Wasserman is right

Andrew Koppelman

Howard Wasserman observes, on Prawfsblawg, that my recent National Affairs essay, “The First-person Appeal of Free Speech,” neglects to call out contemporary impulses toward censorship emanating from the right.  My piece begins by describing an episode where University of Illinois at Chicago Prof. Jason Kilborn was punished for merely referring to racist episodes on the left, and mentions some other demands for speech restrictions from the left.

Wasserman writes:  “Based on these examples, one would conclude that the sole (or at least paradigmatic) threat to free speech remains the lefty sophomore at Bard complaining about racism. Not universities firing faculty (at the behest of complaining students) who say bad things about Charlie Kirk posthumously. Not universities firing faculty and shutting down departments (whether at the behest of students or under threat from state and federal government) over teaching about race, gender, and the existence of trans people. Not universities suspending students (upon the federal government threat of losing funds) for engaging in political protest that objectors decry as antisemitic or who protests speeches by government officials pursuing bad policy. Not the federal government seeking to deport students for engaging in political protest that objectors decry as antisemitic or anti-American.”

He’s right about the political skew.  It wasn’t intended.  The National Affairs essay is an abridged version of “Milton, Mill, and (Maybe) Aristotle on Why Hearing Horrible Speech Makes You a Better Person,” forthcoming soon in the Journal of Free Speech Law.  I cut too much, without noticing the misleading impression this would create.  Here are some paragraphs that were deleted in the abridgement (footnotes omitted):

This pathology spans the political spectrum.  Recent statutes in fourteen Republican-dominated states prohibit any teaching in public schools – and, in ten of them, in state universities - of “divisive concepts,” among them that anyone “should feel discomfort, guilt, anguish, or any other form of psychological distress” on account of his or her race or sex.  There happen to be uncomfortable facts that implicate these identities – notably, that white people enslaved black people for centuries.  The consequence of this vague legislation, like that engendered by the Kilborn episode, is confusion and fear.  Teachers fearing for their jobs have been “avoiding lessons that discuss people who are not heterosexual, white, Christian, or American.”  Books dealing with race, gender, or sexual orientation have been purged from school libraries.  Textbooks have been rejected for containing forbidden material, and publishers have self-censored in response.

In state universities, faculty have cancelled courses, censored their syllabi, and avoided controversial topics.  These statutes typically forbid them to “teach, instruct, or train” anyone “to adopt or believe any divisive concepts,” and declare that this does not forbid impartial teaching.  But these formulations don’t work.  One faculty member explained:

I am a philosopher and it is my job to present as many arguments and counterarguments as I can and to teach my students how to evaluate these. I am fearful that positions that I defend in the line of duty—whether or not I actually hold them—can and will be used against me. How can I be a competent teacher in such a climate?

The normal imperatives of teaching now compete with a mandate that there are some ideas that students – even college students - are too frail to be exposed to.

Some of this should have been in the National Affairs version.  Stay tuned for the full article.