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Here are four recent events that reflect the state of free speech in America today:

  • At the University of California-Berkeley, a member of the student Senate faced mass, indignant demands for her resignation after she abstained on a vote on transgender rights.
  • At the Public Broadcasting Service newsroom in New York, a veteran editor was fired for saying “Not bad” as he and a colleague viewed photographs of the actress who would marry Prince Harry, Meghan Markle.
  • A tenured Caucasian professor of history at Rutgers University was threatened with punishment after he made a clearly satirical comment on Facebook that he hated the white race and wanted to resign from it.
  • And at Sarah Lawrence College in Yonkers, N.Y., the office of a self-described “conservative-leaning professor” was vandalized hours after he published an opinion article in the New York Times, lamenting what he called the lack of intellectual diversity on college campuses.

These episodes illustrate new tensions straining the social fabric: Suddenly outsized outrage is routinely provoked by typically tame opinions, especially those touching on the hot-button topics of race and sexuality. They reveal how the effort at universities and other institutions to curb hate speech and reduce sexual misconduct has led to what can only be called a defining down of outrage.

Comedian Kevin Hart, who withdrew this month as host of the Oscars amid a furor over past anti-gay comments. 

No doubt such incidents, including years-old comments made by people in less sensitive times and contexts (see here and here), can threaten the safety and damage or even ruin the careers of specific individuals. But their wider impact in the intimidation of others is harder to measure in a kinetic environment where the instantaneous judgments of social media have a growing prominence.

First Amendment scholars have long noted that strong limits on the government’s ability to suppress speech (“Congress shall make no law,” etc.) have led to a range of informal mechanisms and customs restraining speech – most notably, the social sanction against use of the “N-word.” In the age of Twitter, Trump and political correctness, these informal strictures are extended to utterances that fall well short of hate speech or harassment to the point of being shouted down and even punished.

“Students act as de facto arbiters of free expression on campus,” John Villasenor, an engineering professor at UCLA, wrote in a Brookings Institution survey of current attitudes toward free speech. “If a big percentage of students believe that views they find offensive should be silenced, those views will in fact be silenced.”

A closer look at these four incidents, then, offers a window into the often vigorous efforts by which free speech is being threatened not by the government, but by prestigious schools that train the country’s ruling elite as well as the private corporations and public institutions where they go on to work. They suggest the potential ripple effects this public harassment and shaming of unwelcome speech might have in chasing non-conforming opinions and even scholarship out of the marketplace of ideas, or at least causing such grief to the speakers that they will hesitate to advance their opinions in the future.

Intolerance 101

It is difficult to imagine, for example, that the recent incident at UC-Berkeley wouldn't have this effect. It began in early November when the student Senate approved a resolution condemning President Trump's proposal to require people to define their gender by what was assigned to them on their birth certificates – a move widely seen as an effort to roll back transgender rights.

The vote on the resolution was unanimous, 18-0; Isabella Chow, a junior majoring in business administration, abstained. Chow gave her reason in what was by almost any standard a sensitively worded dissenting statement. She is a Christian, she said, and as such she believed “every one of you here today and in the LGBTQ+ community as a whole is significant, valid, wanted, and loved.”

Still, she continued, “I personally do believe that certain acts and lifestyles conflict with what is good, right, and true,” and therefore, “I have chosen to abstain from voting on these bills tonight.”

The resulting uproar on campus, first reported by the San Francisco Chronicle, was deafening. At the next Senate meeting, an immense banner hung on the wall demanding, “Senator Chow Resign Now” (leading her to wonder how long a banner that supported her would have remained in place before being torn down by furious students). She sat and listened, she said, for three hours as students excoriated her and demanded that she step down. The student newspaper editorialized against her, and then refused to publish her reply, she said. More than a thousand people signed a petition demanding that she resign; she was called “a horrible person” and a “mental imbecile” on social media.

“It was unpleasant,” Chow said. “Let's put it that way.”

Erwin Chemerinsky, the dean of the law school at Berkeley, whose books include “Free Speech on Campus,” told RCI that the incident did not cross any lines.

“She had the right to express her views,” Chemerinsky said, “but so did the students who criticized her, as long as there was nothing approaching the level of physical threat or rising to the level of harassment.”

Chemerinsky was asked if he felt that the criticism of Chow illustrated a narrowing of the range of acceptable opinions on campus.

“Not in any significant way,” he replied. “I think the position she took is controversial, because she was endorsing discrimination. She has the right to express her opinion, but she's not entitled to protection from criticism. I don't see any major inappropriate chilling of speech.”

