Speech wars

Can First Amendment defenders and social justice activists find common ground on campus?

by

It all started with a party.

In May 1987, the UW-Madison chapter of the Phi Gamma Delta fraternity — known on campus by the nickname FIJI — threw an island-themed event at its house on Langdon Street. To welcome guests, members put a cardboard cutout on the lawn that featured a caricature of a “native” black man with exaggerated lips and a bone through his nose. Partygoers showed up in blackface.

The display drew outrage and a protest at the house. The students were on high alert — just one month before, news broke that UW-Madison’s Sigma Alpha Epsilon fraternity held a “Martin Luther Coon Day” party at its Langdon Street house. Guests brought fried chicken or watermelon to gain entry. The university’s Black Student Union called for a forum to address the racist incidents, and Phi Gamma Delta was later suspended for six months. Student activists said the punishment wasn’t enough.

The FIJI incident proved a catalyst — in October, a student reported on a Kappa Sigma fraternity party that had happened the previous year. The theme was “Around the World,” and one of the rooms in the Langdon Street mansion was decorated in what the fraternity brothers imagined was a “Harlem” motif — trash strewn about the floor, graffiti on the walls, hanging clotheslines, a basketball hoop. As a final thematic touch, fraternity members wore Afro wigs and blackface makeup while serving fried chicken and watermelon punch. Then, in 1988, members of the Zeta Beta Tau fraternity held a mock slave auction as part of a fundraising event, with students wearing blackface and Afro wigs. By this time, these racist campus events were drawing national attention.

“It is hard to comprehend the stupidity of it,” then-Associate Dean of Students Roger Howard said at the time.

Zeta Beta Tau was suspended, but a student-led committee found that the slave auction, while “offensive” and “in extremely bad taste,” did not violate university rules. Many were outraged and fed up with the university’s inability to impose meaningful sanctions on offenders. That winter, then-Chancellor Donna Shalala led an effort to impose a “speech code” that would allow the university to punish racist or offensive speech. It was a controversial move, with some opponents saying the code violated the First Amendment.

Donald Downs, a professor emeritus at UW-Madison and a nationally renowned expert on free speech issues, remembers the late-‘80s controversy well. “I couldn’t believe they did it,” he says of the fraternity members’ conduct. He agreed that the acts were racist, but as a First Amendment scholar he knew the students had the legal right to be as racist as they wanted in their own private residence. Still, Downs found the speech “morally wrong” and wanted the university to have more power to improve the campus climate for students of color. As a member of the faculty senate, Downs voted to support the controversial code.

At the time, he believed in limiting speech that was intentionally harmful. He had even written a book about the issue, Nazis in Skokie, in which he argued that, in some cases, the harms of racial vilification outweigh the benefits of free expression. He applied the same logic to what was happening on campus, where racism and hate speech had a long history of creating a toxic environment for students of color.

“I trusted that the speech codes could be properly balanced with intellectual freedom,” Downs says. “But then I started seeing what it was like.”

The decades-old campus speech debate has reemerged in recent years at colleges and universities across the nation, UW-Madison included. Students have pushed back against hate and bias incidents and demanded more action from administrators. Meanwhile, conservative activists and free speech advocates argue these policies impede academic freedom and inquiry. Conservatives in Wisconsin state government agree, with several GOP legislators decrying “liberal indoctrination” on college campuses and demanding more intellectual diversity.

In many ways the free speech debate can be seen as a microcosm of the intense polarization between liberals and conservatives nationwide. Can free speech, intellectual diversity and social justice find common ground?

Gov. Scott Walker’s 2017-2019 budget includes language that would enshrine in statute parts of a 2015 statement adopted by the UW System Board of Regents supporting the open exchange of ideas on campus — including those considered unpopular or offensive. Walker’s budget requests $10,000 for the UW System to “revise policies related to academic freedom.”

Walker’s proposal is one of a number of campus speech-related bills being introduced in states throughout the nation, including Tennessee, Georgia, Utah and Colorado. Conservative and libertarian think tanks have promoted the trend, offering a model bill for states to use. The model legislation would, among other things, nullify existing campus speech codes, abolish “free speech zones,” prevent public colleges and universities from disinviting “controversial” speakers and establish a system of “disciplinary sanctions” for students and anyone else who interferes with the free speech rights of others. The bill would also require universities, “at the official institutional level,” to remain “neutral on issues of public controversy.”

Walker’s version doesn’t go nearly as far — the bill states that “members of the [UW] System’s community are free to criticize and contest the views expressed on the campuses of the system, and to criticize and contest speakers who are invited to express their views on these campuses, [but] they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe.”

