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.