Civil discourse in America has become a Shakespeare play.  The debate on almost every issue plays out in the same five acts associated with any of the bard’s tragedies or comedies.

• Act I/Introduction of the players.
• Act II/Emergence of the issue or situation.
• Act III/Climax or moment of illumination when the outcome is determined.
• Act IV/Response to the climax.
• Act V/Resolution or catastrophe.

Take, for example, the current debate over freedom of expression on college campuses.  In Act I we learned there were faculty, students and speakers on college campuses who claimed their First Amendment right to freedom of expression had been violated based on things they had said or written.  In Act II,  academic freedom of expression becomes the cause celebre of the University of Chicago, which in 2014, establishes a committee on freedom of expression and develops what becomes known as the “Chicago Principles.”  In Act III, the movement is institutionalized when the Foundation for Individual Rights in Education {FIRE)) begins promoting the Chicago Principles and establishes a rating system to measure an institution’s compliance.  Concurrently, Econ Journal Watch makes the connection between the free speech movement and a study they published that looked at the voter registration of 7,243 professors at 40 major universities which found (drum roll) Democrats outnumbers Republicans 11.5 to one.

Which brings us to Act IV, the response taking place in the Florida State Legislature where  the Republican majority recently passed HB 233 with stated objective “to protect the intellectual freedom and viewpoint diversity on state campuses.”  However, according to the Tampa Bay Times ,” the act would require public colleges and universities to survey students, faculty and staff about their beliefs and viewpoints.”  On April 6, the Florida Senate passed its version of HB 233 on a partisan vote of 23-15, WITHOUT DEBATE.  (So much for freedom of expression.)  The Senate version includes vague language which allows the State Board of Education (appointed by the governor) to determine if any response is required based on the survey results.  Opponents of the bill contend the vague language opens the door for curriculum mandates at state colleges and universities.

I am afraid we have to wait for Act V to see how this cliffhanger unfolds.  Will HB 233 lead to academic McCarthyism?  The bill also allows students to make audio and/or video recording of class sessions which can be used as evidence in cases involving alleged violations of a student’s freedom of expression.  Or is HB 233 just one more instance of GOP political theater to deflect attention from efforts to further restrict voting rights or the state’s response to the pandemic?  Or is the whole freedom of academic expression movement  the solution to a problem blown out of proportion.  In 2018, the Georgetown University Free Speech Project issued a report in which it found “roughly  90 incidents since 2016 in which a person’s free speech rights were threatened, of which two-thirds of the cases took place on college campuses.” (Source: First Amendment Watch at New York University, August 2018)

In other words, will the eventual chronicle of this  clash of viewpoints over the intersection of government and academia be titled “All’s Well That Ends Well” or “A Midsummer’s Nightmare?”

POSTCRIPT: Some Culture Should Be Cancelled

On last night’s edition of Real Time with Bill Maher, the host again accused liberals of being overly “woke,” pointing to a recent incident where Meyers Leonard, an NBA basketball player, was released by the Oklahoma City Thunder for using a racial slur.  Oddly, Mr. Politically Incorrect, who often accuses others of being snowflakes, was not willing to share Leonard’s word.  I think my readers can handle it.

During a live-streamed session of the video game Call of Duty, Leonard referred to another player as “a fucking kike bitch.”  To his credit, Leonard quickly apologized for his behavior but claimed he had no idea what the word “kike” meant.  As a result, the Anti-Defamation League and others suggested he talk with members of the Jewish community including Holocaust survivors about the origins and history of the term, which he did.

Maher, however, found this offensive.  He thought the original apology should have been enough.  He then reminded his audience his mother was a non-practicing Jew and asked, “Doesn’t that give me enough cred to speak for my people?”  I think you know the answer!

Maybe an individual who, in the 21st century, believes education is an inappropriate response to ignorance is someone who SHOULD be cancelled.

For what it’s worth.
Dr. ESP

NOTE:  The title of today’s post comes from an experience many years ago when my wife and I attended the performance of a music composition advertised as being written in the style of Bela Bartok.  When the ensemble played the final note, a member of the audience stood up and yelled, “RUBBISH.”  Yes, you could call it music by the technical definition since the composition consisted of a series of notes strung together.  But as I told my wife that day, “Just because you can do something, doesn’t mean you always should.”

