Category Archives: Free Speech

Mitch’s VERY Bad Day

Let’s talk about censorship and academic freedom and Mitch Daniels‘ desire to use the power of government to protect unsuspecting students from “wrong” ideas being foisted on them by books with which he disagreed.

There is no principle more basic to the academy and to the American constitutional system than the principle that forbids such behavior.

The Founders did not minimize the danger of bad ideas; they believed, however, that empowering government to suppress “dangerous” or “offensive” ideas would be far more dangerous than the expression of those ideas—that once we hand over to the state the authority to decide which ideas have value, no ideas are safe.

As Justice Jackson so eloquently opined in Barnette v. West Virginia Board of Education, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion…”

In these United States, We the People get to decide for ourselves what books we read, what websites we visit, what videos we watch, what ideas we entertain, free of government interference. Your mother can censor you, and in certain situations your boss can censor you–but not your Governor.

Academic freedom is the application of that foundational principle to institutions of higher education.Free intellectual inquiry is an absolutely essential ingredient of genuine education (albeit not so central to job training, with which Mitch often seems to confuse it). Education  requires the freedom to examine any and all ideas, to determine which are good and which not so good. It also requires that we protect scholars who come to unpopular conclusions or hold unpopular views from reprisals (that protection is the purpose of tenure).

Some citizens will make poor choices of reading materials or ideologies. Some Professors will embrace perspectives that disturb or offend students and Governors. Despite hysterical rhetoric from the Right, the percentage of college professors who use their classrooms to propagandize is vanishingly small, but just as putting up with Rush Limbaugh, Glenn Beck and their clones is the price liberals pay for free speech, and putting up with the likes of me is the price conservatives pay, putting up with the occasional academic ideologue is a small price to pay for intellectual freedom.

The search for truth requires that we examine contending ideas, but it does not require the sort of artificial “balance” that ignores scholarly integrity in order to teach creationism in a science class, or that the holocaust never happened in a history class.  As a statement from the AAU put it some years back,

Self-appointed political critics of the academy have presented equal representation for conservative and progressive points of views as the key to quality. But the college classroom is not a talk show.  Rather, it is a dedicated context in which students and teachers seriously engage difficult and contested questions with the goal of reaching beyond differing viewpoints to a critical evaluation of the relative claims of different positions. Central to the educational aims and spirit of academic freedom, diversity of perspectives is a means to an end in higher education, not an end in itself. Including diversity is a step in the larger quest for new understanding and insight. But an overemphasis on diversity of perspectives as an end in itself threatens to distort the larger responsibilitiesof intellectual work in the academy.

So what are we to make of the disclosure that, while Governor, Mitch Daniels tried to use the power of that position to ensure that teachers and professors did not use a book of which he disapproved, and that he tried to cut funding for a professor who had criticized  his policies?

The emails display a breathtaking arrogance, ruthless partisanship, and an autocratic mindset. But most of all–and most troubling, given his current position–they display an absolute ignorance of, and disregard for, the essential purpose  and nature of the academy.

Howard Zinn was a reputable if controversial historian. Much of what he wrote was a valuable corrective to the histories of his era; some was oversimplified twaddle. But opinions about the value of his–or any–book are beside the point.  The question is “who decides what books are used in the classroom,” and the answer is not “the governor”. Government functionaries do not get to decide what scholarship is acceptable for classroom use or debate, and elected officials absolutely and emphatically do not get to retaliate against critics by cutting their funding or getting them fired.

I think I was most struck by the unintended irony of Daniels’ emails. He rants about indoctrination while trying to control what students read and see. (I guess it’s only propaganda when its done by someone with whom you disagree.) A Governor who talked endlessly about “limited government” and “freedom” when he was pushing his economic agenda evidently had a very different approach to the marketplace of ideas. (It’s sort of like those “family values” guys who frequent prostitutes and play footsie in airport restrooms.)

Bottom line: the politician as hypocrite and wanna-be autocrat are one thing.

Allowing someone who is so clearly contemptuous of the very purpose of education to lead a great university is an absolute travesty.

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Citizens for a Totalitarian State?

Okay, I’m officially worried.

I’m currently in Fairfax, Virginia, on the (really beautiful) campus of George Mason University; I’m here as one of the 71 judges of the national “We the People” finals. For those who don’t know anything about “We the People,” it is probably the single most effective civics curriculum being used in the U.S. Unfortunately, its use is entirely voluntary–teachers can choose to adopt it for junior and senior government classes, but it is entirely up to them.

