Who’s Canceling Whom? | David Cole | The New York Review of Books. By David Cole

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Who’s Canceling Whom? | David Cole | The New York Review of Books

archived 18 Jan 2024 16:59:20 UTC

Conservatives often charge their opponents with “cancel culture,” but the right poses as significant a threat to free speech as the left.

Illustration by Michael Schmelling

by Greg Lukianoff and Rikki Schlott

Simon and Schuster, 443 pp., $29.99

The instantly notorious exchange in a congressional hearing on December 5 between Representative Elise Stefanik and the presidents of Harvard, the University of Pennsylvania, and the Massachusetts Institute of Technology laid bare once again the fragility of our collective commitment to free speech. Stefanik repeatedly asked the presidents whether a student calling for the genocide of Jews (which she equated with calling for “intifada”) would violate their institutions’ codes of conduct or constitute bullying or harassment. Each one replied, in effect, “It depends.”

Despite the outrage that followed, that’s actually the right answer if universities respect free speech principles. As a general matter, advocating for genocide or saying any number of other hateful things is protected by the First Amendment. If a woman stood on a street corner across from Congress holding a sign calling for the genocide of Jews, government officials could take no action against her. Even hateful speech calling for unconscionable acts of violence is protected by the First Amendment unless it falls within very narrow exceptions, such as genuine threats of violence or “incitement” that is both intended and likely to produce imminent violence. The sign would fit none of those categories.

That doesn’t mean there is nothing universities can do about hateful speech. On campus as in the workplace, denigrating speech can sometimes constitute discriminatory harassment, which is not protected by the First Amendment. Yelling such an epithet at a particular Jewish student or pinning such a sign to his dorm room door could be considered religious harassment, not free speech. Even when not directed at a particular individual, if such a statement were repeated so often that it pervaded the campus, it could create a “hostile” learning environment that would also amount to prohibited discrimination, not protected speech. And a professor in a classroom could forbid such a statement as interference with civil and robust discussion.

But a student at a campus protest against the Israel–Gaza conflict who chants “From the river to the sea” or even “Genocide to the Jews” without directing it at anyone in particular may not be punished by a school that respects free speech principles. Public universities are required to safeguard free speech, since they are directly governed by the First Amendment. Private universities are not, but many, including Harvard, Penn, and MIT, have committed to respect free speech on campus essentially as if they were bound by the First Amendment. So “It depends” was the right answer.

But it was not the right answer for the moment, evidently. Penn president Elizabeth Magill resigned under extraordinary pressure four days after her testimony. Harvard president Claudine Gay apologized and briefly held on to her position, despite donors’ and legislators’ calls for her ouster. But she, too, was forced to resign in January, after evidence emerged of plagiarism in many of her academic papers. Only MIT’s Sally Kornbluth remains in office. Meanwhile, the GOP-led House Committee on Education and the Workforce, which held the hearing, has launched an official investigation into the “learning environment” at all three schools. That’s the price of upholding free speech principles in today’s impassioned divide over Israel and Gaza.

Some commentators, such as The New York Times’s Bret Stephens, argued that the presidents’ unwillingness to unequivocally prohibit advocacy of genocide of Jews was hypocritical in view of previous decisions that were less than fully protective of free speech—such as MIT’s retraction of an invitation to the eminent geophysicist Dorian Abbot to deliver a public lecture after attention was drawn to his critique of some diversity initiatives.

The principal complaint, however, was not that the university presidents had been too censorious previously, but that they were not being censorious enough now. The critics insist that they should have explicitly stated that any call for genocide would violate their school policies. And while Stefanik, a staunch Republican, led the charge, she was joined by many prominent liberals, including Pennsylvania governor Josh Shapiro, Second Gentleman Doug Emhoff, and Harvard constitutional law scholar Laurence Tribe.

