Wendy Kaminer: Dangerous Spaces for Free Speech

July 26, 2016

Free speech on college campuses has become a topic of impassioned debate, as the lines between hate speech and harassment, or peaceful protest and public disturbance, are rather blurry and hotly contested. Particularly since the protest movements of the 1960s, college campuses have long been a kind of testing ground for different norms and boundaries of free expression. At the same time, some institutions of higher learning have speech codes which many feel are serving to silence debate and discussion among students in the name of protecting feelings.

Our guest this week, Wendy Kaminer, is among those who believe that things like speech codes and trigger warnings have gotten out of control. Kaminer is a lawyer and writer who has dedicated much of her life’s work to defending free speech. She and host Lindsay Beyerstein engage in a spirited discussion about the grayest areas concerning speech and censorship on campus and in the culture at large.

Kaminer will also be one of the many fantastic speakers at the fourth Women in Secularism conference, September 23-25 in Alexandria, Virgina.

This is point of inquiry for Monday, July 25th, 2016. 

Welcome to Point of Inquiry, a production of the Center for Inquiry. I’m your host, Lindsay Beyerstein, and my guest today is author and civil libertarian Wendy Kaminer. 

Wendy is a featured speaker at CFI as women and secularism for a conference where she’ll be talking about feminism and free speech. Other featured speakers include Katha Pollitt, Rebecca Goldstein and Soraya Jamali. I’ll be there, too, as one of your employees. The conference will be held September twenty third through 25th in Arlington, Virginia, near Washington, D.C.. 

Go to women and secularism, dawg, to sign up early. Bird registration is on now. 

Wendy, as a civil libertarian, what would you say is the greatest overall threat to free speech in society right now? 

People, people, you know, people. Most people just have an impulse to regulate or restrict whatever speech they consider harmful. 

I think we’re certainly seeing some very serious threats to free speech coming out of America’s campuses and the end, because speech restrictions and various forms of censorship have been popular on campuses for the past 20 or 25 years. We’re now seeing people entering middle age who are in positions of influence outside academia, who believe that speech that is considered offensive to whoever is considered a disadvantage was never a member of a disadvantaged group, is a form of discrimination and should be officially restricted. And my concern is that we are moving towards a Western European approach to regulating whatever is popularly considered offensive or discriminatory speech. You know, the U.S. is an outlier among Western nations in protecting whatever people might consider hateful speech. And I’m I’m not sure we’re going to long remain one. 

What kinds of free speech infringements on campus do you have in mind? 

Well, speech codes, which date back 25 or 30 years, which prohibit saying things that people find offensive, prohibit gestures, prohibit jokes, punish students for making remarks that subjectively offend some people. Go to the fire, dawg. And you will see example after example, you can read the speech codes. You can read about the kind of cases that come up on campus. We had you know, there are cases like students being disciplined or investigated for conducting free speech events because people find that offensive. We have cases of students not being allowed to distribute copies of the Constitution on Constitution Day. You know, I don’t think this will be news to many of your listeners because the increasing absurdities of campus censorship have been in the news for the last couple of years now. But they really they date back 20 or 25 years. 

This is how widespread, Ramanan. How why? It’s very widespread. It’s very widespread. 

What percentage of campuses would you say have things like this in place? 

Oh, I you know, I off the top of my head, I would say it’s at least half, but probably more. 

If you go to the fire doors, you can find a pretty good accounting of it. But even schools, you know, even in places where they don’t have very restrictive speech codes and I think I think it’s it’s routine. It’s common for schools, universities and colleges to have very restrictive speech codes. There is a lot of self censorship that goes on. There are things like bias reporting teams that encourage people to inform on each other to administrations if they hear something offensive, something that makes them uncomfortable. It’s very common. It’s very common. And there’s very you know, there is fairly strong support among millennials, among young people today for restricting whatever is considered hateful or offensive speech. 

And you don’t think that there are any arguments to be made in terms of restricting certain kinds of speech? I mean, we do everyone seems to accept things like threats or shouting fire in a crowded theater. Are there any other strongly in a crowd here? 

Well, there are arguments to be made for everything. The question is, are there good arguments? I don’t think there are good arguments to be made for equating speech with conduct, for equating offensive speech with discriminatory conduct. I don’t think that’s a good argument. I think that’s just sophistry. 

Why is it sophistry to say that, say, put downs, you know, from people, say, in authority towards people who are not in authority based on. 

But first of all, we’re not talking about we’re not talking about people in authority, talking to people who are not in authority. 

