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The Cost of Free Speech

From the October 3, 2005 issue: In the universities it's almost as high as the tuition.

Oct 3, 2005, Vol. 11, No. 03 • By HARVEY MANSFIELD
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At Penn, a harassment code initiated by President Sheldon Hackney was passed in 1987, allegedly covering conduct, not speech. But harassment included stigmatizing speech, as Eden Jacobowitz, a Penn student, found out. In a famous incident in 1993, he shouted "water buffalo" at a group of black sorority women who were disturbing his study, and was then called to account and punished by the university. The conservative Penn historian Alan Kors took up Jacobowitz's cause and succeeded, after much travail, in exonerating him and getting the code abolished.

In the chapter on Wisconsin, Downs tells the story of his own exploits. In 1989, President Donna Shalala (like Hackney, later a figure in the Clinton administration) established codes for students and faculty that explicitly punished demeaning speech, later called "hate speech." The student code was abandoned two years later, but the faculty code remained until Downs, a First Amendment liberal, organized its abolition in the faculty senate in 2001. His book tells a harrowing tale featuring a few heroes like himself and Kors (plus William Van Alstyne of Duke, Nat Hentoff of the Village Voice, Dorothy Rabinowitz of the Wall Street Journal, and civil rights lawyer Harvey Silverglate), a few villains such as Hackney and Shalala, their politically correct administrators, and many easily confused or intimidated faculty liberals.

Downs ends on a note of optimism, urging others to learn from what he and his friends accomplished. One can imagine his dismay at the recent spectacle at Harvard this spring, when progressive social censorship was enforced on President Lawrence Summers by the Harvard faculty. Not only was Summers's speech on why more women do not enter science rejected in substance, but his mere choice of topic and call for inquiry into the matter were declared insensitive. In a secret ballot, he was branded as lacking the confidence of Harvard's bold faculty. Summers, with his apologies for raising the issue, did not, to say the least, react as did Donald Downs. Summers is no Hackney and no Shalala; but still, he was overcome by the forces of sensitivity. Perhaps Downs would not be so hopeful if he were writing with this incident in view.

Let us honor the conscience of free speech liberalism and the passion to defend free speech that it inspires. But let's also take a look at two problems--balance and truth--arising as liberalism faces the demand for sensitivity.

Downs ends his book remarking that maintaining free speech in universities is a "delicate balancing act," but he also says that its defenders need to have the "requisite passion." The trouble is that passion for free speech cools off in the act of balancing. Passionate defense of free speech is attracted to extremes that test the bounds of the First Amendment and require a valiant effort by the defender to tolerate speech he loathes, as in the promise never quite kept by Voltaire to defend to the death the right of a speaker he disapproves of. This is drama rather than balance. Downs himself had written a book in 1985 on the Nazis in Skokie, concluding that, on balance, racial vilification does not deserve First Amendment protection. He changed his mind, he says, because he came to doubt the ability of university administrators to strike a fair balance.

This was a reasonable doubt of administrators infused with the idea of enforcing sensitivity. But the speech codes that gave the alarm to Downs were not the worst danger to free speech in the universities, nor are they today. Those codes prohibited racial slurs and unwelcome lewd overtures--unpleasant, to be sure, to blacks and women, but hardly posing grave risks. They were interpreted, however, in a spirit of political correctness so as to produce a numbing homogeneity of opinion at our universities, and that spirit has proved very harmful. The idea of sensitivity behind the speech codes also led to political correctness, because it was necessary to decide to whom to be sensitive. Being sensitive to blacks and women gave them the right to be offended when they pleased and to talk back offensively to their tormentors. They did not have to be sensitive except to the insensitivity they were subject to, and they were encouraged to react with indignation whenever they felt they were put upon.