January 2, 2017

"But if professors like Shurtz are barred from the classroom for their speech, then... [t]here would be no principle to which dissenting voices could appeal for protection."

"Once a professor’s public speech — or even speech in a relatively private setting, so long as some students are there or some students hear about it — is seen as sufficiently offensive to enough students, that would be seen as justification for suspending or firing the professor. And the lack of this principle would be felt not just by Shurtz but also by those who talk about alleged white privilege, the evils of Catholicism, the folly or bigotry of Trump voters, the immorality of choosing the military as a profession, or the depravity of capitalists or Israelis — as well as those who post Muhammad cartoons, criticize homosexuality or transgender rights theories, or discuss possible biological differences between male and female cognition and temperament.... [I]f people do endorse this view, they should endorse it with their eyes open, realizing what a vast range of academic speech — left, right and otherwise — it would potentially affect."

Writes Eugene Volokh (at WaPo), analyzing the treatment of Nancy Shurtz, the lawprof who wore blackface at a Halloween party.

54 comments:

tim maguire said...

There are many issues in play here, and Volokh tackles an important one, but there's a hidden consistency issue. If offense is in the eye of the offended, then what's the critical number of offended? If, as was suggested in an Instapundit excerpt this morning, the intention of the offender can be taken into account if, and only if, the offender is known to have the right opinions, then who is the "right opinion" adjudicator and can (should? soon enough, must?) the offender get a declaratory judgment?

A littler question vexes me--why is blackface on a white person still considered per se racist? How do the PC police maintain such a blinkered, selectively exhaustive understanding of history?

rhhardin said...

The catalogue of impermissible symbols must constantly change so that there's always an in-group.

It's not about offensive speech but keeping the group in charge small.

You can't have just everybody knowing what's magically offensive.

rhhardin said...

Perhaps some gay duo could do a trends in offensive symbols, with critique.

There's the swastika, the noose, the cross, blackface. There must be millions more.

Pictorials and criticisms.

MikeR said...

Volokh is trying to get through to people who still think that their opinions are moral laws of nature. If Trump's election didn't do it, this won't either.

campy said...

Universities are going to launch an all-out war on ungoodthink.

Boxty said...

You can't reason with crybullies and the left won't kick them off campus because they serve a useful political purpose.

Anglelyne said...

"And the lack of this principle would be felt not just by Shurtz but also by those who talk about alleged white privilege, the evils of Catholicism, the folly or bigotry of Trump voters..."

Really? In practice, apparently not. The "principle to which dissenting voices could appeal for protection" seems to be a capricious one, robustly alive and well when appealed to in some cases, and mysteriously slipping from minds and memories in others. Or perhaps in the latter instances it is only obscured or demoted by a weightier set of principles (the ones grounded in "who, whom"). Last I looked, that guy at Drexel who was tweeting for the genocide of whites doesn't seem to be facing any sanctions beyond some simpering equivocations from his employers about how they don't approve of such naughtiness, but, well, we all have to respect the principle of free speech.

The point being that appeals to principle are meaningless if the defenders of that principle aren't willing to do more than make nice arguments about why it's a good idea for everybody to respect the principle. While they opine, screeching thugs go right on getting people sacked, banned, shut down, etc., and the right to freedom of speech remains completely one-sided.

Anglelyne said...

Boxty: You can't reason with crybullies and the left won't kick them off campus because they serve a useful political purpose.

Or, as far as administrations are concerned, a useful financial one.

David said...

Another meddling Russian.

Eric the Fruit Bat said...

Maybe there's something at the link about being able to stand in the winds that would then blow.

I liked it when the servant says he wishes rainwater were beer but it ain't.

Michael K said...

The death throes of the traditional university are pretty ugly.

Lucien said...

The problem isn't just the length of the list of thought and speech crimes, it's the idea that each must be punishable by losing one's livelihood.

If some Dean just took the professor aside and said "Bad professor, no blackface ever", and that were the end of it, then that would probably be the end of it.

robother said...

Maybe SJWs are ultimately a self-eliminating parasite. Anyone vulnerable to the disease will internalize its values and smugness to the point where they will engage in behaviors that trigger the rage of the other SWJs and become pariahs in the SJW community. But they will have destroyed their bridges to the normal community in the process.

Peter said...

The operative principle found on most campuses today is not free speech, it's Marcuse's "repressive tolerance."

