I suppose it was only a matter of time until someone trotted out this old -- and in appropriate -- saw: the dentistry students who created the "gentlemen's club" are protected by free speech. The story is here. In fact, I'm surprised that this argument has not been made earlier. A supposed free speech advocate at Saint Mary's has made this case. According to a CBC news story. His argument can be condensed to the following:
“One of the things that a university should be concerned with is that everyone feels able to say what they want, that there’s candour and openness,” says Mercer. “Only in the context of candour and openness can views be explored fully and criticized fully."
“It doesn’t matter how ugly, how vile it is," Mercer said. "Any rules against speech have the potential of blocking the road of inquiry, of preventing us from being candid and examining what we want to say.”
Rather than simply calling this argument silly, let us take this self-defined advocate of free speech at his work and assess his argument. There are actually several serious problems with this argument. By the way, before beginning, I would define myself as an advocate of free speech as well. In fact, I take free speech so seriously that I don't like to waste time defending sexism, racism, homophobia, and other such things because they detract from the importance of free speech. Free speech is a noble and important right in society that preserves the rights of citizens to question government and power structures, form alternative governments, and ensure artistic integrity. I've said this before: when free speech is reduced to defending bigotry, we debase its nobility and lessen its importance. Because it is about important things, because it is vital for democracy and the rule of law, we should not use free speech as a shield behind which people doing rotten things should be allowed to hide. If we do, we somehow draw an odd equivalent: that criticizing, say, trajectories of foreign policy is on the same level as suggesting that sex with an underaged babysitter is a good thing. Does any serious person think that?
What are the problems with this argument?
Well ... that is the first: let us call it the logic of misplaced equivalencies. In effect, Mercer is saying that there is some sort of merit to sexually rating classmates, joking about knocking female classmates out, or suggesting that lesbians can be fixed by heterosexual sex. The whole idea is odd and rather postmodern, in fact, in the sense that it makes no effort to differentiate what is important from what isn't. Are we happy with that? Do we feel that jokes about having sex with a babysitter is the equivalent of a great work of art? Or, a serious debate about trade or immigration policy? If not -- and, I don't -- let us not pretend that that is the case. Let's not, in other words, draw a false equivalency. We all agree that foreign policy and immigration policy or legal reform are important and require free consideration of the issue at hand. In fact, they stand for themselves. One never has to use a free speech argument to defend interventions about these issues (or, other measures) because we all know that they are important. If the misogyny of these dentistry students were that important, we would recognize it and say "yes, let us have a discussion of these issues." We don't because ... well ... it is a retrograde step and not one that should be justified by such an argument.
But, let's go even further. Free speech protects debate about important public issues because there are important issues that need to be considered. The proponents of, say, restrictive visas for Mexicans coming to Canada never argue that their opponents should be silenced; nor do those of us troubled by visa restrictions argument that their proponents should be silenced because they are making an argument. These students were not making an argument about anything. Hence, we need to ask: what would we be protecting if free speech allowed them to elide taking responsibility for their actions? Are they arguing that sex with underaged girls is good? If so ... stand up and make that argument. Are they arguing that it is legitimate to use a gas to knock a woman out to have sex with her? If so, be an adult about it and stand up and make that argument.
They were not. In fact, these men made every effort -- as I discussed in a previous blog -- to disguise what they were doing. They were not debating admissions policies (where I might disagree with them but which would be a legitimate subject protected by free speech). They were not debating licensing of dentists (again, agree or disagree, room to debate and protected by free speech). They were making no argument whatsoever. Instead, they were engaged in actions that they knew were wrong and tried to disguise them. Said differently, we are dealing with apples and oranges here. There are many arguments with which I disagree (pro-fracking, for instance) on which I will not simply defend the rights of fracking advocates to speak publicly but I will, in fact, encourage them to do so for the sake of public debate. In this case, since there were no matters under debate but instead simple misogyny ... well ... what are we protecting?
This is an important point because the argument in defence of free speech is intended to protect interchange in the public sphere; that is: arguments. What is there here, however, to be "fully explored?" Nothing. Hence, the argument that it should be protected by free speech is weak.
Mercer also says that any regulations that prevent expression -- no matter "how vile" -- are wrong. To which I say "really?" If I used free speech to encourage attacks on himself and his family ... this would be vile. And, wrong. Is he prepared to allow that speech? I am not. The line is clear and hte fact I don't need my vileness (in this example) to be fully explored to say "no. This is not a legitimate use of free speech."
