Friday, November 13, 2015

Distinguishing Coddling From Censorship

by Michael Dorf

The 2004 animated film The Incredibles teaches two lessons: First, if you're going to be a superhero or supervillain, don't have a cape; and second, in a culture in which everyone earns trophies for participation, true excellence tends to go unacknowledged. Here I'll focus on the second lesson, relating it to recent instances of campus unrest and backlash thereto.

In the more than a decade since the release of The Incredibles, matters appear only to have gotten worse--at least as judged by mainstream journalism and pop culture. Millennials, we are told, have been pumped so full of self-esteem since birth that they cannot handle the slightest criticism or adversity.

The notion that millions of members of a generation share a single set of character traits is, of course, ridiculous. In my experience teaching older millennials--who have been showing up in law school for the last few years--they are not appreciably different from the GenXers who preceded them. (Full disclosure: I'm just barely a Boomer, having been born in the last year of the Baby Boom.) In any event, for purposes of this post, I don't really care whether the stereotypes of Millennials are true. I just want to note what the negative aspects of the stereotype are: Self-absorbed; fragile; coddled. I'll call it "Incredibles Syndrome."

With that in mind, I'd like to call attention to a subtle elision I've noticed in some of the reactions against recent campus protests and disruptions at Yale, the University of Missouri, and elsewhere. There is a tendency to run together complaints about Incredibles Syndrome with complaints about left/liberal political correctness on campus. For example, writing in USAToday on Wednesday, University of Tennessee law professor Glenn Reynolds chastises the Yale and U Missouri students for being overly sensitive and for being incapable of tolerating disagreement. Writing in The Atlantic on Monday, Conor Friedersdorf was a little more sensitive than Reynolds to the disturbingly routine patterns of subtle and not-so-subtle racism on campus at Missouri, Yale, and elsewhere that made the recent confrontations a flash point, but he made much the same connection. According to Friedersdorf, the Yale student protestors whom he sees as overreacting to a series of emails regarding potentially offensive Halloween costumes cannot tolerate different opinions because they have been and continue to be coddled.

These phenomena can go together, and they can even be causally related in the way that Reynolds and Friedersdorf think they are. Coddling can lead to intolerance and censorship. The phenomena may even be related in that way in these instances--although it is myopic to view these events simply as instances of immaturity and censorship, without also attending to issues of race relations. But even taking the narrower framing at face value, it's important to keep in mind that coddling does not inevitably lead to censorship, nor are all instances of coddling also instances of censorship. A recent event closer to home illustrates how these distinct phenomena can be confused.

Project Veritas is the brainchild of conservative activist James O'Keefe. It recently sent an undercover journalist posing as a student to Yale, Syracuse University, and Cornell. She surreptitiously recorded the respective universities' Title IX investigators' reactions to a complaint that someone distributing free copies of the Constitution "triggered" her. In each case, the university administrator listens sympathetically and makes supportive statements, but none of the administrators goes along with the suggestion of the undercover journalist that they "get rid of" the people handing out the free copies of the Constitution. The Yale officer comes closest, suggesting that it would be impermissible to distribute "obscene" or otherwise inappropriate material--although I could not tell from the edited video whether he thinks the Constitution itself might qualify as obscene or inappropriate, or whether he's merely stating the parameters of a general policy. Have a look below (or click here if you can't view embedded video).

The videos could be said to make a fair case for the proposition that college campuses coddle their students, taking too seriously complaints about the triggering effect of just about anything. But maybe not. Although the notion that the mere handing out of copies of the Constitution would lead students to feel attacked on grounds of race and sex (as the undercover journalist claims) is far-fetched, the makers of the Project Veritas video betray the same insensitivity to racism and sexism on campus and in the broader society that Reynolds does in his USAToday piece.