With that in mind, perhaps universities will modify their stance to include (as they have in admissions) holistic evaluation: if the offender has otherwise been politically reliable, then all is forgiven.

Crazy Jane said...

Survival in the land of newspeak, previously known as academe, requires avoidance of all thoughtcrimes, period. Failure to adhere to the code is doubleungood, and the consequence is exile. This is not a secret and has been well understood for many years.

If proles like me know enough to keep our mouths shut and heads down, I don't see why the high priests should not be held to the same standard.

traditionalguy said...

Universities were truth seekers that got bifurcated into science and culture wings that respected each other's turf. Then the Marxists from the 1960s inserted a Party Political agenda that respects nothing and no one except for Carriers of approved Ideology. All counter revolutionaries are to be taken out and shot.

Unknown said...

When was the last time some professor got to criticize homosexual behavior or defend the Pope without losing their job? Point is, all of this "tolerance" is only for leftist views. If you don't have the "correct speech", like, say, telling students to grow up over halloween costumes, then you will be crucified regardless of Tenure.

So pardon me if I don't shed too many tears for professors being destroyed; because the vast majority of them fully approve when conservative students and professors are silenced.

--Vance

Mark said...

And the lack of this principle would be felt not just by Shurtz but also by those who talk about . . .

Has this guy not been paying attention to how the rules work? They work one way. There is no uniform application of the rules. There is only an arbitrary and capricious application.

DKWalser said...

Volokh is one of the better writers on legal questions. (Our hostess is too, but she seldom bogs about such topics while Volokh blogs mostly about legal issues.) He's also nonpartisan. I don't read everything he writes (particularly after he went behind the Post's paywall), but I have no idea who he voted for in the last election. He's definitely a small 'L' libertarian, but that's all I know about his political leanings.

hawkeyedjb said...

Volokh is correct that freedom of speech has been eliminated at Oregon. This is a long-sought goal at most universities, and Oregon has gone ahead and chosen the pretext for doing so. As we all know, it is a completely one-sided ban; there is surely no chance whatsoever that some of Volokh's contra-examples would result in any institutional inquiry, let alone punishment. Leftists are secure in their knowledge that they have a weapon that can only be used by certain people. They have made the Safe Gun a reality - if you don't possess the right attitudes, you can't use it.

Sebastian said...

"[I]f people do endorse this view, they should endorse it with their eyes open, realizing what a vast range of academic speech — left, right and otherwise — it would potentially affect." Just to pile on with Tim and Anglelyne: foolish consistency is the hobgoblin of righty profs. Progs have their eyes wide open. But their principle is a little different from the one Volokh flogs here. Speech that serves the cause is good; doubleplusungood speech is bad. Speech that offends good Others is bad; speech that offends bad Others is good. Who, whom is always the key question. As long as the left has the power to answer, there's no need for Volokhian "consistency." Unless and until the balance of power shifts, and "free speech" becomes a useful lefty tool again. Which it was for its early prog advocates: see Laura Weinrib, The Taming of Free Speech.

hawkeyedjb said...

Volokh is correct that freedom of speech has been eliminated at Oregon. This is a long-sought goal at most universities, and Oregon has gone ahead and chosen the pretext for doing so. As we all know, it is a completely one-sided ban; there is surely no chance whatsoever that some of Volokh's contra-examples would result in any institutional inquiry, let alone punishment. Leftists are secure in their knowledge that they have a weapon that can only be used by certain people. They have made the Safe Gun a reality - if you don't possess the right attitudes, you can't use it.

Rob McLean said...

[t]here would be no principle to which dissenting voices could appeal for protection.

Sorry, but dissent is not allowed until two weeks from Friday. (You've waited eight years...you can wait a little longer, can't you?)

DKWalser said...

...Last I looked, that guy at Drexel who was tweeting for the genocide of whites doesn't seem to be facing any sanctions beyond some simpering equivocations from his employers about how they don't approve of such naughtiness, but, well, we all have to respect the principle of free speech.

