Daily Archives: April 12, 2023

Stanford Law School was under extraordinary pressure.

For nearly two weeks, there had been mounting anger over the treatment of a conservative federal judge, whose talk had been disrupted by student hecklers. A video of the fiasco went viral.

An apology to the judge from university officials had not helped quell the anger.

Finally, on March 22, the dean, Jenny S. Martinez, released a lawyerly 10-page memo that rebuked the activists.

Some students might feel that some points should not be up for argument and therefore that they should not bear the responsibility of arguing them, she wrote. But, she continued, that is incompatible with the training that must be delivered in a law school.

She added, I believe that the commitment to diversity, equity and inclusion actually means that we must protect free expression of all views.

Free speech groups hailed Dean Martinez for what they said was a stirring defense of free expression.

We need Dean Martinezes at every school where this is an issue right now, Alex Morey, an official with the Foundation for Individual Rights and Expression, a free-speech group, said in an email.

The Stanford memo echoed a similar declaration by the University of Chicago in 2014, saying that it was committed to free speech and that students may not obstruct or otherwise interfere withspeakers because of their views.

Since then, dozens of universities have signed onto what is now known as the Chicago statement. And yet, every year seems to bring new free-speech clashes, on the left and the right.

Last year, law students at Yale and the University of California Hastings College of the Law disrupted conservative speakers. In 2021, M.I.T. invited the geophysicist Dorian Abbot to give a prestigious lecture and then disinvited him after some faculty members and students argued that he had created harm by speaking out against aspects of affirmative action.

That same year, members of Stanfords chapter of the Federalist Society, the conservative legal organization, filed a complaint against a law student who had mocked the group with a satirical flier. The university briefly put the students graduation on hold but eventually said the flier was protected speech.

The question for Stanford and other institutions is whether the memo can ease tensions in this fraught and seemingly intractable political climate. In an era of high-pitched politics, living up to lofty free-speech principles can get messy on the ground.

Some free-speech advocates describe a delicate balancing act for any university, which must allow polarizing speakers a place at the podium while also allowing protesters to raise their voices in disagreement.

If things get out of hand, it can be hard to figure out when to draw the line and whom to blame.

In the middle of a media firestorm, enforcement can become even trickier. As criticism mounts, the actual events can become distorted, leaving out important details about the people and the buildup to events.

All of these things came into play at Stanford.

The furor started on March 9, when Stuart Kyle Duncan, a conservative judge on the U.S. Court of Appeals for the Fifth Circuit, spoke to a roomful of students at the invitation of the student chapter of the Federalist Society.

Before becoming a judge, he had defended Louisianas gay-marriage ban in a Supreme Court hearing. And he had defended a North Carolina law restricting transgender people from using their preferred bathrooms.

Students were particularly upset that, in 2020, as a judge, he had denied the request of a transgender woman who asked the court to refer to her with female pronouns. It was an especially sensitive subject, as many in the law school were still grieving the death of a transgender student last year.

At the event, Judge Duncan was relentlessly heckled and traded barbs with students. He tried to power through his prepared remarks but was unable to speak more than a few words without interruption. He called for the help of an administrator to restore order.

Tirien Steinbach, the associate dean for diversity, equity and inclusion, stepped to the podium and began six minutes of remarks that would be recorded on video.

She said that, to many people in the room, Judge Duncans work had caused harm. She asked him, Is the juice worth the squeeze? That is, was the decision by Judge Duncan to speak worth the division it was causing students?

Her remarks became a signature moment online, condemned for giving tacit approval to the hecklers veto. The Foundation for Individual Rights and Expression said that Ms. Steinbach had said the quiet part out loud, to chilling effect.

Every day around the country, administrators are putting issues of equity before students expressive rights, Ms. Morey, of the foundation, said. Those things do not have to be in tension.

Ms. Steinbachs remarks were condemned on Fox News and other conservative outlets. Tucker Carlson called her barely literate. Many called for her prompt firing.

