Free Speech Friday: The University Cannot Punish Me for My Speech Beyond the University

There are protests at the University of Wisconsin-Madison. (Is this practice for summer 2024?) A petition is circulating. The protestors are upset at a student who was videoed engaged in the thoughtcrime of “racist speech” and they want to ruin her life over it. Students and campus organizations are demanding UW-Madison expel the student after she riffed on a fantasy where, after she kills herself, she goes back and haunts every black person who ever wronged her and make them pick cotton until they die of thirst. Her rant, expressed through what appear to be tears (there is some pain there), is peppered with the racial slur “nigger.”

So is vandalism

Despite calls from numerous students and organizations for the expulsion of the student, university officials have stated that the speech in question is protected under the law. On Monday, UW-Madison released a statement saying that it is unable to restrict the content of personal social media posts made by students and employees or take action against posts that are not unlawful. In a subsequent email statement on the following day, LaVar Charleston, UW-Madison’s deputy vice chancellor of the diversity and inclusion, reiterated the university’s stance, explaining that “the law does not permit the university to punish individuals for words spoken in private spaces, even when those words are racist or hateful.”

Charleston’s statement to students is troubling given that he only references “words spoken in private spaces.” To be sure, the UW System cannot control citizens beyond its reach. But the principle of free speech must apply even more so public speech. The student the mob is hounding is a citizen of a republic with a bill of rights that enshrines her freedom to express herself without abridgment. Surely the deputy vice chancellor for diversity and inclusion (a position that sounds like it’s from Orwell’s Nineteen Eighty-Four) misspoke. Why is the university even commenting on what a student said? To try to keep histrionic personalities from burning down the campus? Are they trying to continue the ruination of the student’s reputation?

Not that this would trump the First Article of US Bill of Rights, amendments to the US Constitution that protect the fundamental freedoms of people, but authorities are noting (albeit sounding regretful over having to do so) that the current administrative code of the UW System Board of Regents provides little regulation of student “hate speech.” Chapter UWS 17 of the code, which outlines actions that can result in disciplinary action for nonacademic misconduct, does not specifically address “hate speech” on or off campus. Nor should it, authorities should hasten to add. More than this, the very concept of “hate speech” is problematic, and the way in which the authorities are speaking in this case assumes its validity as a category of speech and therefore functions to valorize the legitimacy and utility of the term.

Policing “hate speech,” a practice that is rising throughout the West, is synonymous with the totalitarian practice of punishing individuals for thoughtcrime, the tyranny Orwell so named in his warning to the world Nineteen Eighty-Four. To punish speech based on content violates the core principle of free speech, which allows individuals to express any viewpoint, even those that are controversial or offensive, without fear of legal or social repercussions. Restrictions on “hate speech” can thus be seen as a form of censorship that infringes upon a fundamental right.

What office will determine what speech is allowed and disallowed? Who will determine what is “hate speech“? Who shall be commissar? “Hate speech“ is self-evidently subjective and difficult to define because it depends on who is defining it—and that depends on who has power. Different individuals and groups have different interpretations of what constitutes “hate speech,” which inevitably leads to inconsistencies—indeed, injustices—in how it is enforced and on who it is imposed. Depending on who is in power, what constitutes “hate speech” will vary, and this tells you that the control of speech is an expression of power, with the goal to prevent speech that might upset that power. The policing of “hate speech” results in a chilling effect on speech, where individuals self-censor for fear of being accused of thoughtcrime, even if their statements are not intended to be hateful as defined by the powers-that-be.

Paradoxically, restrictions on bigoted speech are counterproductive, as they drive extremist views underground and make them more difficult to combat through open dialogue and debate. The best way to counter hateful views is through open and voluntary discussion, where facts and reason are brought to challenge and undermine extremist ideologies more effectively than legal restrictions. Americans largely stopped using racial slurs, such as “nigger,” not because they were punished for using the word, but because open discussion about the ideology that word expresses, as well as the passing of laws criminalizing the material practice that ideology legitimized in the nation’s institutions, led to the word’s disuse in its original intent. (The word continues to be uttered, of course, but for the most part for a different purpose, albeit not without controversy.)

A protester chants into a megaphone, UW-Madison, May 4, 2023

Because of the rising threat of thoughtcrime, and its growing institutionalization across Europe, a ringing endorsement of free speech is especially crucial at this moment. At a Wednesday demonstration organized by student organization The Blk Pwr Coalition, students called for Chancellor Jennifer Mnookin to establish a zero-tolerance policy on hate speech across all UW System campuses. One of their demands included the creation of bylaws that would enable expulsion for “overt racial hostility” under the Board of Regents’ nonacademic disciplinary procedures. This demand should have immediately been met with condemnation by UW System representatives. Instead, the authorities expressed regret that they couldn’t do more. This should scare the shit out of students across the system.

There are rules in place that, if they remain in place, afford liberty some protections. These rules were the result of previous free speech struggles. Chapter 17 rules were established, in part, as a result of a 1991 Wisconsin Supreme Court case, UWM Post v Board of Regents of the University of Wisconsin System. In that case, UWM Post, a University of Wisconsin-Milwaukee student newspaper, sued the UW System and others for guidelines on punishable speech that were deemed “too broad and ambiguous.” The lawsuit ultimately resulted in the removal of those rules from UW System policy. But it will take an effort to keep rules like this from again making their appearance.