It is true that college campuses have not been paragons of tolerance and intellectual diversity in recent years, as amply illustrated by a timely book, The Canceling of the American Mind. Greg Lukianoff and Rikki Schlott, the president of and a research fellow at the nonprofit Foundation for Individual Rights and Expression (FIRE), offer persuasive evidence that students, professors, and administrators at many colleges and universities across the country have been too quick to punish or “cancel” those whose views contravene progressive orthodoxy on race, gender, sexuality, and other matters.

Many of the stories are familiar. A professor at Hamline University in Minnesota was sanctioned for showing a painting depicting the Prophet Muhammad in an art history class. The head of a Yale residential college and his wife were hounded by students for questioning a request from the administration that students not wear Halloween costumes that reinforce stereotypes. A conservative judge invited to speak at Stanford Law School was shouted down by students, as was a conservative lawyer at Yale Law School.

But FIRE, which specializes in defending free speech on campus, has learned of many more incidents, much less well known, and reading about them all in one place makes clear that these are not isolated instances. They include a professor at the University of Southern California who was pressured to stop teaching a class after he explained that Chinese speakers say nega (meaning “that”) as filler, much as English speakers use “like” or “you know,” and students objected that it sounded like a racial slur; a professor at UCLA who was suspended after citing Martin Luther King Jr. in a sarcastic email rejecting a request that he grade Black students’ exams more leniently following the police killing of George Floyd; and, in an instance of conservative canceling, three professors at Collin College in Texas who were terminated for complaining that the school’s Covid policies were insufficiently strict.

Lukianoff and Schlott, in short, have documented a serious problem. But like many advocates, at times they indulge in rhetorical excess. They assert, for example, that the past decade has seen repression of speech akin to or worse than that of the McCarthy era—a period when millions of Americans were required to swear loyalty oaths and endured official inquiries into their political views, and the full force of government was behind much of the repression. As disturbing as cancel culture is, it is just that: a culture of largely private intolerance, not a system of official repression. There is a huge difference. Among other things, cancel culture can’t land you in jail. And while the First Amendment prohibits the kind of government intolerance so prevalent in the McCarthy era, it affirmatively protects the right of private individuals and institutions to be intolerant. (That’s why Nazis had a right to march in Skokie, Illinois, in 1977, for example.) So while cancel culture is undeniably troubling, we are not reliving the McCarthy era.

Lukianoff and Schlott’s contention that cancel culture began in 2013 and is worse today than ever before also seems questionable. The sad reality is that intolerant efforts to silence those with whom we disagree have long been a staple of our culture. That’s why the First Amendment is so necessary. At various times and in various places during our nation’s history, Jeffersonian Republicans, Hamiltonian Federalists, Catholics, Jews, Jehovah’s Witnesses, atheists, labor organizers, anarchists, pacifists, socialists, communists, civil rights activists, white supremacists, women’s liberation advocates, LGBT rights proponents, and fundamentalist Christians have all been victims of the intolerance of substantial parts of American society, and often of government censorship as well. And while social media has undoubtedly enabled new modes of cancellation, its ready availability to all has simultaneously provided a megaphone to unpopular speakers, making it more difficult to cancel them effectively. So while the closed-minded behavior Lukianoff and Schlott catalog is profoundly disturbing, it’s not clear that things are worse today than in any previous period.

Indeed, as a legal matter, speech is freer today than at any point in our history. Shortly after the First Amendment was adopted, Congress in the Alien and Sedition Acts made it a crime to criticize the government; the Supreme Court never ruled that legislation unconstitutional. During World War I more than two thousand people were arrested and prosecuted for speaking out against the war. Many were sentenced to as much as twenty years in prison. For nearly half a century Communists were excluded or fired from government posts, deported, criminally prosecuted, and blacklisted for nothing more than their associations. In the civil rights era, state governments and private individuals, businesses, and groups targeted people advocating for equal rights, arresting them, refusing to serve them, and unleashing public and private violence against them.

