Excerpt from Explaining Postmodernism: Skepticism and Socialism from Rousseau to Foucault (Expanded Edition), by Stephen Hicks (Ockham’s Razor, 2013). Reprinted with permission from the author.
From Additional Essay: Free Speech & Postmodernism
In the early modern world, the case for free speech won the battle against traditional authoritarianism. Powerful arguments by Galileo, John Locke, John Stuart Mill, and others won the debate for free speech. Historically, those arguments were nested in different philosophical contexts, and they were often tailored to audiences hostile in varying degrees to free speech. In contemporary language, here are the elements of those arguments that are still with us: (1) Reason is essential for knowing reality (Galileo and Locke). (2) Reason is a function of the individual (Locke, especially). (3) What the reasoning individual needs to pursue knowledge of reality is, above all, freedom—the freedom to think, to criticize, and to debate (Galileo, Locke, and Mill). (4) The individual’s freedom to pursue knowledge is of fundamental value to the other members of his society (Mill, especially).
A corollary of this argument is that when we set up specialized social institutions to seek and advance our knowledge of the truth—scientific societies, research institutes, colleges and universities—we should take special pains to protect, nurture, and encourage the freedom of creative minds.
It is therefore surprising that the greatest current threats to free speech come from within our colleges and universities. Traditionally, a major career goal for most academics has been to get tenure, so that one can say whatever one wants without being fired. That is exactly the point of tenure: to protect freedom of thought and expression. Yet today we see that many individuals who have worked for many years to get tenure and the academic freedom that goes with it are the strongest advocates of limiting the speech of others.
Sample Speech Codes
Here are two examples of the way that some academics are seeking to limit speech through so-called speech codes. A proposed speech code at the University of Michigan forbade:
[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status …
At another major university, the University of Wisconsin, a hotly-debated speech code warned that disciplinary actions would be taken against any student
[f]or racist or discriminatory comments, epithets or other expressive behavior directed at an individual or on separate occasions at different individuals, or for physical conduct, if such comments, epithets, other expressive behavior or physical conduct intentionally: demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and create an intimidating, hostile or demeaning environment for education, university related work, or other university authorized activity.
These two are representative of the speech codes that are being put in place in many universities and colleges around the land. Major theoreticians behind these speech codes include such prominent scholars as Mari J. Matsuda, who tends to write on behalf of Americans from Asian backgrounds; Richard Delgado, who tends to write on behalf of Hispanics and racial minorities; Catherine A. MacKinnon, who writes on behalf of women as an oppressed group; and Stanley Fish, who, being a white male, is in a slightly delicate position—but who solves that problem by being sensitive to anybody with victim status.
Why Not Rely on the First Amendment?
In response to speech codes, a common reaction by Americans is to say: “Why hasn’t the First Amendment taken care of all of this? Why not point out that we live in the United States and the First Amendment protects free speech, even the speech of those who say offensive things?” Certainly, we should say that. But the First Amendment is a political rule that applies to political society. It is not a social rule that applies between private individuals and it is not a philosophical principle that answers philosophical attacks on free speech.
As regards the distinction between the political and private spheres, for example, note that the First Amendment says that Congress shall make no law, with respect to religion, free speech, and assembly. This means that the First Amendment applies to governmental actions and only to governmental actions. We can stretch this point to public universities such as Michigan and Wisconsin on the grounds that they are state-run schools and therefore are part of the government. In that way, we can say that First Amendment protection should be in place at all public universities. That is a good argument to make.
But that is not the end of the matter, for several reasons. To begin with, the First Amendment does not apply to private colleges. If a private college wishes to institute some sort of a speech code, there should be nothing illegal about that as far as the First Amendment is concerned. Second: First Amendment protection runs up against another cherished institution within the academy: academic freedom. It is possible that a professor would want to institute a speech code in his class and that, traditionally, would be protected under his academic freedom to conduct his classes as he wishes. Third: appealing to the First Amendment does not address another argument that has widespread appeal. Education is a form of communication and association, fairly intimate in some respects, and it requires civility if it is going to work. So open displays of hatred, antagonism, or threats in the classroom or anywhere in the university undermine the social atmosphere that makes education possible. This argument implies that colleges and universities are special kinds of social institution: communities where there may be a need for speech codes.
The First Amendment does not provide guidance about the rules governing speech in any of these cases. The debates over those cases are therefore primarily philosophical. And that is why we are here today.
Context: Why the Left?
I want to point out, first, that most speech codes around the country are proposed by members of the far Left, even though the same far Left for many years complained about the heavy-handedness of university administrations and championed freedom from university restrictions. So there is an irony in the shift of tactics in the Left’s campaign for authoritarian, politically correct speech-restrictions.
The question accordingly is: Why, in recent years, have academic Leftists switched their critique and their tactics so dramatically? I have spoken about aspects of this topic before and I have written a book on the topic (see my Explaining Postmodernism: Skepticism and Socialism from Rousseau to Foucault). In my judgment, a key part of explaining why the Left now advocates speech codes is that in recent decades the Left has suffered a series of major disappointments. In the West, the Left has failed to generate significant socialist parties, and many socialist parties have become moderate. Major experiments in socialism in nations such as the Soviet Union, Vietnam, and Cuba have been failures. Even the academic world has shifted sharply towards liberalism and free markets. When an intellectual movement suffers major disappointments, one can expect it to resort to more desperate tactics. Speech codes that target the speech of one’s political and philosophical opponents are one such tactic.
