Saturday, December 7, 2019

Free Speech On Campus by Chemerinsky & Gillman

The fact that this book is compact and can be read quickly doesn't mean that its content is easy to digest. I think it is a must-read not only for students, staff, and faculty on college campuses but all humans engaged with the exchange of ideas.

Catharine MacKinnon, one of my favorite feminist legal scholars and thinkers, is cited two times in the book. The first citation (page 85) is about her argument to prohibit pornography because of the harm the industry commits against women. In my reading of MacKinnon's work, the harm is not only in the products that the industry produces, but also the process of the industry, where women are typically treated as subordinates to men. 

Chemerinsky & Gillman recognize that concepts of removing harm and building protections are high priorities in the minds of modern college students. These students' relationship with the First Amendment isn't necessarily informed by lived historical moments of how and why free speech has protected vulnerable communities. Rather, it's informed by seeing that under the guise of free speech, hate speech and bullying can run rampant, thereby upsetting, triggering, and as Mackinnon would argue, harming them. Which is why it's becoming a popular tendency for students to cancel, cleanse, and silence those who they deem as upsetting.

In the second citation of MacKinnon (page 118), there is an important distinction made between speech and sexual harassment. We learn that under Title VII of the 1964 Civil Rights Act, harassment is not protected speech. Chemerinsky and Gillman assert that the first type of harassment as defined by quid pro quo is a no-brainer and should not be protected. However, the second type as defined by a "hostile work environment" is less clear cut.

I believe the reason it's less clear cut is because people receive words, glances, hugs, and all other forms of communication differently. In the art world, a nude painting of a woman can be viewed by some feminists as propagating the male gaze; a term (coined by Laura Mulvey) that argues that women are frequently depicted as passive objects in order to please the male active subjects. However, other feminists can view the same nude painting (and some types of pornography (both product and process)) as liberating and desirable.

The fact that MacKinnon is one of my favorite scholars AND that I don't agree with every single line of her legal arguments doesn't mean that I need to cancel or silence her. That her radical point of view has helped establish Title VII to push us into deeper thinking about what constitutes speech and what constitutes harassment is a good thing.

Chemerinsky & Gillman point out early in the book that to SPEAK freely, we need to be able to THINK freely. And as upsetting as it can be to be in the presence of speech that I disagree with, I know deep inside that a culture inclined to silence or cancel what I disagree with can eventually become inclined to silence and cancel me.

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