Free Speech for the Mum

Consider the following scenario, a commonplace of academic life. A professor decides to devote part of his ethics class to the ethics and economics of higher education, with readings on the value of the BA degree, and on the place of athletics in higher education. To focus the conversation, the professor cites examples drawn from the students’ experience at their home institution. In the course of doing so, the students give voice to complaints about the institution. The professor acknowledges the complaints, not necessarily agreeing or disagreeing with them.

Taking the acknowledgement as agreement, students give voice to their grievances against the university on social media, citing what they take to be their professor’s support for those grievances. The university’s administration, sensitive to PR issues, catches wind of the student’s claims, and notes the apparent support for those claims offered by members of the faculty. The faculty member is then called before the Dean and a witness to give an accounting of the affair.

The Dean, citing the Faculty Handbook (which itself cites the AAUP’s 1940 Statement on Academic Freedom and Tenure) questions whether the faculty member’s classroom behavior comports with the following provision from the Faculty Handbook, which is in turn taken as a binding clause in the faculty member’s employment contract:

Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.

At this point, some version of the following scenarios takes place.

  1. The faculty member gives an acceptable account of his classroom behavior. The Dean is receptive to the faculty member’s message. The student is asked to delete the item from social media, and does. The matter is dropped. Life goes on.
  2. The faculty member fails to give an acceptable account of his classroom behavior, in large part because the Dean was unreceptive to the faculty member’s message at the outset. Lacking tenure, the faculty member is dropped, and life goes on–though not quite as it did.

Obviously, the preceding two options are neither exclusive nor exhaustive, but they illustrate the dynamics of life in higher education.

As it happens, I was recently in the very situation I’ve described. Happily, and to the credit of my supervisors, things ended with outcome (1). But I have in the past worked at institutions (and with Deans) who could just as easily have put me in outcome (2).

The outcome turns as much on what you the faculty member have said or done, as on what students have made of it, and how reasonable or unreasonable your supervisors happen to be. A non-tenured academic job depends on how the relevant Dean, VP, or Provost construes the phrase “introduce into their teaching controversial matter which has no relation to their subject.” It depends, in other words, on how an administrator understands controversy and relevance.  If you introduce a topic that’s too controversial and insufficiently relevant in the administrator’s eyes, there’s a very real possibility that you’ll be put out on the street. Note that what makes something “too controversial” or “insufficiently relevant” need not be political, at least in the ordinary or colloquial sense of “political.” It could just be a matter of institutional PR. If you say something disparaging of your own institution—or something that could be construed as disparaging it, or even something that someone else uses to disparage it—you could be out of a job.

I make heavy weather of this rather ordinary scenario to raise the following question: how easily does this scenario fit the script of the political right, according to which free speech on campus is ubiquitously threatened by the left-wing forces of political correctness? The answer is: not at all. And yet things like this happen all the time. In fact, it’s just the tip of the iceberg—that is, the tip of the iceberg of restrictions of or threats to academic freedom that have absolutely nothing to do with the politics of the left.

Why aren’t they discussed? The scenario itself should give the answer. The restrictions in question are contractual or quasi-contractual stipulations intended to keep the university’s internal matters confidential. The whole point of the stipulations is to restrict speech about those matters so that the university’s administration can control the message it wants to give about the university. The point of control is PR, not PC: every university (and really, every institution) wants to speak with a single consistent voice, putting the best face on its activities, burnishing its reputation, and encouraging a constant, ideally uninterrupted flow of revenue (or its functional equivalent), whether in the form of enrollment, subsidies, grants, donations, or whatever. If what one has to say is critical of one’s own institution, one can’t discuss the matter publicly for fear of losing one’s job: talk about internal matters at one’s own institution either violates one’s employment contract (usually a provision in the Faculty Handbook) or gives the appearance of doing so. So the risks are too high.

The paradoxical result is that those who know the most  about the inner workings of academia are least able to discuss what they know. Meanwhile, those who know nothing or next to nothing feel free to express their ignorance. Though the restrictions on speech are most stringent in the case of those who lack tenure, they affect those who have it, as well: even tenured faculty are obliged to honor their employment contracts, so that the relevant restrictions on speech are as much a feature of their contracts as they are of the contracts of non-tenured faculty. In my experience, tenured faculty can afford to be bolder than non-tenured faculty, but the boldness in question is a matter of degree. The predictable result is that boldness is a commodity in short supply.