Students in WTP classes study the history and philosophy of the Constitution and the Bill of Rights. When they c0mplete the semester, most know a great deal more about the nation’s founding documents than most adults. The conclusion of the course–which was an outgrowth of Warren Burger’s Bicentennial Commission–is a competition modeled upon congressional hearings. Each class is divided into six teams, each assigned to one of the six units in the textbook. The teams are grilled by three-judge “panels” to ascertain their mastery of the subject-matter, first in competitions held in each congressional district, and then at the state level. The state winner goes to the national finals.

I am a member of one of those three-judge panels, and my team’s assignment was Unit 5–the Bill of Rights. Our assignment was focused upon the First Amendment, and our questions were intended to determine what the students knew about the philosophy and jurisprudence of Free Speech. We saw 14 teams yesterday, and we will see another 14 today.

The good news is that all of the students on all of the teams displayed impressive knowledge of the origins and jurisprudence of free speech. They could quote the Founders, they could recite the case law, identify the jurists, and report the reasoning of each case.

The bad news is that students on most of the teams we reviewed accepted the logic of those cases without question. If the Court said that suppression of expression was acceptable in a particular situation, then it was. The case of Hazelwood v. Kuhlmeier, for example, held that high school newspapers can be censored by school administrators. The decision has been heavily criticized in the 25 years since it was handed down, and in some states, legislatively overruled. And yet many of the students, when asked, dutifully parroted the holding and defended its logic by arguing that students “need to be protected from ‘inappropriate’ information.” They similarly had no problem with the decision in Buckley v. Valeo that money equals speech, and expressed no qualms that Citizens United might result in giving some speakers the ability to drown out the speech of those with fewer dollars to spend.

When questioned about efforts to restrict speech during wartime, several students defended the right of government to impose censorship “for public safety.” And in at least two cases, they seemed willing to give in to the “heckler’s veto”–to agree that government could suppress public speeches if those speeches had potential to create public disturbances.

Students were generally unwilling to disagree with or criticize past Court decisions, even those that have subsequently been narrowed or abandoned. If I had to characterize their approach, I would call it docile or submissive. If there’s a law, these kids will obey it, no matter how unreasonable it may be. We didn’t see many  who are likely to protest, or engage in civil disobedience, and even in this era of anti-government sentiment, we saw a troubling number who seemed willing to believe that government always knows best.

I hasten to say that there were many exceptions, and that we only saw half of the competing teams. Three or four of those teams (including one from Indiana) were outstanding–thoughtful, analytic and articulate. And I understand that we’ll see some of the stronger teams today. But most of the competitors are here because they won a state-level contest, and I can’t help wondering about the prevalence among them of a meek and unquestioning acceptance of authority.

They’re teenagers, for heaven’s sake! If they aren’t going to question authority now, how docile will they be when they have children and a mortgage?

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Even Jerks Have Rights

A couple of days ago, the Indianapolis Star ran a story about a group of very odd bedfellows who are urging the Indiana Supreme Court to accept and reverse a case that presents significant First Amendment issues. I was one of those “bedfellows,” and I will admit that I would never have imagined teaming up with Phyllis Schafly’s Eagle Forum, or the “First Amendment” organization run by Jim Bopp! (I have more in common with other members of the group: Jim Brown, former Dean of IUPUI’s Journalism School, the Indianapolis Star itself, the Hoosier State Press Association, and a variety of other organizations.)

The case that gave rise to this challenge was a divorce and custody battle. The Judge awarded custody of the children to the wife, and the husband was furious. He vented his displeasure in a series of blog posts that were–well, just let’s say they were not complimentary. Among other things, the husband compared the decision to award custody to the mother to child abuse.

From what I can tell from the record, the guy is missing a few screws, and is fairly unpleasant to boot.

Being unpleasant, however, is not equivalent to waiving one’s right to free speech. In this case, the lower courts ruled that the husband’s online rants had violated an Indiana statute prohibiting intimidation. That Statute defines intimidation as a threat or threats that have the purpose of making their target behave in a certain way (for example, the man who tells his girlfriend that he will break her arms and legs if she leaves him). The Indiana Court of Appeals decided that the husband’s stated intention to continue publicly criticizing the Judge amounted to such a threat.

