Chronicle of Higher Education
By STANLEY FISH
The modern American version of crying wolf is crying First Amendment. If you want to burn a cross on a black family's lawn or buy an election by contributing millions to a candidate or vilify Jerry Falwell and his mother in a scurrilous "parody," and someone or some government agency tries to stop you, just yell "First Amendment rights" and you will stand a good chance of getting to do what you want to do.
Frederick Schauer, a scholar of the First Amendment at Harvard University's Kennedy School, names this strategy "First Amendment opportunism" and describes it thus: "Political, social, cultural, ideological, economic and moral claims ... that appear to have no special philosophical or historical affinity with the First Amendment, find themselves transmogrified into First Amendment arguments."
In the academy, the case is even worse: Not only is the First Amendment pressed into service at the drop of a hat (especially whenever anyone is disciplined for anything), it is invoked ritually when there are no First Amendment issues in sight.
Take the case of the editors of college newspapers who will always cry First Amendment when something they've published turns out to be the cause of outrage and controversy. These days the offending piece or editorial or advertisement usually involves (what is at least perceived to be) an attack on Jews. In January of this year, the Daily Illini, an independent student newspaper at the University of Illinois at Urbana-Champaign, printed a letter from a resident of Seattle with no university affiliation. The letter ran under the headline, "Jews Manipulate America," and argued that because their true allegiance is to the state of Israel, the president should "separate Jews from all government advisory positions"; otherwise, the writer warned, "the Jews might face another Holocaust."
When the predictable firestorm of outrage erupted, the newspaper's editor responded by declaring, first, that "we are committed to giving all people a voice"; second, that, given this commitment, "we print the opinions of others with whom we do not agree"; third, that to do otherwise would involve the newspaper in the dangerous acts of "silencing" and "self-censorship"; and, fourth, that "what is hate speech to one member of a society is free speech to another."
Wrong four times.
I'll bet the Daily Illini is not committed to giving all people a voice -- the KKK? man-boy love? advocates of slavery? would-be Unabombers? Nor do I believe that the editors sift through submissions looking for the ones they disagree with and then print those. No doubt they apply some principles of selection, asking questions like, Is it relevant, or Is it timely, or Does it get the facts right, or Does it present a coherent argument?
That is, they exercise judgment, which is quite a different thing from silencing or self-censorship. No one is silenced because a single outlet declines to publish him; silencing occurs when that outlet (or any other) is forbidden by the state to publish him on pain of legal action; and that is also what censorship is.
As for self-censoring, if it is anything, it is what we all do whenever we decide it would be better not to say something or cut a sentence that went just a little bit too far or leave a manuscript in the bottom drawer because it is not yet ready. Self-censorship, in short, is not a crime or a moral failing; it is a responsibility.
And, finally, whatever the merits of the argument by which all assertions are relativised -- your hate speech is my free speech -- this incident has nothing to do with either hate speech or free speech and everything to do with whether the editors are discharging or defaulting on their obligations when they foist them off on an inapplicable doctrine, saying in effect, "The First Amendment made us do it."
More recently, the same scenario played itself out at Santa Rosa Junior College, in California. This time it was a student who wrote the offending article. Titled "Is Anti-Semitism Ever the Result of Jewish Behavior?", it answered the question in the affirmative, creating an uproar that included death threats (to parties on all sides), an avalanche of hate mail (some of it protesting hate-speech), and demands for just about everyone's resignation. The faculty adviser who had approved the piece cited the newspaper's commitment to free speech and said, "The First Amendment isn't there to protect agreeable stories."
He was alluding to the old saw that the First Amendment protects unpopular as well as popular speech. But what it protects unpopular speech from is abridgement by the government of its free expression; it does not protect unpopular speech from being rejected by a newspaper, and it confers no positive obligation to give your pages over to unpopular speech, or popular speech, or any speech.
Once again, there is no First Amendment issue here, just an issue of editorial judgment and the consequences of exercising it. (You can print anything you like; but if the heat comes, it's yours, not the Constitution's.)
In these controversies, student editors are sometimes portrayed, or portray themselves, as First Amendment heroes who bravely risk criticism and censure in order to uphold a cherished American value. But they are not heroes; they are merely confused, and, in terms of their understanding of the doctrine they invoke, rather hapless.