I say this less to complain about the restrictions per se (however objectionable I find them) than to complain about the false narrative we’ve come to inherit about “free speech on campus.” Judging by that narrative, the restrictions on free speech on university campuses arise from left-wing zealots intent on policing unfettered debate in the name of identity politics. I don’t deny that that happens, and is wrong when it does. But we need a more nuanced and informed conversation that acknowledges the fact that campus restrictions on free speech have a wider variety of sources than the political correctness of the left.

Free speech is, to be sure, restricted by politically correct speech codes and the administrators (and students and faculty) who love them. But it’s also restricted by other things. It’s restricted by corporate policies that restrict what can be said about the internal workings of one’s institution. It’s restricted by the requirements of Institutional Review Boards (IRBs), which restrict the sorts of questions you can ask students if you’d publicly like to discuss the answers (whether you identify the students individually or not). It’s restricted by regulations on confidentiality, whether contractual or a matter of state or federal law (e.g., FERPA). It’s restricted by anti-discrimination law like Title IX (including local interpretations of those laws, including right-wing interpretations of it). It’s even restricted by mundane things like administrative policies governing the use and placement of flyers, or the proper use of bulletin boards, electronic list-serves, or the use (or mention) of institutional names (or proper names or presumptively proprietary information) in public settings. It’s restricted as well by PR policies that limit contact with members of the media (e.g., without the written permission of the university’s administration).

Above all, speech on campus is restricted (or not) by the institutional culture of the diversity of institutions out there, which vary in their sensitivity and responsiveness to complaints about “insensitive” or “inappropriate” speech—in contexts where “insensitivity” or “inappropriateness” may have nothing to do with politics, much less identity politics. Consider some examples, one relatively minor, the other kind of egregious. (I’ve left out all identifying claims in these anecdotes, but even relating them in this form is regarded by most as untenably risky.)

Minor example: I once got in trouble for closing the door on and “prematurely” ending a conversation with a student who admitted to plagiarizing a paper: I ended the conversation because having admitted the plagiarism, the student insisted that it “didn’t mean anything,” and wanted to negotiate a passing grade on the assignment. I was uninterested in continuing that particular conversation, and was becoming aware of the fact that the student was trying hard to manipulate me and waste my time. So I told her, gently but firmly, that the conversation was over, and quietly closed my door.

The student complained to a faculty member who had no supervisory role over me, and no investigative jurisdiction over the matter itself; the faculty member then made a written complaint to my Dean without ever having consulted me about the charges he was making. The complaint was of a kind calculated to derail one’s career: the charge was that I had screamed profanities at the student for no reason, and slammed the door in her face–a set of claims with literally no factual relation whatsoever to what had actually happened, but which, if true, might have spelled trouble. As it happens, the charges were dismissed by the Dean as lacking merit, and the case went no further, but change a few inferences here and there, and things could have happened very differently.

I call this a “minor” example only because it ended up consuming relatively little of my time, and ended up having a relatively benign outcome, but bear in mind that what was at stake throughout was the very real possibility of being dismissed from my job on the basis of a false claim, made by a confessed plagiarist, amplified by a credulous colleague, to a supervisor with the authority to recommend my dismissal.

Major example: I got in trouble with another Dean for telling another confessed student plagiarist that she didn’t belong in higher education—a taboo claim, apparently, because everyone belongs in higher education, regardless of their behavior or fitness for academic life.

My comment was a response to the student’s confession, during questioning about an assignment, that yes, of course she had plagiarized that particular assignment as well as every other assignment she had done in my class; after all, she had plagiarized her way through the entirety of her college career, and no one had “made a big deal of it before,” so why was I making a big deal of it now, just as she was about to graduate cum laude? What was one, or two, or three plagiarized assignments in the face of four years’ worth of  plagiarized assignments? And what better proof of Khawaja’s essentially pedantic fixations that he should bring this matter up in the context of so trifling and irrelevant a subject as philosophy? Was it really conceivable that philosophy could hold up her graduation?

Having told her that with an attitude like that, she didn’t deserve to graduate, I had, I was told, “usurped the role” of the Dean’s office in saying so. I’m not really sure what the “role” of the Dean’s office was supposed to be, over and above getting the Dean a secretary even dumber than he was, and getting him a salary two or three times larger than mine. As far as I could see, the role of the Dean’s office, such as it was, seemed to consist in losing a case that a ham sandwich might successfully have prosecuted.

Having received a confession through me of the students’ four years’ worth of plagiarism, it was insinuated to me by the Dean’s office (without a determinate allegation, much less determinate evidence) that I had sexually harassed (or assaulted) the student in question.* Evidently, the student had, on reflection, changed her story somewhat when questioned by the Dean’s crack team of investigators.

