In Praise of Hate Speech
Post #1607 • June 5, 2013, 4:42 PM
The past month has seen some dismaying lapses in American civil liberties. The IRS was found to be targeting 501(c)3 applications from groups with "patriot" or "tea party" in the names, though their scrutiny was more thorough than that would suggest. One group was asked to disclose, under penalty of perjury, to describe the content and frequency of its supplications to the Lord, which even as an atheist I find repulsive. The scandal brought to light other examples that suggested that the IRS has become a tool of the administration to alter the political landscape in its favor. Frank VanderSloot, after being publicly criticized by President Obama for supporting his opponent in the last election, found himself the subject of two IRS audits and a Labor Department audit in the subsequent five months. Dr. Anne Hendershott, a Catholic sociologist and the author of many essays critical of the Obama administration and progressive Catholic groups, was subjected a grueling audit in 2010 which prompted her to cease writing.
Meanwhile, Eric Holder possibly perjured himself in the act of testifying before the House of Representatives regarding the confiscation of Associated Press phone records and the monitoring of a Fox News reporter for espionage by his Department of Justice. Via a FOIA request, AP has discovered that the administration is in the habit of using secret e-mail accounts, noting almost causally that "The Labor Department initially asked the AP to pay more than $1 million for its email addresses." EPA Administrator Lisa Jackson's account, Windsor.firstname.lastname@example.org, had a fictional person named Richard Windsor attached to it who received certificates of completion for online business-related coursework.
"Richard Windsor" was a top student of ethical behavior in 2010, compiling 100 percent scores for the "Risk" and "Cyber Threats" portions of the course, but a 50 percent score on the "EPA Information" portion dropped Windsor's total score to 83 percent.
These scandals overshadowed a recent administrative action that ought to be regarded as a bigger scandal than it is. In early May, the departments of Education and Justice jointly issued a letter to the University of Montana regarding its investigation into the school's botched handling of a series of sexual-assault cases. As Greg Lukianoff, president of the Foundation for Individual Rights in Education put it for the Wall Street Journal:
The letter rejects the requirement, established by legal precedent and previous Education Department guidance, that sexual harassment must be "objectively offensive." By eliminating this "reasonable person" standard—which the Education Department has required since at least 2003, and which protects the accused against unreasonable or insincere allegations—the right not to be offended has been enshrined in a federal mandate.
The letter further states that campuses have "an obligation to respond to student-on-student harassment" even when that harassment occurs off-campus. In some circumstances, the letter says, universities may take "disciplinary action against the harasser" even "prior to the completion of the Title IX and Title IV investigation/resolution." In plain English: Students can be punished before they are found guilty of harassment.
It gets worse.
An unsuccessful request for a date, or even assigning a potentially offensive book like "Lolita," could now be construed as harassment. ...
Last week's letter is part of a decades-long effort by anti-"hate speech" professors, students, activists and administrators to classify any offensive speech as harassment unprotected by the First Amendment. Such speech codes reached their height in the 1980s and 1990s, but they were defeated in federal and state court and came in for public ridicule. ...
The stifling effect of these codes isn't theoretical. In 2011, the University of Denver suspended a professor and found him guilty of sexual harassment because his class discussion on sexual taboos in American culture (in a graduate-level course) was considered too racy. Last year, Appalachian State University suspended a professor for creating a "hostile environment" after she criticized the university's treatment of sexual-assault cases involving student-athletes and screened a documentary critical of the adult-film industry.
Recent history gives no reason to expect that the government's new directive on "verbal conduct" will remain confined to sexual speech. At Tufts in 2007, a conservative student publication was found guilty of harassment for criticizing Islam. The same happened to a professor at Purdue University at Calumet in 2012, who faced a four-month investigation.
The Department of Education's Office for Civil Rights responded to this and other criticism by lying through its teeth.
Yesterday [May 29], OCR sent a statement to concerned students, faculty, alumni, administrators, and citizens who have written the agency to express outrage over the threat to free speech presented by the May 9 findings letter and resolution agreement authored by OCR and the Department of Justice (DOJ) to conclude an investigation into the University of Montana's practices regarding sexual assault. OCR and DOJ proclaimed the letter and agreement to be "a blueprint for colleges and universities throughout the country."
The "blueprint" requires colleges and universities receiving federal funding to define sexual harassment as "any unwelcome conduct of a sexual nature," including "verbal conduct" (speech). OCR and DOJ explicitly state that an institution's definition of sexual harassment may not include a "reasonable person" standard, effectively granting the most unreasonably sensitive students the power to determine what sexual or gender-based expression is permissible on campus. OCR even suggests that those accused of sexual harassment must in some instances be punished before an investigation has been completed. Institutions that do not adopt this breathtakingly broad definition, which contradicts decades of legal precedent and OCR's past guidance, risk being found in violation of Title IX and losing federal funding.
