Recently, I gave a presentation that afforded me the opportunity to ponder the connection between some hot-button free speech topics: campus speaker disruptions, the arrests of two University of Connecticut students for using the n-word, and laws mandating that employers respect people’s preferred pronouns and titles. What follows is my current thinking on these topics and their relationship to each other.
More so than in the past, younger generations have the view that civilly listening to certain types of speakers inappropriately gives these speakers a platform to perpetuate their harmful agendas. The idea is that neutrality perpetuates the status quo, so champions of social and legal equality do not want to be bystanders to anyone whose views, if taken to the extreme, lead to genocide. This is not a particularly nuanced approach, given that extreme views are then attributed to those who would never endorse them. However, the approach is not entirely unreasonable, given our current cultural moment.
The problem is that these views are quite harmful to the free exchange of ideas and academic freedom – principles that are generally applicable and focus on process, not the identity of beneficiaries of particular policies, while also doing a significant amount to advance social and legal equality.
Consider the increasing problem of campus speaker disruptions, such as those that recently occurred at Georgetown (where I am currently a Visiting Scholar at the Center for the Constitution) and Northwestern. At public universities, there is likely an affirmative obligation to prevent “the heckler’s veto” and protect speakers from those intent on preventing others from hearing their speech, if these speakers are invited by faculty or student organizations.
Private schools are not subject to the First Amendment, but many schools, like Georgetown, make promises to “provide all members of the University community, including faculty, students, and staff, the broadest possible latitude to speak, write, listen, challenge, and learn.” This is a lofty goal, and implementing this goal is difficult and unwieldy – because preventing student disruptions may require police to remove students (involving the police is often dicey and presents many hazards to the students) or students to be punished and expelled.
However, there is no free speech right to engage in coordinated efforts to shout down a speaker, which deprives the speaker of the ability to use her designated venue, and the students and faculty of the ability to listen, learn, and challenge the speaker. Far more than teaching students a particular, ideologically charged vision of social justice, universities should be promoting the academic norm that a system where the loudest speaker wins leads to constant shouting, not rational solutions or truth. The divide between a speaker’s words and a speaker’s actions must hold firm, if we are to maintain our academic values and standards, and not enter a realm where the loudest or most coordinated get to dictate what everyone else says, hears, and believes. We can condemn a speaker’s actions without disrupting his or her ability to speak and others’ ability to listen.
But this divide, between words and actions, is increasingly being eroded. Two students at the University of Connecticut were playing a version of “the penis game,” where you alternate saying the word penis louder and louder until someone gives up. The students horrifyingly switched the word to the n-word. They were not shouting the word at anyone in particular, but another student caught the episode on video, and police investigated and arrested the students.
Connecticut has an anti-ridicule provision of its hate crimes statute that provides: “A person commits this crime if he ridicules any person or class of people on account of creed, religion, color, denomination, nationality, or race. Violations are punishable by up to 30 days in prison, a fine of up to $50, or both (CGS § 53-37).”
This provision is quite obviously unconstitutional. Individual words cannot be banned from the English language. Further, provisions such as these discriminate on the basis of the speech’s underlying viewpoint, which is unconstitutional even within unprotected categories of speech. This type of behavior could potentially be punished if uttered with the intent to threaten, but here the students were shouting at no one. Despite the obvious unconstitutionality of investigating and prosecuting these students, the President of UConn called for accountability and due process, claiming that “[i]t is important that we remember that we get to decide who represents our community, and what behavior truly reflects who we are at UConn.”
To some degree, universities can promote particular values, especially academic norms against cheating or treating students disrespectfully in class. Public universities cannot, consistent with the First Amendment, make viewpoint-based decisions about which speech to favor, although they perhaps can decide that certain types of shouting or vulgarity, regardless of viewpoint, are unbecoming. That is not what happened here, as UConn is likely responding to massive student outcry and claims that students do not feel safe, despite the fact that the students targeted no one.
“It’s more than just a word,” student protesters maintained, and that is true. The word the arrested students chose to yell is perhaps the most reviled and most powerful word in the English language. It is the only word I will never use, not even when quoting directly from another source. But it is also just a word, and words are given special protection as opposed to conduct or concrete action. For a university president to call for legal accountability for behavior that constitutes entirely protected speech is also quite shocking, and contrary to rule of law principles. University presidents should set a better example for the values universities have been designed to promote.
Clearly words have power, but if federal and state government actors suppress words, or force others to use words they don’t wish to use, governments have an even more dangerous power – over our own thinking instead of simply over our actions. Laws requiring people to use individuals’ preferred titles and pronouns should therefore also be carefully scrutinized. These laws may be (I don’t have a fully resolved view about this) constitutional as applied in the employment context or contexts resembling public accommodations, but the government cannot generally mandate respect (or non-disparagement), or mandate adherence to a particularly ideology or worldview about the definition of gender and the limitations of gender identity.
Personally, I think we should respect others’ pronoun preferences for a variety of reasons. I agree that gender identity differs from one’s chromosomes or their anatomy. And I do not believe that requiring coworkers to accommodate people’s title and pronoun preferences is akin to forcing public school students to salute the flag. But the ideologically pure do not simply want to create a more respectful world or attempt to convince others of their views – views about which speech is beneficial, about which words are socially acceptable, and about how to define gender. The ideologically pure want to legally mandate that you favor their ideology — with possible jail time as a punishment. This is not unreasonable, given how disrespectful and bigoted many are, and given the emotional burdens of constantly encountering that disrespect and bigotry. But their world is also a world that is inconsistent with both equality and pluralism – and often with the First Amendment.