Affirmative Action as a Working Example
Let’s use affirmative action as an illustration of this process, for two reasons. First, the Left has clearly faced disappointment with its affirmative-action goals. In the 1980s and 1990s, the Left realized that it was losing the battle on affirmative action. Second, we are all familiar with the case of affirmative action, so it can serve as clear illustration of the philosophical principles the Left bases it goals upon; and this will enable us to see how those same principles are re-applied to the advocacy of speech codes.
The argument for racial affirmative action usually begins by observing that blacks as a group suffered severe oppression at the hands of whites as a group. Since that was unjust, obviously, and since it is a principle of justice that whenever one party harms another, the harmed party is owed compensation by the harming party, we can make the argument that whites as a group owe compensation to blacks as a group.
Those opposed to affirmative action will respond by arguing that the proposed “compensation” is unjust to the current generation. Affirmative action would make an individual of the current generation, a white who never owned slaves, compensate a black who never was a slave.
What we have here, on both sides of the arguments, is two pairs of competing principles.
One pair is highlighted by the following question: Should we treat individuals as members of a group or should we treat them as individuals? Do we talk about blacks as a group versus whites as a group? Or do we look at the individuals who are involved? Advocates of affirmative action argue that individual blacks and whites should be treated as members of the racial groups to which they belong, while opponents of affirmative action argue that we should treat individuals, whether black or white, as individuals regardless of the color of their skin. In short, we have the conflict between collectivism and individualism.
The other pair of competing principles emerges as follows. Advocates of affirmative action argue that partly as a result of slavery whites are now in the dominant group and blacks are in the subordinate group, and that the strong have an obligation to sacrifice for the weak. In the case of affirmative action, the argument runs, we should redistribute jobs and college acceptances from members of the stronger white group to members of the weaker black group. Opponents of affirmative action reject that altruistic standard. They argue that jobs and college acceptances should be decided on the basis of individual achievement and merit. In short, we have a conflict between altruism and the egoistic principle that one should get what one has earned.
In the next typical stage of the debate over affirmative action, two further pairs of clashing principles emerge. Advocates of affirmative action will say: “Perhaps it is true that slavery is over, and maybe Jim Crow is over, but their effects are not. There is a legacy that blacks as a group have inherited from those practices. So, contemporary blacks are victims of past discrimination. They have been put down and held back, and they have never had a chance to catch up. Therefore, in order to equalize racially the distribution of wealth and jobs in society, we need affirmative action to redistribute opportunities from the groups that have disproportionately more to groups that have disproportionately less.”
The opponents of affirmative action respond by saying something like the following: “Of course the effects of past events are passed down from generation to generation, but these are not strictly causal effects; they are influences. Individuals are influenced by their social backgrounds, but each individual has the power to decide for himself what influences he is going to accept. And in this country, especially, individuals are exposed to hundreds of different role models, from parents, to teachers, to peers, to sports heroes and movies stars, and so on. Accordingly, what people whose families were socially deprived need is not a handout but freedom and the opportunity to improve themselves. And again this country especially provides both of those plentifully.” So, from this side of the argument, the point is that individuals are not simply products of their environments; they have the freedom to make of their lives what they will. Instead of affirmative action, the answer is to encourage individuals to think for themselves, to be ambitious, and to seek out opportunity, and to protect their freedom to do so.
Let’s abstract from this second argument another two pairs of competing principles. Advocates of affirmative action rely upon a principle of social determinism that says, “This generation’s status is a result of what occurred in the previous generation; its members are constructed by that previous generation’s circumstances.” The other side of the argument emphasizes individual volition: individuals have the power to choose which social influences they will accept. The second pair of competing principles follows: Do individuals most need to be made equal in assets and opportunities, or do they most need liberty to make of their lives what they will?
In summary, what we have is a debate involving four pairs of principles. Those four sub-debates constitute the overall debate over affirmative action.
For Affirmative Action
Against Affirmative Action
Recently advocates of affirmative action have been on the defensive and many affirmative action programs are on their way out. There is now much less voluntary acceptance of affirmative action programs.
But if we are Leftists committed to the notion that racism and sexism are problems that must be attacked vigorously, and if we see the tool of affirmative action being taken away from us, we will realize that we must turn to new strategies. One such new strategy is the university speech code. So next I want to show how the issue of speech codes embodies each of these four principles on the Left side of the column—the collectivism, the altruism, the principle of social construction, and the egalitarian concept of equality.
Excerpted from Explaining Postmodernism by Stephen Hicks. Copyright © Stephen Hicks, 2004, 2011, 2014. All rights reserved.
 Galilei, Galileo. 1615. “Letter to the Grand Duchess Christina.”
 Locke, John. 1689. “A Letter concerning Toleration.”
 Mill, John Stuart. 1859. On Liberty. See especially Chapter 2.
 Matsuda, Mari. 1989. “Public Response to Racist Speech: Considering the Victim’s Story.” 87 Michigan Law Review.
 Delgado, Richard. 1982. “Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling.” 17 Harvard C.R.-C.L.L. Rev. 133.
 MacKinnon, Catharine. 1993. Only Words. Harvard University Press.
 Fish, Stanley. 1994. There’s No Such Thing as Free Speech—and it’s a good thing too. Oxford University Press.
 Hicks, Stephen. 2004. Explaining Postmodernism: Skepticism and Socialism from Rousseau to Foucault. Tempe: Scholargy Publishing.
This essay is adapted from the second of a two lectures given at The Objectivist Center’s 2002 Summer Seminar at the University of California, Los Angeles. It was first published in Navigator (September/October 2002).
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