In a lengthy paper published this month, described as “very preliminary and provisional”, Cass R. Sunstein of the Harvard Law School tries to elucidate the extent to which the American Constitution guarantees free speech on university campuses. Of course, the issues raised in the paper are relevant beyond the United States. The paper is titled: ‘Free Speech On Campus? Thirty-Seven Questions (and Almost As Many Answers)’ and published on SSRN (Social Science Research Network).
In the abstract, Sunstein concludes that to comply with the First Amendment universities “must permit a great deal of speech that is offensive, hateful and even horrifying.” The paper, while theoretical, used contemporary examples but being theoretical it does not say what has actually happened to people who have expressed offensive, hateful or horrifying speech. My conclusion, however, given the situation of some university staff and students in the United Kingdom who have expressed seemingly innocuous, let alone offensive, ideas on our campuses is that the First Amendment does offer United States citizens greater protection.
Sunstein’s premise is that the First Amendment was not designed for university campuses and therefore that its “doctrines are ill-adapted to the academic setting”. Also, what he has to say applies — as does the First Amendment — to public institutions and, thereby, only to public universities. As such, public universities like any public institutions may under the First Amendment “punish speech that is ‘directed to inciting or producing imminent lawless action and is likely to incite or produce such action’.” He also indicates that, for example, there is no constitutional right to plagiarise and, therefore, universities may punish that.
Permitted restrictions on speech fall under three categories. Viewpoint-based restrictions may permit praise of a person on campus but not criticism; content-based restrictions may apply to an ongoing situation regardless of the view being expressed; and content-neutral restrictions may apply to discussion of certain topics under particular circumstances. However, universities do have some unique powers over other public institutions in that they may regulate speech which is “essential to their educational mission”. Thus, a scholar of English teaching about climate change or a student choosing to provide an essay on a topic not related to the assignment that has been set may be punished.
Following a discourse on how American law has been generally applied such as due and fair processes and areas where the relevant laws are less tested and developed, Sunstein makes a start to his 37 questions. These are divided into two sections: 18 questions on students and the remainder, which include questions for institutions, on teachers. Since there is some overlap between questions, and some situations clearly fall on one or other side of the law, I summarise the main points.
Pro-Palestinian students protesting about the current war in Gaza in which their own Government is involved or showing a film comparing the Israeli action in Gaza to genocide may not be punished. Even students shouting for “Itafada” would probably not be punished unless their actions were considered to be leading to a lawless situation. Sunstein makes clear that under the First Amendment “what matters is what the speakers intend, not what the audience hears”. But if direct threats were issued to a particular group on campus, for example Jewish students, by the students — in other words they issue a ‘true threat’ — they may be punished.
Encouragingly, if students protest a speaker they do not like and shout the speaker down, however distasteful the content of that speaker’s address, they may be punished. Likewise, disrupting or threatening to disrupt the work of the university through protest against its policies on or silence against current issues which they find distasteful could lead to students being punished.
Of particular interest, and relevant to a similar case in the United Kingdom, students protesting against same-sex marriage may not be punished regardless of the law of the land or its constitution. For precisely the same issue, a university social work student in England — Felix Ngole — did not fare so well even in a so-called ‘safe space’. Felix was expelled from his course, although he later won his case against the University of Sheffield. In a similar vein, a group of Christian students distributing Christian literature, even if it says that non-Christian students are not welcome, would not be punished. Non-Christian targets of their leaflets who expressed “feeling unsafe” would not have enough of a case for the university to stop them. The same would apply to students holding a ‘White Pride’ week. But in the case of a ‘White Supremacy’ week there may be a case for punishment.
Turning to teachers, the case of a lecturer using a class on one subject to push his own political views is punishable. Likewise, if he continually berates them for stupidity. But publishing something online about a university policy on romantic relationships between staff and students, saying that existing rules are too strict would not lead to punishment. And that would be the case, even if students complained of feeling “unsafe” in his class. However, harassing a student with the aim of developing a relationship is punishable.
