The title reflects the background premise of this recent work: restoring free speech and liberty on campus. Free speech has been threatened on campus but it can be restored. That is the message that Donald Downs wants to convey. He is a professor of political science and law at the University of Wisconsin (Madison) and an unabashed champion of free speech. He cites John Stuart Mill with respect, and he is something that has become less common on American campuses, an old-fashioned liberal. Nearly a quarter of the book, in fact, is a personal memoir of Downs' success, at Wisconsin, in persuading the faculty senate to repeal its overly restrictive speech code.
One of the book's central points is that threats to free speech on campus have come from unexpected quarters in recent years. Where in the past, academics worried about threats from state legislatures, Downs notes, “attacks on free thought” since “the later 1980s … have arisen from leftist sources inside the ivory tower.” It is hard to believe that this claim can still be “provocative” (as a blurb on the back cover calls the book). Surely, this is old news. Nor does it seem quite right to call this book “inspiring” (as another dust jacket blurb has it). The challenges to “free thought” are not easily redressed by the kind of counteroffensive the author celebrates at Wisconsin.
The nub of Downs's argument is that constraints on speech interfere, as Mill argued, with the search for truth. Therefore universities, of all places, must be open to all arguments. Probably the great majority of professors sympathize with this claim, at some level of abstraction. It does not follow, however, that removing official speech codes or abusive disciplinary codes will assure “free thought” or do much to promote any kind of “thought.”
The grounds for skepticism start with the fact that, as Downs himself acknowledges, free speech is already quite well protected outside the academy, at least in the formal sense of freedom from government controls. As courts have interpreted the First Amendment, government has very little power to impose content-based controls on speech (or images, for that matter). Since the remaining government restrictions (on such things as libel, copyright infringement, or extreme pornography) already apply to universities, almost any separate campus policy will be more restrictive than rules applying to the general public.
Downs decries the fact that some universities did try to impose more restrictive or protective campus policies, but it is hard to argue that access to truth is greatly inhibited by such policies. In recent years, certainly, faculty and students have had access to an incredible variety of arguments, sources, statistics, and official and historic documents through the Internet. Even if they wanted to, universities could not prevent students or professors from tapping into this extraordinary wealth of information and commentary.
Downs can counter that a university is more than a mere location for personal research, more, that is, than a library or an Internet connection. What troubled him about the code at Wisconsin was the possibility that it might inhibit professors from speaking freely in the classroom. He remains concerned that students might be inhibited by restrictive rules on other campuses. These are serious concerns, particularly given that such campus standards are usually entrusted to bureaucrats who do not place high value on preserving vigorous debate.
If the issue is the quality of intellectual challenge on the campus, however, formal restrictions on offensive speech are hardly the main threat. Challenging debate requires divergent views. Yet on most American campuses today, the range of opinion stretches through all the variations found between the soft Left and the more extreme Left. Certainly the range of opinion on college faculties is less broad than the range of opinion in, say, the U.S. Congress or even on the U.S. Supreme Court.
Advocates of affirmative action have claimed that minority students will be hesitant to voice their views if they are too much in the minority. So, for example, the University of Michigan Law School insisted, in defending its racial preference policies for admission, that a “critical mass” of minority students was required to provide the full benefits of “diversity” for the general student body. Whether this argument makes sense for the articulation of “black” or “Latino” viewpoints, it surely has a point when it comes to social conservative or libertarian viewpoints: It is harder to speak up or speak out if you must expect to be entirely isolated.
Yet, hardly anyone seriously argues that universities should try to ensure a representative sampling of American opinion in their student bodies or their faculties. Certainly conservatives, who regard race-based admissions or hiring policies as insulting (as I do), cannot be pleased with the prospect of bureaucratic tallies for student or faculty opinions. Apart from the indignity of such classification schemes, there is the hard fact that a good debate—whether in a seminar, a campus publication, or a campus event—requires more than a set number of participants from different viewpoints. The contending views need to be articulated by people who are intelligent and informed and serious about their arguments. If the contending views are left to dolts or crackpots, no one will be much challenged. For mere rant, you can always find a chat group on the Internet.
There may not be any direct policy to assure wider intellectual diversity on campuses. It is not reassuring, though, that Downs's paean to intellectual freedom skips over this entire problem. As he says several times in the course of the book, free speech rests on “formal” legal principles. But the ultimate goal of universities—let us call it intellectual challenge or serious inquiry—is not assured by formalities.