On March 16, 2021, the Foundation for Individual Rights in Education (FIRE) posted an on-line news article by Adam Steinbaugh, director of the organization’s Individual Rights Defense Program, titled “University of Virginia, founded by Thomas ‘Blood of Patriots and Tyrants’ Jefferson, orders student’s sign removed because it ‘advocates’ violence.”

The sign (as shown here) is described by Steinbaugh in the article as “student Hira Azher’s new anti-racism display.”  The caption below the picture reads, “Burn it all down” and a quote from Kwame Ture (the legally adopted name of the civil rights activist born Stokely Carmichael), “In order for non-violence to work, your opponent must have a conscience” followed by the words “UVA Has None.”

In a March 12 letter to Ms. Azher, the University’s Facilities Management Division informed her it had been directed to remove the sign as it “advocates physical violence.”  The letter focused on two specific references, the phrase “Burn It All Down,” and the suggestion that “nonviolence is ineffective against UVA.”

FIRE felt it necessary to engage in the situation by sending a letter to UVA, in Steinbaugh’s words:

…explaining that the university’s assessment that the display amounts to unprotected “incitement” is erroneous. The sign’s content would be understood by observers as political rhetoric, not as a student’s literal exhortation that others burn down the building in which she resides. Even assuming it were read literally, it is not likely to actually lead anyone to burn down the University of Virginia, much less do so immediately upon reading the sign.

In Adam Steinbaugh’s three-page letter to UVA,  FIRE reserves one paragraph at the very end to acknowledge the events of August 2017 when white supremacists and neo-Nazi marched on the University resulting in the death of anti-racism protester Heather Heyer.  Steinbaugh addresses this historical context as follows.

Instead, that violence–during which a white supremacist murdered a protester–should stiffen the university’s resolve to protect speech, not to use it as a basis to curtail expressive rights.

FIRE’s call to arms on this issue boggles the mind for more reasons than one can address, but I’ll stick to three.

First, a University has many responsibilities, including providing a safe environment for its students.  And on those sad occasions when it fails to do that, it is often held liable for its negligence or incompetence.  How easy is it for Mr. Steinbaugh, representing this self-appointed star chamber of what is or is not freedom of expression, sitting in an office in Philadelphia, to criticize  when the critic has no liability or nothing personally at stake?

In light of the events of August 2017, did it never cross Mr. Steinbaugh’s mind that the University was less worried Ms. Azher would incite violence than be the victim of it?  Does FIRE believe there are no white supremacists or neo-Nazis among the UVA student population?  Just imagine the response if an angry student, having seen her sign, broke into Ms. Azher room and harmed her.  What are the chances FIRE is going to testify on behalf of the University that UVA is not liable because it was more important they protect the student’s freedom of expression while ignoring any responsibility to protect her safety?

In the article, Steinbaugh finds it unimaginable anyone would take the phrase “burn it all down” literally.  Did he also find it unimaginable that Al Qaida could take down the World Trade Center or crash a plane into the Pentagon?  Or that insurrectionists would breach the U.S. Capitol in hopes of overturning a presidential election?  Or more than a half-million Americans would die during a pandemic?  In hindsight, like so many of us, I bet he wishes, on those occasions, someone had considered the possibility before it happened.

Second, Ms. Azher does not reside in just any old dormitory.  She lives in a room on The Lawn, the student housing which is part of Mr. Jefferson’s original design including the historical landmark Rotunda, which incidentally she incorporated in her sign.  She is in rarified company of alumni who have shared this space, including Edgar Allan Poe.  For many of us who are alumni, this is sacred ground.  It is a place where we celebrated the first warm day of spring playing frisbee or enjoyed an open-air free concert featuring The Fifth Dimension.  It is also a place that provided a brief refuge from the pressures of assignments and exams.  More importantly, it is where we spent our last day on the University grounds, receiving our diplomas.