When I asked for particulars, the staff member who made the insinuation took on a stricken look, as though the bare recounting of them would overwhelm her capacities of narrative and endurance. When I persisted, I was told to talk to the Dean about them–it being above her pay-grade to explain allegations, though decidedly within it to make them. When I asked to talk to the Dean about the insinuations made to and about me by his staff, he was just never available. (The one time I saw him on the street, he pretended not to see me, then walked away in the reverse direction.) I was then told to wait for the case to be adjudicated after summer break. (I had made the report to the Dean’s office in early June.)

I waited until mid-September of that year, asked again about the case, and was told to be patient. And so the semester rolled on, flowing into the following year, and then into the following semester–October, November, December, January, February. Finally, in February of the year following the report, I was told that the case had been dropped “for lack of evidence.” How, I asked, was a confession “lack of evidence”? “These things,” the Dean told me, “are not written in stone.” I guess not. But surely they are written somewhere? Well, I was told, the student had brought an attorney with her–as though that disposed of the matter. What difference did that make?, I asked, but got no answer.

It was relevant that the student had actually confessed to having her papers written by her brother, who was a law student at the time. Obvious possibility: a student who, with the collusion of her brother, had confessed to lying her way through four years of school might well have dressed that same law student brother up as a lawyer and intimidated a mind-blowingly credulous (and craven) Dean with fake threats of litigation. I offered that hypothesis for the Dean’s consideration, but got no response; apparently no one had bothered to look at the “lawyer’s” credentials, so I suppose evidence was “lacking” on that count, too. It later turned out that the Dean had overlooked the fact that the statute of limitations on adjudication of cases of this sort had run out some time in August of the previous year, that is, six months prior to his telling me that the case had been “dismissed for lack of evidence.”

In other words, the “lack of evidence” turned out to be his dereliction of duty. Capitalizing on the “lack of evidence,” the student then put in a grade appeal (where, given that “lack of evidence,” claims about her plagiarism were ruled out of court), got an A in the class, and graduated cum laude. She’s now a real estate broker in New York. I’m sure she makes more than I do. My only hope at this point is that she makes more than the Dean.

I could go on. Neither of the preceding episodes had anything to do with political correctness or identity politics. Neither student was interested in politics. The relevant issue in both cases concerned the relationship between plagiarism and moral desert—the stuff of academic life, but not exactly the stuff of headline news or contemporary ideological quarrels.

I haven’t done a systematic study or survey of the literature on campus free speech, but my impression is that much of the discussion of that topic focuses on left-wing political correctness as a restriction on speech, ignoring just about every other source of restrictions. Memo to the people conducting this debate: there are lots of other unrelated restrictions on speech. It’s an open empirical question which source produces the greatest number or the most onerous or problematic restrictions on unfettered speech on campus. Something to keep in mind the next time someone holds out the likes of Milo Yiannapolous as an expert on life at our universities.

Consider the possibility that when it comes to academic life, the system is set up so that the people who know the most end up saying the least. That restriction stares some of us in the face–while going entirely under the radar screen of everyone else. The result gives new meaning to what the punk band Discharge once called “Free Speech for the Dumb.” It also draws needed attention to something they didn’t sing about, namely, the absence of free speech for the contractually and uncomfortably mum.**

*I don’t know whether the allegation was that I had harassed her or assaulted her. Indeed, I don’t really know whether the allegation was sexual at all. That’s just what I heard in the tone of voice of the person tasked (by her superior, the Dean) with relaying the insinuation to me.

As is often the case with “allegations” of this sort, one is asked to defend oneself against them before one knows anything about the content of the allegation. And often enough, one never knows. To be told the content of an allegation is thought to be poor form. It’s also thought to give one an unjust advantage: for if you know the content of an allegation ahead of time, you can know ahead of time that it’s rubbish; if you know that, you can’t be knocked off balance during an interrogation; and if that’s the case, you cannot successfully be interrogated. The technique comes straight out of the interrogation scenes in Orwell’s 1984. If you think that such techniques couldn’t possibly be used on a college campus, you have a lot to learn.

Just to be absolutely clear (one can never be too clear): I had no sexual contact of any kind with the student. We were physically separated by about ten feet with a desk between us. Not a single word of the conversation we had bore even the slightest relation to anything sexual. There was literally no truth whatsoever to the insinuation–if the concept of “truth” can even be said to apply to an insinuation too lacking in specificity to be put in words, but is conveyed instead by arched eyebrows and a hushed, anguished tone of voice.

