspiracy, obscenity, inciting lawless action, and the myriad other reasons Courts have found compelling enough justify the legal regulation of speech, I hope I have convinced you that, in the words of Stanley Fish, “there is no such thing as free speech and it’s a good thing too.”
Or, as I would put it, our cherished values of speech often are and must be balanced with our values about equality, democratic participation, and liberty. When we take on this balancing task — in the courtroom or on a campus — speech, space, and subordination are connected. We have come to successfully balance these competing rights (not perfectly) at home and at work in ways that give white women, people of color, traditionally disadvantaged sexual minorities, and members of minority religions more voice. Although the “public sphere” remains a safer space for privileged members of society.
Returning to speech on campus, it is important to point out, that our schools are not JUST educational spaces — for many of our undergraduates the campus is also their home — a place deserving special protections from intrusion, but one where movement toward gender equality has been made. Our campuses are the workplace for many students as well as all of our faculty and staff. And everyone has to traverse public space to move about on campus. With the recognition that a college campus is a work place, a living space, and a public space, we should consider two controversies regarding campus free speech: sexual assault/trigger warnings and racial equality/microaggressions. In both of these areas, students who are members of traditionally marginalized groups in education are voicing claims for equality as these groups enter higher education in greater numbers.
And this makes it feel like free speech is at risk on college campuses. It’s been said that, “when you are accustomed to privilege, equality can feel like oppression.” Or, in the case of speech on campus, “When you are accustomed to privilege, movement toward equality can feel like oppression.” Put differently, we are in a new era of being thoughtful about the inclusion of people who have been historically excluded from institutions of higher learning. This inclusion — whether forced through protest and litigation or extended voluntarily — means taking claims about the harms of speech and the perpetuation of inequality seriously and balancing them with our desire for robust free speech.
Like in the so-called, “real world,” there is no such thing as an absolute right, including “free speech” for everyone. Like the contexts I started with, on college campus, we want to interrogate what is unique about this space. What do we do here? How do we want to ensure a free flow of ideas on campus? How can we best understand whose speech is being curtailed, and what can we do to ensure free speech for everyone on college campuses?
Of course, our first goal — our “core mission” — at a university is to teach and to learn. To hear, to take in, and to try out as many new ideas as we can. A lot of the time, we are trying to tackle serious social problems. That requires being in sustained dialog about the kinds of difficult issues I discussed above. To learn, there has to be speech but when I think about free speech, I am not just thinking about my ability to speak, I am also thinking about my ability to hear — to take in the ideas of other people.
And I want to hear as many as I can.
Conversations about Sex, Sexual Assault, and Rape on Campus
Let’s talk about an example campus rape and Title IX compliance. I hope we all agree — left and right — that campus sexual assault and the inadequate campus responses to it are serious social problems that we want to solve.
Whether you think the massive underreporting of campus rape is the problem (which peer-reviewed empirical research consistently demonstrates) OR if you think the failure of university processes for protecting accused rapists is the problem (which some high profile media reports have highlighted in past few years and the reason that many on the Harvard Law faculty reject campus enforcement in such matters) — we can all probably agree there is work to be done.
So here we are with a serious social problem in a place where we know a LOT about the subject, and yet we find it difficult to have conversations about this in part because we get stuck on this issue of “trigger warnings.” Do they violate free speech by “censoring” students who want to blame victims? Is asking professors to give them a waste of class time? Are we coddling students if we give trigger warnings?
I give brief trigger warnings before I speak about such matters in class. They take no time at all and yet, some would suggest that my exercise of this speech represents the “silencing” of someone else. That just doesn’t make sense. Trigger warnings are given to make more people, especially targets of sexualized and racialized violence, more able to participate in our conversation.
In my courses, students learn about Title IX and sexual assault. I teach the peer-reviewed social science research on the topic to frame our policy and political theory debates. Before we decide what we want our policies to incentivize, we have to understand where we are. Somewhere between 20 and 25 percent of women report being sexually assaulted in college and about 1 in 20 men are sexually assaulted in their lives. How is that experienced by targets? I also want students — MEN AND WOMEN — to know that rape is one of the most repeated crimes. The best research on the subject — using samples of college students — demonstrates that four percent of men are responsible for 28 percent of sexual violence on college campuses and the median number of sexually violent acts they report is six. These are some of the lower estimates.
A variety of factors prevent targets of sexual assault from being able to fully participate in these difficult conversations. Shame. Gendered and heteronormative power dynamics. PTSD. Sex (a component of rape) is private and often stigmatized. The nature of a sexual assault defense is almost always consent. No rape shield law can prevent it.
Given all of this, it is not surprising that some targets of sexual assault feel systematically excluded from these conversations. The exclusion of their participation — their speech — means we are missing that important perspective about the serious social problem.
Conversations like these, like those about the Rolling Stone article about the University of Virginia, the mattress protest at Columbia, or the recent professor-undergraduate sex scandal at my own university, are NOT just chances to speak. They are opportunities to listen, to bridge the understanding gap highlighted by the research here, and to make progress on these daunting social issues. When we focus only on our own speech, we miss these opportunities.
How can we maximize these opportunities? One answer is to give trigger warnings. The reason is not so that traumatized sex abuse survivors can run out of the room (although that is a legitimate response too), but so everyone is on notice that in my classroom troubling topics and ideas will be discussed and with civility.
To make it a conversation, we have to understand the power dynamics and experiences of the people in the room in which the conversation is taking place. If that means designated safe spaces, women’s centers, or trigger warnings, in the case of campus sexual assault, to compensate for the balance of power, I’ll not just argue that they are a good idea but that they are necessary. But, it is only necessary if we are actually interested in the listening part of speech.