I not only respect Ms. Azher’s activism against racism.  As you might imagine from previous posts, I welcome it.  I also believe she has the right to express her activism in words and images she deems appropriate.  But I am not sure that right extends to a venue where she is a guest.  It is an earned privileged (base on grades and activities) to live on The Lawn.  But with that privilege comes responsibilities.  If Ms. Azher wants to rent a billboard on Emmet Street, I say, “Go for it.”  But the door to her room belongs to the University which has conflicting responsibilities to individual students, the student population in general, being custodian of a historic site and to the community.  For FIRE to be blind to those competing obligations seems shortsighted (pun intended).  Life is not black and white (pun again intended).

Third, Mr. Steinbaugh obviously has not been reading newspapers or watching reports about the increase in targeted violence these past four years.  Nor does he seem to remember the exception to protected speech under the 1969 Supreme Court decision in Brandenburg v. Ohio goes beyond inciting violence.  It merely has to produce it.  You know, like a former president of the United States calling a pandemic the “China Flu” or “Kung Flu,” and there being a 150 percent increase in violent incidents against Asian-Americans since March 2020.  Or calling Latinos “breeders” and 23 Americans of Mexican ancestry being massacred in El Paso by an assailant who parroted that sentiment.

In closing, let me give Steinbaugh and FIRE credit where credit is due.  This is the first recorded case in legal history of “FIRE shouting First Amendment in a crowded student residence.”  I wonder how Justice Oliver Wendell Holmes would feel about that.

POSTSCRIPT

On March 13, 2021, Ms. Azher posted a picture of the door and the letter informing her the facilities division had been instructed to remove the image on Twitter under the words, “Fuck UVA.”   The University did NOT order or ask her to remove the Tweet.  Nor was she reprimanded for having suggested the University did not have a conscience when it came to racial issues.  Too bad FIRE chose not to acknowledge this aspect of her constitutional right to be pissed at the University administration or to feel it had not done enough to combat racism on campus.  They might have realized UVA had been quite accommodating when it came to her right to express her opinions.

POST POSTSCRIPT

If you search the term “student rights” on FIRE’s website, you get 28,399 hits.  However, if you search “student voter suppression” you get THREE hits, none of which deal with state efforts to make it harder for students to cast ballots in federal, state or local elections.  I guess disenfranchisement of a student’s constitutional right to vote in public elections does not constitute FIRE’s definition of “freedom of expression” or fits their mission of protecting “individual rights in education.”  I wonder why?

For what it’s worth.
Dr. ESP

A few posts back, I discussed the difference between acknowledging Donald Trump as “the” president versus “my” president.  Words matter.  This time the distinction lies between the words “voter” and “voting.”

Much is being written and talked about concerning “voter suppression.”  The Brennan Center for Justice reports, as of February 19, 2021, “state lawmakers have carried over, pre-filed, or introduced 253 bills with provisions that restrict voting access in 43 states.”  To be fair some are multiple versions on a single issue.  For example, 11 bills related to absentee voting have been introduced in the current session of the Alabama legislature.

But it is not the voter who is being suppressed.  The registered voter will still be there.  What is being affected is the ability of that person to cast a ballot during an election.  Therefore, the more accurate term would be “voting suppression.”  And as we know from multiple sources, including his recent statement before the Supreme Court, Michael Carven, attorney for the Arizona Republican Party, admitted the target for “voting suppression” is likely Democratic voters.

If you want to understand the difference between “voting” versus “voter” suppression, you have to start by looking at the Marist Institute for Public Opinion survey, conducted March 3-8, in which respondents were asked, “If a vaccine for the coronavirus is made available to you, will you choose to be vaccinated?”  Why is this important?  Leading health experts from Dr. Anthony Fauci to CDC director Rochelle Walensky contend Americans can return to a reasonable level of economic and social normalcy when 75 to 80 percent of all adults have been vaccinated, a prerequisite for effective herd immunity.

So let’s look at the numbers.  According to the Marist survey, there is still work to do.  Among all adults, 30 percent say they would not get vaccinated, while 22 percent indicated they had already received at least one dose and another 45 percent said they plan to get vaccinated when their turn comes.  But the average for the total population, as usual, does not tell the whole story.  Consider the following data on certain subsets of individuals who say they will not get vaccinated.