Moreover, the officials show compassion for (someone they think is) a student; they do not become censors. Indeed, the Cornell official pushes back a little bit, suggesting that perhaps the (woman posing as a) student oughtn't to be offended by the distribution of the Constitution. Perhaps, she says, they're distributing it so people can see how many different interpretations are possible. At the same time, she sympathizes with the "student" by agreeing that it's a "flawed document" written by "flawed people."

Nonetheless, the Project Veritas film ridicules the administrators for succumbing to a request that the filmmakers appear to think is a kind of blasphemy. The Cornell official and her Yale counterpart agree to the undercover journalist's request that they shred the Constitution; the Syracuse officer cuts up a photocopy of some pages of the Constitution.

Did these administrators go too far in taking the complaint seriously? I don't know. Describing the slaveowners who participated in writing the Constitution as "flawed" seems perfectly reasonable, as does agreeing that the document itself is flawed. Can anyone defend the requirement that the President be a natural-born citizen? Anyway, it is usually a conservative complaint about liberals that liberals regard the Constitution as they would interpret it as perfect, rather than flawed. Shredding or tearing up the Constitution does seem a bit much, but what do I know? Students who are in rough emotional shape tend not to come to see me. My students are older, and I'm not the warm and fuzzy type. Faced with a visibly upset student who apparently would get some peace from seeing the Constitution shredded, mabye it's sensible to oblige.

Even if it isn't, so what? Not every over-accommodation of student sensitivity censors other people's speech. The Cornell official expressly states that shredding is a form of free speech. And she's right. Shredding one's own private copy of the Constitution is an expressive act that doesn't in any way interfere with anyone else's free speech. And to state the obvious, it doesn't do anything to the Constitution, which is an abstraction, not its concrete embodiment in any particular print version. Even destroying the version under glass in the National Archives and the other surviving early versions would not destroy the Constitution (although it would be a crime). Yet Project Veritas treats Yale, Syracuse, and Cornell as all having somehow engaged in blasphemy and censorship.

Project Veritas did apparently uncover one instance in which coddling became censorship. After their northeast sting, they went to North Carolina. Officials at Duke and UNC refused to ban distribution of the Constitution. However, an official at NC State ensured that there would not be copies of the Constitution in the entry to the residence hall of an undercover journalist posing a student. Depending on who placed the Constitutions in the dorm, and whether students were generally allowed to place other printed material there, that could even be unconstitutional censorship, because NC State is bound by the First Amendment (as made applicable to the state by the Fourteenth). So it's fair to condemn that reaction. But by portraying the reactions of the Yale, Syracuse, and Cornell officials as comparable to the NC State official's reaction, Project Veritas mostly displayed its own confusion. But as I've said before, even right-wing undercover journalists are entitled to free speech.


Shag from Brookline said...

Can we expect Project Veritas to address Bibles in hotels (where, I am told, assignations sometimes take place)? The high costs of hotels would more likely involve "coddled" adults perhaps with expense accounts.

And perhaps contrary to Randy Barnett the Constitution is not lost.

Joe said...

Perspective, something various people need to get sometimes.

David Ricardo said...

What Mr. Dorf is observing and commenting on here is part of a larger picture involving radical conservatives. Unlike the rest of us who base our beliefs and opinions on facts, logic and a rational thought process, radical conservatives adopt their beliefs as a matter of faith. Paul Krugman continually illustrates this in his commentary on why conservatives will not, for example, abandon their belief that monetary policy over the past 7 years has produced runaway inflation, a weakened dollar and general economic disaster.

But radical conservatives have the problem of all ‘true believers’; if what they believe is a universal truth why doesn’t the overwhelming majority of the public agree with them? One part of their answer to that is that there is a conspiracy in the media to falsely and prejudicially report in a way that prevents Americans from getting the truth. Consequently radical conservatives have conducted an unrelenting and largely successful attack upon the media, resulting in a cowering press that is afraid of criticism from the right.

