U.C. Berkeley Chancellor Nicholas Dirks Gets Free Speech Very Wrong

Yesterday Chancellor Dirks sent an email about free speech to Berkeley students, faculty, and staff. In today’s competitive publishing environment it is astonishingly difficult to distinguish yourself as an academic by being wrong about free speech, but Chancellor Dirks is equal to the challenge. His email is so very bad on every level — legally, logically, rhetorically, and philosophically — that it deserves scrutiny.

 

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Let’s take Chancellor Dirks’ email bit by bit.

Dear Campus Community,

This Fall marks the 50th anniversary of the Free Speech Movement, which made the right to free expression of ideas a signature issue for our campus, and indeed for universities around the world.

So far, so good. Berkeley was the center of the campus free speech movement, and deserves recognition for it.

Free speech is the cornerstone of our nation and society – which is precisely why the founders of the country made it the First Amendment to the Constitution.

OK. Yes, free expression is the cornerstone of American society. The “founders of the country made it the First Amendment” is awkward and imprecise writing — the founders recognized the rights to free expression and freedom of worship and protected them in what became the First Amendment. But I guess we can let that pass.

For a half century now, our University has been a symbol and embodiment of that ideal.

Ehhh, sort of, partially. Berkeley’s speech codes are not unusually bad. As you can see from the Foundation for Individual Rights in Education’s page on them, Berkeley has some chillingly ambiguous speech policies, and has had its share of problematical censorship incidents. Regrettably, a mediocre free speech record does not distinguish Berkeley from the mainstream of American academia.

As we honor this turning point in our history,

Wait. What turning point? Is an anniversary a turning point? We haven’t established — or even stated — that Berkeley is facing a turning point. This is a null-phrase.

it is important that we recognize the broader social context required in order for free speech to thrive.

Wuh-oh.

“Context” is the mother of prevarication.

The only “context required” for free speech to thrive is a society governed by the rule of law, educated about its rights and willing to enforce them.

For free speech to have meaning it must not just be tolerated, it must also be heard, listened to, engaged and debated.

No.

First, observe the hidden premise Chancellor Dirks is presenting — that free speech must have “meaning.” This implies that speech that does not have “meaning” — as defined, one presumes, by Chancellor Dirks or a committee of people like him — then it is not “free speech,” and perhaps is not entitled to protection. Dirks is smuggling a vague and easily malleable precondition to free speech.

There is no such precondition. Our rights are not limited by some free-floating test of merit or meaning. As the United States Supreme Court recently said:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178, 2 L.Ed. 60 (1803).

Moreover, nobody need listen to, engage, or debate speech for it to be entitled to protection. If nobody wants to read, engage with, or debate the points I make in this post, I am still entitled to make them. Chancellor Dirks is implying that speech must meet an idealized model to be entitled to full protection. It doesn’t. Thank goodness — because then the people who control the model control the speech.

Let’s move on to his next proposition.

Yet this is easier said than done, for the boundaries between protected and unprotected speech, between free speech and political advocacy, between the campus and the classroom, between debate and demagoguery, between freedom and responsibility, have never been fully settled.

No. Absolutely not.

Chancellor Dirks is using a variation on a common censor’s trick — saying “well, the First Amendment doesn’t protect all speech, and sometimes the line is blurry” to justify broad restrictions. This is akin to me walking up to you, punching you in the face without warning, and saying “well, not all violence is prohibited. Under some circumstances it is permissible.”

Yes, the First Amendment doesn’t protect everything. Yes, not every possible First Amendment question has been resolved. Yes, sometimes First Amendment analysis is complex. But most often we deal in questions that have conclusive answers. Universities would like to pretend otherwise, and strive for ambiguity where there is none, but most campus speech issues are easily resolved by anyone sincerely concerned with the rule of law. Can students hand out the United States Constitution outside of an arbitrary “free speech zone? Yes. Can public schools punish students for mere crass insults? No.

Let’s turn back to some of the distinctions in that sentence from Chancellor Dirks.

between free speech and political advocacy

This proposed distinction is a sign of civic illiteracy. Political advocacy is not distinct from free speech. Political advocacy is the apotheosis of free speech. “Speech by citizens on matters of public concern lies at the heart of the First Amendment, which ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,’” as the Supreme Court has said. Chancellor Dirks’ proposed distinction is particularly galling because the Berkeley free speech movement itself was a rejection of the argument that political advocacy was unsuited for the campus.

between debate and demagoguery

There is no “demagoguery” exception to the First Amendment. Once again, Chancellor Dirks is suggesting that expression must meet an idealized idea of speech to be protected. That’s wrong. “Demagoguery” might fall outside the First Amendment, but only if it satisfies well-established exceptions — such as speech posing a clear and present danger of imminent serious lawless action.

freedom and responsibility

Advocates of “contextual” views of the First Amendment like to talk about how rights are balanced by responsibilities. But the rule of law does not support this rhetorical flourish. The Constitution imposes responsibilities on the government and rights on the people. There may be a moral responsibility to speak decently, but that responsibility is enforced by the marketplace of ideas, not by the state. Nothing about Fred Phelps’ speech was morally responsible, but it was protected nonetheless.

As a consequence, when issues are inherently divisive, controversial and capable of arousing strong feelings, the commitment to free speech and expression can lead to division and divisiveness that undermine a community’s foundation.

This is very badly written. More importantly, it is legally incoherent and misleading. If a community is build upon the rule of law and the rights of the people, evil speech does not threaten its foundations. If the state promotes constitutional values and citizens respect them, it is not divisive to recognize that we can condemn cruel or hurtful speech without banning it. It is only when the state arrogates to itself the right to pick and choose what speech is permitted — to “balance” the interests of the speaker and the interests of the community — that the foundations begin to crumble. That’s because such a balancing is inherently inconsistent with a free and self-governing people.