Republican Men/49 percent
Trump Voters/47 percent
White Men without College Educations/40 percent
White Evangelical Christians/38 percent

In contrast, the population cohort with the smallest percentage of vaccine deniers is (drum roll) Black Americans.  How many news reports have focused on anticipated resistance by African-Americans, based on the historic abuses of minorities as medical trial subjects, the most obvious being the Tuskegee Experiment when 600 African American men in Macon County, Alabama were selected to study the progression of syphilis, which at the time had no known treatment.  Instead of testing the efficacy of penicillin, the most promising treatment, all 600 were given a placebo.

How could the pundits be so wrong?  Maybe, based on the morbidity rate among minorities, Black Americans understand how deadly COVID-19 can be.  Call it common sense.  Unlike Jina Militello, a school teacher and 2020 Trump voter, who appeared on today’s edition of Morning Joe.  When asked by NBC reporter Kate Snow why she is not listening to the advice of health officials, Militello responded, “I believe the risk from the vaccine is greater than getting the virus.”  Sound familiar?  How many converts were COVID-19 deniers until someone they loved or they themselves contracted the disease?  Militello is obviously outside the one in five Americans who knows someone who died from COVID-19.

Which brings me back to the difference between “voter” and “voting” suppression.  Voting suppression did not work in 2020 and will not work in the future.  Why?  Because as rightfully predicted by many, determined Democrats  will “walk through fire” when anyone tries to disenfranchise them.  Sadly, that will not be the case when it comes to vaccine deniers.  Even as the number of deaths from COVID-19 continue to decline, the percentage of the remaining deaths will be significantly highly among the unvaccinated.  And if that cohort consists largely of Republican men and Trump supporters, will GOP leadership understand they are suppressing their own electoral base when they do not encourage their supporters to get vaccinated?  Not by making it harder for them to cast a ballot, but by increasing the odds they will be eliminated forever from the voting pool.

It reminds me of an old joke.  A driver slows down to avoid hitting a jaywalker.  The passenger says, “Why did you slow down?  He was smoking and is going to die anyway!”  Worried about a friend or relative who continues living in that alternative Trump/GQP universe?  Don’t worry.  There are 50/50 odds they are not going to get vaccinated and you will not have to worry about them much longer.

For what it’s worth.
Dr. ESP

Much of American journalism, which was supposed to revert to its historic role as a check on those in power after Donald Trump left town, is now devoted to shutting down the commercial lifeline of other media. Think of the precedent for the next populist Republican President who might declare pro-choice publications “deadly.”

~Wall Street Journal Editorial Board/January 29, 2021

To the WSJ editorial board, I say, “I don’t have to think about the next populist Republican president.  Did it only take nine days for you to forget the last GOP chief executive declared the media to be ‘the enemy of the people?'”  Furthermore, is the WSJ saying Congress has now ceded its Article I powers under our system of checks and balances to the media?  Or federal courts expect journalists to decide when a president operates outside constitutional boundaries?  NO!  The media is not a check on presidential power.  Its traditional role has been and continues to be a guardian of the truth.  Just this morning, the New York Times fact-checker Linda Qiu reported three instances during his first week in office Joe Biden misrepresented or overhyped empirical data.  Sounds like she’s doing her job.  Likewise, when one media outlet calls out lies from a counterpart or rival outlet they are doing the same thing, fact-checking those who are disseminating information, regardless of the source.

But that’s not what I came here to talk about.  Instead, I wish to focus on how those who hide behind the curtain of “moral equivalency” (sometime referred to as “what about..ism”) have hijacked the First Amendment and represent a greater threat to free speech than those accused of promoting the “cancel culture.”  And it is the responsibility of those who have become the intellectual voice of free speech on college campuses and the press to call out these insurgents.  Not doing so destroys any chance of expanding their audience.