Let's use another example: Does Mercer regulate his class in any way or does he allow students to say whatever they want, whenever they want regardless of its appropriateness or pertinence? If not, if he provides one bit of regulation -- telling a student, for instance, to not interrupt another -- then this argument is not an argument but hypocrisy. One either defends what is vile or one doesn't. One can't say "personal attacks that encourage violence are not allowed because they are vile" but "general attacks that encourage sexims are vile and allowed." Why can't one say this? Because one would be using a sliding scale that allows some things that are vile (misogyny) but not others (say, one student refusing to be quiet during another's presentation and loudly swearing at the presenting student). The issue is a matter of consistency: You either support some restrictions on free speech -- in which case we can have a discussion because as an advocate of free speech I do support some restrictions -- or, one cannot make the argument that some vile things are OK but others are not. Consistency is a hallmark of intellectual integrity ... at least in my book.
Let's recap. I don't know Mercer. He might be a great guy, award winning teachers, and grade-A scholar. He might also be being misquote in the news story I cited. I am arguing that the arguments attributed to him by CBC do not apply. These students are not protected by free speech because (a) they were not making an argument by recycling misogyny and fully understood that their actions were wrong (hence, their cover up efforts) (b) free speech is an important right and we should not draw equivalences where there is none, (c) one either defends "vileness" or one does not. If one restricts speech in some instances but not in others (on the grounds of its vileness) then one is inconsistent in the application of one's own doctrines. By the way, and anyone who follows my blog should know this, I reject the idea that free speech can defend attacks on individuals that cause them harm. I also believe that a bit of a regulation -- simply politeness is what I ask of my students -- is a good thing that can, in fact, broaden and organize discussion. In other words, serious inquiry and a full discussion of the issues at hand is helped -- not hurt -- by regulating speech.
There are other points that need to be made here as well. I'll hit these quickly because they seem to me self evident:
1. Free speech cannot allow people to avoid taking responsibility for their actions. In other words, if you knowingly do something that is wrong, you cannot hide behind a right. You have to accept responsibility for your actions. If one does not believe in responsibility ... well ... that is a matter we will need to discuss. My defense of the rule of law, however, is, I believe, consistent with the idea of responsibility. It appears -- I say "appears" -- because of the actions of the men involved; not because I have spoken to them -- that these men were actually looking to find ways to avoid responsibility. They were dumb (as I've said before) in believing that an internet social media club could ensure privacy ... but should they have to take responsibility for their actions -- in this case the violation of the University's code of conduct? Indeed, I'd argue that responsibility can be complicated but that the rule of law actually requires it.
2. Dalhousie is not a public institution and as a private institution (or, semi-private; semi-public), it has the right to self-regulate. I don't always agree with the self-regulation of private institutions. I disagree, for instance, with some supposedly Christian universities that impose sexual orientation tests on employees. But, for good or ill, they have the right to self regulate (as I have the right to argue that they should change). Will Kymlicka deals with this matter much better than I do and so I'd refer you to him, particularly his discussion on communities and cultural regulation under multiculturalism. It can get complicated, but the point is that there are different standards. These standards must be legal, they can change, and they should be humane and fair, but a private institution has the right to exercise its authority over me if I go to participate in that private institution (even while I might argue that it should change). For instance, the local Legion can tell me to remove my hat as a sign of respect to war dead and if I don't ... they can remove me. I can argue against that but you see my point. The Legion justly exercises authority over me. Likewise, minor sports associations often have codes of conduct. Players are not allowed to say whatever they want whenever they want. They are bound by rules of sportsmanship which encourage good and fair play. Likewise, fans can be removed from, say, hockey rinks for what they say. And, no one doubts the fairness and appropriateness of this. A fan at a minor hockey game -- say, an Atom or PeeWee game -- encouraging violence against other players will be removed. And ... rightly so.
Finally, a quick question ... why do the self-appointed defenders of free speech seem to waste so much time defending sexism, racism, homophobia and other such things. Can't they find progressive things -- things that make society more safe, broaden democracy, encourage public participation in politics -- to defend? I will confess I am confused about this.
To sum up: the argument for protection on the basis of free speech fails. It fails because it is being used not to advance argument on important matters of public policy or protect artistic integrity, but because it is being used to protect ... well ... no argument at all. Just misogyny. It fails because it claims a regulatory right over a private (or, semi-private) institution with a defined code of conduct about which these men knew and which they deliberately violated. I might have disagreed with these men but I would have defended their rights under free speech to make this argument "can we have a discussion of the University code of conduct?" But, that was not the argument they made. Instead, they knowingly violated rules to which they voluntarily agreed as a condition of their membership in this scholarly community. I believe that they should have to take responsibility for their actions. The free speech argument is also weak because it fails to consider context and consistency. Instead, it simply asserts absolutes that, if violated, expose one to the charge of hypocrisy.
Now, I don't know if expulsion is the best option in this case. I honestly don't. But, if we want to have serious discussion of what these men did, let's do that. Let's not, however, have a fake one where we ignore potential hypocrisy (say, even my own), issue absolutist moral injunctions and pretend that anyone who thinks differently is wrong, or pretend that some great point of principle with regard to what these men said is at stake. It ain't.