Editor’s note: Peter Wood gave a version of this talk at the Claremont Institute on April 7, 2016, at the event “Safe Spaces or Free Speech?” with Charles Kesler.
A long time ago—in 1994—the ever-provocative Stanley Fish published a book with the memorable title, There’s No Such Thing as Free Speech and It’s a Good Thing, Too. Fish wasn’t then thinking about the censorious left—Melissa Click at the University of Missouri, asking for some muscle over here; or Jerelyn Luther, the Yale undergraduate caught on video shrieking profanities at sociology professor Nicholas Christakis, because his wife had the audacity to suggest that students should feel free to wear Halloween costumes of their own choice. Nor was he thinking about sociology professor Patty Adler at the University of Colorado-Boulder threatened with forfeiture of her retirement benefits after students in her course, “Deviance in US Society,” filed a sexual harassment complaint because Adler staged role-playing exercises in which teaching assistants acted out the parts of characters in the global sex trade. Nor did he have in mind film professor Laura Kipnis, who became subject to a Kafka-esque inquisition at Northwestern University after student activists complained that an article she published in the Chronicle of Higher Education constituted sexual harassment. Kipnis had criticized “students’ sense of vulnerability” as “sexual paranoia.”
No such thing as free speech? As an empirical proposition, Fish’s declaration today could be substantiated at nearly all American colleges and universities. The freedom to say things, even manifestly true things, has been curtailed. And the freedom to argue things—to present claims backed by reason and scrupulous use of evidence—has been even more drastically limited.
Free Speech Hypocrisy
I don’t want to spend too much time establishing that these curtailments have, in fact, occurred. Across the political spectrum, there seems to be a consensus that "free speech" is in a kind of free-fall on campus. I cited the Adler and Kipnis cases because they play prominently in the AAUP’s new report, The History, Uses, and Abuses of Title IX, which is largely about how the feminist-inspired rule-making of the Office for Civil Rights in the U.S. Department of Education has somehow come back as a tool for more-radical-than-thou feminists to attack their not-radical-enough sisters. But as the AAUP report has garnered headlines in The New York Times and elsewhere in the liberal media, another story is playing out about the students at Emory University who were made to feel unsafe because someone had chalked “Trump 2016” on steps and sidewalks. Some 40 to 50 students assembled in the quad to protest the chalkings, chanting "You are not listening! Come speak to us; we are in pain!" The president of Emory, James Wagner, however, was listening and issued a sympathetic response about the protesters’ "expression of feelings and concern" rooted in "values regarding diversity and respect." President Wagner attempted to thread the needle, speaking for "free speech" and anti-free speech in one go.
This might sound like argument by anecdote, so let me add a little data. This week Gallup released a study, Free Expression on Campus: A Survey of U.S. College Students and U.S. Adults. Gallup reported that nearly half of American college students are open to restricting free speech on campuses.
The Gallup survey is corroborated by data from the Higher Education Research Institute (HERI) at UCLA, which has surveyed American college freshman since the 1960s. In fall 2015, 71 percent of freshmen surveyed agreed that “colleges should prohibit racist/sexist speech on campus.” That is the highest percentage of positive responses to a question like that ever. Some 43 percent of freshmen said that “colleges have the right to ban extreme speakers from campus.” That’s about twice as high as the average score in the 1980s, 70s—and even the 60s.
Perhaps even more remarkable is that while students in large numbers are embracing a culture of censorship, they see themselves as admirably tolerant. The HERI survey found that 80 percent of college freshman rated themselves better than average at tolerance. Seventy-seven percent rated themselves above average for empathy, 64 percent for openness, and 86 percent for cooperating with diverse people. Astonishingly, 71 percent rated themselves above average for discussing controversial issues— the same percentage that said colleges should prohibit racist or sexist speech on campus. We don’t know if it’s the same 71 percent, but clearly there is overlap. So we are faced with students who consider themselves above average at handling controversial topics and who, at the same time, consider banning from campus speech they don’t like to be appropriate.
Bravado of Belief
Twenty-two years ago, when Stanley Fish made his declaration, he argued that the term “’free speech’ is just empty rhetoric . . . just the name we give to verbal behavior that serves the substantive agendas we wish to advance.” Fish noted that people of the left were “disconcerted” to see free speech and related concepts “appropriated by the forces of neo-conservatism.” But for Fish, all advocates of free speech are, at bottom, hypocrites who carve out exceptions for speech they really, really dislike.
Fish’s postmodern or, as he sees it, pragmatic position is mostly a curiosity, but it does contain an observation that very much bears on our current situation. Late in his title essay he says, “It makes perfect sense to desire the silencing of beliefs inimical to yours, because if you did not so desire, it would be an indication that you did not believe in your own beliefs.” Fish was paraphrasing Justice Oliver Wendell Holmes’ famous dissent in the 1919 case Abrams v. United States.