We’re talking also about peers talking to each other, but we’re talking about professors and administrators who are also bound by the same codes. Right. 

Well, it is. No, we’re not really talking it. They’re not exact. Well, they’re different situations. 

I mean, obviously, you don’t want a professor abusing his students. You don’t want a professor yelling at students, calling them stupid, calling them ugly and. But that’s not really what we’re talking about. We’re talking about things like the list of micro aggressions that came from the University of California, the kind of things that you’re not supposed to say. You’re not supposed to express the opinion that affirmative action is racist. You’re not supposed to say that America is a meritocracy. You’re not supposed to say things like America is colorblind or I believe in a colorblind society. No, those are political opinions. People may agree or disagree with them, but their political opinion. And when you start restricting or chilling political opinions, you’re getting into very dangerous territory. You know, the definition of abusive or offensive or harassing speech has greatly expanded to include the expression whatever. Someone who is considered a member of a disadvantaged class considers to be an unwelcome idea. 

Campuses are also communities in which people live and work. 

It seems like there’s some some point to be made in terms of creating norms and practices that allow people to be comfortable and happy in their community, that they’re not just sort of passive installation of knowledge about the people whose speeches is repressed. 

How comfortable do you think they are? 

I think, you know, academia, college is not supposed to be an intellectually comfortable experience. And if you can’t bear to hear ideas that make you uncomfortable, maybe you shouldn’t be in school. Maybe you should just go into a very insular community where everybody agrees with everybody else and you never hear any unwelcomed speech. 

I mean, isn’t that kind of a harsh assessment that people who aren’t as emotionally resilient shouldn’t be educated? 

I don’t believe it is. I think that and I think we’re doing people a great disservice if. We tell them that that it is appropriate for them to feel traumatized by hearing an unwelcome idea by me or some embarrassing rabbit analytical by hearing political disagreements. 

The people are, in fact, traumatized or thrown off or to. 

They didn’t used to be. They didn’t used to be. Because they weren’t they weren’t told that they should be. 

I mean, do you really think that somebody should be traumatized when they hear someone else express a negative opinion about affirmative action? I mean, how should that be traumatizing to say I think affirmative action is racist? I mean, I don’t happen to think affirmative action is racist, but should that be it? Should somebody be traumatized by hearing that? Or should. Should that make somebody so uncomfortable that the person saying it should be silenced in some way? 

I know. I mean, it sounds like that’s a really extreme outlier in terms of speech codes. But I do think that they’re not outliers, Lindsey. 

They’re not outliers. Those kinds of cases are not anomalous. 

Those kinds of cases are typical that it’s really typical that there are rules against criticizing affirmative action on college campuses. I find that hard, Danroy. 

It’s typical that that saying things like I think affirmative action is racist is considered a micro aggression. 

And there may not be firm rules, rules against uttering whatever is considered a micro aggression. But people are certainly there’s a lot of self-censorship that goes on and people are certainly discouraged from saying things like that. 

When you university when the University of California system sends out a memo saying, you know, this this list of expressions are micro aggressions. 

It’s telling people not to say them. It’s telling junior faculty that if you say these things, there’s a pretty good chance that you won’t get tenure. 

But if you’re talking about self-censorship, isn’t that just countering speech with more speech if there are no concrete sanctions attached? I mean, there always when you say something, there’s always the risk that people are going to think what you said was stupid or offensive or that they won’t want to promote you in intellectual field based on a position that you’ve espoused. I mean, that seems like that’s part of free speech. 

I’m not sure I understand your question. I don’t think. I don’t think you can have a healthy academic intellectual environment when people are not expressing their ideas, because if they do express their ideas, they won’t get a job. They’ll be vilified by their community or they might actually be disciplined or sent to counseling. 

See, I agree with you about the discipline and sent to counseling. I mean, that seems like it really is a clear cut violation of free speech that people are being punished for expressing ideas that should be totally within their purview, like affirmative action is racist, not something I believe, but something that should be well within the realm of debate. But it seems like there’s a big difference between that and simply saying that people will be frowned upon, people be criticized, people won’t be promoted for expressing certain views. I mean, that seems like that’s perfectly within free speech because it’s just more speech and people reacting to speech. 

Well, yes, it’s it’s it’s very different, but it’s. You end up with very insular. 

Ideological, ideologically dogmatic communities. You know, you don’t mean people. People aren’t learning. If you only hear from people who agree with you, you’re really not going to learn very much. You’re not going to learn about other views. You’re not going to learn how to defend your views because you never have to defend them because people might be afraid to counter them. 

