I have, over the past month, been a member of a University committee that has produced a “resolution” that will have the faculty at UNC endorsing the “Chicago principles” on free speech.

I went into our deliberations deeply suspicious of this whole furor about “free speech” on campus.  If the ability to speak one’s mind freely is in jeopardy in the United States, it is not on college campuses the main threat exists.  An excellent law review article we were given to read made it very clear that case law is unambiguous: employees have just about no right to free speech.  The courts have upheld corporation’s right to fire any employee for just about any reason, including expressing an opinion the employer finds objectionable.  Similarly, high school students have almost no right to free speech—and absolutely no right to a free press.  High school newspapers are routinely censored and, it turns out, so are college newspapers.

I remain convinced that the furor over free speech on campus is a red herring, a typical jujitsu move by an authoritarian right wing that loves to portray itself as the victim of an authoritarian left.

Furthermore, I think that no one has a “right” to speak on a college campus.  Universities are in the business of evaluating knowledge claims.  Your opinion that the Holocaust did not happen or that climate change is not real or caused by human actions does not meet the minimum standards by which academia determines the legitimacy of statements.  The university can—and should—extend invitations to speak judiciously—and is fully justified not to extend such invitations to those who reject canons of evidence and logic that govern the identification of knowledge in specific fields, nor to those who espouse views that certain people should not be on our campus as students or teachers.

And, finally, I came in very sympathetic to the idea that speakers who express disdain and outright hostility to members of the university community should not be given an opportunity to express their uncivil (to put it mildly) views on campus.

Our deliberations changed my mind.  The lawyers in the room convinced me that, simply as a matter of law, there was no way to limit what could be said on a campus that is, after all, public property.  If someone wants to walk across our campus carrying a Confederate flag and spouting racist bile, there is no legal recourse but to allow him to continue (unless direct threats or incitements to violence are uttered).  And, on the whole, that’s a good thing.

Why a good thing?  Because I do remain convinced that threats to free speech come more from the right than from the left.  So it would be a massive mistake, at this moment (or any moment) in time, to let the right wrap itself in the mantle of free speech, while the left tries on various forms of abridging that freedom. Not only are the optics bad, but it is also a substantive mistake.  Just because the devil can quote scripture, that doesn’t mean we should cede the field to the devil.  Democracy, human rights, and now free speech have been slogans used by the right in the past twenty years to justify hateful and disastrous policies.  But we need to accept as inevitable that such terms will be contested—and that all sides will try to wrap themselves in the mantle of these high ideals.  It is one of the jobs of the left to fight the corruption of these terms, to fight for what we deem their proper and salutary referents.

So: I would much prefer that no one in our community invite Richard Spencer or Ann Coulter to come on campus to speak.  We are not compelled to invite anyone—and we should not dignify their bile with such an invitation. But we are also not in a position to keep them from walking onto campus and speaking their piece.

Finally, I did come to believe that a strong statement on free speech might prove useful to our university’s employees, who do not feel free to speak their minds. Unprotected by either academic freedom or tenure, they feel all the precarity that afflicts employees in this day and age.  Perhaps, they might be able to leverage this enunciation of principle to afford themselves more freedom.

All that said, the Chicago principles seemed to me an aggressive, in your face, statement of the principle of free speech.  That is, those principles are couched in such a way to support the right wing narrative about the suppression of non-leftist ideas on campus.  So I rewrote the Chicago principles in a way that I thought a) softened their implied criticism of leftist censors and b) indicated that the law was not the only norm operative when considering the tenor of speech on campus.

My idea is that universities should be committed to productive speech, to dialogic exchanges that actually move the conversation forward, that build bridges across intellectual, political, disciplinary, and other divides.  We could, while acknowledging the stringencies of the First Amendment, also articulate a commitment to civility—and recognize that it was our collective responsibility as a community to realize those ideals of civility.  My thought was that universities could model the kinds of civil conversations that have become increasingly rare, even impossible, in our society.  I will even venture to say that I have been party to many such productive conversations over my years in academia.  The way that this committee’s meetings changed my mind offers only one example.

So here, in italics, is the way that I rewrote the Chicago principles, with the aim of outlining the legal norms while also adding to them an extra-legal statement of support for a norm of civility:

The University greatly values civility—and we remind all the members of our community that they share in the responsibility for maintaining a climate of mutual respect. The advancement of knowledge depends fundamentally on open-mindedness, which entails granting a hearing to even seemingly outrageous claims and views. Because all views share a right to free public expression, the University may restrict expression only if it violates the law, falsely defames a specific individual, constitutes a general threat or harassment, unjustifiably invades substantial privacy or confidentiality issues, or is directly incompatible with the functioning of the University. In addition, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University. These narrow exceptions afford the University the ability to constrain speech and actions that would unduly interfere with others’ freedom of expression and/or are not instances of protected speech under the First Amendment. The requirements for civility and open-mindedness extend beyond such legal protections—and a truly welcoming and productive intellectual community requires forms of mutual respect and civility that cannot be mandated by law.

In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission.

This attempted revision proved a spectacular failure.  We have not yet had our faculty vote on whether to endorse the Chicago principles.  But we at UNC will vote on the unrevised principles (reprinted below), with their stringent statement of the legal requirements, including the Chicago principles’ explicit comment (in the unrevised principles) that “civility” cannot be used as a standard to censor someone’s speech.

What caused the failure?  Basically, the notion that appeals to “civility” would be used to silence unwelcome expressions of opinion.  The employees, especially, saw “civility” as a subtle—or not so subtle—form of censorship, of putting people in their place.  Politeness was a bar to candor as well as a way to shut people up.

I don’t fully know what to make of this argument.  On the one hand, it fills me with despair.  It suggests that people have no desire to be civil.  They just want to shout loudly and score points, tossing “red meat” to those on their side.  I guess we should never underestimate the pleasures of indignant self-righteousness.  It does seem emblematic of our times that civility is seen as a vice, not a virtue.

On the other hand, this seems a case where the current obsession with “privilege” is applicable.  Sitting where I do, as a tenured and respected member of the university’s faculty, my words in just about any setting are met with respect.  I seldom feel that I have not been heard, while no one dares to shut me up, and I have tenure to protect me even when I criticize the Chancellor in the press and at public meetings.  Civility, in other words, comes easy for me—and poses no threat.

I still want to make a plea for civility—one that returns to this notion of “productive” dialogue.  If we cannot foster respect for our interlocutors, we are not going to move forward.  Yes, it’s the old liberal dilemma—which keeps rearing its familiar ugly head precisely because it is a real dilemma.  How are we to respond to participants in the dialogue who are committed to shutting the dialogue down or to excluding some from participation in the dialogue?  I can’t believe that abandoning a norm of civility, based upon an attempt to establish mutual respect and an equal right to be fully heard, is a fruitful response to that dilemma.

Here are the unrevised Chicago principles:

 

[T]he ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.

The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University. In addition, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University. But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the University’s commitment to a completely free and open discussion of ideas.

In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission.

As a corollary to the University’s commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression. Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.

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