Which was part of Volokh's point. Shurtz's university is making the claim that they are not censoring her speech. They are merely punishing her for the hostile environment made by her speech. That is, she's being punished not for what she "said" but for the disruption her speech caused. In his very long blog post he addresses a number of problems with the university's position. Having demonstrated that the university's position is inconsistent with First Amendment protections because it's not view point neutral in practice, he then addresses the hypothetical that somehow a university could enforce their rule against disruptive speech. In this section of his blog post (which is where the quoted material comes from) he points out that the defenders of the university's action against Shurtz wouldn't like that strange new world. He goes on to say that, even if they did like it, the university's rule would still violate the First Amendment because it would prevent the free inquiry inquiry into controversial subjects the Amendment is designed to protect.

rcocean said...

"So pardon me if I don't shed too many tears for professors being destroyed; because the vast majority of them fully approve when conservative students and professors are silenced."

Yeah, this is just a Trotsky vs. Stalin politburo fight. As a non-Communist I don't care.

rcocean said...

"So pardon me if I don't shed too many tears for professors being destroyed; because the vast majority of them fully approve when conservative students and professors are silenced."

Yeah, this is just a Trotsky vs. Stalin politburo fight. As a non-Communist I don't care.

rhhardin said...

I remember when speaking freely at mandatory awareness raising seminars only resulted in your not being invited next year.

n.n said...

The first principle of the Pro-Choice Church is that principles are selective.

Unknown said...

This all goes back to the absurd practice of having students evaluate their instructors at the end of each course.

William said...

What's the inside word on wearing a Cosby sweater? It would probably be a career killer to wear a Cosby sweater while discussing the consent issues surrounding campus rape.

n.n said...

The Pro-Choice Church will not be deconstructed on principle, but rather when people fear the reconstitution of institutional racism under [class] diversity, or that their life may be deemed inviable or inconvenient to the ruling regime perhaps rationalized by scientific mysticism, or when their livelihood is threatened by social justice adventurism for political progress.

Jupiter said...

It's for the children.

Gahrie said...

... [t]here would be no principle to which dissenting voices could appeal for protection."

There isn't any principles now...just the raw lust for power and vengeance over your enemies.

Strange how the calls for comity, and the appeal to principles, ethics and tradition all happen immediately after it becomes the Republicans turn to treat the Democrats exactly the way the Democrats have been treating the Republicans........

javabeast said...

A white person wearing black makeup is not necessarily wearing blackface.

Birkel said...
This comment has been removed by the author.
Birkel said...

If the professor sues, she wins. The courts will protect her. The university will pay the attorney's fees.

And that beat will continue until the academy destroys itself. The seed corn is nearly gone. Leftists do not produce* so they must consume the great stores of value left from previous generations.

*Individual Leftists might, but not the bureaucrats who distribute. (Redistribute is a malapropism, evincing a belief that earning is the same as distributing.)

William said...

Further thoughts on the Cosby sweater issue: If you wore a Cosby sweater to subliminally emphasize the point that all men, even the most trusted patriarchs, are potential rapists than all SJWs can stand behind you. If, on the other hand, your Cosby sweater is worn as sartorial blackface to make the point that black men are potential rapists then no decent person can stand in your corner. In this case intent is paramount. There should be a free and open discussion before making a rush to judgment.

William said...

What about Al Jolson? Isn't it about time we took his star off the Hollywood Walk of Fame?

Jupiter said...

The remarkable aspect of this particular witchhunt is that everyone involved is fully aware that Professor Shurtz is not a witch and did not cast any spells. One or more vicious little wastes of oxygen saw an opportunity to harm someone they saw as having higher status and more or better possessions than themselves. They seized that opportunity, raised the hue and cry of "racism", and the "academic community" came running. Apprised of the circumstances, and in no conceivable doubt of Shurtz' innocence, those worthies hastened to erect the stake and pile the faggots high. To suppose that anyone involved in this sickening travesty is other than utterly corrupt and completely contemptible is simply impossible. The University of Oregon is a spreading stain on the underwear of civilization.

TwilightofLiberty.com said...

Whatever happened to seeing someone do something in poor taste, saying "What an asshole" and going on about your day? We are such a culture of pansies.

And i'm not saying that wearing blackface is an asshole move. Its right up there with casting black people to play our honky founders in some sort of musical theater play thing, as far as i'm concerned.

Hyphenated American said...

I do not understand why conservative white students do not demand universities to prosecute professors who attack "whiteness".

Unknown said...

