Abstract
Democratic societies tolerate intolerance, but that obligation finds its limit when the security of its citizens is jeopardized or its institutions of liberty are imperiled. Similarly, universities tolerate intolerance, but that obligation finds its limit when threatened by weaponized intolerance advocates who disenfranchise and denigrate community members and imperil academic norms and professional standards of conduct. Then, just as democratic societies must protect their threatened citizens and safeguard their imperiled institutions of liberty, so universities must protect their threatened community members and safeguard their imperiled norms and standards. I argue for these conclusions by establishing a conflict between what the First Amendment legally permits university community members to express and what the norms of the university and the professional standards that structure academic freedom require from university community members. I argue that given the First Amendment, universities are legally obliged to tolerate even weaponized intolerance in campus public forums even if not in the classroom. I then recommend three responses to weaponized intolerance on campus that are consistent with the First Amendment: denunciation and protest, provision of safe space, and affirmation of academic values, norms, and standards. I reject three frequently encountered responses to weaponized intolerance as inconsistent with the First Amendment: heckler’s vetoes, student speech codes, and speaker bans. And I argue that one response—disruptive protest that falls short of a heckler’s veto—is legally permissible for students and faculty members but is ruled out for faculty members by academic norms and professional standards.
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Notes
The paradox of tolerance is not a paradox in the logical sense of the term. The ethical and legal principles that structure a tolerant democracy do not imply, as a logical paradox does, a contradiction. Rather, unlimited tolerance predictably causes changes in social conditions that unleash intolerant attacks, which in turn predictably lead to undermining the institutions necessary to uphold and defend tolerance.
The arguments herein apply to public universities and colleges and neither to high schools nor (directly) to non-public universities and colleges. It is established law that there are constraints on high school students’ expression that college students’ expression lacks. And while the vast majority of non-public universities bind themselves by policy to all of the professional norms and standards under discussion here, some do not, and while many non-public universities bind themselves by policy to First Amendment principles, some do not. Having marked these distinctions, the qualifier ‘public’ will henceforth be dropped.
Tolerance is paradigmatically a property of individuals. However, as a referee for this journal notes, tolerance is also a property of extra-individual entities. I agree. It has already been claimed that democratic societies are typically tolerant societies, and this implies that tolerance is a social norm that binds members of a democratic society as a condition of membership. And, as will be argued in 1.3 below, the academic profession is characterized in part by professional standards of tolerance that are binding on members. In such cases, tolerance is externally mandated rather than internally imposed. That is to say, among other things, that in choosing to become a member of a particular society or a particular profession, one agrees to abide by and impose upon oneself the norms of that society or the standards of that profession.
Challenging students to think about their viewpoints can on occasion cause harm. A student studying racism may realize that his upbringing trained him to be a bigot, and that realization may cause him to cut ties with his family, which may cause him some harm.
Weaponized intolerance not only harms its direct targets but also enlivens everyone’s imagination of how life has been, is, and would be in societies where weaponized intolerance goes unchecked and intolerance is an element of governing power. Knowing that this attitude is alive in a tolerant society alarms even those not directly targeted by weaponized intolerance. After all, citizens should be able to assume that they can engage in their professional, political, and personal lives confident that everyone is prepared to treat each other with dignity and respect. Intolerance advocates assume they are entitled to reject that assumption and to act as if it were false.