And I think if you’re talking about chilling the speech of junior faculty because they’re afraid they won’t get tenure if they express whatever are considered politically incorrect ideas. Is that a formal kind of censorship? No, but it is a real threat to academic freedom and to intellectual diversity. 

Do you feel like there was ever a golden age of free speech on campus? 

I think that if you go back 30 or 40 years. There was much less repression of speech on campus than there is today. 

I don’t think there’s any question. When I was in college, we didn’t have speech codes when I was in college. People wouldn’t be punished or vilified in their communities for making politically unpopular remarks. 

But in the 1960s, wasn’t there an actual political fight? I mean, in the 1960s, universities, even public universities, tell students that they weren’t allowed to do things like protest the Vietnam War, where universities actively restricted student political expression as a policy. 

No, no. I mean, with the fights were over things like student takeovers of administration buildings, which is not exactly an exercise in free speech. You know, you don’t have a free speech, right, to take over somebody’s building. And we had horrible incidents. We had the murders of students at Kent State by National Guards in. There were four students murdered in nineteen seventy. So, yes, there were some terrible responses to student protests. But for the most part, it was a time of protest. There was quite a lot of protest going on. And we know we didn’t have speech codes, speech codes really date back to. I think probably the late 1980s, early 1990s, and we didn’t have this. 

You know, there was not this common belief that if you said something that offended someone, you were violating their civil rights. 

You’ve written against that trigger warnings. Why do you feel that those are pernicious? 

I think that trigger warnings. 

Well, first of all, that trigger warnings like everything, like many other speech related issues on campus today, have been taken to an extreme. So that trigger warnings are not just requested or expected. If somebody is going to shows, you know, a beheading or some really awful graphic violence, trigger warnings are are expected for. 

I don’t know, just discussions of almost anything that might make somebody uncomfortable. I think the problem is that externally warning, though, I mean, that trigger warning is a way of telling people this speech is dangerous. 

This speech is potentially harmful. I think a trigger warning in many ways exaggerates the potential harm of speech. It tells students to be on guard against speech because they may be traumatized by it. And I don’t I don’t really think that’s healthy. And and I think that it also has the effect of discouraging people from bringing up a lot of subjects. And I think that it gives people it gives students an excuse not to learn about subjects they might consider unpleasant because one of them were a trigger warning. So I think in part supposed to accomplish is to warn students that they might not be able to tolerate hearing this. They might get traumatized if they hear this. And again, it sends a message to students that they’re very fragile. 

But what is the empirical evidence as to how widely they’re practiced, are who they are, who, how widely they are expected? 

How widely they’re expected. 

Yeah. Like how many institutions? I. I’ve sort of tried to see how many institutions require. 

I did not know that. That’s a good question. I mean, I don’t know if anybody. Yeah. I don’t know if any. 

I don’t know if anybody has tried to quantify the use of trigger warnings. If there are any requirements for trivial warnings, you might go to the firewall and see what kind of information they have compiled about it. 

I think the American Association of University Professors was trying to do some empirical work around that, but I don’t think it’s complete yet. 

Yeah. It’s an interesting question, but I think there is there certainly seems to be an expectation of trigger warnings among many students. 

And it’s it’s sort of, you know, the idea of trigger warnings, the notion that some speech is triggering has really entered the vernacular. You know, you hear and you hear it all the time. 

Now, people say this is triggering for me, but I’m not sure if it implies that it’s objectively dangerous rather than that the fit between somebody’s psyche and the material might not be good for them personally. 

Well, that’s just another way of saying that it’s dangerous. 

So hard for you. I mean, I wouldn’t say that peanuts are dangerous, but they’re very dangerous to certain people who have an well. Yeah. So you’re talking yet. 

But you’re talking about very quantifiable physical harms and physical symptoms. I mean, that really, you know you know, Lindsay, that’s not what we’re talking about. 

But I’m not talking about us having the idea. Dangerous to open a bag of peanuts on an airplane. 

Do you think that trigger warnings are setting the stage for future censorship? 

I think trigger warnings are just one piece of a larger cultural revolt against free speech. I think the stage has already been set for censors censorship and there is a lot of censorship out there on campus. And as I say, I think that we may well see it, see it incorporated into law in the next, I don’t know, 10 or 20 years. We may see U.S. law changing. 

I mean, would that be so terrible, I mean, I personally don’t support the idea of banning things like hate speech, but if you look at Europe and Canada, they don’t seem like particular, doesn’t seem like they’ve been particularly horrible consequences on a wide scale, having more restrictive norms around those sorts of things. 