The substance of that case is relevant today. It dealt with a group of supporters of the Russian Revolution who were convicted under a provision of the Espionage Act for having published leaflets denouncing the US for sending troops to Russia and for taking other steps to hinder the Russian Revolution (think of ISIS today). In Abrams, the court's majority ruled that the revolutionaries' right to free speech had not been violated. Their actions had represented a "clear and present danger" to the United States.
Holmes rejected that, finding no serious threat in the revolutionaries' words, and framing the idea that Fish paraphrases. “Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition." But eventually, says Holmes, people come to understand that "the ultimate good . . . is better reached by free trade in ideas. . . . The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
Persecution is logical but wait long enough and people, perhaps in their later years, will favor the marketplace of ideas. While Holmes ideas’ are oft quoted and paraphrased, and not just by Fish, they are rather peculiar. Is it common for people to have “no doubt of their premises?”
I don’t think so. It is not unusual for people to say they have no doubt. But the act of making that declaration is often like the act of a person who, shivering in New England winter, emphatically pronounces, “I’m not cold.” Many years ago as a graduate student in anthropology I set out to do fieldwork in a community of highly-committed followers of a heterodox religious visionary. The followers had made considerable personal and financial sacrifices to gain standing in their isolated community. They expressed no doubt at all about the premises of the movement. At least not to each other or to casual acquaintances. But having gained some trust and having continued the conversation for weeks or months, I found every true believer in the midst of a complicated inner dialogue between faith and doubt.
And on both psychological and anthropological grounds, I think that inner dialogue is well-nigh universal. And it is why both Holmes and Fish are wrong. We all have doubts about our premises, and because we do, persecution and its handmaid censorship are not "perfectly logical." They are, rather, imperfectly logical. The imperfection is baked in. The seeds of doubt are there. They are even there—or especially there—in fanatical movements. Perhaps that is why Al Qaeda and ISIS try to recruit teams of brothers to carry out suicide attacks: they can be counted on to offset one another's doubts and reinforce what might be called the bravado of belief.
Varieties of Exclusion
Let me hasten back to the college campus, where the bravado of belief is at high tide. We have believers in a variety of causes who see such urgency in their visions of what should be done that they enunciate moral imperatives against allowing anyone in their vicinity to express disagreement—or doubt.
- The climatistas demand the exclusion from campus discourse of anyone who dissents from the premise of imminent, man-made, catastrophic global warming and the related premise of the moral hideousness of fossil fuels.
- The Black Lives Matter commandos demand the exclusion of White students from self-declared Black Spaces, except for those Whites who commit to the BLM premises.
- The students supporting the premise of Rape Culture on campus demand safe spaces from all who question the 1-in-5 or 1-in-4 delusional statistic be kept far away, in whatever holding facility George Will is now incarcerated.
The list of topics that cannot be discussed on campus or can be discussed only under very limiting conditions includes dissents on gay marriage, transgenderism, and Islamic terrorism; favorable opinions on Western civilization or support for the state of Israel; and criticism of illegal immigrants.
The tools of censorship vary among these movements:
- The climatistas have their wildly false claim of “97 percent consensus among scientists” in favor of their premise. And when that fails, they have their “precautionary principle,” which asserts that even if they are wrong about global warming, it is better to destroy Western civilization than take the risk of not adopting their policy prescriptions. And if that too fails, they cite “false balance,” which is the theory that the press ought not to allow any space for dissenters because it implies the dissenters are just as plausible as the supporters of the climatista premise.
- Supporters of the Black Lives Matter movement have a swifter and sharper sword. Disagree with anything they assert and you are a racist. Express uncertainty, and you are still a racist, albeit one who has been indoctrinated by institutional racism.
- Disagree on campus rape culture, and you are a misogynist, a patriarchal oppressor, or someone in the grip of internalized oppression.
The contemporary language of campus censorship abounds in moral anathemas. To oppose gay marriage is to be a "hater." To criticize Islam or Islamists is to be an Islamophobe. To see anything positive in the history of the West's involvement with the rest of the world is to be a neo-colonialist. Sexism, racism, classism, and a thousand other pejorative “isms,” along with neo-this and phobic-that, have displaced any serious effort to discriminate among the mixed virtues and faults of our very mixed world. Epithets supply simplicity. One of the great ironies of the anti-free speech movement is that it prides itself on being an advanced form of critical thinking while having clear-cut all the rational prerequisites of critical thought.
Self-reflection and self-examination are plainly not what these movements are about. They are exercises in group cohesion, which requires conformity, not self-critical examination of underlying assumptions. Evidence matters to the acolytes of group cohesion only to the extent that it reinforces what many of them unflinchingly call “the narrative.” They do not go in search of discrepancies or attempt to bring latent contradictions to the surface.