First, a little history.  The free speech movement received national attention with adoption of the Chicago principles, so-called because they are based on the findings of a 2014 report issued by the University of Chicago’s Committee on Freedom of Expression.  (Yes, the same university whose School of Economics continues to push supply-side economics and trickle-down theory as helping the middle class and balancing the federal budget despite 40 years of evidence to the contrary.)  A campaign to promote adoption by other institutions of higher learning has been led by the non-profit Foundation for Individual Rights (FIRE).  As of August 2020, FIRE reports 76 U.S. colleges and universities have “adopted or endorsed the Chicago Statement or a substantially similar statement.”

Before proceeding, let me stipulate there are valid concerns about free speech on college campuses.  But let’s be clear, there is a distinction between controversial opinions and, as Kellyanne Conway would say, “alternative facts.”  One need only read the inscription from John 8:32 above the Upham Hall arch at Miami University where I taught for nine years.  It does NOT say, “You shall know the OPINION, and the OPINION shall set you free.”  It refers to the TRUTH as the source of personal and professional liberation.

In more practical terms, there can be a difference of opinion about whether slavery was an essential factor in the early development of the United States as a commercial power, but you cannot deny there was slavery.  We can argue whether there was justification for the 2003 invasion of Iraq, but Saddam Hussein’s role in 9/11 cannot be part of that conversation.  As so often quoted, the late Senator Daniel Moynihan declared, “You are entitled to your own opinion, but you are not entitled to your own facts.”

Fast forward to two more recent examples.  On January 23rd the Washington Post reported on the backlash when former Trump official Richard Grenell was hired by Carnegie Mellon University.  Reporters Marisa Iati and Lauren Lumpkin wrote, “Criticism grew in November when Grenell falsely claimed that voter fraud had cost Donald Trump a second term.” A lie repeatedly debunked in judicial opinions, statements by state and federal officials and via media investigations.  If FIRE is concerned about the “cancel culture,” you cannot defend someone who repeatedly attempts to cancel the truth about the 2020 election.

And of course there is the king of alternative facts Donald Trump.  To understand the extent to which Trump exceeded any protection under the First Amendment, one must study the history of the phrase, “Shouting fire in a crowded theater.”  I suspect you will be as surprised as I was.

This caveat to the First Amendment protection of free speech appears in Justice Oliver Wendell Holmes, Jr.’s decision on behalf of a unanimous Supreme Court in the 1919 case Schenck v. United States.  The justices found the defendant’s constitutional rights were not violated when he was charged with undermining the war effort (WWI) by opposing the draft.  However, the story does not end there.  I was not aware the decision was partially overturned in 1969 in Brandenburg v. Ohio.  This time the court found “yelling fire” was not enough.  Inflammatory speech (pun intended) had to directly “incite imminent lawless action or produce such action.”

Therefore, for U.S. senators who have not taken their Prevagen in the past 24 days, let me again remind you using the words of GOP outcast Liz Cheney, “The President of the United States summoned the mob, assembled the mob, and lit the flame of this attack.  Everything that followed was his doing.”  And to FIRE and other advocates of the Chicago Principles, I encourage you to read Trump’s January 6 speech to the assembled crowd on the Washington ellipse in its entirety.  Because Trump’s lawyers are going to argue he was only exercising his constitutional right to free speech.  And yet the speech is peppered with debunked claims of voter fraud and conspiracy theories.  He yelled “fire” when there was none, and within an hour, that false claim “produced lawless actions.”

If the leaders of the free speech on campus movement want me to join them when their arguments are valid, they need to push back against those who scream “I have a right to speak out” if the content consists of demonstrable falsehoods or when they act criminally under the Brandenburg v. Ohio doctrine.  Therefore, I look forward to FIRE and other adherents to the Chicago Principles acknowledging the difference between apples and oranges during the impeachment trial or if and when the alleged insurrection conspirators are tried in court.  And issue a public rebuke when Trump’s legal team claims “the big lie” that incited an attack on the U.S. Capitol was merely an exercise of free speech.

To not do so, severely damages their credibility and motivation.  Because the Chicago Principles would undermine academic integrity because they send a message universities and colleges cannot demand faculty, students and guest speakers ground their theories and opinions in empirical evidence.  In which case, Miami University might as well sandblast the words above the Upham Hall arch.

For what it’s worth.
Dr. ESP