As is typical when discussing free expression and intolerance, the focus herein is on free expression about and intolerance towards race, ethnicity, sex, age, religion, sexual orientation, and disability because these are classes protected by federal or state law from discrimination and harassment (veteran status, familial status, citizenship status, and genetic information are sometimes added for particular regions of the law). However, showing intolerance is hardly restricted to others being members of these classes. Intolerance is a pervasive facet of social life, whether grounded on the above factors, political beliefs, social commitments, choice of friends, dietary routines, delight in mosh pit dancing, or being left-handed (among many, many others). No point on the political spectrum, few houses of worship, and fewer professions are utterly devoid of intolerance advocates, and some of these are prepared to weaponize their advocacy. It must also be admitted that while exemplary instances of weaponized intolerance advocacy are obvious, less perspicuous cases also exist. As a referee for this journal notes, a campus speaker who mocks religious individuals and advocates shunning them might be alleged to harm devout students. Such an allegation is warranted only if the offense caused to those students by such expression is an affront to the respect and dignity that they are due as a citizen or as a member of the academic community. If that standard is met, then harm occurs, and that intolerant speech act is weaponized. Nor is it always easy to identify those authorized to judge that particular instances of intolerance advocacy are weaponized. As will become clearer later, most colleges and universities have administrative officers who make decisions about allegations of verbal and other behavior between employees and between employees and students that is illegally weaponized. However, some instances of intolerance advocacy fail to be weaponized on any legal standard of harm despite being offensive and even derisive. As will also become clearer later, the arguments herein imply that university administrators and faculty have specific professional responsibilities regarding such expression.
See Matal v. Tam, 582 U. S. (2017), at 1751: ‘speech may not be banned on the ground that it expresses ideas that offend’. See also Texas v. Johnson, 491 U. S. (1989), at 414: ‘if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable’.
See Papish v. Board of Curators University of Missouri, 410 U. S. (1973), at 670: ‘the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of “conventions of decency”.
Other categories of expression not protected by the First Amendment include obscenity, defamation (libel and slander), fraud, expression integral to criminal conduct, and true threats. Unfortunately, weaponized intolerance is not an obvious instance of any of these categories, and the category of true threats is currently so unsettled that determining whether weaponized intolerance is an instance is not possible. For discussion, see Harvard Law Review (Note 2015). Another category of unprotected speech is Title VII hostile environment harassment. To qualify as hostile environment harassment, expression must be ‘severe, pervasive, and objectively offensive’, and it must so ‘undermine and detract from the victims’ educational experience, that the victim… [is] effectively denied equal access to an institution’s resources and opportunities’ (Davis v. Monroe County Board of Education, 526 U. S. (1999), at 651). For argument that weaponized intolerance advocacy does not meet this standard, see Juhan (2012); for argument that it may, see Tsesis (2017).
The notorious conduct of the Westboro Baptist Church members at funerals resulted in a similar ruling in the case prompted by that conduct. See Snyder v. Phelps, 562. U. S. (2011).
I assume that academic freedom is a professional right rather than an institutional or a constitutional right. For discussion of differences between these right types, see Horwitz (2013), Weinstein (2013). For defense of the importance and justification of academic freedom as a professional right, see Finkin and Post (2009).
Richard Spencer’s visit to the University of Florida in October 2017 cost the university $500,000 in security costs (McNeill 2017b). In Forsyth County v. Nationalist Movement, 505 U. S. 123 (1992), the Supreme Court ruled that universities that try to saddle weaponized intolerance advocates for the increased security costs associated with their campus presentations create an unconstitutional financial burden on them. However, the Forsyth ruling is not categorical and it may permit security fees assessed on a viewpoint neutral basis. For discussion, see Calvert (2018), Goldberg (2011, 2018).
Some disruption is tactical, as when protesters give weaponized intolerance advocates a taste of their own medicine by responding in kind. This tactical move is unlikely to be effective against any but the most naïve weaponized intolerance advocates. Those whose minds might yet be open are a different matter, but for them weaponized responses are less likely to be persuasive than reasoned responses. Similarly, since weaponized intolerance advocates are sometimes engaged in a performance calculated to cause offense and outrage, belligerent counter name-calling and cross accusation plays into their game, and opponents who join them in the muck have already lost half the battle. For a related point, see text surrounding footnote 17.
When he spoke at the University of Florida, Richard Spencer was ‘quickly drowned out… by a hailstorm of chants, shouting and mockery’ (Heim 2017, A3). The Supreme Court foresees this unruliness as an outcome of debate and has consistently done nothing to prevent it. See Healy v. James 408 U. S. 169 (1972), at 194: ‘the wide latitude accorded by the Constitution to the freedoms of expression and association is not without its costs in terms of the risk to the maintenance of civility and an ordered society’.