If that interpretation stands, the statute would criminalize common, constitutionally protected forms of speech. The purported “threat” was along the lines of “If you don’t reverse your decision, I’ll continue to badmouth you.” As Eugene Volokh, the constitutional scholar and law professor who is representing our group, puts it in his brief, this sort of “threat” is indistinguishable from the following:

(1)  a columnist’s writing, “Legislator A’s vote on issue B is ridiculous, and I intend to ridicule him until his constituents view him with contempt.”

(2)  an advocacy group’s picketing a store with signs saying, “The store owner’s decision to stock product C is disgraceful, and we hope our speech will expose the owner to disgrace and ostracism.”

(3)  a politician’s saying, “The incumbent’s decision D is so foolish that, once I tell the voters about it, he will be the laughingstock of the state.”

The truth is, the right to free speech is often exercised by people who have nothing of value to say. It is often a shield for vulgarity and stupidity. It protects people who use words to attack and diminish others. But so long as the weapon of choice is language–so long as there is no threat of non-verbal harm–the speech is protected against reprisals from government. As numerous courts have reminded litigants, the antidote to bad speech isn’t government suppression; it is more and better speech.

As tempting as it is to use the government to shut down annoying jerks, it’s well to remember that a government with that power can also silence the rest of us.

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Free Speech Means Free

Monday night, a student in my Law and Public Affairs class asked a question I get every so often. We were talking about free speech, and she wanted to know whether the right to say one’s piece extended to speech that “offended” people. It was pretty clear that she expected some variation of “well, no, there are limits.”

As I explained to her, among our cherished American rights, one that we don’t have is the right not to be offended. A right to expression that could be trumped by someone’s hurt feelings–or by a government concerned about someone’s hurt feelings–would not be a right at all.

This is the same point President Obama made forcefully in his speech at the UN yesterday. Speaking of the offensive video that sparked riots in the Middle East, he acknowledged that it was offensive–not just to Muslims, but to Americans. But he defended America’s approach to liberty, and denounced the notion that violence could ever be an appropriate response to even offensive or “blasphemous” speech.

The President also made a couple of points less often noted, but worth considering: In our globally-integrated, increasingly connected world, people without a tradition of free speech had better get used to hearing things they don’t like, because even authoritarian governments can no longer control expression. As technology improves, what little control they have will further diminish.

And a world where people respond irrationally and violently to speech that offends them is a world controlled by the worst elements of humanity, a world that has handed over to the haters the power to foment uprisings and debase civilizations. Such reactions to “offensive” speech are precisely what the speakers are trying to provoke–and by obliging them, those who disagree have given them power they could not otherwise attain.

In the U.S. and other countries with a tradition of free speech, we have learned that the most effective weapon against speech that offends us is to ignore it.

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A Step in the Right Direction

The Supreme Court’s decision in Citizens United should have been a wake-up call for those of us who have been concerned over the growing power of corporate America. Corporations have their place–by shielding entrepreneurs from personal liability, they encourage risk-taking and innovation; I have no problem with the corporate form as a useful business mechanism. (Although I do find it ironic that the growth in corporate hegemony tends to be applauded by people who talk a lot about the need for poor people to exercise “personal responsibility.” Corporations were invented to allow people to escape personal responsibility.)

The problem isn’t with the existence of corporate entities, the problem is with confusing these artificial constructs with human beings, and awarding them rights. There’s a reason we call our individual liberties “human rights.” When the Supreme Court essentially ruled that corporations and labor unions could give unlimited amounts to political candidates and causes, and justified that ruling as “free speech,” most observers–certainly this one–considered the decision both ill-considered and extremely dangerous. When the Senate refused to pass a measure requiring disclosure of such contributions, the floodgates seemed permanently open. We are going to see unprecedented sums spent by the 1% to influence the 2012 elections, and distort the electoral process.

The influence of money on our government has been well documented, and the picture isn’t pretty, but I was heartened to see President Obama taking at least a small step toward limiting the wholesale purchase of policy.

It has been reported that the President is drafting an executive order that would require companies pursuing federal contracts to disclose political contributions that have been secret under the Citizen’s United ruling. Despite howls from the usual suspects, this is a modest “good government” measure that does not violate anyone’s free speech rights. If a company wants to do business with government, and receive payment from our tax dollars, we the people have a right to know whether that business has been contributing to lawmakers and/or government officials who will influence those contracting decisions.

It’s not enough–we need to reign in the increasingly common use of obscene amounts of corporate money to gain political advantage. But it’s a start.

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