Jacob Levy has posted a thoughtful response to my comments on "free speech" on campus. (He is also one of three bloggers recently added to my highly exclusive--though possibly not coveted, depending on what one thinks of my tastes--"blogs better than their exposure" roll.) We may not disagree as much as it seems; I will try here to sort out some of the intertwined issues.
First, we apparently agree fully that "time, place and manner" restrictions on speech--"no shouting outside dorms"-type stuff--can be quite legitimate. Levy also accepts that "[i]n-class speech that fails to advance an argument or to contribute to the academic enterprise is, of course, discouraged." (How vigorously it can be discouraged, Levy doesn't say.) Speech that is "merely offensive", however, is a different matter; according to the policy he wrote for the University of Chicago, it is not generally appropriate for "the University [to] intervene to enforce social standards of civility."
These last two positions form a striking contrast--with themselves, and also with traditional notions of academic freedom. In effect, they turn the usual form-content distinction on its head: we may forbid you to utter arguments in class that we consider invalid, but you are of course entitled to spew as many four-letter words as you please! That can't be what Levy has in mind--and it appears that indeed, it is not: " To single out a student for abuse," he writes, "to throw racial epithets at a particular person, to threaten with violence--these are over the line. They're violations of professional ethics and may well warrant university intervention." Now, to me, that sounds a lot like "enforc[ing] social standards of civility", and Levy seems quite comfortable with it.
What he is not comfortable with, as his examples show, is actually something very specific: restricting the expression of a specific set of ideas, on the grounds that a particular person or group finds it "offensive". Now, I happen to share this discomfort myself, but--and this is the crux of the issue, I think--I do not consider the principle at issue here to be the protection of free speech. There are, as our previous examples have shown, so many completely legitimate reasons for restricting free speech in an academic setting that standing on the principle in this class of instances invites charges of massive inconsistency.
No, the reason for not restricting speech based on perceived "offensiveness" is that this particular rationale for doing so is a terrible one. Left as is--"thou shalt not say things that are offensive to a particular person or group"--it is meaningless: who determines whether a given statement is "offensive" to a particular person or group? Defined more precisely--"thou shalt not say things that a particular person or group says it finds offensive"--it easily becomes grotesque: should any particular person or group be entitled to call down punishment on an arbitrary individual for the crime of having given offense? Even if such a rule were never used to stifle debate-worthy political or intellectual opinions (and there is every reason to suspect that it might), it would still be wide open to abuses of all kinds--blackmail, prosecution of personal or social vendettas, and so on. Why treat it as a free speech issue?
Now, it might be said that my distinction is a niggling, angels-on-pinheads affair; what does it matter whether a bad rule is shunned on free-speech grounds or on its own demerits? But as I explained in my previous posting, the "free speech" argument has been used to defend a lot of scurrilous behavior on campus, including acts that are profoundly damaging to the academic endeavor. These acts are not, pace Levy, a "red herring"; they are an excellent argument for avoiding overuse of the "free speech" shibboleth--especially when far more compelling arguments apply.
(Correction: Jacob Levy did not write the University of Chicago policy from which he quotes; I misread his reference to it as suggesting that. My apologies.)