Yet, the level of fury Chow's abstention provoked, the isolating, mass vehemence of it, would seem to belie Chemerinsky's curiously benign view of her experience, which also illustrated a blatant intolerance of her own identity as a Christian. The episode occurred against the backdrop of other incidents at Berkeley when well-known conservative provocateurs like Ann Coulter and Milo Yiannopoulos were prevented from speaking, or declined to speak, because of threats of violent protests, and, in other instances, where the university had to pay millions of dollars to assure security when controversial speakers have come to campus. Chow's experience shows that at a far less conspicuous, more everyday level, the informal pressure against expressing certain views can be powerful and intimidating.

“Yesterday I was taping a TV interview when somebody walked by and shouted 'Queerphobic Senator must resign,'” Chow told RealClearInvestigations last month. She sees an irony in the situation: “What they're saying is students feel threatened and unsafe by the comment I made because I don't accept their identity, no matter how hard I've tried to explain, 'I love you as an individual but disagree with your lifestyle.’ But now I definitely feel unsafe. I always make sure I have a friend with me when I walk to classes. When you're recognized by the entire student body, who knows what might happen.”

Fueling the Fire

This readiness to take offense on campus is being driven by broader cultural forces. One is the emergence of social media in galvanizing opinion, bringing out the foot soldiers of outraged opinion. As Will Creeley, a lawyer for the non-partisan Foundation for Individual Rights in Education, or FIRE, puts it, “Social media bulldozes nuance; it allows for only prefabricated binary choices.”

Second, the polarizing effect of the Trump presidency has intensified what Creeley calls “the deep balkanization of the country politically, which has ramifications on campus. There's a demand,” he said, “for ever greater levels of purity as each side retreats into its own corner, so that 'You're either for us or against us,' and it becomes increasingly difficult to facilitate a civil exchange of views among reasonable people who disagree with each other.”

A third cultural force working against free expression entails changes in the left-liberal narrative itself. A new set of grievances and demands has emerged for concepts such as “safe spaces” and “trigger warnings” and against so-called micro-aggressions, which are defined as small, even unintentional or unwitting slights that do harm to disadvantaged groups. Sociologists Bradley Campbell and Jason Manning lump these trends together under what they call “the new culture of victimhood,” which, they argue in a new book, “combines sensitivity to slight with appeal to authority.”

“You could call this social justice culture since those who embrace it are pursuing a vision of social justice,” Campbell wrote in a recent article. “But we call it victimhood culture because being recognized as a victim of oppression now confers a kind of moral status.”

The point for Campbell and Manning is that victimhood culture is incompatible with the traditional role of the university as a place where the search for the truth is the dominant value. “Pursuing truth in an environment of vigorous debate will always involve causing offense,” Campbell wrote.

The almost automatic corollary is this: If creating a comfortable and nurturing environment for everybody has become the paramount goal of university life, then some scholarly opinion, much less political arguments, will be driven underground.

The Washington Post has reported that Trump supporters at elite schools have decided to “stay quiet” while the New York Times adds that some conservatives are demanding “safe spaces” to voice their opinions. An academic journal set to publish next year, The Journal of Controversial Ideas, will allow contributors to use pseudonyms to protect themselves from being punished for their ideas.

Muzzling Moderate Dissent

The other recent incidents illustrate the phenomenon. Around the time Chow was being lambasted at Berkeley, Samuel Abrams, the “conservative-leaning professor” of politics at Sarah Lawrence College, was publishing an opinion article in the New York Times bemoaning the lack of intellectual diversity on campus.

Headlined “Think Professors Are Liberal? Try School Administrators,” his article focused on what Abrams called the “politically lopsided” programs being sponsored by Sarah Lawrence's Office of Diversity and Campus Engagement and its Office of Student Affairs. The programs were uniformly “progressive” in nature, he said, on such subjects as “microaggressions,” “Understanding White Privilege,” and “Stay Woke” – woke being the current term of art for an awareness of racial injustice. Abrams’ thesis is that the “agenda-setting power” of administrators at Sarah Lawrence and elsewhere “threatens the free and open exchange of ideas.”

Samuel J. Abrams: thrown "under the bus."

As if to confirm his point, the day after the article appeared, pictures of his newborn son had been torn away from his office door; in their place and along the surrounding hallway were posters such as one saying, “Our right to exist is not 'ideological,' asshole.” The student Senate held an emergency meeting to discuss Abrams' perceived apostasy. There were calls for him to be stripped of tenure. It took three weeks and several articles in the press calling attention to his treatment before the college president, Cristle Collins Judd, made an unambiguous defense of Abrams' right of free speech. Before that, according to Abrams, she raised questions with him about the appropriateness of writing an op-ed about the college without first getting permission, and whether he felt that the opinion he expressed was hostile to his colleagues.