Using the word n****r in class is not punishable, if used in context, nor is wearing ‘blackface’, for example, at a Halloween party. If racial epithets about Black people, Hispanics or Jews are used as insults then these are punishable.
Writing per se that climate change is not real or that capitalism is to blame for all the problems in the world is, generally, protected by the First Amendment. But a university may punish if the work does not reach the required “professional standards”. It is easy to see how these situations could lead to protracted procedures.
Removing books considered to be not in keeping with, for example, a Christian ethos or offensive in some way would most likely not be protected by the Constitution, but closing a department due to falling student numbers would be protected. Administering the coup de grâce to a Gender Studies department, however desirable an option, on the basis that an incoming university President did not like the subject enters a grey area under the First Amendment but could be defended on the basis that a university is not obliged to offer any particular courses. Consider the example of a Nazi Studies department. Universities are also not obliged to hire anyone adhering — or not adhering — to any particular political or academic ideas.
The final question makes clear that an academic writing a piece of work which comes to some demonstrably wrong conclusions and causes colleague and student outrage is protected by the First Amendment. Sunstein’s paper ends on this point and, whether it was deliberate, does serve to illustrate that anger at views which do not accord with one’s own or the prevailing consensus — essentially the basis of nearly all free speech cases arising in the United Kingdom — or being offended, hurt or feeling unsafe as a result of someone’s expressed views are simply not grounds for censure under the precepts of the First Amendment in the United States.
We may not need the equivalent of a First Amendment in the United Kingdom. But our universities, which seem to specialise in cultivating snowflakes, could make a start by making the above principles clear in Freshers’ Week.
Dr. Roger Watson is Academic Dean of Nursing at Southwest Medical University, China. He has a PhD in biochemistry. He writes in a personal capacity.
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Profanity and abuse will be removed and may lead to a permanent ban.
Amused to see that Paul Staines is apparently in favour of freedom of speech, given the comments system used on Order-Order that’s so pathological that it censors such vile unacceptable hate language as “dirty”, “damn”, and the name “Paul Staines”.
I was blocked there long ago.
Off topic but does anyone have the graphic or stats about how only 833 under 50s have “died solely of covid”? It was posted BTL recently but I can’t find it.
Hope this is helpful – https://nakedemperor.substack.com/p/only-6183-people-died-solely-of-covid?r=2mnu5&s=r&utm_campaign=post&utm_medium=email
Desperately needed in Sturgeon’s Dark Fiefdom!
No doubt Blair is smugly content with the the results of his “devolution” designed by Globalists to wreck the UK – it seems to have worked a treat !
Looking forward to the event tonight!
Best wishes to all those involved. Anything / body seeking to protect freedom of speech deserves and needs support.
“Profanity and abuse will be removed and may lead to a permanent ban.”
Yay! Free Speech!
Breaking one of my rules but…
Hey EF,
Fuck Off.
Careful, I can smell that ban coming for you!
Thanks, but he is an utter waste of space.
Your free speech is not violated by the site having rules
Yes. This comment led me to write the following response to another of your posts.
Reply to Hugh
No, she was a censor who believed everyone except her had no brain at all.
Your ‘both ways’ doesn’t exist, she was a totalitarian.
Reply to Moist Von Lipwig
From the person who said that this site having rules doesn’t curtail freedom of speech?
I hadn’t heard that she was in favour of banning opinions. Merely upholding parts of the Obscene Publications act that she considered important. Why shouldn’t people object to swearing on tv before the watershed (for example)?
I still say campaigning for standards of basic decency is not necessarily the same as being anti-free speech. She was campaigning about analogue t.v. and radio broadcasts which are easily accessible to the general population, rather than something, for example, available via mail order. For me, that makes all the difference. Absolutely there should be different standards for a private members club than for things done in public, i.e. a tv broadcast which may be watched by half the country.
She was campaigning for censorship.