Two days after the event, Dean Martinez and the president of the university apologized to Judge Duncan and, without naming Ms. Steinbach, said that staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the universitys commitment to free speech.

In her memo, 11 days later, Dean Martinez again criticized Ms. Steinbach, stating that an administrator should not insert themselves into the debate with their own criticism of the speakers views. Asking speakers to reconsider the worth of what they plan to say, she wrote, constitutes an improper imposition of institutional orthodoxy and coercion.

The memo also announced that Ms. Steinbach was on leave.

That bare-bones narrative missed a more complicated situation, illustrating the perils of rushing to judgment based on a viral video.

To begin with, Ms. Steinbach had a cordial, productive relationship with the leader of the student-run Federalist Society, Tim Rosenberger Jr.

Ms. Steinbach, who started at Stanford in 2021, said she wanted to expand the role of D.E.I. to include groups like veterans, older students and conservatives. She viewed herself as a bridge builder.

Mr. Rosenberger, for his part, said he wanted a Federalist Society chapter that was better integrated into the university and had found that she was willing to engage in ways that many students, professors and administrators, to Mr. Rosenbergers disappointment, would not.

In January, when Mr. Rosenberger could not find a co-sponsor for an event with Nadine Strossen, a former head of the American Civil Liberties Union and a champion of free speech, he found a partner in Ms. Steinbach, who moderated the event.

That took some courage, he said.

Ms. Strossen said she had spoken to many Federalist Society chapters in recent years and had noticed that, especially since the Jan. 6 attack on the Capitol, the group had become effectively blacklisted at many law schools.

This backdrop, Ms. Strossen said, made Ms. Steinbachs enthusiastic participation in the event extraordinary.

On the morning of Judge Duncans talk, Ms. Steinbach sent an email to the entire law school, approved by Dean Martinez. She summarized the concerns that students had with Judge Duncan but said that students who tried to stop speech would only amplify it, and she linked to the free-speech policy.

Ms. Steinbachs connection to students might have made her confident that she could be the broker between the two sides. But during a free-speech conflagration, who should play the role of enforcer? And how should that message be delivered?

The university had made other preparations. Law school administrators had warned university officials that students could run afoul of the universitys speaker policy that day, according to an email obtained by The Times. The university sent an official to join others representing the law school.

But when the judge asked for an administrator, it was Ms. Steinbach who stepped up to the podium.

While the judge was insulted by some of her remarks, Ms. Steinbach also defended free speech. We believe that the way to address speech that feels abhorrent that feels harmful, that literally denies the humanity of people that one way to do that is with more speech, and not less, she said.

She invited students to leave if they felt uncomfortable but said that those who remained should listen to Judge Duncan. Many students left.

In an interview, Ms. Steinbach said she had not been there to enforce the universitys speech policy.

My role was to de-escalate, Ms. Steinbach said. She wanted to placate students who said they were upset with Judge Duncan and to, I hoped, give the judge space to speak his prepared remarks.

In hindsight, she said, she did not get the balance right. She noted, however, that she had been speaking to students in the room, and did not realize that her words would be blasted out to the world.

Mr. Rosenberger said that he had been upset by Ms. Steinbachs remarks in the lecture hall but that she had been something of a scapegoat for the universitys broader failure to protect speech.

He said that he wished an official had stepped to the podium and warned students that further disruption would be in violation of the universitys free-speech policy but that Ms. Steinbach, as D.E.I. dean, was not that messenger.

If she was the administrator whose job was to enforce the no-disruption policy, then yeah, she totally failed, but thats not her job description, Mr. Rosenberger said. People have called her stupid and incompetent. Shes a smart and good person who was just put in a really bad spot.

Dean Martinez, in an email to The Times, said that one of the problems that day was a lack of clear communication among administrators in the room. But she laid at least part of the blame with Ms. Steinbach.

