I seem always to be at a disadvantage in arguing for toleration of ugly speech even if it creeps right up to the edge of being a direct threat, as some of the sexist rants noted by Wendy Kaminer and in Joan Walsh’s Salon post to which Wendy linked. My disadvantage comes from the fact that I do not appear to be a member of what today has come to be called a “historically disadvantaged group.” Hell – when I was a freshman at Princeton in 1960, I was not thus characterized, even though I was a Brooklyn-born and public school-educated short Jewish kid suddenly transplanted to a decidedly waspy, preppy, Southern-boys’ finishing school campus. In fact, the category “historically disadvantaged group” had not yet become part of the language (that was to happen with the advent of “political correctness” in the 1980s).
Still, I think I’ve earned some bona fides in the unpopularity arena, having spent a career representing accused criminals, pornographers, draft dodgers, rioters, and other assorted perceived mis-fits (many of whom, I must say, often seemed more normal to me than the people prosecuting and persecuting them). And I’ve not yet come across an exception to my sense that more speech, no matter how uncomfortable, is better than even a modest amount of narrowly-delineated censorship. I’m OK with outlawing speech that in itself constitutes a crime – such as extortionate threats – but not with banning comments that simply make one uncomfortable. The problem with such censorship is that there is no way of containing the “narrow” exception, and eventually censorship becomes the rule.
I co-authored (with Professor Alan Charles Kors) a book on the problem of censorship on college campuses, The Shadow University: The Betrayal of Liberty on America’s Campuses (the paperback from Harper/Perennial was published in 1999 and remains in print). One chapter in the book, “Not on My Watch,” puts forth the thesis that most campus administrators who promote speech-restrictive codes are less concerned with the welfare of the “historically disadvantaged groups” represented on campus, than with being able to avoid trouble and disruption that would hinder the administration’s real job – to keep things peaceful and quiet to facilitate raising massive funds.
The theory behind campus speech codes, dubbed “harassment codes” in order to cover up the fact that there is censorship of speech in higher education, is that if members of historically disadvantaged groups – women, African-Americans and other black students, gays and lesbians, and such – have to listen to words and ideas that insult and disturb (“harass”) them, they will not be able to take advantage of all that the colleges offer them, or might even leave college entirely. Hence, allowing the free use of such speech becomes a civil rights violation, namely depriving minority group members of equal access to education.
Just before publication of The Shadow University, I gave a talk at the Harvard Law School in order to see how the book’s thesis would be received by students. After the talk, I took questions, and a white first year student asked me: “Mr. Silverglate: I don’t mean to imply that you are a racist or a sexist, but don’t you think that your call for the abolition of harassment codes covering speech gives aid and comfort to racists and sexists?” Before I could answer, a third-year black student jumped up, visibly angry. His response to the white student, which I paraphrase from a quite vivid memory of an event dating back to 1998, went like this: “I grew up in the South Bronx, with bullets flying by my bedroom window and hardly an intact family on the block. I nonetheless did well enough in school to get a scholarship to a good prep school, and from there I went on to Harvard College and am now a few months away from graduating Harvard Law School. Are you [looking the white kid right in the eye] telling me that if someone in this school calls me a ‘nigger’ I should, or would, pack up my suitcase and head back to the South Bronx? Is that what you really think of me?”
The white kid who asked the demeaning question was cowering. I did not have anything to add and simply called for the next question. I went on to publish the book and, I should add, to co-found a non-profit foundation to promote free speech ad due process on campuses of higher education.