**NB: A reader privately confessed to some confusion about when and where the events described in the text took place. To belabor the obvious: I never said when or where they took place, and never intended to. I’ve been teaching at the university level since 1994, and have taught at lots of places. That’s about as specific as I intend to get.

Postscript, December 13, 2017: I deleted two sentences from the original post that struck me as redundant.

10 thoughts on “Free Speech for the Mum

  1. Since you posted this on Facebook, I’ve thought about it a lot, and also about the connection between this post and others that came both before (e.g., on Jemele Hill) and after it (e.g., the female police officer fired for mentioning white privilege). In my case, I’m less interested in the fallacy of political correctness and identity politics as the drivers of free speech suppression on campus. What I find most disturbing is that contractual and quasi-contractual employment terms that constrain free speech rights are so ubiquitous at this point across virtually all industries that it seems the First Amendment is no longer relevant for anyone but hobos and drifters. It begs the question of what legal standing an employer has to supersede those rights, especially as the trend has become for all employers to impose those terms on their employees, and as those terms are increasingly understood to fall far beyond the actual workplace. I understand the particularly rich irony of these strictures when they are imposed by academic institutions, who’ve long touted the “academic freedom” to which they purport. But apart from that particular irony, there’s nothing different higher education is doing from what every other industry is doing (and I’ve personally experienced it in healthcare). They’re all offering the same Faustian bargain: Want to keep a job? Then relinquish your rights to free expression, both in the workplace and in your life outside of it. One could make the argument that a “rational agent” could resist the bargain, but only if employment options reasonably existed outside the bargain, which increasingly, they don’t. I’m frankly puzzled that the practice of summarily threatening or terminating employment over speech has the kind of legal standing it does to even be allowed to exist in contracts and policy manuals. On the one hand we’re told “whistleblowers are always protected.” On the other, we can be fired for airing a concern or grievance outside the organization to the media, or criticizing our superiors for, say, being permissive about academic fraud (or healthcare or corporate fraud, for that matter). Really, what is this whole set of practices but a “company man blood oath,” in which the employee grants the employer a license to lie and cheat? I frankly can’t imagine a single case in which such terms serve a good purpose that isn’t already served by some other, more reasonable, law or policy (e.g., HIPAA in the case of healthcare confidentiality breaches).

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    • I understand your puzzlement, but legally speaking, things are not all that puzzling. Here’s the First Amendment:

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      Strictly speaking, it says that no federal legislation is permitted to abridge free speech. By a broader reading, involving the doctrine of incorporation, it ends up saying that no legislation is permitted to do so. But no reading of the First Amendment says that the amendment governs contracts.

      Over time, we’ve come to believe that First Amendment values ought, morally speaking, to apply to contracts and the ethics of organizations, and those values are supposed to have special application to college campuses in the form of “academic freedom.” But at the end of the day, unless a violation of those values amounts either to breach of contract, a crime, or some clearly adjudicable tort, there is no such thing as “free speech” within a private organization. Whistleblowing is a special and idiosyncratic case. As with so many things, we romanticize it when things work out, or cluck our tongues when things get completely fucked up, but as for the intermediate cases between “working out” and “completely fucked up,” no one really notices or cares. That all gets filed under “life is unfair” in the garden-variety sense. And that, of course, is where the action is, because that’s where the vast majority of cases fall.

      Incidentally, it’s a common tactic to ruin the reputation of anyone who engages in whistleblowing in a less-than-obvious case of malfeasance. The person who engages in that kind of whistleblowing seems like a one-eyed fanatic whom it’s easy to discredit. Consider the following obvious (and easily exploited) set of facts:

      1. Most people have psychological issues at some time in their lives.
      2. Some of these people will visit therapists.
      3. In order to get paid, every therapist is obliged to adduce a DSM-5 diagnosis for her patient.
      4. Every DSM-5 diagnosis is by definition a “mental disorder.”
      5. So: virtually everyone who visits a therapist has a “mental disorder.”
      6. So: a large proportion of those with psychological problems are technically speaking “mentally disordered.”

      Think of how easy it is to have a field day with this set of facts, as long as you know what to do with them. Now suppose you’re a potential whistleblower seeing a therapist, but afraid that “it will all come out.” Most likely, you will stay quiet rather than risk it being publicly known that you suffer a “mental disorder.” This despite all of the blather one hears about how we’re making the world a “stigma-free” place. One of many common obstacles to saying what needs to be said, whether or not the obstacles amount, legally speaking, to a First Amendment abridgment of free speech.

      The only legal remedy here is very far-fetched: to use the doctrine of unconscionability as a constraint on contracts.

