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Diversity and Speech Part 2: A Changing Context – by Carlos E. Cortés

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In my first column in this series, I began a discussion of the intersection of diversity and speech. This has grown out of my research as a current fellow of the University of California National Center  for Free Speech and Civic Engagement.   Let me expand upon those ideas.
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The basic point is this: in the United States, free speech does not really exist.  It is an inspiring metaphor, but not an actual reality.  Unfortunately, the term has been overused.  Today people throw “free speech” around in a helter skelter manner.  Too often the term serves as an all-purpose knee-jerk response to diversity advocates when they raise issues of inequitable and non-inclusive language.  At times it can short-circuit serious diversity discussions.
 Our nation’s speech system is far too complex to be captured by those two words, “free speech.”

Throughout our nation’s history we have developed a constitutionally-based system that combines robust legally-protected speech with selective legal limitations on speech.  In other words, our speech is laudably robust but not actually free.  As former Harvard law professor John Palfrey wrote in his perceptive book, Safe Spaces, Brave Spaces: Diversity and Free Expression in Education, “The First Amendment is often assumed to do something that it does not: to grant an affirmative right to free expression to all people (p. 69).”
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So how should diversity advocates deal with the dilemma of being accused of being anti-free speech?  Most important, don’t accept the bait.  Don’t be drawn into arguing against free speech.  We don’t need to.   There is a much better option.  We can reframe the terms of engagement.
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We should defend robust speech (not free speech, which does not exist).  But we should also insist that, when we support additional speech restrictions, we are operating firmly within the American historical tradition of selectively limiting speech, not acting against it.
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Within the U.S. historical tradition, laws and court decisions have selectively limited specified categories of speech, presumably in pursuit of the greater good of society.  (Obviously there will always be disagreements over what constitutes “the greater good” and who benefits — or loses — from that “good.”)   For example, there are laws and court decisions against such forms of speech as slander, libel, defamation, true threats, sanctionable harassment, punishable incitement, and the invasion of privacy.
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As diversity advocates, we should correctly insist that we are merely arguing for additional limitations in order to work toward important aspects of that greater good, such as equity and inclusivity.   But in order to make effective arguments, we need to do so with care, precision and, yes, restraint.  We must avoid becoming puritanical word cops.
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Diversity advocates cannot avoid dealing with the intersection of inclusive diversity and robust speech.  Tensions between those two imperatives are inevitable.  This complicates our efforts to address such speech-related issues as privilege, power, marginalization, hostile work environments, and the expression of intergroup hate.   But in recent years there have been a number of developments that can be used to support our positions.  Consider two of those developments: neuroscientific research and the growth of the internet.
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First, neuroscientific research.  Breakthroughs in this realm have given us continuously greater insight into the power of speech.  This includes its capacity to wreak emotional, psychological, and even physical havoc on individuals and groups .  Conversely, such research has provided a better understanding of ways for using speech to create greater equity and inclusivity.
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As a rationale for defending “free” speech, scholars often cite mid-nineteenth-century British philosopher John Stuart Mill’s classic treatise, On Liberty.  While I admire Mill’s arguments in favor of robust speech, he did not have to concern himself with today’s neuroscientific revelations.  My guess is that the erudite Mill would have seriously contemplated this new knowledge.  In fact, he may well have modified some of his arguments in light of such research advances.
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Then there is the development of the internet.  The internet is easily accessible.  For the most part it receives only scanty monitoring.  It is driven by algorithms, which draw upon individual online search habits.  Those algorithms tend to guide users onto sites that reinforce their beliefs and ideologies.  This process leads to “confirmation bias” on steroids, often resulting in heightened emotions and inflamed animosities.
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One result has been an unprecedented torrent of often-anonymous, rapidly-disseminated vicious speech that has upended lives.  In their recent opinion piece on the alarming rise in expressions of anti-Semitism in the United States, Rabbis Marvin Hier and Abraham Cooper argued, “Intercepting that hate and degrading bigots’ marketing capabilities stands as one of our greatest challenges.”  Such speech-limiting internet efforts are sometimes referred to as “deplatforming.”
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Take Facebook.  In an effort to reduce hate speech and other types of extremism on its sites, Facebook has developed more than 1,400 pages of content rules.  These rules are applied to posts by some 15,000 “moderators,” often employed by subcontractors.
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 Or take Twitter, which has branded itself as the epitome of free expression.  Twitter has now adopted guidelines that users:
***“may not engage in the targeted harassment of someone, or incite other people to do so.”
***“may not promote violence against, threaten, or harass other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease.”
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“Free” speech defenders often cite Supreme Court Justice Louis Brandeis’ opinion in Whitney v. California (1927).  As argued by Brandeis, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.  Only an emergency can justify repression.”  I’m all for more and robust speech.  Yet I would bet that the astute and socially-aware Brandeis might well have tempered his assertion in the light of doxing, troll storms, and other forms of internet speech terrorism.
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Let me reiterate my position.  Robust speech is vital to our civic society.  Diversity advocates need to support abundant expression as an important societal value.  But we also need to maintain our focus on the pursuit of such goals as equity and inclusivity.
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When we champion more inclusive language and propose selective additional speech restrictions beyond those that currently exist, we need to present our arguments with care, restraint, precision, and nuance.  Simply labeling language “offensive” or terming it a microaggression will not convince most others to consider expanding speech restrictions.  We need to do better.
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But how?  How do we hone our speech arguments to make them more compelling?  No easy answer, but at least two areas are fundamental.  First, diversity advocates need to firmly ground themselves in a deeper understanding of the historical trajectory of the diversity movement.   Second, we need to become critically knowledgeable about the varying kinds of language-related questions raised and strategies proposed by different elements of the diversity movement.  I will address these topics in future articles.
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Dr. Carlos E. Cortés
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