This fall, like every fall, there will be no shortage of issues to animate and engage us all. Our capacity to maintain that delicate balance between communal interests and free expression, between openness of thought and the requirements and disciplines of academic knowledge, will be tested anew.

The rule of law permits no “delicate” balancing between “communal interests” and free speech. As the Supreme Court noted in the quote above, the framers struck that balance in recognizing and protecting the right of free speech in the First Amendment. And though the academy may require some limits on speech to operate, no government employees enjoy such robust speech protections as university employees.

Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so,

No. Absolutely not. Flat wrong.

Chancellor Dirks may be alluding to the statutory right to an education free of harassment. But that statutory right is narrow and yields to the strictures of the First Amendment. Students have a right to an environment free of “harassment” — but for these purposes harassment means “abuse sufficiently severe, pervasive, or persistent such that it denies or limits the student’s ability to participate in or benefit from the school’s program.” It does not mean “words that hurt my feelings.” And a good thing, to. The University of California has demonstrated that, given the opportunity, it will silence political speech on the grounds that it makes people feel “unsafe.” Nor is there any right to “feel respected.” You can’t confer that right on someone without depriving everyone else of their right to free expression and free association. Does a student who believes in the inherent inferiority of some races enjoy a right to “feel respected?” No. Only rights are entitled to respect, and respect is expressed not through affirming words but through the rule of law.

and this in turn requires that people treat each other with civility.

No.

Civility is an admirable value. It is right and fit that we ask it of each other and impose social consequences upon the uncivil. But speech need not be civil to be entitled to robust protection. Berkeley’s free speech movement did not seek to protect civil speech; the Vietnam war was not an occasion for civility. Paul Robert Cohen’s “Fuck the Draft” jacket was uncivil, but was protected by the First Amendment nonetheless. There is nothing civil about burning the flag or picketing a funeral or being a racist, but those things are protected.

Simply put, courteousness and respect in words and deeds are basic preconditions to any meaningful exchange of ideas.

Here you see Chancellor Dirks weave his tricks together. Only “meaningful” speech is worthy of protection, and only “courteous” speech is meaningful. Therefore “discourteous” and “disrespectful” speech may be punished. What speech will be deemed too discourteous or too disrespectful? That depends upon the political preferences of the people administering the rules. If those in power like your speech, it will be protected. In fact it may be protected beyond the requirements of the First Amendment. Witness, for example, a University of California school dealing with a professor who assaulted protestors and took their sign by condemning the protestors. But if those in power don’t like your speech — well. Think you have the right to burn the flag, because the United States Supreme Court says you do? That depends on the flag, friend. If your public university favors the ideas expressed in the flag you may find yourself disciplined.

In this sense, free speech and civility are two sides of a single coin – the coin of open, democratic society.

This statement is arguable if “this sense” means “as an idealized vision of speech to which I’d like to encourage people to aspire.” As a statement of rights, it’s empty and wrong. Civility is not weighed equally with free speech. It is not a prerequisite of free speech. It is a value, an idea, to be tested in the marketplace of ideas with other vales. Free speech is often uncivil. Lenny Bruce was uncivil. “Have you no sense of decency, sir? At long last, have you left no sense of decency?” was uncivil. “I have not yet begun to fight” was uncivil. “I called you naughty darling because I do not like that other world” was uncivil. “Now, if it is deemed necessary that I should forfeit my life for the furtherance of the ends of justice, and mingle my blood further with the blood of my children and with the blood of millions in this slave country whose rights are disregarded by wicked, cruel, and unjust enactments, I submit; so let it be done!” was uncivil. The equality of all humans regardless of station has always been a deeply uncivil idea, because “civil” usually means “that which makes me comfortable.” Comfortable people paint nice watercolors but otherwise don’t accomplish much.

Insofar as we wish to honor the ideal of Free Speech, therefore, we should do so by exercising it graciously.

Pardon my incivility, Chancellor Dirks, but I don’t give a shit whether you wish to honor an ideal; I care whether you will comply with the law. If you don’t, you should be compelled to do so at the point of a lawsuit. You will find litigation rather uncivil.

This is true not just of political speech on Sproul Plaza, but also in our everyday interactions with each other – in the classroom, in the office, and in the lab.

Sincerely,

Nicholas Dirks
Chancellor

What should we fear more — that we might encounter rude people in the classroom, the office, and the lab, or that the state aspires to regulate our interactions in all of those places?

I don’t fault Chancellor Dirks for calling for civility. It is a good thing, a decent thing, a moral thing, to treat people as we would be treated. But it is not the role of the state — or its appointee, Chancellor Dirks — to police our speech to compel it.

Perhaps you think it’s frivolous to subject a casual email to such scrutiny. Perhaps you think it’s like proofreading your grandchild’s thank-you note. Chancellor Dirks only meant to offer a warm and friendly aspirational statement, not a set of rules, you might say.

But like Chancellor Dirks, I care about context. His email doesn’t come in a context in which free speech is safe. Rather, it comes in the context of the modern American university, at which free speech is increasingly threatened. Those threats come not just from the censorious appetites of university officials, but from the indifference of a generation of students. Chancellor Dirks isn’t just asserting limits on speech that find no support in the law. He’s encouraging the students under his tutelage to view speech as something the community should “balance.” He’s striking at the heart of free speech, which is how the community values it. As Learned Hand said:

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.

People like Chancellor Dirks don’t just seek to raise a generation of civil Americans. They seek to raise a generation of Americans who look to the state to tell them what speech is acceptable. This is vile and shameful.

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