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PEN America’s Report on Campus Free Speech Gets the Yale Debacle Really Wrong

Friday, October 21, 2016 9:01
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YaleIs free speech in a state of crisis on American college campuses? Not quite, says anti-censorship organization PEN America in its recent hundred-page report on the subject.

“PEN America’s view, as of October 2016, is that while the current controversies merit attention and there have been some troubling incidences of speech curtailed, there is not, as some accounts have suggested, a pervasive ‘crisis’ for free speech on campus,” the authors note.

It’s a verdict more than a little at odds with the rest of the report, which exhaustively details a number of beyond troubling incidents. As First Amendment lawyer Floyd Abrams told The New York Times, “I find it hard to read [the report's] extraordinarily powerful depiction of things that have happened on campus without concluding there is a crisis of great magnitude.”

Note that Abrams nevertheless considers the report “a big step forward.” I agree. It’s an impressive document that emphasizes sensible solutions to the situation on campus. PEN America’s criticism of Title IX—and its demand for clarification on the difference between protected speech and illegal sexual harassment—is particularly notable.

But the report gets some things wrong, and shows too much deference to anti-speech agitators, on grounds that these students’ demands for censorship are actually an exercise in free speech—a point that’s not as persuasive as its articulators seem to think.

The report ventures into particularly shaky territory for its “case study” of the Nicholas and Erika Christakis incident at Yale University last fall. The case study quotes student-activists, activist-sympathetic writers, and activist-sympathetic administrators, all of whom think the mob that hounded Christakis was merely exercising free speech. While it’s true that these students were indeed exercising their free speech rights, the more important question was whether the administration should humor their demands for emotional protection—and, in doing so, deprive other students, faculty members, and the Christakises of their free speech rights. The report quotes Yale Dean Jonathan Holloway as saying:

I don’t see it as a free speech challenge at all. Erika Christakis had every right to send that email. She had every right to do it. No one said she didn’t have a right to do it. Free speech is not going to be free from consequence, so we saw consequence. Students getting upset and demanding her ouster: That is free speech as well.

It is free speech to make that demand, yes. But if Yale met that demand—if it fired every professor or administrator who offended anyone—the college would foster an anti-speech campus.

The report also describes the incident as “a young woman screaming at a seemingly mild-mannered faculty member in an open square on campus.” But that’s not completely accurate: as subsequent videos revealed, more than one student lost their cool with Christakis.

Neither Holloway nor Yale President Peter Salovey seem to appreciate the censorious nature of their students’ demands, which ultimately resulted in the Christakises resigning most of their duties (Nicholas Christakis is still teaching).

The report continues:

As historian and Yale College dean Jonathan Holloway asked in an interview with PEN America: “Whose speech matters enough to be defended?” At times these controversies have led some groups of students to question the value of free speech itself. Students have asked whether free speech is being wielded as a political weapon to ward off efforts to make the campus more respectful of the rights and perspectives of minorities. They see free speech drawn as a shield to legitimize speech that is discriminatory and offensive. Some have argued that free speech is a prerequisite of the privileged, used to buttress existing hierarchies of wealth and power. Some have gone so far as to justify censorship as the best solution to protect the vulnerable on campus.

Indeed, these are all anti-speech arguments that have become popular with certain far-left-leaning pockets on dozens of campuses. They ought to be denounced in the strongest of terms. Free speech is not a prerequisite of the powerful—the powerful do not need free speech nearly as much as the marginalized do. Free speech does protect offensive speech, and for good reason—because whether or not an idea is offensive has little bearing on whether it’s true, or needs to be heard. Censorship cannot protect vulnerable people—if vulnerable people are in a position to censor others, then they are not actually vulnerable.

Again, PEN America mostly understands this, and on the whole has produced a powerful argument for—and warning about the erosion of—free speech on campus. I would argue only that it lets some anti-speech students off the hook too easily.

Thankfully, the report is much clearer in its rejection of OCR’s current Title IX interpretation. PEN America joins the American Association of University Professors in recommending that “OCR should clarify that so-called ‘hostile environment’ sexual harassment cannot be proven solely on the basis of subjective perceptions that speech is offensive.”

The Foundation for Individual Rights in Education—which is quoted throughout the report—agrees that the report’s section on Title IX is perhaps its most powerful. FIRE was also impressed with the document as a whole, though shared my concerns about PEN America’s reluctance to use the word “crisis”:

It would be deeply unfortunate if this usefully nuanced and thorough report were to be ignored by potential readers who preemptively (and mistakenly) conclude that its most noteworthy contribution is that PEN America doesn’t think a “crisis” exists.

If discussion of the report focuses solely on whether the word “crisis” is appropriate, the more important, larger points PEN America makes throughout the report’s 70 pages of text have been missed.

But regardless of whether the illiberal tenor of the current campus climate is deemed a “crisis,” the report details serious problems.

To read the PEN America report, go here.

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