Regardless of what should have happened up to that point, she wrote, when Judge Duncan asked for an administrator to help restore order, it was Ms. Steinbach who responded, introduced herself as an administrator, and then delivered remarks.

To some students, the dean, by not presenting a fuller defense of Ms. Steinbach in her memo, capitulated to an intense right-wing attack.

A leader takes responsibility for her actions as well as those of her subordinates, Denni Arnold, a protest leader, wrote to Dean Martinez. A leader presents a united front to the world, no matter what conversations need to happen behind closed doors.

Julian Davis Mortenson, a professor of constitutional law at the University of Michigan and a Stanford alumnus, suggested that there had been a broader failure.

Law schools need to have plans and protocols in place for controversies like this, which are going to happen with increasing frequency, he said. Stanford was not adequately prepared.

Barring context he is unaware of, he said, he was disappointed that Ms. Steinbach had not received more support.

An administrator on the ground, in a room literally full of shouting people, got them to stop shouting and also insisted that they should listen to the speech, Professor Mortenson said.

Some of the confusion may lie in Stanfords free-speech policy, which bars preventing or disrupting the effective carrying out of a university event, like a lecture. Precisely when that policy is violated is ambiguous meaning that it can be hard to know when or how to intervene.

Holding vulgar signs or asking pointed questions or even making gagging noises as many students did when Judge Duncan was introduced does not necessarily violate the universitys policy.

In her memo, Dean Martinez said she would not take action against individual students, citing the difficulty of distinguishing between protected speech and unprotected speech.

Are 10 minutes of shouting out of an hour-and-a-half-long event too much? said Ms. Strossen, the free-speech crusader. That is a matter of judgment and degree.

If you get the balance wrong, Ms. Strossen said, then you risk chilling speech on the other side.

The week after she spoke at Stanford, Ms. Strossen said, she appeared at Yale, on a panel with a conservative speaker whose visit last year was disrupted during another student firestorm.

Ms. Strossen said she was struck that this time, during her panel, there were no protesters of any kind.

I worry that maybe the reason that there werent even nondisruptive protests, she said, is students were too afraid that they would be subject to discipline or doxxing.

Link:
Stanford Law Schools Dean Takes a Stand for Free Speech. Will It Work ...

For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.

This social silencing, this depluralizing of America, has been evident for years, but dealing with it stirs yet more fear. It feels like a third rail, dangerous. For a strong nation and open society, that is dangerous.

How has this happened? In large part, its because the political left and the right are caught in a destructive loop of condemnation and recrimination around cancel culture. Many on the left refuse to acknowledge that cancel culture exists at all, believing that those who complain about it are offering cover for bigots to peddle hate speech. Many on the right, for all their braying about cancel culture, have embraced an even more extreme version of censoriousness as a bulwark against a rapidly changing society, with laws that would ban books, stifle teachers and discourage open discussion in classrooms.

Many Americans are understandably confused, then, about what they can say and where they can say it. People should be able to put forward viewpoints, ask questions and make mistakes and take unpopular but good-faith positions on issues that society is still working through all without fearing cancellation.

However you define cancel culture, Americans know it exists and feel its burden. In a new national poll commissioned by Times Opinion and Siena College, only 34 percent of Americans said they believed that all Americans enjoyed freedom of speech completely. The poll found that 84 percent of adults said it is a very serious or somewhat serious problem that some Americans do not speak freely in everyday situations because of fear of retaliation or harsh criticism.

This poll and other recent surveys from the Pew Research Center and the Knight Foundation reveal a crisis of confidence around one of Americas most basic values. Freedom of speech and expression is vital to human beings search for truth and knowledge about our world. A society that values freedom of speech can benefit from the full diversity of its people and their ideas. At the individual level, human beings cannot flourish without the confidence to take risks, pursue ideas and express thoughts that others might reject.