It’s unclear what effect the bill would have, and Walker’s office did not respond to Isthmus for a request for comment. But CV Vitolo-Haddad, a member of the UW-Madison activist organization Student Coalition for Progress, says the proposal is a threat to marginalized students and their right to free assembly.

“It’s a dog whistle policy,” Vitolo-Haddad says. “They’ll enforce it in disparate ways, and there’s no way to rhetorically fight against it because it’s couched in this language that seems accessible and positive.”

A doctoral student in the university’s communication arts department and the director of the student debate team, Vitolo-Haddad believes in “universal free speech” and agrees with the fundamentals in Walker’s bill. But Vitolo-Haddad cautions that the policy could actually end up stifling the speech of communities that have been systematically, culturally and historically excluded from the public sphere.

“You have to put it in the context of power,” Vitolo-Haddad says. “When we are not all able to participate equitably in debate, we’re not having free speech — we’re having a free-for-all where the most powerful and the loudest get to set the agenda.”

Vitolo-Haddad believes the legislation is a direct response to student activists who last fall attempted to shut down a speech on campus by conservative gadfly Ben Shapiro, a former editor for the far-right website Breitbart. On his recent campus speaking tour, Shapiro has argued against the existence of institutional racism, white privilege, safe spaces and microaggressions. He’s also called being transgender a “mental illness.” Liberal activists say his views amount to hate speech and have sought to deny him a platform by pressuring colleges to cancel his speeches. Conservatives have countered that this is “liberal fascism.” Vitolo-Haddad says that criticism ignores an important point.

“It’s not about whether or not [people like Shapiro] should be allowed to say whatever they want — sure, of course they should,” Vitolo-Haddad says. “We have to think about the ways that [speech] creates or constitutes types of violence. It has to be understood that speech can become policy — acts of literal, physical violence.”

The Student Coalition for Progress is petitioning campus leaders to denounce Young Americans for Freedom, the conservative student group that invited Shapiro to speak, as a hate group. The petition also demands the university revoke YAF’s charter and require “intensive diversity training” for its members.

Cahleel Copus, the UW-Madison president of Young Americans for Liberty, a sister organization to YAF, points out the irony of a student group trying to prevent Shapiro (whose lecture was about free speech on campus) from speaking. Same goes for the effort to muzzle conservative student groups. “It’s frustrating, because knowing the people in YAF and YAL, we all challenge each other’s ideas all the time,” Copus says. “That’s how you come to libertarianism, by challenging your ideas.”

Copus, a sophomore, sees the campus as an “echo chamber of socialist thought and collectivism,” a place where ideas that go against progressivism are unwelcome. He recalls being disciplined as a freshman for criticizing the Twitter hashtag, #TheRealUW — which was used to crowdsource student experiences with hate and bias on campus — on the whiteboard on his dorm room door.

“I wrote that #TheRealUW movement is dumb, and the people who support it are too sensitive,” says Copus. “As brash as I said it, I wasn’t attacking anybody — I was attacking the ideas. And I got written up for it because the language hurt somebody’s feelings.”

Copus defended himself in a meeting with his dorm supervisor and was exonerated from any punishment. But the incident reinforced his belief that many on campus are overly sensitive and eager to tattle on anyone who deviates from the politically correct dogma. Copus sees the ideological divide on campus not so much as a conflict between liberals and conservatives, but a disconnect between individualists and collectivists.

“Everyone is triggered right now, on both sides,” he says. “It just needs to end.”

Still, he hopes for reconciliation. He suggests holding a public forum and inviting student representatives from conservative campus organizations like YAF and YAL to discuss speech issues alongside students pushing for social justice initiatives. “We could get a professor from their side and one from our side,” he says. “I think that would be a good discussion.”

Adds Copus: “But we’d probably have to fly [a conservative professor] in.”

Downs recalls a moment that opened his eyes to the danger of codifying restrictions on campus speech. He was a guest on a Wisconsin Public Radio program in 1992, discussing the student speech code that had been struck down as “overly broad” by a federal court the year before. The university had drafted a revised code, and the faculty senate was preparing for a debate. Downs was undecided on whether he would vote to support the policy, as he did a few years earlier. A listener who called in to the radio program turned out to be Richard Long — a UW-Madison art professor who had been accused of violating the faculty speech code in 1990. Said to have behaved in anti-Semitic, racist, sexist and homophobic ways in the classroom, Long was subjected to an “informal” investigation that lasted for months. He was never charged or disciplined, but “the investigation ruined [Long’s] reputation,” says Downs, who later wrote about the ordeal in a book, Restoring Free Speech and Liberty.