One way campuses are trying to prevent sexual assault is by instituting “yes means yes” rules on campus (and laws in states). One of the first very public anti-rape movements on college campuses was the “no means no” movement, which sought to highlight the fact that rape need not include physical force. The concept of “date rape” or “acquaintance rape” was identified and named.
More recently, however, more colleges are moving to the “yes means yes” concept of consent. Most famously passed as SB 967 in California, but becoming more prominent as the rule on college campuses, these affirmative consent rules say (and this is the exact language of the California law) “affirmative consent means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.”
How does this relate to free speech on campus? This move to an egalitarian sex-positive way of expressing consent designed to protect all the parties in a sexual encounter is being met with a backlash by those who characterize these rules as “repressive” in their clarity. And, it has inspired backlash in the form of a now famous chant often directed at women during freshman orientation on college campuses.
Underreporting and failing to discuss these matters have the effect of making our colleges less able to detect and identify what scholars call the “undetected serial rapist.” This should trouble everyone. When we consider the “inconvenience” of a trigger warning in context of what we know about sexual assault on campus, the importance of full participation in the conversation should win.
Microaggressions and race
A second challenge to free speech on campus often is made when (mainly) African-American students organize to try to express the experience of being African-American in US society and on university campuses. Described as fight, anxiety, fear, and failing to belong, student activists are attempting to bring the #blacklivesmatter movement to campus, to reinvigorate the race equality movement of the 1960s and ‘70s, and to advocate for equality at college.
In addition to systemic changes in curriculum, course offerings, and student and faculty diversity, student activists often are asking for recognition of microaggressions and the harms they cause. Microaggressions, including racist street harassment, include the “brief and commonplace daily verbal, behavioral, and environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial slights and insults to the target person or group.”
Discussion of microaggressions on college campuses are interesting because some free speech absolutists (the same ones that used to say the idea of “silencing” was absurd) claim that the discussion of microaggressions can be silencing of them! African-American (primarily) students raise these issues and are told that discussion of microaggressions and asking faculty and administrators to avoid committing microaggressions is violating the free speech rights of those (mostly white) students and faculty members.
Like sexual assault, however, it is important to understand the social world in which microaggressions occur. Like sexual assault and street speech, racist microaggressions are part of a series of practices — often “just” speech — that are doing something. They are reinforcing racialized systems of inequality in the education context and with reference to the broader inequalities outlined here and have real physical and mental health effects.
Some free speech absolutists and other commentators who want to decry the current generation of college students say that complaining about microaggressions means students are “whiny” and want to be coddled. I argue precisely the opposite. These students are bravely demanding to be heard about what it is like to be a member of a subordinated group on a college campus, which is an extension of what it is like to be an African-American citizen of this country. A country where African-American full-time, year-round workers make 60 percent of what white men do and African-American men make 70 cents for every dollar their similarly situated white male counterparts make. A country where African-Americans have a 30 percent greater chance of being stopped by the police while driving. A country in which African-American men are about five times more likely to have a felony conviction than their white counterparts and are (controlling for myriad other factors) more likely to receive a longer sentence for the same crime. A country in which state violence in the forms of police killing and capital punishment are disproportionately enacted on men of color. The discussion of microagressions and their harms cannot and should not occur absent from this important social context.
In addition to that context, the impact of microaggressions should occur with the aid of empirical research about the harms of being the target of them. Experience with racial microaggressions is associated with a range of negative health outcomes. Although microaggressions can be communicated subtly and often unknowingly, they can be stressors “that mediate the effects of racial minority status on physical and psychological health outcomes.” We see associations between racial microaggressions and negative mental health outcomes, including depression and anxiety, suicidal ideation, alcohol and drug use, and high blood pressure.
Unfortunately, the free speech debate often occurs without hearing what subordination through speech feels like. Instead, we devolve into a shouting match about who is “silencing” whom. That skips right over the most important part of building better communities who are able to tackle these serious social issues — listening and understanding. One way of understanding how speech often is used to perpetuate inequality and subordination is listening — really listening — to the experiences of other people who are not like us.
A variety of factors shape how people understand social interactions. Law, space, and identity are implicated in ordinary citizens’ assessment of social interactions and our understanding of speech rights. If students believe they must accept humiliating or threatening public speech, the law works — through “free speech” to normalize or justify such interactions. And, insofar as the current state of the law is one of the many forces that normalizes such interactions, it is part of the construction of these acts of subordination as something that one does not have a “right” to be free from.
The First Amendment has always worked better for those with privilege. We celebrate difficult cases when it has been used to protect the speech we hate, like Nazi hate speech, and KKK cross-burning. Considered another way, what we see is our laws protecting the speech of those who violently demand the status quo of white domination over people of color.
To return to the Yale Halloween example, we see that balancing speech and equality is a difficult task. To have any hope of achieving the proper balance, Americans must first try to listen to each other, so that we can understand the harms of hate speech. While “just” speech, racist hate speech does the work of subordination and domination every day in public places by making salient the racist fissures under girded by the violent past of slavery, lynching, and Jim Crow.
Instead of screaming about who is or is not being allowed to speak, which is ultimately ironic and circular, why don’t we take the time to listen to those who are bravely advocating for equality on college campuses, instead of accusing those who have been silenced for generations of “silencing”? We are simply asking that America live up to a promise it made to white women and people of color long ago, but has not yet fulfilled, and that cannot be accomplished until we stop fighting about who is silencing whom. •