OCR's new statement contradicts its May 9 letter. For example, in the statement sent yesterday, OCR contends that "the May 9 letter explains that 'sexual harassment' is unwelcome conduct of a sexual nature but that sexual harassment is not prohibited by Title IX unless it creates a 'hostile environment.'" But the May 9 letter includes no such explanation. To the contrary, the May 9 letter flatly states that "[s]exual harassment is a form of sex discrimination prohibited by Title IX and Title IV"—and then proceeds to define "sexual harassment" as "any unwelcome conduct of a sexual nature," including "verbal" conduct. OCR's statement further claims that the new blueprint is consistent with prior agency guidance. This is plainly false, as FIRE has detailed at length.
The money quote, from Lukianoff:
OCR argues that a broad definition of sexual harassment encourages reporting, but mandating that state and private employees must report protected expression to authorities as "harassment" is no more acceptable than requiring the reporting of "unpatriotic" speech as treason. ... The agency is out of control. OCR must reverse its attack on student and faculty rights before it is forced to do so by courts, legislators, and universities themselves.
As a subscriber to the higher education bubble hypothesis, I think this rise of distaste for the First Amendment is linked to the ever-expanding college bureaucracy, but this is too important a matter to leave to the coming slaughter of colleges over the next decade. Hate speech laws have been rightly struck down in one court after another. They only gain traction in the context of harassment laws, as Lukianoff points out above. The lower the standard of harassment laws, the easier it becomes to enact legal penalties for hate speech.
Artists and their advocates seem to be terribly confused about this, as evidenced by the comment thread at my Molly Norris Day post and in other discussions I've had. Many of them favor such penalties. Mark my words, if they get what they want and their representatives enact them, it will blow up in their faces. Truly, you don't support freedom of speech unless you support freedom of hate speech. That hate speech is legal is the marker by which you know that your freedoms of expression are in good working order. By all means, ignore the message. Mock it with speech of your own. But call for its criminalization now, and one day you may find yourself marked a criminal for something you said or wrote or made.
Remember, reader, in 2010 the feckless head of the Smithsonian's National Portrait Gallery pulled a video by David Wojnarowicz from display because of complaints from conservative Christians about its brief depiction of ants crawling on a crucifix. One of those complaints came from Bill Dohohue of the Catholic League, who called the piece "hate speech" intended to insult Christianity. It may be distasteful for you to come to the defense of freedom of speech on behalf of cartoonists who draw Mohammed or the American Freedom Defense Initiative, but by doing so you have a leg to stand on when the next Bill Donohue comes along and wants to silence you and yours.
Repeat after me: you have a right to offend people, and they do not have a right to not be offended. They have a right to offend you in retaliation, but that is the extent of their right to retaliate.
The pitons by which hate speech restrictions climb the wall of legality is this notion of unwelcome verbal conduct. It's a short step from there to the idea that persons or groups should be shielded from denigrating expressions. Thus we go from protecting speakers to protecting hearers. This is striking the First Amendment at the root. This is the pathway by which the most sensitive people, or the ones who can feign the most outrage, end up in control. This is why you should regard this letter from the DOE and the DOJ as a scandal, and the follow-up from the OCR as a sin. This is why you should support FIRE.
Although if you read all this and conclude that I'm in favor of sexual harassment, kindly go walk off a pier.
I nominate Theodore Dalyrmple's essay on Banksy for Art Review of the Year.
The street artists in the exhibition, however, were not unknowns but rather celebrities in their field. Their works in various formats now appear in commercial galleries and sell for large, sometimes astronomical, sums of money, a sad commentary on the art market as a reflection of elite taste. A fish, say the Russians, rots from the head down; a culture, when its elite shows no discrimination, is debased.
Via Dean Haspiel, Chris Ware talks about radical honesty. The article quotes Ware too heavily and too piecemeal to quote here, but it supports your author's contention that in some respects comics artists are behaving more artistically than fine artists.
Starts today: "Karla Wozniak: This Weather Is Cosmic" at Gregory Lind, San Franciso. Runs through July 20.
Through June 13: "Jane Freilicher: Painter Among Poets" at Tibor de Nagy, New York City.
Through June 21: "Albert York: A Loan Exhibition" at Davis and Langdale, New York City.
Starts October 14: "Léger: Modern Art and the Metropolis" at the Philadelphia Museum of Art. Runs through January 5.
"My writings, such as they are, have had only one purpose: to attain for H. L. Mencken that feeling of tension relieved and function achieved which a cow enjoys on giving milk. Further than that, I have had no interest in the matter whatsoever. It has never given me any satisfaction to encounter one who said my notions had pleased him. My preference has always been for people with notions of their own. I have believed all my life in free thought and free speech—up to and including the utmost limits of the endurable."—H.L. Mencken