The situation at our universities has moved Assembly Speaker Robin Vos to encourage the UW System to remove campus diversity offices. The media has gone to some length to pair Vos’s call, which I support wholeheartedly, with the video of that UW-Madison student expressing, to quote the Daily Cardinal, “harmful rhetoric against the Black community.” The harmful nature of the rhetoric is difficult to grasp given that the content of the speech concerned a student imagining committing suicide so that her ghost could haunt black people by making them pick cotton, something that is so far beyond the realm of the possible that it hardly warrants anything other than a puzzled look. At any rate, since Vos called for the elimination of these offices only days after the video appeared, the appearance of the video should have caused him to not call for the elimination of the offices. Or something like that.

* * *

So, the university cannot punish individuals for speech uttered beyond the university, specifically thoughts conveyed in the private spaces (where Winston keeps his journal, just out of the telescreen’s line of sight). And, we’re told, there is some degree of protection for speech uttered on campus, thanks to a Wisconsin Supreme Court ruling. Great.

But, to be perfectly honest, it doesn’t feel like it when you are there. These days, the university feels like a cathedral. The professoriate and its administration appear as a clergy, the subjects they profess sounding more like doctrine with religious-like sensibilities than rational instruction guided by Enlightenment values.

The university has become a very illiberal space, and those speaking for UW-Madison, instead of leaning into the principles of free thought and conscience, are apologizing for them. It sounds as if, if they could punish this student, they would. “We’d like to burn the witch at the stake, too, but we are constrained by the legacy of liberalism.”

I will illustrate my trepidation using the ubiquity of gender ideology in academia, an ideology to which I do not subscribe (because it is unscientific and dehumanizing), but with which I avoid engaging on campus because of the probable consequences for doing do.

The censorship is backed by the regime of diversity, equity, and inclusion (DEI). The purveyors of the doctrine preach that, in order to recruit and retain faculty and students of diverse identities, identities that deserve systemic privileges because of their alleged marginalized statuses (the equity piece), universities have to establish, elaborate, and entrench and a regime of inclusive language and practices. The regime is managed by officers who monitor faculty and students and generate bias incident reports with which to harass those who would think thoughts contrary to the doctrine of the regime. DEI scares me.

Beyond the walls of the cathedral, I use the terms “woman” and “mother.” I know, we’re told in so many words that, to be inclusive, we should avoid these terms. However, in reality, the terms refer to exclusive properties that inhere in the actual world. One function of language is to accurately convey in speech acts the actual world; since only females can be women and mothers, one should refer to them as such. Put another way, because natural history makes the rules that govern sex, and since nature has made sex in mammals exclusive (anomalies aside), and since gendered terms are species-specific references to the females and males of the various species of the mammalian class, to deny the truth of these categories is to deny the truth of natural history.

Demanding we deny this reality is an instantiation of war against science and the Enlightenment being waged by the forces of postmodernism. And, while the liberal values of the Enlightenment allow those who wish to be women and mothers to deny objective content of those categories, they are not free to compel others to deny those categories.

At least they shouldn’t be. However, as I reported recently in my blog NIH and the Tyranny of Compelled Speech, public institutions in the United States are compelling inclusive language and punishing employees for failing to do so. How long before employees of the NIH will suffer punishments meted out by their employers at the NIH for things they say beyond the confines of their employment?

My ability to express the truths of sex and gender (which are uncomplicated and have been confidently known for millennia) will last only as long as freedom of thought and conscience are respected and protected—and the reality is that these freedoms are in very real danger of extinction by the forces of a new religion, i.e., woke progressivism.

The extinction of these fundamental freedoms is being hastened not only by the trans-Atlantic elite project to erase gender differences in humans, but by the willing adoption of such erasure by the masses. And while my worldview is based on scientific humanism (I never work from supernatural premises), and I apologize for this admission of cowardice, I am compelled in some institutional settings to perform certain rituals in order to survive.

I am more than a few years away from retirement yet (thanks to betrayal of Democrats in 1983), and I wish to keep my job. It would not surprise me if things change where I am no longer free from the reach of my place of employment to utter truths, including those uttered before the rules changed, but I am hoping to retire before the sands of freedom run out and the flying monkeys are let loose.

I have practiced this cowardice before. I do this when I visit your church. I won’t do everything you expect of me at your church, since I don’t accept your religion, but I will go some ways despite my skepticism. I will sit quietly and hear the prayers and sermons. I might even stand when you do. Since the university has become a church, my tolerance for the irrational is expressed in much the same way.

But know this: whatever the ritual in which I partake, in whatever church I am sitting or standing in, in the breeze of whatever doctrine is being professed, my actions convey an act of bad faith. Because I work from facts and reason, if ever you hear me say something in there at odds with the things I say out here, know that I am lying. I am lying either because I am humoring some person or group (that I am unreligious doesn’t mean that I am unsympathetic) or because I’m trying to finish my career and my life without being punished by those who hold my livelihood and reputation in their hands.

In other words, I am not really a free person. But, then, neither are you. You may appear braver than me, but I bet that bravery depends upon your location and situation. I’m not in a good place. And I am all alone there. Maybe you are in a better place. So please accept my apologies for my cowardice and don’t yell at me too much.

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Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

2 thoughts on “Free Speech Friday: The University Cannot Punish Me for My Speech Beyond the University”

    1. I wondered the same thing. The person is crying, but then laughing at the end as if this were a put on. But I didn’t say anything about that because, whether she was serious or joking, the reaction to her video is ridiculous and the calls for punishing her for her speech authoritarian as hell.

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