It is largely because many of those targeted fought tenaciously for the right to speak and associate that First Amendment law evolved to provide robust protection of speech. Today, outside of a few very narrow categories of unprotected speech such as obscenity and incitement, the government cannot punish speech because of its content or viewpoint unless doing so is necessary to promote a compelling state interest, a standard that is nearly impossible to meet. Moreover, while no one would accuse the current Supreme Court of being especially rights-friendly, First Amendment freedoms find support across its often stark ideological divide.

As bad as the situation may be, it is also not obvious that intolerance on college campuses is worse today than before. Until the 1960s elite universities, a principal focus of Lukianoff and Schlott’s critique, were relatively homogeneous. There is little reason to believe that those communities were more tolerant than today’s more diverse student bodies. There may have been fewer conflicts when universities admitted only a small subset of the population, largely white, male, and privileged. The conformity of consensus is not the same thing as tolerance. You might even call this “structural cancellation.”

Still, Lukianoff and Schlott are right that on too many campuses today, there is a reigning progressive orthodoxy, and those who do not subscribe are likely to feel excluded or dismissed. The faculties and students at elite universities are overwhelmingly liberal to progressive in their views, and conservative voices are often scarce. According to one study Lukianoff and Schlott cite, only one in ten professors nationwide identifies as conservative. In my experience, the ratio is probably more extreme at the most elite schools.

For this reason, “cancel culture” is a charge that the right tends to invoke. But to their credit, Lukianoff and Schlott are equal opportunity critics of cancellation. As they demonstrate, the right can be just as intolerant. And in recent years, its unwillingness to hear opposing views has taken the form not just of private turning away but of official state censorship. Florida’s Stop WOKE Act, for example, has ushered in legislative micromanagement of what can and cannot be said in the classroom. Among other proscribed ideas, it prohibits state university faculty from endorsing any argument that “a person, by virtue of his or her race, color, national origin, or sex, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.” The law appears to preclude any classroom statement supportive of affirmative action. In cases brought by the ACLU, the NAACP Legal Defense Fund, and FIRE, a federal court has declared the Florida law unconstitutional as an abridgment of academic freedom. This is not just cancel culture; it is government censorship. And many other states have passed similar laws.

Florida’s “Don’t Say Gay” law, which restricts grade school teachers’ ability even to discuss sexual orientation, similarly constitutes direct state suppression of speech, as do the many efforts across the country to ban books expressing liberal views on sexuality, race, and parenting from school and town libraries. And most recently, Florida denied recognition at its state college campuses to Students for Justice in Palestine because of state officials’ disapproval of comments made after the Hamas terrorist attacks on October 7 by the group’s national chapter—thereby simultaneously punishing protected speech and imposing guilt by association. (The ACLU is challenging this action.)

So the right’s passion for free speech seems less than universal. Where liberal or progressive views are concerned, the right has not only shown little tolerance, but has invoked state power to suppress them.

With so much cancellation from all sides, free speech is undoubtedly imperilled on college campuses. The academic enterprise demands a commitment to open debate and free inquiry. In the words of a 1974 Yale faculty committee report, written by the historian C. Vann Woodward in response to students shouting down speakers fifty years ago, “The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.”

This is why many if not most private universities have adopted free expression policies that largely mirror the rules that would apply to a public university directly bound by the First Amendment.* These policies are not the problem. Rather, the challenge has been to realize them in practice. The unwillingness of liberals and conservatives alike to be exposed to views with which they disagree has had a chilling effect on campuses. In annual surveys taken by FIRE, large percentages of students report self-censorship and a hesitation to voice their views for fear of being pilloried by their classmates. Many professors are understandably reluctant to address controversial topics, fearing that they or a student might say something that offends—and ends up in a viral social media post or official inquiry.

And the problem is hardly unique to universities; a broader culture in which people often get their news and opinion from outlets that express only one point of view means many have lost the habit of engaging seriously with ideas they find disturbing, wrong, or offensive. We ask a lot of students when we tell them to rise above all that. But as the 1974 Yale committee noted, that is precisely what intellectual growth requires.