Oh, I completely disagree. I mean, first of all, you have in Britain, you have cases of people being arrested for wearing t shirts that have offensive messages on them. That’s that’s serious repression. And I also think that talking about the violence that is equating speech with violence, which is what advocates of restricting whatever they consider hateful speech often do, they talk about the violence of the word and they take that quite literally when you take literally that the metaphoric power of language, when you take literally this metaphor, that words are forms of violence, you end up justifying the use of violence in response to words. And that’s how the heckler’s veto becomes an assassin’s veto. 

But do you think that there’s been a whole lot of state violence? I mean, there are people who’ve been arrested for wearing T-shirts, but talking about violence. 

No, not state violence, but we see what we see on campus. We see on popular speeches, speakers being assaulted. We saw the staff, you know, the cartoonist said at Charlie Addabbo being murdered. We saw the you know, we saw the uproar over the Mohammed cartoons. 

Do you think you can draw a bright line between radical Islamists views on what’s legitimate expression and liberal campus speech codes? 

I think that you can say that when you talk about speech as a form of violence, you’re apt to justify the use of violence in response to speech. I think you can say that. No, of course, there’s not a direct cause and effect between what happens on an American campus and the violent acts of radical religious people. But I think that you can draw a direct line between the culture on American campuses and the belief that speech is a form of discrimination or sometimes a form of violence. And the entitlement that some students feel to shout down unpopular speakers or even physically assault them. 

I mean, it’s seems like in general, though, U.S. college campuses are pretty physically nonviolent. I mean, even when speakers get shouted down like Bill Bratton or Ann Colter. But in general, people don’t seem to be coming to blows. And even the most censorious students, like at Yale, were pretty much limited to getting in someone’s face and yelling without laying a hand on them. 

Yes, I think that’s true. But you can also find instances where speakers are actually physically assaulted, you know, not not not seriously. 

I mean, that was the disturbing case in Missouri where that journalism professor called for a photographer to be physically removed because she didn’t like him recording in the safe space. 

That was borderline physical as the clip. 

Yeah, no, I don’t think it’s common, but it happens. 

And when it does happen, the students who are involved in it tend to feel justified because the speaker was spreading hate. Because, you know, hateful speech is a form of violence. I think that’s a very dangerous metaphor and a very dangerous metaphor, especially for people to take seriously, to take literally. 

Do you feel that? Are you against the idea of safe spaces on campus? 

I think a safe space is a space in which you are safe from physical harm. I think that my idea of a safe space is a space in which everyone feels free to say exactly what they want to say. That’s my idea of a safe space. My idea of a safe space is a space. It’s safe for speakers. 

But you don’t think that it’s appropriate for students to be able to say, well, we’re going to have essentially the equivalent of private club in which we enforce certain speech norms? 

Oh, I think that students have a right of association to form whatever clubs they want to where they want to form and to make whatever rules they want to make about their clubs. 

So if students want to say, OK, we have safe space club in the women’s center, which means no corroborative. 

Yeah, that’s you know, that’s their prerogative. But students are often saying more than that. Students are often saying that they want the entire campus to be a safe space so they don’t want speakers invited who have views that are offensive to them. 

If you were giving advice to campus activists about how they should handle a speaker that they think is whose views are dangerous, let’s say not that their speeches assaultive in itself, but somebody whose views they really feel and feel is dangerous. What are some of the ways you can go about opposing that speaker without engaging in shutdown tactics? 

Well, depending on the format, you may not be able to actively engage the speaker if there’s no question and answer period, you might not get a chance to challenge the speaker in those kinds of cases. You can hold your own counter event, your own counterdemonstration. You can demonstrate demonstrate out. You can demonstrate as much as you want. In my perspective, and you should demonstrate as much as you want, as long as you don’t deprive other people of their right to hear the speaker. 

You can also go and listen to the speaker, because if you don’t listen to people who have views that you find offensive or hateful, you won’t begin to understand their thinking and you won’t know how to counter their arguments because you’re not you know, if you’re just yelling that somebody is racist or somebody is homophobic or somebody is sexist, you’re not really countering an argument. 

You’re just making an ad hominem attack. You’re not going to learn how to counter the argument unless you listen to it. 

How do you feel about students protesting graduation speakers? That seems to be a real hot button issue these days. 

Well, again, students have to have a right to protest whatever they want to protest. They have a right to protest graduation speakers if they don’t want to hear from. But, you know, I. I just don’t think it’s a healthy development for schools to be disinviting speakers because students don’t want to hear them. 

Do you think. I do not. It’s not really. 