      If a contract is unfair or oppressive to one party in a way that suggests abuses during its formation, a court may find it unconscionable and refuse to enforce it. A contract is most likely to be found unconscionable if both unfair bargaining and unfair substantive terms are shown. An absence of meaningful choice by the disadvantaged party is often used to prove unfair bargaining.

      That is a correct moral description of the state of affairs we’re discussing, but legally speaking, it won’t fly. (It’s a long story why it won’t, but it won’t.)

      “Realistically” speaking, there are only two remedies here. (I put “realistically” in scare quotes, because the two remedies are slightly more realistic than invoking unconscionability, but only by degrees.) One is to revive unions. The other is to change the culture.

      Unionization would break the asymmetry of bargaining power that employees suffer vis-a-vis employers, and produce gains for free speech and other things. But unionization is not all peaches and cream. For one thing, unionization increases employment costs, and thus decreases the net number of workers employed. For another, when it comes to free speech, unions engage in the same behaviors as employers. And though people on the left love anti-trust legislation, anti-trust legislation is often a major obstacle to unionization. So there’s a choice to be made there, and it can’t be made by the ad hoc expedient of announcing that anti-trust legislation is wonderful except when it comes to unionization.

      The deep underlying problem, in my view, is cultural. Americans love to brag about free speech, but they don’t really believe in it or practice it. They’re afraid of it, and fundamentally incompetent at engaging in it. They’re afraid of the expression of emotion. They’re afraid of certain buzzwords. They’re afraid of certain topics. They’re afraid of “where things will go,” as in the phrase “let’s not go there.” They want everyone “to stay on topic,” “to stay focused,” “to keep our eyes on the ball,” to “be a team player,” “to keep this appropriate,” to “keep this business,” to “not get off-track.” They’re in love with memes, cliches, catch-phrases, meaningless slang, and backslapping bonhomie.

      A huge amount of public discourse in America consists of evasions, rationalizations, cute ways of getting everyone to smile at or through everything, and above all, tactics for narrowing the permissible boundaries of discourse so that everyone maintains a “professional demeanor” and keeps things “appropriate.” The word “appropriate” is by itself the neutron bomb of American discourse: it destroys discourse while leaving policy infrastructure in place–which is what makes it so easy to fire people for being “inappropriate,” and then hire replacements who are more “appropriate.”

      Nothing will change until the culture changes. But the culture will not change until the people in it demand change. And those who demand change will have to suffer for it. They will have to risk opprobrium, misrepresentation, unemployment, false accusation, defamatory whispering campaigns, and of course, failure. But that’s where we stand: either you fight and risk failure, or you don’t fight, and passively watch people butcher free speech while you convince yourself that it’s all good. In any case, as a great poet put it, hobos and drifters aside, “there’s nowhere to hide.”


  2. Two responses:
    1. Taking your direction on the constitutional text, then, American citizens don’t really have an open-ended right to free speech. Rather, it’s more accurate to say that Congress is constrained, within its scope in making federal law, from making laws that abridge free speech, assembly, etc. So Congress doesn’t have the power to issue any mandate against the suppression of free speech, and if some other individual or entity has the wherewithal to suppress the speech of others through the use of civil or criminal laws that are outside of the scope of the US Congress, they can go ahead? Do you think the Framers deliberately chose such a narrow view of free expression? Do you consider it problematic, or do you think that it’s simply consistent with the limitations of what the Constitution is capable of protecting?
    2. If the problem is cultural (we don’t have free speech because we don’t actually want it), and culture change requires sacrifices, what would you say are in practical terms the types of sacrifices a rational person should undertake? I don’t doubt any of what you say on this count about the fate of the dissident, or the necessity of the will to fight, only I don’t normally think of the unemployed, impoverished, and disgraced as representing the most effective change agents in a capitalist republic. I would think of dissent and confrontation as necessary but not sufficient, with the difference between success and failure depending heavily on what battles one chooses, how to go about fighting them, and with the help of whom. No one ever won anything – even in the long term – just by the fact of having picked some fight. We may romanticize whistleblowers, but by the same token we romanticize the protester and sometimes don’t think critically enough about the protest.


    • Taking your direction on the constitutional text, then, American citizens don’t really have an open-ended right to free speech. Rather, it’s more accurate to say that Congress is constrained, within its scope in making federal law, from making laws that abridge free speech, assembly, etc.