She gave so much publicity to what she campaigned against, Alice Cooper sent her flowers for the career boost he received from her.
https://edernet.org/2022/03/15/mary-whitehouses-pursuit-to-stop-alice-coopers-song-schools-out-from-airing-on-british-media/
“During the twentieth century, a moral activist and former teacher named Mary Whitehouse waged a battle against the BBC. According to Whitehouse and her group, the National Viewers’ and Listeners’ Association, the network continued to show content that damaged the public.
She expressed her displeasure with Doctor Who for teaching youngsters how to make bombs. She voiced her displeasure with comedy characters that used the phrase “bloody.” She expressed her dissatisfaction with BBC coverage of the liberation of concentration camps (“It was destined to shock and offend,” she stated, describing the coverage as “extremely off-putting”).
https://www.theguardian.com/books/2012/oct/26/ban-this-filth-ben-thompson-review
“Should the BBC’s function be to improve public morals? Or should freedom of expression, even if that involves broadcasting a once-great rock’n’roll guitarist’s wretched foray into the innuendo-laden novelty single genre, always be paramount? And was the “My Ding-a-ling” imbroglio really the right forum for these issues, as old as Plato and still vexed, to be debated?
The then-director general, Charles Curran, thought not. “‘My Ding-a-ling’,” Curran had written to Whitehouse on 21 November 1972, “begins with such a clear account of the contraption in question including bells, that although the possibility of a double entendre was recognised, we decided that it could be broadcast … We did not think it would disturb or emotionally agitate its listeners and we believe that the innuendo is, at worst, on the level of seaside postcards or music hall humour.” That phrase, “contraption in question including bells”, is surely worth the licence fee alone.”
“The exchange was typical of the collection of letters that Ben Thompson has so astutely assembled and comments on so drolly in this book. Here, the bottomless capacity for affront of morally upright, often evangelically Christian, middle England clashes repeatedly with the patrician disdain of those men (and they were overwhelmingly men) who ran the culture industries, be they telly, theatre, cinema, magazines or pornography. Thompson ingeniously suggests that Whitehouse shared much with her punk contemporaries – both were socially excluded, both rebelled against establishment values they detested. Mary as a punk rocker? Not quite. But both she and Johnny Rotten knew how to needle grandees and relished the experience.
But here’s the twist. At the end of his Ding-a-ling letter to Whitehouse, Curran wonders “whether the record would have remained in a high position in the charts for such a long time without the publicity attendant upon the publication of your comments.” Intriguing point. Perhaps Whitehouse, far from cleaning up society, was instrumental in bringing about the nightmarish scenario she prophesied.
Certainly her complaints could have unintended consequences. On 21 August 1972, Whitehouse wrote to the BBC’s head of light entertainment, Bill Cotton, complaining about Top of the Pops giving “gratuitous publicity” to Alice Cooper’s “School’s Out”. “Because of this millions of young people are now imbibing a philosophy of violence and anarchy … It is our view that if there is increasing violence in the schools during the coming term, the BBC will not be able to evade their share of the blame.” Cooper sent Whitehouse flowers in gratitude for the publicity her campaigning brought him.”
“Mary Whitehouse didn’t only fight against the BBC. During the 1980s, unsurprisingly, she was affronted by and complained about Channel 4’s output. “I am glad to see the home secretary’s unexceptional reply to your unnecessary letter,” wrote Jeremy Isaacs, C4’s chief executive, in 1984, responding to some dyspeptic jeremiad. She also took on the pornography industry: “Thank you for your letter concerning our bookstall at Crewe Station,” wrote John M Menzies on 28 May 1984, after Whitehouse complained about finding a pile of Knave magazines at a level where “almost any child could see and pick it up”. “Our policy … is not to sell these magazines to children.”
She tried to stiffen the established church in what she thought should be its homophobic resolve: “Will you state publicly and quite specifically,” she wrote to the Bishop of Southwark on 22 June 1979, “whether you are endorsing the practices of mutual masturbation common among some homosexuals, and whether you expect the church to do the same and whether you see such practices as the will of God.” “Yes, I jolly well am and jolly well do,” replied the bishop. I’m kidding. If only he had.