Not as hapless, however, as the Harvard English department, which made a collective fool of itself three times when it invited, disinvited and then reinvited poet Tom Paulin to be the Morris Gray Lecturer. Again the flash point was anti-Semitism. In his poetry and in public comments, Paulin had said that Israel had no right to exist, that settlers on the West Bank "should be shot dead," and that Israeli police and military forces were the equivalent of the Nazi SS. When these and other statements came to light shortly before Paulin was to give his lecture, the department voted to rescind the invitation. When the inevitable cry of "censorship, censorship" was heard in the land, the department flipped-flopped again, and a professor-spokesman declared, "This was a clear affirmation that the department stood strongly by the First Amendment."
It was of course nothing of the kind; it was a transparent effort of a bunch that had already put its foot in its mouth twice to wriggle out of trouble and regain the moral high ground by striking the pose of First Amendment defender. But, in fact, the department and its members were not First Amendment defenders (a religion they converted to a little late), but serial bunglers.
What should they have done? Well, it depends on what they wanted to do. If they wanted to invite this particular poet because they admired his poetry, they had a perfect right to do so. If they were aware ahead of time of Paulin's public pronouncements, they could have chosen either to say something by way of explanation or to remain silent and let the event speak for itself; either course of action would have been at once defensible and productive of risk. If they knew nothing of Paulin's anti-Israel sentiments (difficult to believe of a gang of world-class researchers) but found out about them after the fact, they might have said, "Ooops, never mind" or toughed it out, again alternatives not without risk.
But at each stage, whatever they did or didn't do would have had no relationship whatsoever to any First Amendment right -- Paulin had no right to be invited -- or obligation -- there was no obligation either to invite or disinvite him, and certainly no obligation to reinvite him, unless you count the obligations imposed on yourself by a succession of ill-thought-through decisions. Whatever the successes or failures here, they were once again failures of judgment, not doctrine.
In another case, it looked for a moment that judgment of an appropriate kind was in fact being exercised. The University of California at Berkeley houses the Emma Goldman Papers Project, and each year the director sends out a fund-raising mailer that always features quotations from Goldman's work. But this January an associate vice chancellor edited the mailer and removed two quotations that in context read as a criticism of the Bush administration's plans for a war in Iraq. He explained that the quotations were not randomly chosen and were clearly intended to make a "political point, and that is inappropriate in an official university situation."
The project director (who acknowledged that the quotes were selected for their contemporary relevance) objected to what she saw as an act of censorship and a particularly egregious one given Goldman's strong advocacy of free expression.
But no one's expression was being censored. The Goldman quotations are readily available and had they appeared in the project's literature in a setting that did not mark them as political, no concerns would have been raised. It is just, said the associate vice chancellor, that they are inappropriate in this context, and, he added, "It is not a matter of the First Amendment."
Right, it's a matter of whether or not there is even the appearance of the university's taking sides on a partisan issue; that is, it is an empirical matter that requires just the exercise of judgment that associate vice chancellors are paid to perform. Of course he was pilloried by members of the Berkeley faculty and others across the country who saw First Amendment violations everywhere.
But there were none. Goldman still speaks freely through her words. The project director can still make her political opinions known by writing letters to the editor or to everyone in the country, even if she cannot use the vehicle of a university flier to do so. Everyone's integrity is preserved. The project goes on unimpeded, and the university goes about its proper academic business. Or so it would have been had the administration stayed firm. But it folded and countermanded the associate vice chancellor's decision.
At least the chancellor had sense enough to acknowledge that no one's speech had been abridged. It was just, he said, an "error in judgment." Aren't they all?
Are there then no free-speech issues on campuses? Sure there are; there just aren't very many. When Toni Smith, a basketball player at Manhattanville College, turned her back to the flag during the playing of the national anthem in protest against her government's policies, she was truly exercising her First Amendment rights, rights that ensure that she cannot be compelled to an affirmation she does not endorse (see West Virginia v. Barnette). And as she stood by her principles in the face of hostility, she truly was (and is) a First Amendment hero, as the college newspaper editors, the members of the Harvard English department, and the head of the Emma Goldman Project are not. The category is a real one, and it would be good if it were occupied only by those who belong in it.