      Correct. Not just Congress, but all legislatures (down to town councils) are constrained by the First Amendment. But it’s worth remembering that though legislatures are constrained by the First Amendment, the First Amendment is regarded as consistent with strong restrictions on speech that isn’t regarded as falling within the scope of “free speech.” Some crimes essentially are or involve speech acts, e.g., assault, fraud, conspiracy, material assistance. All inchoate crimes (plans to commit crimes) are in the realm of speech acts. Perjury and false report are speech acts. Etc. Then there are administrative restrictions on speech. None of that is free speech.

      So the First Amendment not only doesn’t govern contracts, it’s consistent with legislative restrictions on a long list of speech acts–much longer than most people realize. And then remember that government agencies operate, internally, just the way that private firms do: they restrict what their employees can say, even if Congress was the entity that created them.

      So Congress doesn’t have the power to issue any mandate against the suppression of free speech, and if some other individual or entity has the wherewithal to suppress the speech of others through the use of civil or criminal laws that are outside of the scope of the US Congress, they can go ahead?

      I wouldn’t put it quite that way. I would say: generally speaking, Congress has no power to reach into and modify contractual restrictions on free speech that both parties to the contract are presumed to have agreed-to voluntarily, even if the agreement was the result of a disparity in bargaining power. If your hospital one day decided that no one could use the phrase “Allahu akbar” at your facility, then Congress cannot give you the right to say “Allahu akbar” at your facility. You just have to go to a more “Allahu akbar“-friendly facility. (There may be some exceptions to this, but it’s generally true.) You have no free-standing right to say “Allahu akbar” at work.

      Do you think the Framers deliberately chose such a narrow view of free expression?

      They deliberately chose it without thinking of it as narrow. They had no way of imagining the power of modern corporations. I suspect that what they they were thinking of was the internal organization of churches. If you have no national church, and you prohibit national legislation concerning the internal organization of churches, you’re left with churches conceived of as private organizations, but in need of internal organization.

      The idea was to give churches the freedom to engage in their own self-government. Even without a hierarchy like that of the Catholic or Anglican churches, you need hierarchical governance of some kind. So the idea was that the voluntarily-elected governing structure of the church would exercise its right to define the boundaries of the sayable and un-sayable within a church. There is Presbyterian doctrine and there’s Lutheran doctrine and there’s Methodist doctrine. If you’re a Presbyterian, you talk Presbyterian. If you’re Lutheran, you talk Lutheran. And so on. If, as a Presbyterian, your fellow Presbyterians come to believe that you’re crossing the boundaries of Presbyterian talk in problematic ways, they “invite” you to find another church. And unless you really wanted to insist that you were a Presbyterian, god-dammit, then you’d leave and go elsewhere. It might be annoying or infuriating to have to do so, but as long as you had somewhere to go on Sunday, vhat (i.e., what) is the big deal?

      The proto-argument for this view is Locke’s Letter Concerning Toleration. Unfortunately, Locke’s way of thinking about free speech doesn’t translate in a clear way to the modern workplace. For better or worse, the modern workplace is not a late eighteenth century Protestant church.

      Do you consider it problematic, or do you think that it’s simply consistent with the limitations of what the Constitution is capable of protecting?

      Well, I think it creates problems, but so does every alternative to it. Organizations do need to be able to control their unruly members, and on occasion, need to shut them up. Imagine an employee that went around literally defaming the institution that employed him–falsely and in irresponsible ways. It’d be problematic to have legislation that demanded that you keep the guy on payroll “because free speech.”

      Ultimately, my view is that if you have a Constitution like ours, and corporations of the modern sort, you need unions. Without unions, corporations are a runaway train. Once you get unions, they have to be tamed, too. But the demise of unions has meant the demise of democratic values in the workplace.

      If the problem is cultural (we don’t have free speech because we don’t actually want it), and culture change requires sacrifices, what would you say are in practical terms the types of sacrifices a rational person should undertake?

      Well, if a “sacrifice” is a net loss, I’d say: none. You have to pick battles you can win, and then fight them to win. The problem I have with so many advocates of workplace democracy is that they insist on chasing pies-in-the-sky while ignoring do-able things closer to earth. Every institution has these; I won’t bother to enumerate. But you have to find small-but-non-trivial goalposts that are worth achieving, and drive toward them. The unemployed and the impoverished are beside the point. We don’t lack meaningful free speech because of their inaction. We lack meaningful free speech because some of the wealthy and well-employed are reluctant to take risks (in some cases justifiably or understandably so), some of the wealthy and unemployed have been pre-empted by ESPN, and too many of the Trustees of too many institutions are barnacles on the ship of progress, insulated from criticism while inhabiting an apolitical nether-world of golf, galas, and guzzling.