Deeply troubled by Long’s story, Downs decided — the night before the speech code debate — to oppose the policy. “I changed my views on a very important matter given what I was experiencing,” Downs says. In addition to Long, there were a number of other UW-Madison professors investigated for violating the speech code in the early ’90s — a philosophy professor accused of racism, a history professor accused of gender bias. None were formally disciplined, but Downs says the “questionable” application of the speech code led to “tremendous conflict” within the university community. He worried about the impact it would have on instruction and research.

“I had just gotten tenure, I had a lot of students, but what about professors who didn’t have tenure or as much of a following?” Downs recalls thinking. “Would they feel more vulnerable?”

Downs went on to help form a faculty group called the Committee for Academic Freedom and Rights with the goal of providing “legal and moral support” to individuals who believe their academic freedom, free speech or procedural rights have been violated by a university body. This group organized an effort that led to the repeal of UW-Madison’s speech code in 1998 — the first time a university had abolished such a code of its own volition.

Downs’ evolving views on free speech highlights the issue’s complexity, both in its theoretical interpretation and its practical application.

“It’s not, in principle, wrong to make people aware of discourse in speech — that’s pushing knowledge,” Downs says. “But it’s so easy for those kinds of sensitivity sessions to become ideological bullying. It all depends on who’s doing it.”

A 2016 survey of 440 colleges and universities from the Foundation for Individual Rights in Education (FIRE), a nonpartisan group that defends free speech and due process on college campuses, shows that speech codes — like the one abolished nearly two decades ago at UW-Madison — are falling out of favor across the nation. FIRE rates schools based on their speech-related policies — red light is the most restrictive, yellow light schools are somewhat restrictive, and green light schools are free of policies that “imperil speech.” UW-Madison, along with the majority of UW System schools surveyed by FIRE, have a yellow light rating. UW-Oshkosh and Marquette University are red light schools.

The number of red light schools nationally has dropped significantly from a high of 75 percent eight years ago to 49 percent in 2016. But while speech codes appear to be in decline, there’s been a surge in universities implementing policies addressing speech-adjacent issues like bullying, harassment, protest and demonstration policies, hate and bias reporting.

Ari Cohn, a civil liberties attorney with FIRE, argues that free speech, diversity and inclusion are not mutually exclusive. “In fact, from my perspective, free speech is a core component of diversity and inclusion,” he says. “It’s a prerequisite.”

Cohn points out that free speech has been at the heart of virtually every social justice movement in American history. Fights for women’s suffrage, civil rights for African Americans and LGBTQ equality all suffered initial setbacks in court, but brave and diligent work by activists helped shift public opinion — and eventually the law.

“It takes social movements to get there,” Cohn says. “And those social movements wouldn’t be possible if speech was limited.”

Cohn believes the best way to combat hate and bias on campus is to welcome those with opposing viewpoints for the purpose of standing up and publicly refuting them. Civil disobedience can also be effective, he says. But censorship is never the answer.

“Telling someone they can’t say something has never made the underlying issue go away,” he says, pointing to the recent resurgence of Nazism and overt white supremacy. When ideas get pushed underground, so do the communities that subscribe to the ideas. Left unchallenged, this creates a “vicious cycle” of confirmation bias. “And at the end of the day, it makes people more prejudiced.”

While conservatives have blamed censorship attempts on student activists and progressive professors, it was a conservative GOP lawmaker who last summer threatened to cut UW-Madison’s funding because he objected to an assigned article for a sociology class. Sen. Steve Nass (R-Whitewater) was offended by the article’s use of “vulgar, obscene and racist language” to describe racism on the gay hookup app Grindr.

Jason Nolen, the lecturer who assigned the article, says a student who didn’t like the reading sent a copy of the article to a conservative radio host in Milwaukee. “The host emailed me [seeking comment], then the next day Nass sent his email,” Nolen says. The incident quickly became national news. “It was intense, the first 48 hours especially,” he says. “I felt very singled out.”

Many were quick to point out the hypocrisy of Nass — a frequent and merciless critic of the UW System and the “politically correct” culture he believes runs rampant within its institutions — advocating the censorship of an article he found personally offensive. But to Nolen, Nass’ reaction had an ironic twist.

“He attached the article to the email and asked people to respond,” he says. “What he did is exactly what I do as a teacher — ask people to critically analyze and evaluate.”