The prevalent notion that hearing something one finds offensive inflicts harm that should be avoided, and concomitant demands for “trigger warnings” and “safe spaces,” make open conversation challenging. In response, it’s not sufficient to invoke the playground rhyme “Sticks and stones may break my bones, but words will never hurt me.” We have all at some point been hurt by someone’s words. Speech is undeniably powerful, and it can be used for good or bad ends. But just as playing soccer inescapably poses the risk of injury, so the free exchange of ideas will inevitably leave some feeling bruised. The costs must be acknowledged but cannot justify suppression if speech—and academic inquiry—are to be free.

Lukianoff and Schlott’s subtitle promises solutions, and they propose many. Yet as is often the case when addressing deep-rooted problems, this is the weakest part of the book. They suggest, for example, that parents “revive the golden rule” and “emphasize the importance of friendships,” that K-12 schools “emphasize curiosity and critical thinking,” and that universities adopt free speech policies, teach students about free speech “in orientation,” and “survey students and faculty about the state of free speech on campus.”

Lukianoff and Schlott do not acknowledge it, but in recent years universities and colleges have in fact undertaken substantial efforts to promote free speech on campus (no doubt in part because of FIRE’s and others’ persistent advocacy). The tide may well be turning. In 2023 alone faculty and administrators undertook an impressive range of initiatives to foster environments in which students and faculty feel free to express disagreement and to engage ideas with which they disagree.

Yale Law School has launched a Crossing Divides program designed to bring people from opposite sides of major issues to the law school community, and to feature speakers whose minds were changed by confronting ideas they initially opposed. Harvard faculty have formed a Council on Academic Freedom to promote intellectual diversity, free exchange, and civil discourse. Stanford has announced similar undertakings focused on applicants and first-year students, to reinforce these values at the outset of the college experience. A group of thirteen colleges, including Cornell, Claremont McKenna, Duke, Dartmouth, Wesleyan, and the University of Pittsburgh, issued a “Campus Call for Free Expression.” My own university, Georgetown, has formed a task force on free speech and campus culture (which I chair) charged with identifying concrete measures to promote tolerance, intellectual diversity, and civil engagement. Columbia announced a Dialogue Across Difference program to encourage just that. Even the University of Chicago, long lauded for its robust defense of free speech, saw fit to create a Forum for Free Inquiry and Expression to ensure that its free speech policies are matched by a free speech culture. It won’t be easy to change long-standing attitudes of intolerance or to counter the chilling effects they foster. But many universities are newly determined to try.

Representative Stefanik’s grilling of the three university presidents may give them pause. That exchange and its aftermath will undoubtedly tempt universities to police speech viewed as hateful, violent, or antisemitic. When a university president has to resign because she stands up for free speech principles, those principles are likely to bend. Universities have been down this road before. In the 1980s many enacted “hate speech” codes to prohibit speech that offended particular groups, even if the speech was not harassing, threatening, or an incitement to violence. The problems in doing so were legion; such codes afford too much unfettered discretion to university administrators and deter potentially controversial speech, so they have generally failed. In the academy, the fact that speech offends someone, or some group, cannot be a sufficient reason to prohibit it.

Committing to free speech means respecting everyone’s right to speak, even and especially those we deem most offensive. Advocating the genocide of Jews is unconscionable. None of the college presidents who responded to Stefanik’s hypothetical gotcha question thought otherwise. If and when anyone actually says that in the real world, they should be forcefully condemned. When used to target individuals, to create a hostile learning environment, or to undermine the mutual respect necessary for a robust classroom discussion, such calls can and should be prohibited. But outside those settings, advocating genocide is not, on its own, a justification for punishment. So yes, Representative Stefanik, it depends. And our commitment to free speech depends on that recognition.

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David Cole

David Cole is the National Legal Director of the ACLU and the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center. (February 2024)