Other forms of faculty protest avoid disruption and the heckler’s veto, and faculty members can certainly choose one of them instead. Standing in mute witness avoids disruption by not engaging the intolerance advocate. Similarly, protesting elsewhere on campus or holding a rally outside the intolerance advocate’s venue neither disrupts the presentation nor rises to a heckler’s veto. Another option is always available: ignore intolerance advocates altogether.
For an interesting discussion of the heckler’s veto that students used to halt Charles Murray’s presentation at Middlebury College in 2017 by a professor injured during the episode, see Stanger (2017).
This list does not include electronic spaces, such as email, text messaging, instant messaging, Instagram, YikYak, and Snapchat. Some electronic forums, such as campus email, are created and administered by universities, while other are created and administered independently of universities. For discussion of attempts to regulate expression on electronic communication spaces, see Calvert (2010), Papandrea (2017).
See Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009), at 469: ‘We have held that a government entity may create “a designated public forum” if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose’.
The legal status of limited public forums is unsettled. Some argue that (1) traditional public forums, limited public forums, and designated public forums are three distinct species of public forum. Others argue that (2) limited public forums are a sub-species of designated public forums. Others argue that (3) ‘limited’ and ‘designated’ are just distinct words that refer to the same species of public forum. Others argue that (4) traditional and designated public forums are the only two species of public forums and that there are no limited public forums. Still others argue that (5) limited public forums are not a species of public forum but are instead a species of non-public forums. I defer further discussion. For the curious, see Bonney (2013), Caplan (2010), Davis (2004), Deutsch (2008), Kellum (2005), Krotoszynski (2017), Rohr (2017), Stoll (1993), Wells (2018).
A short but informative general discussion of various meanings of ‘safe space’ may be found in Ho (2017). Campus safe spaces exist for individuals in the LGBTQ community, disabled individuals, individuals from historically underrepresented populations, Vietnam-era veterans, and individuals from various religions and creeds.
Juhan (2012) discusses and provides citations for some of these criticisms. See also Lukianoff and Haidt (2015) and Stone and Schwab-Stone (2016). Lukianoff and Haidt dismiss safe space by making the moral (rather than legal) argument that campus safe space prevents students from confronting offensive language, and that it thereby blocks students from having the opportunity to immunize themselves against it. The argument is off-point. Just as eliminating medical treatment because individuals can be inoculated against measles is misguided, so too eliminating campus safe space because individuals can inoculate themselves against weaponized intolerance is misguided. After all, having campus safe space does not prevent students from confronting intolerance or weaponized intolerance: if students want to immunize themselves against intolerance and weaponized intolerance, they may do so. However, some students are not prepared to confront weaponized intolerance and even those who do confront weaponized intolerance are harmed by it. Campus safe spaces offer the former support and the latter the opportunity to discuss their harmful confrontation.
The matter would be otherwise were the right to safe space to imply that administrators are obliged to shield university community members from encounters with weaponized language users. However, were administrators to have an obligation to prevent encounters with weaponized intolerance, it would conflict with the university being a place where ‘no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed’ (AAUP 2015/1994, p. 361).
Calvert (2018) details the argument for this conclusion and provides citations of ongoing lawsuits against universities that have tried to justify banning certain speakers on Brandenburg grounds.
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Acknowledgements
I would like to thank Perrin Cunningham, Leee Overmann, Justin McBrayer, Jennifer George, Patrick O’Rourke, two referees for this journal, and session attendees at the AAUP Conference in Washington D.C., June 2017, for discussions that improved the essay.
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Welshon, R. Hate Speech on Campus: What Public Universities Can and Should Do to Counter Weaponized Intolerance. Res Publica 26, 45–66 (2020). https://doi.org/10.1007/s11158-019-09424-5
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DOI: https://doi.org/10.1007/s11158-019-09424-5