A Tradeoff Between Freedom of Speech and Freedom From Racism?

By Connie Kwong

In light of increased discussion about racism across American universities, the Regents of the University of California have proposed that the UC system adopt a “Statement of Principles Against Intolerance”. While this project also seeks to address other forms of discrimination related to other issues such as sexual orientation, gender, and religion, it’s important to consider how race is arguably the most visible expression of a person’s identity. Likewise, the University of California system educates one of the most racially and ethnically diverse student populations in the world, and this is undeniably one of its greatest strengths. But recent events especially demonstrate that it is not immune to racism. For example, last December, effigies of black people hanging by nooses were found at UC Berkeley. In May 2014, student employees at the UC Davis Coffee House organized a “Cinco de Drinko” party in which attendees were encouraged to wear sombreros and ponchos, while other students would be dressed as border patrol agents to chase them across a fence. Just last month, the UCLA chapter of the Sigma Phi Epsilon fraternity underwent an investigation after it threw a “Kanye Western”-themed party in which students reportedly showed up in blackface.

Yet, the Regents’ efforts are nothing short of controversial. Racial tensions are at an all-time high, and universities nationwide are struggling to deal with how this negatively affects campus climate. The Regents’ proposal has received much of the same criticism directed at other strategies such as imposing trigger warnings, banning microaggressions, and withdrawing invitations to speakers whose views members of the student community may find offensive, ignorant, or even hateful.

For starters, opponents argue that trying to explicitly define what qualifies a person’s views and speech as “intolerant” is itself intolerant and violates the liberal democratic principle of freedom of speech. Perhaps the most relevant example here is that several Jewish and Israel-interest organizations believe that in writing the statement of principles, the UC should officially adopt the U.S. State Department’s definition of anti-Semitism, which specifically includes denying the state of Israel's right to exist and blaming it for all interreligious or political tensions. After all, divestment from Israel is one of the most polarizing issues across UC campuses and growing anti-Semitic sentiment is a cause for worry. But the problem with such a measure is that opinions on Israel are not homogenous within the Jewish community, much less the general population. No other public university has adopted this definition, and one UC Berkeley student even quipped that she has been called a "self-hating Jew" for condemning Israeli occupation of Palestinian territories. Thus, it’s a fair critique that trying to distinguish between unpopular or contentious opinions and “intolerable speech” can be an arbitrary or politicized process; a process that often becomes especially heated in a racial context.

This issue is further complicated by the fact that hate speech, for the most part, is indeed protected by the First Amendment unless it incites violence or prejudicial action against a group. Free speech advocates assert that even when offensive and hurtful speech is allowed, it is subject to public criticism, and therefore incentivizes dialogue and progress. There’s also the argument that sanctioning speech in academic environments will only “coddle” students and fail to prepare them to face the “real world” where discrimination, prejudice, and hate persist.

So given the controversy generated by university administrations’ efforts, are we supposed to believe that universities face a tradeoff between upholding the right to freedom of expression versus protecting students who are victims of racism and other forms of prejudice?

The Regents’ project is built around the central theme that “intolerance has no place at the University of California,” so let’s consider how the definition of “intolerance” is two-fold. Intolerance can mean an unwillingness or refusal to tolerate or respect opinions or beliefs contrary to one’s own. But it can also mean an unwillingness or refusal to tolerate or respect people of a different social group, especially members of an ethnic minority. Racism is a perfect embodiment of the latter definition, and it is a macro-level problem. In short, the answer to the question posed above is “no.” We shouldn’t look at this issue as a tradeoff between free speech and fighting racism. Universities have every reason to be concerned about how racism affects not only their campus climate, but also the bigger world that their students will inherit.

But the difficulty in prescribing solutions to on-campus is that racism doesn’t always present itself in explicitly hateful displays like effigies with nooses or spray-painted swastikas on a Jewish fraternity’s house. Not all racist comments or jokes about stereotypes actively seek to incite violence or prejudicial action against a certain ethnic minority group. It’s not at all uncommon to hear people defend acts of cultural appropriation like the “Kanye-Western” and “Cinco de Drinko” parties with the excuse, “It wasn’t my intention to be racist.” Still, intent doesn’t change the fact that these culturally insensitive acts are still racist. After all, cultural insensitivity ultimately stems from intolerance for “the Other;”and throughout history, racial minorities have indeed been perceived as “the Other.” The things we do and say do not exist in a vacuum, and they have the potential to make a person or even a whole community feel unsafe and unwelcome.

The argument that intolerance policies patronize students and force people what to think fails to hold up when we consider two important things. First, as one Fordham University law professor points out, the nature of free speech in the United States is that “in placing limits on speech we privilege physical over emotional harm. Indeed, we have an entire legal system, and an attitude toward speech, that takes its cue from a nursery rhyme: ‘Stick and stones can break my bones but names can never hurt me.”’ Yet, studies by neuroscientists and psychologists have found that emotional harm and physical harm produce many of the same neural responses in the body. Words and actions do not merely “hurt” or “offend,” and events of segregation, second-class citizenship, and racist terrorism are living, painful memories in the United States that can be incredibly triggering. Second, in many ways, we are by default indoctrinated into a culture of discrimination and intolerance. There’s a lot of research showing that as a whole, millennials are no less racist than their parents, suggesting that we have a long way to go in ridding society of racism.

Racism is a sociocultural issue that is pervasive in all aspects. If we want to confront this problem head-on, perhaps the best place to start is a place of learning: a university. Universities are places of learning not just because they’re academic environments. They’re communities in which people from all backgrounds live and interact, and have historically been sources of social change. Although the initial draft of the Regents’ proposed statement of principles was rejected at their September meeting, the Regents were proactive and held a public forum last Monday to hear input on how to best revise it. But while this document is an earnest effort to address the problems of campus climate, its capabilities are, at best, limited. It’s naive to claim that a document of guidelines alone can put an end to parties with culturally appropriative themes, microaggressions, slurs, and racist views. The Regents’ intolerance policy project needs to be continuously paired with other concrete efforts that help marginalized communities feel safe and welcome. For instance, last fall, UC Davis opened an Undocumented Student Resource Center and an African-American Student Resource Center. At the same time, the “My Culture is Not a Costume” campaign has been instrumental in spreading cultural awareness across campuses nationwide.

A multiethnic, multiracial, pluralist society is not a place where everyone has the same experiences or privileges, and this definitely applies to a diverse student body. Students, faculty, and administrators of the University of California need to understand that racist speech and acts aren’t exempt from criticism and are ultimately destructive to campus morale, and that the proposed intolerance policy really isn’t about sanctioning or silencing the offender's’ freedom of expression. The goal in fighting racism is to put an end to prejudice and oppressive sociocultural norms - norms that are often replicated through our speech and actions, for that matter - in favor of adopting values that promote a more compassionate and ethical society.