Most important, freedom of speech is the bedrock of democratic self-government. If people feel free to express their views in their communities, the democratic process can respond to and resolve competing ideas. Ideas that go unchallenged by opposing views risk becoming weak and brittle rather than being strengthened by tough scrutiny. When speech is stifled or when dissenters are shut out of public discourse, a society also loses its ability to resolve conflict, and it faces the risk of political violence.

Weve excerpted a few of the polls other questions below. Choose your answers to see how your opinions compare to Americans.

The Times Opinion/Siena College poll found that 46 percent of respondents said they felt less free to talk about politics compared to a decade ago. Thirty percent said they felt the same. Only 21 percent of people reported feeling freer, even though in the past decade there was a vast expansion of voices in the public square through social media.

Theres a crisis around the freedom of speech now because many people dont understand it, they werent taught what it means and why it matters, said Suzanne Nossel, the chief executive of PEN America, a free speech organization. Safeguards for free speech have been essential to almost all social progress in the country, from the civil rights movement to womens suffrage to the current fights over racial justice and the police.

Times Opinion commissioned the poll to provide more data and insight that can inform a debate mired in extremes. This editorial board plans to identify a wide range of threats to freedom of speech in the coming months and to offer possible solutions. Freedom of speech requires not just a commitment to openness and tolerance in the abstract. It demands conscientiousness about both the power of speech and its potential harms. We believe it isnt enough for Americans to just believe in the rights of others to speak freely; they should also find ways to actively support and protect those rights.

We are under no illusion that this is easy. Our era, especially, is not made for this; social media is awash in speech of the point-scoring, picking-apart, piling-on, put-down variety. A deluge of misinformation and disinformation online has heightened this tension. Making the internet a more gracious place does not seem high on anyones agenda, and certainly not for most of the tech companies that control it.

But the old lesson of think before you speak has given way to the new lesson of speak at your peril. You cant consider yourself a supporter of free speech and be policing and punishing speech more than protecting it. Free speech demands a greater willingness to engage with ideas we dislike and greater self-restraint in the face of words that challenge and even unsettle us.

It is worth noting here the important distinction between what the First Amendment protects (freedom from government restrictions on expression) and the popular conception of free speech (the affirmative right to speak your mind in public, on which the law is silent). The world is witnessing, in Vladimir Putins Russia, the strangling of free speech through government censorship and imprisonment. That is not the kind of threat to freedom of expression that Americans face. Yet something has been lost; the poll clearly shows a dissatisfaction with free speech as it is experienced and understood by Americans today.

Consider this finding from our poll: Fifty-five percent of respondents said that they had held their tongue over the past year because they were concerned about retaliation or harsh criticism. Women were more likely to report doing so 61 percent, compared to 49 percent of men. Older respondents were less likely to have done so than other age groups. Republicans (58 percent) were slightly more likely to have held their tongues than Democrats (52 percent) or independents (56 percent).

At the same time, 22 percent of adults reported that they had retaliated against or were harshly critical of someone over something he or she said. Adults 18 to 34 years old were far more likely to have done so than older Americans; liberals were more likely to have done so than moderates or conservatives.

Elijah Afere, a 25-year-old I.T. technician from Union, N.J., said that he worried about the larger implications of chilled speech for democracy. You cant give people the benefit of the doubt to just hold a conversation anymore. Youve got to worry about feeling judged, he said. Political views can even affect your family ties, how you relate to your uncle or the other side. Its really not good.

Roy Block, 76, from San Antonio, described himself as conservative and said he has been alarmed by scenes of parents being silenced at school board meetings over the past year. I think its mostly conservatives that are being silenced, he said. But regardless, I think it should be a two-way street. Everybody should have an opportunity to speak and especially in open gathering and open forum.

Pollsters asked how free people felt today to discuss six topics including religion, politics, gender identity and race relations compared to 10 years ago: more free, less free or the same. Those who felt freest were Black respondents: At least 30 percent of them said they felt more free to speak on every topic, including 42 percent on race relations, the highest share of any racial or ethnic group. Still, that sentiment of more freedom among Black respondents reached only 46 percent, not a majority (the 46 percent being on the issue of gender identity).

