Butler’s instincts are different than mine in part because she believes that wrongheaded speakers wield extraordinary power over college students, and implies one cannot really oppose bad values without suppressing the expression of them.
If free speech does take precedence over every other constitutional principle and every other community principle, then perhaps we should no longer claim to be weighing or balancing competing principles or values.But all people are created equal and endowed with dignity by virtue of being human. A trans student’s dignity—their quality of being worthy of honor or respect—is not something an anti-trans speaker can take away; Butler is wrong to write as if their dignity is so contingent that an anti-trans speaker can somehow abscond with it (but not if he’s denied a campus platform and says the same words elsewhere?). Trans students will spend decades in a world with folks who attack their dignity. They are done a horrific disservice if the message they get at university is that their dignity is thereby diminished every time.
We should perhaps frankly admit that we have agreed in advance to have our community sundered, racial and sexual minorities demeaned, the dignity of trans people denied, that we are, in effect, willing to be wrecked by this principle of free speech, considered more important than any other value. If so, we should be honest about the bargain we have made: we are willing to be broken by that principle, and that, yes, our commitments to dignity, equality, and non-violence will be, for better or worse, secondary. Is that how we want it to be?
(Straight white males are meanwhile tremendously advantaged by the cultural message that they receive on college campuses: that they should brush off any attack directed their way because no one has the power to alter their trajectory. A message contrived with their empowerment in mind could hardly be more effective.)
Butler is wrongheaded in implying that if one always permits speech that attacks a dearly held value one may as well give up on defending it as a primary value—as if one cannot hate something a person says, defend their right to say it, and employ other tools, like logic, or satire, or protest, or organizing, to ensure that their view doesn’t prevail. It is especially strange that Butler suggests excessive protections for speech might threaten Berkeley’s commitment to nonviolence; suppressing speech with the coercive power of the state is the position that not only threatens but is antithetical to principled nonviolence. [emphasis added]
Finally, Butler ignores the likelihood, born out in history, that any speech restrictions that Berkeley employs will be disproportionately enforced against marginalized students, thereby exacerbate inequality rather than advancing equality.
Henry Louis Gates’s counsel is still right: “Let them talk.”
Gates wrote considerably more than just those three words, of course.
My brother was telling me in the last year or so about how he's been reading about legal theories, particularly in connection to crime and punishment and also on the subject of rights. He was telling me that for a time in American and British legal thought, it might have been during the interwar period of the 20th century, that natural law was sorta frowned upon. There was some interest on the part of some in the United States in having a criminal-justice approach closer to a Scandinavian model. All that might be me misremembering some stuff but the crux of the model was that it isn't based on what's known in Anglo-American traditions as that of natural rights or natural law. The idea, instead, is that a citizen has whatever rights or privileges or opportunities the state confers to them and not until and not otherwise. In a way, I guess, some of the headlines coming from California have had me wonder whether in some sense American legal thought and jurisprudence has shifted from a natural rights/natural law convention to a more statutory approach where you only have the rights the state says you have and not on any kind of inalienable basis. Not sure if that's anything more than mere speculation.
But the speculation seems pertinent in the sense that when people are concerned that free speech absolutists will open up opportunities for hate speech there isn't even a mere implication that granting freedom of the press or expression to unsavory groups will be harmful, it's more of an assumed fact. If Friedersdorf is certain all humans are created with dignity by virtue of being human he's probably also aware of legal and philosophical traditions that say precisely that this isn't the case, that people have dignity if the state grants it to them. Just because it's not a popular view in American contexts doesn't mean nobody's ever thought of it or ruled by it.
One of Gates' observations was that our contemporary understanding of the First Amendment is that, contemporary. By contrast, the barest and most literalistic reading of the First amendment was that Congress would pass no law establishing a church or restricting expression but that states could and Gates explained that states did pass such laws consistently.
Remember how the Oregon constitution explicitly denied citizenship to blacks? There wasn't necessarily anything in the bluntest and most literalistic reading of the First Amendment to say that the original form of the Oregon constitution and charter documents violated the First Amendment. The 1857 form of the Oregon constitution doesn't seem to have been thought of as breaching anything about the First Amendment. Despite language explicitly excluding blacks from rights of citizenship Oregon was accepted into the Union anyway and there was no First Amendment conflict. So if free speech advocates seem really, really insistent that attempts to argue for the necessity of constraining speech seem needed now to combat racism those who argue that this approach is dangerous have been saying that it's dangerous because we already know that when states and institutions are given the freedom to suppress freedom of expression that has come to be understood as part of our civil rights these suppressions have historically played against rather than for minorities and marginalized groups.
As Friedersdorf and others have put it, the civil libertarian concern about law and the power of the state can be starkly framed as follows, do not pass any law unless you're willing to live with the fact that enforcing that law could involve the state using lethal force to enforce it. You have to be willing to grant that the laws you want enforced are laws that the state would be willing to kill people. Why? Well, broadly speaking because that's what so very often happens and even more so, perhaps, these days. It's not like we never hear about cops shooting people who thought, so far as can be reported ,they were cooperating willingly with law enforcement demands.
Or as someone named Paul put it, the governing authority does not bear the sword for nothing. Paul, to go by the epistle to the Romans, understood that the very nature of the power of a governing authority was its use of the sword. At some point American progressives and liberals may need a reminder that the power of the sword is the nature of the beast and that a commitment to non-violent enforcement of any policy is at some point going to be oxymoronic. If you want a policy enforced, the sword will at some point be involved. It doesn't always have to involve lethal force in the most literal way, but the power to enforce is still what it is. Even if we try to have a bunch of people use tools like shame and peer pressure (which, obviously have their place and are powerful incentives) that's still a kind of force.
It's probably because I have been in a glum funk this year about a few things but if both the right and the left can propose there are limits to speech when it suits their particular concerns it's like Roger Williams didn't write the Bloody Tenet.