She demanded politicians revise obscenity laws. That prompted a reply from David Mellor, home office minister in 1983, arguing that her proposal that depictions of explicit acts of human urination or excretion be banned would outlaw “a picture of a baby urinating in a nappy advertisement; or a photograph of the mannequin in Brussels which serves as a fountain”. Similarly, Mellor argued, the NVALA’s proposal to ban depictions of mutilation, flagellation or torture would ban King Lear, certain religious paintings, and the films of Tom Brown’s Schooldays and Nicholas Nickleby.
She campaigned against blasphemy and homosexuality, especially when, as in James Kirkup‘s poem “The Love that Dares to Speak its Name”, they came together. Whitehouse privately prosecuted Gay News’s editor, Denis Lemon, in 1977 for publishing Kirkup’s necrophilic account of sexual assault on Christ’s crucified body. After Lemon’s conviction for blasphemous libel, she received a letter from the clerk of the Scottish Free Presbyterian Church Synod, informing her of its unanimous motion thanking Whitehouse “for your unflinching stand against Sodomites in a recent court case”.
For Whitehouse, taking offence and imputing mucky motives to those who didn’t share her worldview weren’t so much tactics as irrepressible ways of being. In 1990, she was sued for libel by Dennis Potter’s mother. During an interview with Dr Anthony Clare on his Radio 4 series In the Psychiatrist’s Chair, Whitehouse had claimed that Margaret Potter had “committed adultery with a strange man and that the shock of witnessing this had caused her son to be afflicted” with the skin disease psoriasis. Whitehouse thereby confused a storyline from Potter’s The Singing Detective with the playwright’s life. No doubt her misdiagnosis and jejune psychosexual analysis was prompted by her loathing for Potter’s TV drama, which she believed had “made voyeurs of us all”. Similarly, perhaps, TV made Whitehouse a voyeur, though sometimes not a discerning one.”
Yes. I heard about the “Alice” Cooper business (vile toerag, even if he was on Top Gear), and some of the other stuff. She’s entitled to her opinions though at the end of the day. And if people don’t defend their culture, it will not survive – a point not lost on the Russians.
Besides, are some of the liberal woke fascists today very different.? And as for you satanists…
Remember that in the 1960’s the BBC was engaged in a biased campaign of subterfuge which helped result in changes which have since led to the deaths of millions of children. The BBC, who push minority views when it suits them, and other times refuse to give voice to minority views they consider beyond the pale, all the while posing as an impartial public service broadcaster. Of course there was going to be pushback.
Alice Cooper is a Christian.
This one elementary fact blows your flatulent balderdash completely out of the water.
Mary Whitehouse is the kindred spirit of today’s woke Maoists.
As for Satanists, I’m not one so your accusation is entirely the work of your imagination.
Mary Whitehouse didn’t defend ‘her culture’, she demanded witless, mindless, brainless conformity, something Russia has had centuries of, with the result being centuries of absolute monarchy, three quarter of a century of Communism, a religion that worships the omnipotent state, followed by the socialist dictatorship of a former Communist secret police officer who hasn’t essentially changed since the Union of Soviet Socialist Republics collapsed.
Russian culture has long worshipped death, the evidence speaks for itself.
Your anti-culture is the hatred of man’s mind.
Alice Cooper is in no way vile, he’s essentially an actor, comparable to Vincent Price, Peter Cushing and Christopher Lee, his shows are theatre, fantasy.
By contrast, Mary Whitehouse, in her quest to obliterate the individual human mind, was the villain from ‘Inherit the Wind’ in drag.
Her spiritual father was William Jennings Bryan and her effect was to give publicity to what she most hated, thereby ensuring it became far more popular than it would have been without her truly cretinous intervention, such was her mindlessness that she couldn’t comprehend that people didn’t take to have Nanny tell them she knows best.
We’ve just had two years of Mary Whitehouse in full control in Scotland.