It’s not really about the students rights. I mean, I strongly support the right to protest whatever you want to protest in whatever uncivil terms you want to use, as long as you’re not shouting people down and making it impossible for other people to hear them. But I think it would make for a much more intellectually stimulating and diverse and healthy environment if people would listen to people and would look forward to listening to people who had views that were very different from this. 

Why do you think our society has become hostile to free speech? 

I think that for most people. The impulse to censor comes naturally. 

I think that generally people are mostly tolerant of the speech that either they like or support or at least indifferent to, and that the impulse to want to censor whatever speech you consider harmful or dangerous is very common. I think the question is why has our why has the concept of what constitutes dangerous speech become so expansive so that we’re not we’re really we’re not talking about actually inciting violence. 

We’re not talking about yelling fire forcefully in a crowded theater. We’re talking about airing political disagreements in perfectly civil ways. We’re talking about airing ideas that people don’t want to hear. And so the question is, why has why has hearing unwelcome ideas, opposing political ideas come to seem so dangerous to people? 

And I think there are a few reasons for that. 

You know, a lot of people have pointed to the phenomenon of helicopter parenting, to the cosseting of of students from the time they’re very young. I think you can look at the personal development movements of the 1980s that talked about speech being a form of abuse, that talked about, you know, being yelled at by your parents was the equivalent of being physically beaten by your parents. I think you can point to the feminist anti pornography movement that popularized this notion that unwelcomed speech is an actual civil rights violation. And then I think you had in the 1990s, you had colleges struggling with diversity, trying to bring in more diverse student populations and not being very good at dealing with the kind of clashes and conflicts that that brought about. And so the impulse was just to, you know, try to tamp down conflict by censoring speech. 

How can colleges do better to foster a diverse environment in a healthy way where people do feel welcome and validated and included an intellectual community without censoring? 

I don’t have a short answer to that. But I think that. 

And it’s a very fact based question. I mean, if you gave me. If you don’t have a general prescription for all colleges and universities. If you gave me a particular situation, I might have an idea. Have my own ideas about how to deal with it. But I think you begin with the premise that especially in an academic community, especially in an intellectual community, one of the last things you want to do is censor speech and censor whatever are considered unwelcome ideas. And I think you want to encourage students not to feel fragile, but to feel resilient and capable of countering ideas that they don’t like. 

So you think that therapeutic discourses have been a big, big force in terms of our willingness to curtail speech as everything is sort of become an outgrowth of fabric had been a piece of it? 

I think they’ve been a piece of it. You know, I think the therapeutic culture is a piece of it because the therapeutic culture tells us that people are very fragile. People are easily wounded, that you have to build up their self-esteem. You know, some people will point to the self-esteem movement that was so popular in the 1980s that in discouraged, discouraged teachers, even from criticizing their students that discourage parents from criticizing their kids. That people was just supposed to be praised all the time. I mean, that’s a bit of a caricature with self-esteem. Movement was. But I think there’s a little truth in it. So I think therapeutic culture is a piece of it. I know. I think these trends are always overdetermined. You can’t find one cause one simple cause I think that different cultural movements come together and you end up with a kind of perfect storm. And in this case, it’s a kind of perfect storm of censorship and disregard for freedom of conscience and freedom of speech. 

Do you feel like there’s a cross fertilization between ultra left and ultra right views on this topic in terms of what’s acceptable to censor? 

I’m not sure I know what you mean by that. 

Oh, well, I mean, I’m thinking about things like the Bush administration’s willingness to center censor scientific findings, let’s say, or sex ed restricting medically accurate sex ed and other things like that in schools. 

Well, as I say, I think that the impulse to censor whatever speech you consider harmful is common. It’s not new to the left, nor the right has a copyright on it. And I don’t think it’s the ultra right or the ultra left. I think it’s people in the middle as well. I think people just the impulse to censor, I think, is a nonpartizan vice. 

Oh, really? That’s all the time we have. Thank you so much for coming on the program and I look forward to seeing you women in secularism for now. 

I look forward to seeing you, too. Thank you. 

Lindsay Beyerstein

Lindsay Beyerstein

Lindsay Beyerstein is an award-winning investigative journalist and In These Times staff writer who writes the blog Duly Noted. Her stories have appeared in Newsweek, Salon, Slate, The NationMs. Magazine, and other publications. Her photographs have been published in the Wall Street Journal and the New York Times’ City Room. She also blogs at The Hillman Blog (http://www.hillmanfoundation.org/hillmanblog), a publication of the Sidney Hillman Foundation, a non-profit that honors journalism in the public interest.