At the same time, a full 84 percent of Black people polled shared the concern of this editorial that it was a very serious or somewhat serious problem that some Americans do not exercise their freedom of speech out of fear of retaliation or harsh criticism. And 45 percent of Black people and nearly 60 percent of Latinos and white people polled reported that theyd held their tongues in the past year out of fear of retaliation or harsh criticism.

While the level of national anxiety around free speech is apparent, the solutions are much less clear. In the poll, 66 percent of respondents agreed with the following: Our democracy is built upon the free, open and safe exchange of ideas, no matter how different they are. We should encourage all speech so long as it is done in a way that doesnt threaten others. Yet a full 30 percent agreed that while I support free speech, sometimes you have shut down speech that is antidemocratic, bigoted or simply untrue. Those who identified themselves as Democrats and liberals showed a higher level of support for sometimes shutting down such speech.

The full-throated defense of free speech was once a liberal ideal. Many of the legal victories that expanded the realm of permissible speech in the United States came in defense of liberal speakers against the power of the government a ruling that students couldnt be forced to recite the Pledge of Allegiance, a ruling protecting the rights of students to demonstrate against the Vietnam War, a ruling allowing the burning of the American flag.

And yet many progressives appear to have lost faith in that principle. This was a source of great frustration for one of those who responded to our poll, Emily Leonard, a 93-year-old from Hartford, Conn., who described herself as a liberal. She said she was alarmed about reports of speakers getting shouted down on college campuses. We need to hear what people think, even though we disagree with them. It is the basis of our democracy. And its absolutely essential to a continuing democracy, she said. Liberal as I am a little to the left of Lenin I think these kids and this whole cancel culture and so-called woke is doing us so much harm. Theyre undermining the Constitution. Thats what it comes down to.

The progressive movement in America has been a force for good in many ways: for social and racial justice, for pay equity, for a fairer system and society and for calling out hate and hate speech. In the course of their fight for tolerance, many progressives have become intolerant of those who disagree with them or express other opinions and taken on a kind of self-righteousness and censoriousness that the right long displayed and the left long abhorred. It has made people uncertain about the contours of speech: Many know they shouldnt utter racist things, but they dont understand what they can say about race or can say to a person of a different race from theirs. Attacking people in the workplace, on campus, on social media and elsewhere who express unpopular views from a place of good faith is the practice of a closed society.

The Times does not allow hate speech in our pages, even though it is broadly protected by the Constitution, and we support that principle. But there is a difference between hate speech and speech that challenges us in ways that we might find difficult or even offensive.

At the same time, all Americans should be deeply concerned about an avalanche of legislation passed by Republican-controlled legislatures around the country that gags discussion of certain topics and clearly violates the spirit of the First Amendment, if not the letter of the law.

It goes far beyond conservative states yanking books about race and sex from public school libraries. Since 2021 in 40 state legislatures, 175 bills have been introduced or prefiled that target what teachers can say and what students can learn, often with severe penalties. Of those, 13 have become law in 11 states, and 106 are still under consideration. All told, 99 bills currently target K-12 public schools, 44 target higher education, and 59 include punishment for violators, according to a running tally kept by PEN America. In some instances, the proposed bills failed to become law. In other cases, the courts should declare them unconstitutional.

These bills include Floridas Dont Say Gay bill, which would restrict what teachers and students can talk about and allows for parents to file lawsuits. If the law goes into force, watch for lawsuits against schools that restrict the free speech rights of students to discuss things like sexuality, established by earlier Supreme Court rulings.

The new gag laws coincide with a similar barrage of bills that ostensibly target critical race theory, an idea that has percolated down from law schools to the broader public in recent years as a way to understand the pervasiveness of racism. The moral panic around critical race theory has morphed into a vast effort to restrict discussions of race, sex, American history and other topics that conservatives say are divisive. Several states have now passed these gag laws restricting what can be said in public schools, colleges and universities, and state agencies and institutions.

