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The get out of free speech card


Rob has already taken some whacks at Lawrence Bobo’s widely and justly mocked “free speech must end where any criticism of academic administration begins” op-ed, but I can’t resist a few of my own. For the uninitiated, here’s an almost perfectly reliable indication that you’re going to get a self-serving argument for suppressing speech on naked viewpoint-discriminatory grounds:

Would it simply be an ordinary act of free speech for those faculty to repeatedly denounce the University, its students, fellow faculty, or leadership? The truth is that free speech has limits — it’s why you can’t escape sanction for shouting “fire” in a crowded theater.

  • The critical tell here is the misquote of Holmes’s argument that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” This tells you that the phrase is being offered as a rote cliche intended to preempt objections on free speech grounds and that Bobo doesn’t really have any idea what he’s talking about.
  • There is a perverse way in which the quotation is apt, because Schenck v. US is one of a series of cases in which the Supreme Court upheld lengthy jail sentences meted out to people for giving anti-war speeches. After Holmes changed his mind after being roasted by his academic friends both in public articles and private letters, he tried to pretend that the throwaway line about “clear and present danger” in Schenck represented a more stringent First Amendment standard than the old “bad tendency” test, but it’s clear that at the time they were being used interchangeably. (Debs, tellingly, did not cite this alleged new standard at all.) And this is clear on its face, because these speeches were very, very clearly not remotely analogous to falsely shouting “fire” in a crowded theater. They were not incitements to imminent disorder or violence; the speakers were prosecuted because the Wilson administration wanted people punished for criticizing its decision to enter World War I, and the Court unanimously (and disgracefully) deferred to it.
  • Invoking this revealingly edited Holmes quote, then, is pretty much always the sign of a lazy argument for prosecuting speech one doesn’t like, and this is certainly no exception. Criticizing the conduct of administrators is not a threat to imminent violence of disorder; Bobo wants to suppress it because he dislikes the content.
  • Particularly embarrassing is Bobo’s assertion that norms of free speech and academic freedom do not protect speech with “the intent to arouse external intervention into University business.” Evidently, we are once again far afield from shouting fire etc. But it’s particularly outrageous coming from admin at Harvard, which is better positioned than any university in America to tell external intervenors — whether members of Congress or petulant billionaires — to eat shit. There are many institutions of higher education facing genuinely existential crises that makes them subject to leverage (granting that in many cases this can also serve as a pretext for administrators to do bad things they want to do for independent reasons.) Harvard has vast resources and is never going to lack for a surplus of extremely qualified applicants. That a dean operating within this context is willing to argue in public not that the school should stand up to external bullies but that internal critics of the administration should be sanctioned if they ever take sides against the family is a true profile in the opposite of courage.

The attacks on higher ed are only going to get worse, but this is a reminder that elite admins are more likely to be active collaborators than resisters.

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