(So we have stories like “While most scientists do not believe the Grand Canyon was created by Noah’s flood, there is no video or eye witness accounts of exactly how the Grand Canyon was created to refute the assertion that Noah’s Flood caused it. Those who believe that have sincerely held religious beliefs and as Justice Alito has said it is not for the government or the courts to question that belief and therefore those who believe the Noah’s Flood story have a constitutional right to have it taught in the public schools along with the unconfirmed position of the scientific community”.)

Another reason according to the radicals that the public does not support their positions is that liberal professors at liberal colleges and liberal universities force their liberal positions on the naïve and unsuspecting student body thus preventing those students from learning the truth. So activities like Project Veritas, or as some of us call it, Project Intimidation or Project Book Burning Bonfire will always take place and the results will be spun and edited and distorted to show how colleges and universities deny students basic rights. After all, what other explanation could there be for the fact that contrary to what is correct, some people actually believe that all Americans should have access to health care, that the right to pollute is not enshrined in the Constitution, that freedom of religious means one can have a religion different from Christianity, that the existence of government debt is not a moral failure, that the 2nd amendment does not give everyone the right to own an anti-tank bazooka and so forth?

Ben Alpers said...

I'd think that the behavior of administrators in these situations also reflects a desire not to run afoul of Title IX. Not taking a Title IX complaint seriously could potentially get an institution In trouble. Of course that doesn't -- and shouldn't -- mean that all such complaints result in investigations or action. But with Title IX enforcement enhanced by the federal government in recent years, it would probably be foolish for those responsible for Title IX enforcement at these schools to simply dismiss these complaints out of hand without talking seriously to the "student." Beyond the human elements that you discuss in the post, there's probably an element of cya here. Though, as I always not when I comment on this blog, IANAL.

Joe said...
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tjchiang said...

I enjoyed the irony of confused conservatives waving the First Amendment flag in support of what is really a blasphemy charge. There is one point, however, where the irony falls flat, namely where you say "it is usually a conservative complaint about liberals that liberals regard the Constitution as they would interpret it as perfect, rather than flawed." I take it your point here is that there is a seeming logical contradiction to criticize liberals for regarding the constitution as perfect, and then to regard it as blasphemous when someone describes the constitution and its framers as flawed.

But there is no contradiction, because the conservative criticism (loosely conceived) is that liberals regard their imaginary living constitution as perfect, while figuratively shredding the actual constitution written by the deified founding fathers. Criticizing as blasphemous a bunch of presumably liberal college officials literally shredding the written constitution while describing the framers as flawed is completely consistent with that. Indeed, the degree of gut-instinct reverence for the framers and their written work product is one of the biggest points of underlying value difference between conservatives and liberals and is extremely informative of debates like originalism versus living constitutionalism.

Joe said...
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Joe said...

"gut-instinct reverence for the framers"

or some image of them ... but liberals have some of that too as seen by appeals to "Madison" or "Jefferson" in various cases, including freedom of speech and separation of church and state. As with the idea that originalism is a real restraint when in practice it is quite variable & liable to at times add to activism (since we "have" to strike down popularly passed laws or long term practice because the framers made us do it), the differences at times are more imagined than real.

MMS said...

Jack Balkin's older works seem to resonate on the subject - at least from an ivory tower perspective - but they should probably be taken more seriously:

"All of the difficulties with the ethics of Otherness arise from the assumption that our responsibility to speak in the language of the Other is infinite. We can restate the difficulty by relating it to a similar problem in understanding the views of another. This is the problem of hermeneutic charity. When we try to understand what another person means, we usually do so by trying to envision how what they are saying makes sense. As Hans-Georg Gadamer has argued, we must make an "anticipation of completion" that what another is saying is coherent and has a claim to truth. If we do not take this stance, we cannot be sure that our discovery of incoherence or falsity in another's position is due to a defect in their argument or our inability to understand it fully...Understanding, then, is a kind of vulnerability or openness to the truth that the Other may have to express. It always requires the possibility that our beliefs will be changed through our encounter with the Other"