      I agree with everything you say in the last sentence of (2): dissent and confrontation are necessary but not sufficient for progress. And correct, one can’t be stupidly indiscriminate in picking fights. But the first of all necessary conditions in the work of dissent and confrontation is to attract the attention of the target class of people–people whose initial reaction will either be to fire you or regard you as too ridiculous to take seriously. You can’t attract attention without making noise. So I tend to be skeptical of the criticism that says that protesters should be decorously inconspicuous–nice, respectable little citizens with an unerring sense of the “appropriate.” The Mr Rogers model of protest only goes so far. Eventually, Mr Rogers has to yield to Chuck D.

      But hey–brothers gonna work it out, right? They don’t fear a Pak Planet for nothing.


  3. This case doesn’t exactly fit what I was describing in this post, because it involves a bit of left-wing political correctness, but change the particulars of the case, and you have the dynamic I describe: the fundamental motivation here is not so much left-wing political correctness as fear of adverse reputation, regardless of its nature.

    This is the key phrase:

    The posting of unpleasant material on blogs or social media may be detrimental to the reputation of the university.

    Isn’t it unpleasant to be told that your research application will have to be denied because your findings may turn out to be unpopular? I guess some forms of unpleasantness are more equal than others.

    For a similar range of vision and level of moral courage, consider this case–a Nazi employee fired from his job, not because he turned out to be a Nazi and his employer had scruples about employing one, but because people felt threatened by the crude, angry anti-fascists who didn’t want him there.

    The employer’s rationale sounds plausible if you prize safety above all things, but there’s an obvious problem: the employees might well have felt threatened if the employee had been a principled anti-Nazi (or a principled anti-imperialist, or principled critic of the police, or principled anything). Now suppose that a bunch of Nazis, imperialists, and members of the FOP had called in with “dozens of angry, crude, and threatening messages” attacking them. If the morality or immorality of the employee’s ideology is irrelevant to the business decision, the employer could with equal consistency have fired the most vile Nazi as fired the most righteous exponent of truth and justice. Both are inconvenient for the business, and both create PR problems. But if PR is your god, the substantive difference between them will make no difference. You’ll fire both or either without blinking an eye.

    It’s telling that no one bothered to ask about the particulars of those “threatening messages,” much less to ask whether there was a reasonable basis for inferring a real threat from them. We now take for granted that when people profess to feel threatened, a real threat must surely exist. But if you really believe that, then you can’t complain the next time you see a gruesome police video of someone shot dead because the police officers confronting him really and truly felt threatened by him. If you have the right to feel threatened by your own shadow, why don’t they? The underlying dynamic seems to be: sacrifice everything to PR, sacrificing free speech and free speakers along the way. A good recipe for a race to the bottom.


  4. In retrospect, it occurs to me that there’s one major omission in my post: how free speech on campus and in other workplace settings is affected by civil litigation or the threat of it.

    Take a case in which X, an individual, sues Y, an institution. So X is the plaintiff, Y the defendant. Imagine that the existence of the suit is not widely known: X doesn’t want to tip her hand, and Y wants a quick settlement.

    Now imagine that X goes around having putatively “casual” conversations with people who work at or for Y, and/or induces professional colleagues from other institutions to do the same (i.e., strike up “casual” conversations with employees at Y about “what’s going on at Y”). Or imagine that she adds people from Institution Y to Facebook to be able to spy more effectively on them, then uses what they say on Facebook to advance her suit. In other words, what might outwardly seem like ordinary conversations have now covertly become discovery motions in a lawsuit. Without quite lying, X would in this context be using people as mere means to her ends. Obviously, some such people would go entirely deceived or used. But those who figured out what X was up to might then be obliged to watch what they said (whether directly to X, or to anyone conceivably connected to X) for fear of being unwillingly or unwittingly dragged into X’s “discovery motions” (or legal intelligence operations). Where litigation is an issue, that is a major impediment to free speech. But in America, litigation is always an issue.

    Meanwhile, Y’s defense against X’s suit will (metaphorically) be to “take the Fifth,” always the most effective means of legal defense in any context: keeping silent requires the plaintiff or prosecution to do all the work while you the defendant or the accused watch, and pounce on their mistakes. But notice that “keeping silent” in this context is ambiguous as between upper management’s self-consciously being silent and upper management’s keeping rank-and-file members of the institution silent in contexts where their unself-conscious blabbing might generate adverse discovery material. The imperative to keep members of the institution silent will then manifest itself as an obsessive-compulsive desire for upper-level institutional approval before anyone says anything. Remember that some members of Institution Y may not even know that the litigation is taking place (and given this set-up, no one will have the incentive to tell them, as in: “Shut up! Don’t you realize that we’re in the middle of that lawsuit we didn’t tell you about?”). Consequently, rank-and-file won’t understand why there’s such a premium on checking with admin before speaking out in public. But it will be there.