There is a fixed set of obviously and objectively true and virtuous ideas and groups which may not be criticized. These ideas and groups are pure and holy and any criticism can only stem from having an evil mind. These include: BLM, feminists, gay marriage, trans people, safe spaces, microagressions, the EPA policies, climate change, welfare moms, any brown people, taxing the rich, and the virtue of government (socialism), among others. One may not point out unintended consequences of any government action or policy.
On the other hand, to criticize men, whites, Christians, the Pope, Republicans, rednecks, Western Civilization, Shakespeare, Mozart, working hard, self-reliance, or Science is to strike a blow for a new world of total perfection and is thus the opposite of a crime. There are no thought-crimes for which a person on the left can be convicted.

Crazy Jane said...

This is a consequence of having diversity apparatchiks in every college department and every public agency and every corporation of any size. Members of this industry have a vested interest in finding racism and bigotry. This is why writing "Trump" in chalk on a sidewalk becomes a Serious Matter. It is why saying, "I believe the most qualified applicant should get the job" is an Offense That Must Be Rooted Out.

It it why, in the absence of overt bigotry, diversity experts launch initiatives requiring every person to identify her/his/xi pronouns. It is why professors in graduate schools must be exhorted to post "Safe Space" signs on their office doors to palliate the fears of fragile students.

If schools and other organizations were filled with people who treated each other with basic respect, the need for diversity enforcers would disappear and, presumably so would their jobs. And we can't have that.

Thomas Cooper said...

Oberlin College recently fired an assistant professor (tenure track) for some nasty anti-Semitic posts on Facebook.

https://www.insidehighered.com/news/2016/11/16/oberlin-fires-joy-karega-following-investigation-her-anti-semitic-statements-social

campy said...

I do not understand why conservative white students do not demand universities to prosecute professors who attack "whiteness".

Because the students would be expelled for abusing the disciplinary process with malicious false charges.

The Godfather said...

Volokh makes the standard free speech argument that you should allow me to say what I want to say, so that I will let you say what you want to say. The problem with this argument in academia (and not ONLY in academia) is that the speech suppressers’ response is: We’re going to shut you up, and demonize your ideas, so we can be damn sure that you haters are never in a position to censor our progressive speech. Some countervailing element needs to be introduced into the equation that will stop the speech suppressers. It could be state legislators for public universities, it could be boards of trustees or wealthy alums for private ones. I’m suggesting a Schumpeterian defense of free speech.

Douglas said...


"There is a fixed set of obviously and objectively true and virtuous ideas and groups which may not be criticized." Alas, yes, that is the prevailing attitude on American campuses.

Hyphenated American said...

"Because the students would be expelled for abusing the disciplinary process with malicious false charges."

Condemning "whiteness" is obviously racist. If you don't understand that such classes create atmosphere of hate for white people and their allies, makes it difficult for them study and thrive on campus, feel welcome and instead marginalizes them, takes away their voice, silences them - then you need to need to take multiple "diversity" and "inclusion" classes. If you refuse, you must be fired.

campy said...

"[...] atmosphere of hate for white people and their allies, makes it difficult for them study and thrive on campus, feel welcome and instead marginalizes them, takes away their voice, silences them [...]"

Justified hate for privileged people who are not welcome and should be marginalized and silenced.

Hyphenated American said...

"Justified hate for privileged people who are not welcome and should be marginalized and silenced."

This is classical hate speech and racism. To proclaim that ALL white people are "privileged" and should be not welcome, marginalized, silenced and hated is racism 101. You hate me specifically based on my skin color. Nothing else. Again, you a racist, and you should be ashamed of yourself.

Hyphenated American said...

If any university allows people like campy to openly promote racist views against white people, such a university should be subject to a class-action lawsuit.

campy said...

"... openly promote racist views against white people, such a university should be subject to a class-action lawsuit."

Deplorables have no class and irredeemables have no rights.

Sammy Finkelman said...

How long has blackface been sucha terrible thing? Well, it wasn't considered good maybe since 1928 - I think Al Jolson was the last movvie to have it, , but nobody expanded the definition of blackface till just now.

Besides being not being true to life, and perhaps doing something no black actor would agree to, blackface hurt black actors, which is not the case with Halloween costumes.

Sammy Finkelman said...

Lucien said...1/2/17, 8:41 AM

The problem isn't just the length of the list of thought and speech crimes, it's the idea that each must be punishable by losing one's livelihood.

One of the problems here is that we don't believe in censorship, only in punishment for gravely wrong things. We have the same thing with obscenity.