Erik Baker

Positive and negative free speech rights


The topic of free speech on college campuses has recently mutated from a convenient way for intellectually exhausted centrist and right-leaning pundits to fill column inches to a live debate within the left. Driven especially by criticisms from Freddie deBoer and a few figures associated with Jacobin, the online left-o-verse has been abuzz of late with disputes over the merit of “de-platforming” and other tactics commonly taken as emblematic of the contemporary student left’s disregard of the value of free speech. I actually think that this development is fairly healthy and has brought some important issues to the forefront, but I think that this Nouvelle Vague of “pro-free speech” leftist writers concedes far too much to the right and has yet to articulate a coherent vision of how students can integrate a commitment to both free speech and substantive leftist goals. These flaws are intimately related, but more on that anon.

DeBoer is both the most strident and most rhetorically gifted member of this group, so he makes an illustrative example for understanding the position I’m talking about. He has three main arguments. The first is that, to paraphrase Baroness Thatcher, There Is No Alternative; that is, (1) there is nowadays simply no feasible or coherent way to avoid the liberal framework of free speech rights without falling into an intellectual morass or quietism of both smug and despairing varieties. The second is that (2) unless the left can get their more embarrassingly authoritarian comrades under control, the right will use the slow-burn optics disaster to run roughshod over public education. And the third, which I can’t find a good link for right now, is (3) that leftist students are so powerless that whatever deviations from a norm of free-speech absolutism they push for will be used to punish them in turn.

I’m somewhat sympathetic with all of these arguments individually, but together they paint an incoherent image of the state of student activists: they are (1) so used to powerlessness that they resort to implausible intellectual masturbation in lieu of real action; (2) so powerful (and overzealous) on campus that the GOP can paint a compelling picture of the animals running the zoo at universities nationwide; (3) simultaneously powerful enough to extract material changes in what university administrations are and aren’t capable of doing, but also powerless enough that they will in turn immediately face the wrath of now-almighty administrators as soon as they obtain these same successes.

(Another common incoherence of (2) and (3) is the notion that students are perched in an odd position of razor-thin precariousness, where any noisemaking will provoke punishment from powerful conservatives, either in the form of defunding and privatization or of sanctions for particular activists, but where toeing the free-speech-absolutist line will also be sufficient to postpone the hammer indefinitely.)

Here’s my competing story: whether or not public universities are defunded and privatized has almost nothing to do with what student activists do; it has been a core goal of the right since before many of today’s students’ parents were born, and the GOP will stop at nothing to accomplish it, come hell or high water, no matter how respectable or absurd the actions of students seem to outsiders. The only way to actually stop this agenda is to build real political power on the left in legislatures and to articulate and defend a robust vision of education as a public good — and a positive right — that ought to remain outside the purview of market forces. Every leftist student currently protesting racist speakers could throw in the towel and spend every night for the next four year volunteering at soup kitchens and absent those two developments the current march towards the dismantling of public higher education in the US would continue unabated.

This is the most important free speech issue of our time. And conceding the center-right’s framing of “college free speech” makes it impossible to recognize it as such. 

DeBoer’s repeated expressions of exasperation and incredulity when encountering observations of the hypocrisy of “free speech advocates” suggest that he truly cannot fathom the idea of a person who thinks free speech and academic freedom are very important values for the left but thinks the current hegemonic conception of those principles is fundamentally, even dangerously deficient. The fact that the political spectrum among the most prominent free speech rabblerousers — Jonathan Haidt, Conor Friedersdorf, Jonathan Chait, Steven Pinker, the entire American Enterprise Institute, etc. — ranges essentially from Tony Blair to Ronald Reagan does not trouble deBoer one iota. The only reason someone could possibly be concerned about that sort of thing, he insinuates, is a base drive to place partisanship (who’s on your “team”) over principle.

This means that he doesn’t realize that the most common form in which “free speech absolutism” appears in the mainstream press is as a corollary of a broader commitment to the ideology of the “marketplace of ideas,” the very same ideology which justifies treating education as a commodity that should be subjected to private market competition in the first place. Here, for instance, is the right-wing Foundation for Economic Education invoking Jonathan Haidt’s advocacy for “political diversity” in an argument against the institution of tenure. Here is Friedersdorf extolling the virtues of homeschooling vis-à-vis public school, and here he is arguing for school vouchers as his preferred method of reparative racial justice. The neoliberals looking to use the putative college war on free speech as an excuse to enact their agenda on American higher education are not just far-off GOP lawmakers but also deBoer’s fellow “free speech absolutist” writers.

So finding an alternative to their conception of “rights” is not just possible but absolutely urgent. Luckily, such an alternative is ready-made: it’s the same alternative that the left has drawn on since the rise to hegemony of classical liberalism hundreds of years ago. Against the classical liberal insistence only on the existence of “negative rights” (think concepts that begin with “freedom from…”), the left has traditionally defended the existence of “positive rights” (typically “the right to…”), and often insisted that positive rights ought to take precedence over negative rights when the two come in conflict: the idea, for instance, that economic coercion is acceptable to guarantee access to healthcare for all.

So for this leftist tradition, exemplified in the twentieth century by figures like Dewey and Habermas, the right to free speech is not just the freedom to say what one wants at any particular time unencumbered by any active restraint, but a freedom to learn, to reflect, and to use one’s capacity for critical thinking to contribute to political discourse and ultimately concrete collective political projects, in cooperation and solidarity with others. From this conception of free speech, the urgency of e.g. the defense of institutions like tenure, collective bargaining for university employees, and public funding for higher education flows quite naturally. In fact, they move to the center of our conception of what the fight for free speech on campuses actually means, and the problem of student activism starts to seem more like a politically expedient distraction.

It also, for what it’s worth, becomes clear when and for what reason suspensions of the more conventional liberal right to free speech become acceptable: in defense of this positive right of universal access to democratic deliberation and political action. Speech used to intimidate and harass students whose access to education and all it entails is in jeopardy can be subject to reasonable restraints (though as with all rights conflicts the precise practical solution cannot be spelled out entirely a priori). So, to take a real-world example, attempting to prevent Milo from outing undocumented students on campus is entirely defensible under this framework.

Indeed, collective student action more generally — protests, student writing, etc., aimed at changing the status quo — starts to seem closer to embodying the spirit of a robust understanding of academic freedom than imperiling it. “Democratic means and the attainment of democratic ends are one and inseparable,” as Dewey put it. While the neoliberal idea of the marketplace of ideas advocates an imposed discursive free-for-all as a convenient means of preventing collective bodies from ever actually doing anything, the competing leftist, positive-rights idea insists on the importance of knowledge creation and earnest communication as the groundwork of further democratic action.

This distinction is absolutely crucial (it’s central to my new article with Naomi Oreskes, for instance) but it gets occluded every time deBoer sneers at attempts to argue that the locus of the free speech fight ought to shift away from student deplatforming. If deBoer and his allies really do want to defend the right of people to work together for a better world — and I don’t doubt that they do — they should just do that, instead of insisting that we can slide ass-backwards into that same position if only we first make our peace with the libertarians.