The article is here; here's the second half of the Introduction, which summarizes the core of the argument:
How do you sell the idea of free speech to people who worry that words hurt? In the last few years, there have been increasing demands, most prominently on college campuses, to shut down hateful speech. Many Americans, especially younger adults, think that such speech ought to be restricted. A defense of free speech needs to explain why we should let people say vile things that no one should ever say to anyone….
The familiar arguments for free speech aren't responsive to these concerns. Consider a few pronouncements by the Supreme Court. The judges sometimes focus on good consequences: "It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail." "The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it." Sometimes they just invoke rights: "The right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind.'"
Suppose that you (like many today) are unmoved by these considerations, that you don't believe that the good consequences are likely to follow, or that you don't believe that people have a right to say worthless and harmful things. What reason have you to want to live in a regime that protects such speech?
Fortunately, some classic formulations of free speech do not depend on optimism or the bald claim of rights. John Stuart Mill's essay On Liberty is best known as an attack on government censorship. But the state is not the only censor he worries about.
He denounces "a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself." He fears a population "whose whole mental development is cramped and their reason cowed by the fear of heresy," and "who dare not follow out any bold, vigorous, independent train of thought, lest it should land them in something which would admit of being considered irreligious or immoral." John Milton made a similar argument in 1644: censorship can induce a "gross conforming stupidity," and officials should understand that "that which purifies us is trial, and trial is by what is contrary."
These formulations focus not on the collective benefits of free speech but on the kind of person one wants to be. It is good to be awake rather than asleep, to have contact with the actual minds of other people instead of living one's life in a solipsistic haze. And it is good to be resilient in the face of stress. A regime of free speech is more likely to produce people of that sort. That produces a distinctive kind of collective social unity: a society of citizens who interact on terms of mutual respect, by genuinely knowing what one another think and discussing their differences like adults.
I like living in a world where people can say what they're thinking, even if I am repelled by what they say. Other minds are interesting. I'm curious about how they work. When I ask, "how can you possibly believe that shit?," it's not a rhetorical question. I really want to know what's true, and it's true that you believe what you believe and that you probably can't help believing it. It hurts to know that you believe that awful stuff, and I'm offended, but the hurt is worth enduring. I want to be someone who does not decompensate, or feel the need to summon the authorities, when faced with the truth.
The counterarguments tend to invoke social justice. But social justice is unlikely to be achieved by people who are brittle and vulnerable. I tell my law students: If you can't stand to look at arguments you find repellent, you won't be able to respond to them when you encounter them in litigation. And you'll lose and that would be bad.
Concern for character is the primitive origin of the idea of free speech. It is a persistent theme, of older provenance than democracy, truth, or autonomy. It still operates silently. It is one of the idea's deepest attractions: the possibility of holding one's views on purpose, with full awareness of the alternatives. It is central to the arguments of John Milton and John Stuart Mill, and is an important theme in the writings of Louis Brandeis, Alexander Meiklejohn, and others. All think that a regime of free discourse will make us into better people. We ought to develop our minds and characters by encountering all sorts of ideas, including evil and destructive ones.
And the first part of the Introduction, which sets the stage:
In the fall semester of 2020, Prof. Jason Kilborn, of the University of Illinois at Chicago's John Marshall School of Law, gave a routine exam in his Civil Procedure II course. One of fifty questions offered a hypothetical in which a company, sued for discrimination, had obtained evidence that damaged its own defense. The question was whether the company must disclose that evidence to the plaintiff—an ordinary question of law.
In the scenario described on the exam, a former employee told the company's lawyer "that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a 'n____' and 'b____' (profane expressions for African Americans and women) and vowed to get rid of her." The exam did not spell out those words, which appeared exactly as you just read them. (The answer, by the way, is yes: The company must disclose the information if it is asked for probative evidence.)
Kilborn had used the same question for years, but this time it provoked an uproar. The Black Law Students Association went to the law school dean and to the central administration, demanding that Kilborn be stripped of his committee assignments. It denounced him on Instagram, LinkedIn, and Twitter, and filed a complaint with the Office of Access and Equity. It also issued this statement:
The slur shocked students, created a momentous distraction and caused unnecessary distress and anxiety for those taking the exam…. The question was culturally insensitive and tone deaf. It lacked basic civility and respect for the student body, especially considering our social justice efforts this year…. When asked how reading those words while trying to complete a law school exam impacted her, one student stated, "I was completely flustered by the question and had to take several moments to gather myself prior to proceeding with the exam." The student added, "I had to seek counsel immediately after the exam to calm myself from what I had just experienced." Another student stated that upon reading "n___" … she became "incredibly upset" and immediately began to experience "heart palpitations." One Black student was left in a hopeless mental state after learning about the words implicated on the exam…. He added, reading "n___" and "b___" was triggering, and made him feel as if he no longer belonged at the school.
