One of the excellent benefits of teaching and writing on First Amendment issues is that friends and colleagues send me articles about First Amendment doctrine, free speech values, and academic freedom.  To respond to these myriad current events, I am creating a new type of post, called Abridged.  In Abridged, I will share, discuss, and connect all of the links sent to me over the past week. I would love to hear your thoughts as well.

Today’s theme:  Is the marketplace of ideas broken?

Last Friday, Columbia Law Professor Tim Wu wrote a provocative opinion piece, How Twitter Killed the First Amendment, about the “’new’ censorship.”  In our modern era, where speech is cheap, harassers and foreign governments have sought to stifle good speech by flooding the market with toxic speech.  Wu believes stronger remedies are needed to protect journalists from threats, bar social media companies from accepting political advertising from foreign governments, and prevent the President from using the NFL to punish protesters.

Wu’s picture of our current free speech climate is chilling.  However, increased regulation to save the quality of speech is the same idea that President Trump advanced when arguing (albeit far less coherently) that we should strengthen libel laws to ensure that journalists are truthful.  In New York Times v. Sullivan, the Supreme Court held that a newspaper had a First Amendment right to publish a civil rights advertisement that contained false information about the Montgomery, Alabama police force – so long as the speech was not maliciously false – to give truthful speech breathing room.

I agree with Wu that harassment is not speech.  However, our robust, free speech tradition depends on defining harassment using a high bar, so as not to allow the government to punish viewpoints it dislikes.  Social media companies like Twitter and Facebook, which are private, can impose lower standards for defining and punishing harassment, or hate speech (which is protected against the government in this country).  But their efforts to combat hate speech have ended up being arbitrary and complicated, and often burden the very groups most targeted by hate speech.  If anything, private regulation of speech often evidences why the government should stay out of the censorship business.  Further, Trump is permitted to air his own government speech, so long as he doesn’t coerce the NFL to fire protesters.  The NFL has its own speech rights, such that different teams are experimenting with allowing or prohibiting protest.  This is a good thing.

Indeed, the fact that speech is cheap is also generally a good thing for First Amendment purposes, especially because for so long many have claimed that only the wealthy and powerful have platforms for speech.  Wu’s views are based on the unfortunate notion that counter-speech is not a good antidote to speech.  My experience is the opposite.  Counter-speech works, and government regulation of speech often drives speaker’s underground, creates (legitimate) resentment, distorts the markets far more than individuals could, and undermines the legitimacy of our free speech culture.

The next link I was sent this week is an example of someone trying to right a distorted marketplace of ideas by using her power to suppress speakers.  A University of Pennsylvania graduate student and instructor tweeted that “I will always call on my Black women students first. Other POC get second tier priority. WW [white women] come next. And, if I have to, white men.”

This technique, called progressive stacking, is intended to amplify the voices of those whose speech may be too easily discredited or those who are disinclined to speak.  However, the instructor’s extreme approach serves to further de-legitimize academia as a place of open debate and inquiry, and converts it into a heavy-handed mechanism for achieving the social justice aims of the instructor.  Progressive stacking is intended to fight stereotypes, but this implementation is closer to a way of stereotyping those considered the oppressors.  This instructor’s phrasing exhibits underlying animus, not simply an awareness of the importance of inclusion in the classroom.  If she “has to,” she calls on white men, who have rights under both Title VI and Title IX to be free from discrimination in educational institutions receiving federal funding.

Many graduate history departments (and graduate departments in general) are unfortunately a dramatic example of a self-selecting political bubble.   The political self-selection in some realms of academia is why views that, just a few years ago, would have represented a mean-spirited caricature of what progressives are trying to achieve in terms of racial justice, have now become somewhat accepted.  Tweets like this instructor’s are why President Trump can, dangerously, summon his base to distrust and regulate the academic freedom rightfully given to our colleges and universities.

The answer is not regulation, or firing this instructor (whose name I am not using because she is unfortunately being doxed).  However, the University should inform her that this stark, overwrought, seemingly hateful method of ensuring that all voices are heard (a legitimate goal) is unacceptable in an academic institution, and may even be illegal under federal education statutes.

No good generally comes from using coercive power to interfere in the marketplace of ideas to right its course.  The marketplace of ideas is currently faltering, for many reasons.  We are too immersed in our political bubbles,  (Fox News has been rightly criticized for underplaying huge news of Mueller’s indictments.) We distrust those with whom we disagree.  We resort to hyperbole, harassment, and, sometimes, discrimination, to get our views across.  I believe we can, and must, do better.  The first step to assisting the marketplace of ideas is to challenge ourselves to listen, truly listen, to someone with whom we disagree.