    In all of the discussion about left-wing (and right-wing) political correctness on campus, I don’t think I’ve seen very many discussions of the chilling effect of legal correctness on campus. But lawyers are more powerful than mere ideologues. Indeed, ideologues acquire power through the law, and need lawyers to advance their interests through the legal system. If we want to understand and defend free speech in the workplace, it seems to me that we ought to stop obsessing about “political correctness” and focus on that.


  5. In 2008, Virginia Commonwealth University faculty were astonished to discover that their administration had signed a secret agreement with the Philip Morris tobacco company that prohibited professors from publishing or even discussing the results of their research without the company’s permission. Under the agreement, queries from third parties, such as news organizations, were to be directed to the company and university officials were to decline to comment. The school’s vice president for research asserted that the contract, which violated the university’s own rules, struck a reasonable balance between the university’s need for openness and Philip Morris’s need for confidentiality.

    –Benjamin Ginsberg, The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters, p. 8.


  6. It’s the day before spring semester classes start at Felician. About ten minutes ago, I happened to walk through the cafeteria, which is scheduled to open tomorrow for business. The cafeteria workers were all seated around a table, presided over by their boss, who was reading off a new and revised set of behavioral policies–apparently the result of a “consumer survey” they sent out last term. The policy enunciated as I walked by:

    No talking about your home life on the job, because our customers may be offended by that.

    No consideration of the possibility that some of “our customers” might be offended by a sotto voce policy that treats cafeteria workers like members of a totalitarian state. Why, exactly, would anyone be “offended” by cafeteria workers’ casual talk amongst themselves about their home life? Is it that the “customers” are offended that cafeteria workers have a home life?

    Rest assured that the reasoning can’t be that conversations about the workers’ home lives are interfering with their capacity to do their jobs effectively or efficiently. I’ve worked at Felician for a decade, and our cafeteria workers are one of the best things we have going for us. I can’t think of a single instance in a decade where I had a complaint with the job performance of a cafeteria worker. And this comes from someone who almost never brings a lunch from home. Lunch in the cafeteria is often one of the high points of my day.

    Most of the talk about “academic freedom” presupposes that (a) the threats to it come from the left, and (b) those threatened by assaults on it are academics. Well, some of the threats come from the left, and some of those threatened by it are academics. But it’s worth remembering (yet again, for the nth time) that some restrictions on free speech are purely a matter of corporate PR, and some adversely affect non-academic staff. Apparently, “consumers” can say anything they want in the cafeteria, but staff have to receive them–and serve them–with due deference. Gag me with a fucking spoon.

    Postscript, January 24, 2018: I later discovered that cafeteria workers are also prohibited from speaking any language by English except on break, even in conversations amongst themselves. Apparently, “customer’s” virgin ears are offended by the sound of Spanish.


  7. More from Benjamin Ginsberg’s The Fall of the Faculty:

    (1) In a particularly egregious fraud case, the president and chief financial officer of Texas Southern University (TSU) were both charged with defrauding the school of hundreds of thousands of dollars in separate schemes. The school’s former CFO is currently serving a ten-year prison term while the former president, Patricia Slade, avoided possible prison time by reaching a plea agreement with federal prosecutors to repay approximately $100,000 of the more than $600,000 she is alleged to have misappropriated. An unusual feature of this case involves three TSU students who helped authorities expose Slade’s misdeeds. The students, members of the TSU student government, came across suspicious payroll records in 2005 and brought them to the attention of law enforcement officials. When they became aware of the students’ actions, university authorities responded by charging the students with harrassment and violations of the school’s speech code. The students were arrested by the university police and expelled from the school. In 2008, after Slade had been fired, a federal jury awarded the students more than $200,000 in damages to be assessed against the school and its administrators (pp. 89-90).

    (2) In a 2008 case, for example, a U.S. district court in California held that a UC Irvine chemical engineering professor was not entitled to First Amendment protection when he was disciplined for asserting at a faculty meeting that his department relied too heavily on part-time instructors…The same conclusion was reached quite recently by a federal court in Idaho in a case involving the firing of a tenured professor, Habib Sadid, who was a frequent critic of the Idaho State University administration (p. 134).

    Chapter 5 of Ginsberg’s book, “There Is No Such Thing as Academic Freedom (for Professors): The Rise and Fall of the Tenure System,” is telling and useful.


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