The question of course was entirely appropriate, and students who can't cope with seeing any reference to this word have no business being lawyers. If lawyers are going to be competent to do their jobs, they must be able to handle the fact that humans sometimes do and say very bad things. Discrimination is among those bad things. Students must thus be able to know the facts of discrimination lawsuits and be able to perform legal analysis in the face of those facts. In the real world, racist slurs are not bowdlerized as they were on Kilborn's exam.
The school's administration, which ought to have firmly told the students that, instead pandered to them. The dean placed Kilborn on indefinite administrative leave, cancelled his classes hours before one was set to meet for the first time, cancelled his committee memberships, and barred him from campus and from all faculty communications. It later justified these sanctions by lying about the facts.
Here I want to focus on the pedagogy of this performance. It encourages the students to collaborate in a narrative of fragility that damages them, both intellectually and personally. And that is a window into one of the most important benefits of freedom of speech, one that is curiously neglected in contemporary free speech theory—a benefit that is individual rather than collective, and so does not depend on faith that an unregulated marketplace of ideas will produce good collective outcomes.
John McWhorter, a black academic who is not unfamiliar with racial slurs, offered this response to the students' narrative:
As all of us can detect on some level, black students who purport upset of this degree, at passing things that their very equivalents just some years ago never even noticed, are faking it…. Such students are not fragile; they are histrionic. They are pretending to be hurt….
These students are acting this way out of the simple human temptation of the noble victim complex. This is a human personality type, but it can manifest itself in countless ways depending on circumstances. For a black person given to the temptation for any number of reasons, the handiest way of giving it vent is to exaggerate the extent to which racism affects you day to day. The formal expression is one of anger and injury, but behind this is a balm, the sense that you are worthy on some level of a cookie or a pat on the head just for getting through your days and weeks…. It gives you a sense of significance as a member of a group on a fraught but epic trajectory towards justice. You, in times when civil rights can seem so much less dramatic a thing than it was 50 years ago and before, have a sense of being part of that "Struggle," as it used to be put….
Normal people don't fall to pieces when seeing "n*****" on a piece of paper, regardless of their race. The neoracists who have barred Jason Kilborn from campus in pretending this isn't true are operating upon an assumption that black people are morons. This is a rather fascinating rendition of "antiracism" ….
The repression here is professionally nonsensical, like tailoring a medical school curriculum to students who can't stand to be around sick people. But McWhorter's response emphasizes that it also encourages students to be (or at least to represent themselves as) contemptible, too delicate to withstand contact with reality.
This pathology spans the political spectrum. Recent statutes in fourteen Republican-dominated states prohibit any teaching in public schools—and, in ten of them, in state universities—of "divisive concepts," among them that anyone "should feel discomfort, guilt, anguish, or any other form of psychological distress" on account of his or her race or sex. There happen to be uncomfortable facts that implicate these identities—notably, that white people enslaved black people for centuries. The consequence of this vague legislation, like that engendered by the Kilborn episode, is confusion and fear. Teachers fearing for their jobs have been "avoiding lessons that discuss people who are not heterosexual, white, Christian, or American." Books dealing with race, gender, or sexual orientation have been purged from school libraries. Textbooks have been rejected for containing forbidden material, and publishers have self-censored in response.
In state universities, faculty have cancelled courses, censored their syllabi, and avoided controversial topics. These statutes typically forbid them to "teach, instruct, or train" anyone "to adopt or believe any divisive concepts," and declare that this does not forbid impartial teaching. But these formulations don't work. One faculty member explained:
I am a philosopher and it is my job to present as many arguments and counterarguments as I can and to teach my students how to evaluate these. I am fearful that positions that I defend in the line of duty—whether or not I actually hold them—can and will be used against me. How can I be a competent teacher in such a climate?
The normal imperatives of teaching now compete with a mandate that there are some ideas that students—even college students—are too frail to be exposed to.
The post Journal of Free Speech Law: "Milton, Mill, and (Maybe) Aristotle on Why Hearing Horrible Speech Makes You a Better Person," by Andrew Koppelman appeared first on Reason.com.