In passing laws that restrict speech, conservatives have adopted the language of harm that some liberals used in the past to restrict speech the idea that speech itself can cause an unacceptable harm, which has led to a proliferation of campus speech codes and the use of trigger warnings in college classrooms.

Now conservatives have used the idea of harmful speech to their own ends: An anti-critical-race-theory law in Tennessee passed last year, for instance, prohibits promoting the concept that an individual should feel discomfort, guilt, anguish or another form of psychological distress solely because of the individuals race or sex a measure aimed at avoiding the distress that students might feel when learning about racist or misogynist elements of American history. (Unmentioned, of course, is the potential discomfort felt by students who are fed a whitewashed version of American history.)

Liberals and anyone concerned with protecting free speech are right to fight against these pernicious laws. But legal limits are not the only constraints on Americans freedom of speech. On college campuses and in many workplaces, speech that others find harmful or offensive can result not only in online shaming but also in the loss of livelihood. Some progressives believe this has provided a necessary, and even welcome, check on those in power. But when social norms around acceptable speech are constantly shifting and when there is no clear definition of harm, these constraints on speech can turn into arbitrary rules with disproportionate consequences.

Free speech is predicated on mutual respect that of people for one another and of a government for the people it serves. Every day, in communities across the country, Americans must speak to one another freely to refine and improve the elements of our social contract: What do we owe the most vulnerable in our neighborhoods? What conduct should we expect from public servants? What ideas are so essential to understanding American democracy that they should be taught in schools? When public discourse in America is narrowed, it becomes harder to answer these and the many other urgent questions we face as a society.

Read the original:
Opinion | America Has a Free Speech Problem - The New York Times

from the the-twitter-files-on-this-will-be-rich dept

A few weeks ago we wrote about how Elon Musks Twitter was now blocking tweets in India at the request of the government. As we noted, theres a lot of important history here. India had demanded such blocking in early 2021 and the old regime at Twitter had pushed back strongly on it. After fighting about it, Twitter agreed to geoblock some tweets, but said it would not agree to do that for tweets from journalists, activists, or politicians.

The company also filed a lawsuit claiming that the content removal demands were an abuse of power by the Modi government. This lawsuit is still ongoing.

Of course, in the interim, Elon Musk became the owner of Twitter, and while he has kept the lawsuit going (for now), he had complained about Twitters lawsuit when it first happened.

When we wrote that story a few weeks ago about Elons Twitter agreeing to block accounts of journalists, politicians, and activists, some of Musks staunchest defenders in our comments insisted that the article was unfair, because Musk was doing the same thing that Twitter had done. Except thats false. The old Twitter explicitly refused to apply the geoblocks to journalists, activists, or politicians.

Either way, Musks Twitter has now taken it up a notch. Not only is it geoblocking such accounts, in some cases, it has now instituted a global block. That is, Musks Twitter is willing to allow the Modi government to censor his critics globally, rather than just in India. The first known victim of this is Saurav Das, an investigative journalist in India.

As free speech activist, and occasional Techdirt contributor, Sarah McLaughlin notes, allowing India to dictate global speech rules is a worst case scenario for free speech and content moderation.

Its also the kind of thing that again calls into question the (always silly) claims from people that Elon Musks focus with Twitter has anything to do with a principled stance on free speech. Thats never been true, but this only serves to emphasize that fact.

Meanwhile, Das is trying to find out why hes been blocked, and has filed a Right to Information application with the government to find out why his tweets were blocked, and why they were blocked globally, but doesnt seem hopeful that hell find out.

A Twitter that actually believed in free speech and not Elons Musks encapsulation of free speech as that which matches the law might want to step in and help Das. Somehow I doubt thats going to happen.

Filed Under: censorship, elon musk, free speech, geoblocking, global block, india, narendra modi, saurav dasCompanies: twitter

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