Nolen worries about his colleagues being reported to sites like Professor Watchlist — a database that aims to “expose and document college professors who discriminate against conservative students and advance leftist propaganda in the classroom.” But more troubling to him is the trend of limiting speech. “More people have this notion that it’s okay to limit ideas,” he says. “And it seems to be happening more frequently now.”

Downs agrees that it’s inappropriate for legislators to try to intervene in course content at universities. He points out that the classic definition of academic freedom is that instructors have the autonomy to make their own decisions about what they teach and research. But he also understands that when outsiders look at a university, they often see a “very one-sided political ideology.”

“The Legislature is rightly concerned [about intellectual diversity], but you don’t deal with that by threatening to cut funding,” Downs says. “Both sides need to think about this and figure out the right way to promote intellectual diversity on campus without threatening academic freedom.”

The ongoing culture clash between liberals and conservatives has led to both sides taking dogmatic positions — those on the left who, fed up with systematic oppression, refuse to tolerate ideas that run against the progressive grain, and those on the right pushing back against what they say amounts to ideological bullying. To reconcile this divide, Downs says, universities must find a way to acknowledge the need for intellectual diversity that doesn’t stifle speech.

One way to achieve that balance could be through education. Last fall, UW-Madison launched a new “cultural competency” training called Our Wisconsin. One of several initiatives introduced to help improve the campus climate after the recent hate and bias incidents, Our Wisconsin promotes inclusion by providing students with the skills needed to have dialogues “about real issues that affect real students,” says Katrina Morrison, the program’s student coordinator. “It’s not about forcing students to act a certain way.”

Morrison grew up believing she lived in a post-racial society. She’s black, but she went to school in a Milwaukee suburb where most of her friends and classmates were white. “I grew up in this bubble,” Morrison says. “I never really came to terms with my identity until I came to college. I didn’t understand what it really meant to be black.”

When she arrived on the UW-Madison campus three years ago, she found herself immersed in a different kind of community. She finally had peers who looked like her, but she also encountered a kind of racism she’d never experienced before. She learned about microaggressions — brief, subtle, often unintentional indignities that perpetuate negative stereotypes about people of color — and realized she was encountering them on a daily basis. “It was something I really didn’t expect,” she says. Morrison’s time on campus has also been marred by ugly, highly publicized incidents of hate and bias — a rash of racist and neo-Nazi graffiti on and near campus, a racially motivated assault in a dormitory, and an attempt to form a white supremacist student organization led by a student who had previously served time in federal prison for an interstate arson spree targeting black churches.

“It made me feel unwelcome on this campus,” Morrison says of the incidents. “In my heart of hearts I know that I belong here, but at the same time, when people commit those horrendous hate crimes, they’re telling me I don’t. It’s hard to understand why people hate me because of the color of my skin.”

The Our Wisconsin program has been lauded as a success, with more than 1,000 students participating in workshops during the pilot period last year. This summer, the program’s curriculum will be expanded and introduced at Student Orientation, Advising and Registration (SOAR), which means that 99 percent of incoming students will be introduced to its key concepts before classes begin.

The university clearly anticipated pushback on the Our Wisconsin initiative, even including an entry in the “frequently asked questions” portion of its website assuring readers that the program is “absolutely not” an attempt to infringe upon freedom of speech. And Morrison says the feedback she’s heard from students who have completed the training is overwhelmingly positive.

“This is such an incredible step in the right direction,” she says. “I think that continuing programs like Our Wisconsin and creating new social justice initiatives can change the campus climate. It finally feels like we’re making change.”

Downs sees programs like Our Wisconsin as a way for universities to enforce speech codes “through the backdoor,” achieving a similar goal but without the thorny constitutional issues. And while the university is certainly entitled to try such methods, Downs sees the policies as “administratively impossible” to enforce. “But can you do that in a way that doesn’t browbeat and bully?” Downs asks. “That’s really hard to achieve.”

Still, he’s not opposed to what the university is trying — so long as it remains “nondogmatic, non-ideological and nonpartisan.” And he’s working to make sure the program strikes the right balance. Last month, Downs and UW-Madison history professor John Sharpless (a well-known conservative intellectual) accepted an invitation from campus officials to discuss ways to incorporate First Amendment training and education into student orientation along with the diversity curriculum. If free speech could be given the same institutional status as diversity and inclusion, that would be “perfect,” he says. And he’s heartened that the university reached out and asked him to help.

“I have to give UW credit,” he says. “They’re trying to get this right.”