“It's pretty obvious that the president was very apprehensive,” he said in a telephone conversation. “She didn't want students to get more riled up about my article, so she threw a tenured faculty member under the bus.”

Judd did not respond to a request for comment.

Clearly, given statements like that, Abrams himself has not been silenced. But he worried that others on campus will be. The trend, he argues, is not just that there is pressure against views that counter the “dominant narrative” but that even moderate, civil dissent, like his in his Times op-ed, is met with furious, intimidating denunciation.

“Everyone's trying to define themselves as marginalized, and part of the problem is the quickness to demonize difference of opinion on that topic,” he said. “But for me to present a meaningful ideological alternative does not mean I'm Ku Klux Klan.

“Students are scared,” he continued. “They don't want what happened to me to happen to them. This is a chilling of free speech and of free expression.”

Satire as Flashpoint

There's a kind of palpable glee at times when an opportunity to show outrage presents itself, and this happens on the right as well as the left.

It was, for example, The Daily Caller, a conservative news site that specializes in exposing what it deems to be liberal hypocrisy, that publicized a Facebook post by Rutgers history professor James Livingston complaining about the influx of “little Caucasian assholes” at a favorite restaurant in Harlem. “OK, officially, I now hate white people,” he wrote, saying he wanted to “resign from the race.”

James Livingston: It was just satire.

Livingston's comments were, by any reasonable reading of them, intended as a satirical lament over the gentrification of a storied African-American neighborhood. Nonetheless, responding to complaints that were either anonymous or from outside the university, the Office of Employment Equity at Rutgers investigated, and it found initially that Livingston had violated the university's discrimination and harassment policies. After FIRE complained that his free speech rights had been violated, Rutgers reversed its decision.

FIRE has also raised an alarm about a website, Professor Watchlist, created by a conservative group called Turning Point USA, whose purpose is “to expose and document college professors who discriminate against conservative students and advance leftist propaganda in the classroom.” A look at the list, which contains dozens of names of professors across the country, reveals very little in the way of anti-conservative “discrimination” or a concerted effort to “advance leftist propaganda.” One complaint, to take one of many possible examples, was that a professor at Cornell called Republicans “anti-intellectual.”

Professor Watchlist, which provides a form that students can use to “expose and document” their teachers' behavior, would seem to be a conservative mirror image of what right-leaning critics of the academy complain of: namely the tendency to find something deeply and unforgivably offensive in almost anything that departs from a prefabricated list of acceptable opinions.

A spokesman for Turning Point USA said in an email that the organization doesn't "call for termination or disciplinary action of any sort," but is simply "a catalogue of publicly reported incidents" where professors have engaged in "ideological and (sometimes radical) behavior." "The intention," he said, "is not to limit speech, but rather to protect it."

Offense Taken at PBS

But the list of unacceptable opinions seems to be growing on both sides of the spectrum, as Hugh Heckman, a news editor at “PBS NewsHour,” learned when he was fired. The facts, as laid out in a legal complaint that Heckman filed last month, are these: About a year ago, he and a male colleague were examining photographs of Meghan Markle, whose betrothal to a member of the British royal family had been announced. Looking at the photograph, Heckman, in a low tone of voice, said, “Not bad.”

Meghan Markle, Duchess of Sussex: a not good, very bad "not bad."

This comment was overheard by two female colleagues sitting a couple of desks away, and, finding it offensive, they reported Heckman to an executive producer. Two days later, the producer told Heckman that he was being fired, citing “this latest incident” as a reason.

Heckman has now sued PBS, arguing that his comment, which was not directed at any co-worker, fell well short of the legal definition of harassment and, moreover, that female colleagues at PBS have not been penalized for commenting on men's physical attributes. “These things are very context-driven,” Heckman's lawyer, Jillian Weiss, said in a telephone interview. “The behavior has to be severe and pervasive. In this context it was not objectively offensive.”

A spokesperson for WNET, the PBS station in New York that helps produce the show, said she couldn't comment while the case was in litigation.

Whatever the legal outcome of Heckman's suit, the mere fact that two women found his comment to be so wounding and insulting to them as to justify a formal complaint illustrates the broader situation: Just about any comment about a woman that another woman finds offensive is effectively banned. 

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