We’ve had a good psychological description of this aspect of the various cry-bully movements from the social psychologist Jonathan Haidt, who likens the dynamic to a tribal group defending its sacred symbols. The only fault that I would make with Haidt’s analogy is that it is rather unfair-- to primitive tribes, who are, as we anthropologists can attest, quite often aware that the clan deity is only the deity of one’s own clan and that other clans have other deities that should be respected in kind. Primitive people are often make-shift relativists. The campus cry-bullies, by contrast, are often universalists, though of a peculiar kind. They expect the whole world to conform to their prejudices and eagerly impose their rules on water bottles, bulletin boards, and Halloween costumes on everyone. They do, however, make allowance for groups that can claim exemplary victim status. Muslim treatment of women, for example, seems to get a free pass from campus feminists who are calibrated to take offense at sexist pronouns but not at female genital mutilation.
Un-doing the West
The larger academic project of the left for the last fifty years—a shared interest uniting socialists, de-constructionists, feminists, and others—has been the de-legitimizing of Western civilization. Because the university was historically and essentially the institution par excellence for furnishing each coming generation as a worthy heir to that civilization, the disruption has been profound.
Consider the April 4, 2011 Title IX “Dear Colleague” letter. This was a bit of extra-mural rule-making from Russlynn Ali, Assistant Secretary for Civil Rights at the U.S. Department of Education. It took the idea that sexual assault—normally treated as a criminal act—also created a "hostile climate" on campus, which in turn could be wrapped into an interpretation of the 1972 Title IX Amendment to the 1965 Higher Education Act. And this, in turn, made any allegation on campus of sexual assault on campus fair game for the feminist-inspired regulation.
The 19-page “Dear Colleague” letter is a picture perfect instance of the de-legitimizing of Western civilization, and with it, free speech. The 2011 edict erases the “presumption of innocence” of the accused, a principle that goes back at least to the Sixth Century Code of Justinian. And it dismantles a thousand years of Western efforts to separate police and judicial functions. Dear Colleague sets up a campus regime run by a campus Title IX Coordinator who is empowered to receive complaints, counsel complainants, investigate, act independently of the police, arraign the accused, judge the case employing the lowest possible standard called "preponderance of the evidence," and decide the punishment.
If we wonder why radical feminists on campus feel entitled to squelch the speech of those who disagree with them, look no further than the Dear Colleague letter. It hands them the tool of making any accusation, no matter how thinly founded, a means to end the academic career of male students or faculty members, who can expect little or nothing in the way of due process. The Dear Colleague letter also propelled the idea of “safe spaces” into the forefront of campus cry-bully rhetoric. "The Department” it intoned, “is committed to ensuring that all students feel safe in their school, so that they have the opportunity to benefit fully from the school’s programs and activities.” Such safety, it says, should be “schools’ primary concern.” Which is to say, psychological well-being outweighs actual education in this new regime. And as we have learned, the pursuit of such safety means that certain ideas simply cannot be expressed on campus.
There’s No Such Thing as Free Speech? Professor Fish, you can say that again.
Or not. I'll now proceed to un-say some of what I've said. And I will do by means of some distinctions. I think the term "free speech" is probably not what we are really talking about. "Free speech" is best used to refer to the First Amendment right to free expression, which is essentially a right to say and publish things without interference from the government. Students and faculty members enjoy that right, and it cannot be rightly abridged by colleges and universities. In that sense, there is such a thing as free speech and it is legally enforceable. But it is not the kind of speech that really matters in higher education.
What matters is, rather, intellectual freedom. And the reason it matters is that the essential purposes of the university include the pursuit of truth and the preparation of students for life as citizens of a free and self-governing republic. To achieve these ends we need to bring our best thought, our best arguments, and our best evidence into orderly debate—at least debate orderly enough to give proponents of differing views a fair chance to make their cases. Intellectual freedom is a narrower concept than free speech, though arguably a broader concept than academic freedom. It is the superintending value of open inquiry, but it is not an absolute. It requires a willing humility on the part of all participants to suspend some judgment, to listen, to sift, and to weigh. Justice Holmes’ “perfectly logical” willingness to persecute those who think otherwise has no place here, and even his “marketplace of ideas” is an ill-fit. Intellectual freedom requires that we make room for the minority view on the possibility that, no matter how unpopular, it may be right.
A consensus of 97 percent, even if it existed, is not reason to silence by fiat the three percent who dissent. If it were, 12 Angry Men would have had a different ending. The precautionary principle of putting all the burden of proof on those who disagree with you is a dead-on assault on intellectual freedom. Ending arguments by means of epithets is summary execution of intellectual freedom.
This exchange is framed as “Safe Spaces or Free Speech?” The only safe space we need is a space that is safe for intellectual freedom. Making our campuses safe for intellectual freedom has become extraordinarily difficult. But facing down the cry bullies and the other enemies of intellectual freedom is exactly what we must do.
 This paragraph and the next two are adapted with permission from Rachelle Peterson's April 5 talk, "Protecting Freedom of Speech," at the "Culture Alliance Meeting" in Washington, D.C.
 48 percent said that colleges should curtail the media’s access to campus events when protesters want to be left alone; 49 percent said access should be restricted when they believe a reporter will be biased. And 44 percent said the college should let students bar the media when the protesters want to tell the story themselves on social media.