Even if one goes beyond the formalities, one might agree with Downs (as I do) that speech codes aiming to protect students from a “hostile environment” are less likely to encourage respectful exchange than to stifle worthwhile dissent. But I do not think the Wisconsin experience really tells us as much about the vitality of free speech as Downs suggests.
There are many reasons why the pressure for speech codes, largely championed by feminists, had already begun winding down by the end of the 1990s. The Clinton scandals, which saw feminists retreat into silence rather than embarrass a political ally, probably helped undermine the momentum of feminist moralism. At the same time, it was hard to reconcile feminist warnings about discomfort to women (from sexual innuendo generating a “hostile environment”) with demands of gay rights advocates for open discussion and display of alternate sexuality. Some feminists wanted to restore old rules of demure speech, while others wanted to attack gender roles and stereotypical assumptions about the special vulnerability of women. It was never going to be easy to maintain political discipline in a constituency—“women”—so large, so diverse, so entangled with its supposed opposite (“men”). Perhaps feminism simply ran through the usual life cycle of protest movements, achieving some goals and then dissipating as activists moved on to other priorities.
In any case, it did not require great courage, by the late 1990s, to question the propriety of campus speech codes. It is not particularly inspiring to me that the Wisconsin faculty senate agreed to disavow its codes in that era. Downs's account of what happened there takes the trouble to highlight the role of student activists urging repeal of the speech code at Wisconsin—conveniently including a gay rights advocate, several women, a black, a Latino, and so on. There is no reason at all to doubt the sincerity of these individuals and others who responded to their arguments. But one may doubt that by the time they entered these debates, the campus was really highly polarized on the issue.
In addition to the Wisconsin experience, Downs reports episodes at Columbia, the University of Pennsylvania, and Berkeley. Only in his discussion of Berkeley does he touch on an experience of recent years. In response to student protests, the Daily Cal apologized to readers for accepting a paid advertisement by David Horowitz, which derided the notion that African Americans should receive “reparations” for slavery. Downs provides the text of the ad, allowing his readers to verify that it was not, whatever its other attributes, an argument that could reasonably be described as racist or insulting. The same student paper published a cartoon, shortly after the 9/11 attacks, depicting bearded and turbaned figures in a flaming hell. Here, too, there were protests—on the grounds that the cartoon purveyed insulting stereotypes—but the paper did not apologize. The author again includes a reproduction of the cartoon, which most readers probably would not regard as offensive or malicious.
We may not hear much demand these days for protection of women from sexualized language or imagery, but we are likely to hear quite a bit more demand for rules to protect Muslim students and perhaps other minorities from “stereotypes” that affront them. Calls for such restraints will be hard to sort out. There have been some episodes of violence or vandalism against Muslim institutions, and it is easy to sympathize with efforts to reassure students who feel threatened, particularly if they have come to an American institution after growing up elsewhere. To draw sharp lines between proper restraints on harassment and improper constraints on free speech may not be easy—particularly if people demanding protection claim to be insulted by quite general political comment (of the sort exemplified by the Daily Cal cartoon).
The most difficult problem, though, is not the challenge of protecting protestors from overreaching rules but from abusive or intimidating protests. At the Daily Cal, protestors took their protest to the offices of the newspaper. Was that threatening or just communicating? Elsewhere, protests against newspapers (usually smaller conservative papers) have taken the form of interfering with their distribution. At a college in Minnesota recently, a professor tried to post copies of the Danish cartoons that sparked attacks on Danish embassies in Muslim countries. The cartoons were repeatedly ripped down from bulletin boards, even when placed under a warning label and a separate cover to assure that no one would have to see them without wanting to see them. Century College seems to have made no effort to find the perpetrators of this abuse or to prevent its recurrence.
What Downs actually demonstrates, in his case studies, is that university administrators typically do not have strong convictions and tend to follow the path of least resistance. Faculty members tend to be preoccupied with their own work and not very engaged by debates about standards for the campus in general. So activists tend to have a highly disproportionate impact, whether they are arguing for wider freedom or tighter inhibitions. In other words, “the academic community” is not, in fact, a very strong community, and so it is easily prodded or bullied by small elements in its midst.
I do not think that campus speech can be greatly imperiled in the midst of a larger society that remains so accustomed and so attached to free debate. But assuring conditions for civil debate on campuses must be an ongoing effort. It will not be “restored” just by repealing a feminist speech code.
