Diversity vs. Free Speech Part 1: An Invented Conflict – by Carlos E. Cortés

“That’s against free speech.”  “That’s censorship.”  “That’s unconstitutional.”
Those are the kinds of responses diversity advocates are likely to receive when they challenge hate speech or other forms of demeaning and marginalizing expression.  Unfortunately, diversity supporters often take the bait and respond by arguing for the importance of limiting free speech.  But they shouldn’t go down that road.  They don’t have to challenge free speech because free speech doesn’t actually exist.  Let me explain.
One year ago I was selected to be a fellow of the University of California National Center for Free Speech and Civic Engagement.   My research project focused on the intersection of diversity and speech.  In my fellowship application I proposed to address the following historical question: over the past fifty years, what factors have driven many higher education diversity advocates to oppose our nation’s tradition of free speech?  However, my research quickly convinced me that I had posed the wrong question.

Why?  What led to my original error?  Because I had been sucked into the popular public and media framing:  diversity vs. free speech.  Only by jettisoning that distorting dualism could I fully understand the diversity-speech dynamic.   The process of extricating myself from that conceptual “escape room” led me to a surprising conclusion: free speech does not exist.  Or, rather, it exists only as a misleading metaphor.  Let me take you on my journey, starting with the metanarrative that has straitjacketed thinking and distorted conversations about the intersection of diversity and speech.
What is a metanarrative?  It is a narrative that has attained great power, so much power that it obscures competing narratives about a specific topic.  Because of its wide and often blind acceptance, a metanarrative often becomes largely exempt from self-examination and virtually immune to external criticism.  It is simply accepted as The Truth.  Such is the case with the current dominant diversity-vs.-speech metanarrative.  It goes like this.
   “The United States has a long tradition of free speech.  However, over the last fifty years a serious challenge to free speech has emerged.  That challenge has been greatly spawned –- sometimes intentionally, sometimes incidentally — by the diversity movement.  That movement is anti-free speech, strangling free expression in sometimes ludicrous and authoritarian ways.   This war against free speech can be found in many sectors of American life – the media, textbooks, private organizations, and K-12 education.   It occurs particularly on college campuses, where so-called social justice warriors protest against outside speakers and feckless administrators create speech codes and punish individuals or groups for selected expressive acts.”
Some purveyors of that metanarrative –- not all, but some –- also add a militaristic moral dimension: that we are now witnessing an all-out war between the forces of good (stalwart defenders of free speech) and the forces of evil (anti-free speech diversity advocates).  Such moral framings are what political scientists call affective polarization –- when you raise the emotional heat in describing disagreements by portraying your opponents as threats to societal well being.   When I began my fellowship project, I uncritically accepted much of that metanarrative framing (minus the good vs. evil element).
 In truth, some diversity advocates have been outspoken in their opposition to free speech.  They have argued that free speech allows hate speech.  That free speech can marginalize.  That free speech can contribute to a hostile work environment.  That free speech is the luxury of those with privilege and power.  They have even argued that the idea of free speech serves to maintain privilege and power.
Indeed, diversity advocates should address such issues as hate speech, marginalization, hostile work environments, privilege, and power   But while making their arguments, they should avoid using the false but dominant diversity-vs.-free-speech metanarrative.  To take the bait and argue for restricting “free” speech is a sure losing gambit because it sounds so anti-American.
We have a much better option.  We should argue that restricting speech (not “free” speech) in the pursuit of important societal values — in this case such values as equity and inclusivity — is part of the great American tradition, not contrary to it.
I came to that conclusion in an ironic way.  I immersed myself  in the recent flood of scholarly and professional literature defending free speech.  What I discovered was that virtually all of these treatises — including books and reports with “free speech” in their titles — clearly demonstrate that free speech does not exist, even as they refuse to admit it.
They do so by employing a clever verbal sleight of hand, alternating references to free speech with dualistic legal distinctions:
***protected vs. unprotected speech
***restricted vs. unrestricted speech
***permitted vs. unpermitted speech
***punishable vs. non-punishable speech.
But if speech can be restricted and punished, it clearly isn’t free!
To illustrate those speech distinctions, these treatises cite laws and court decisions that have established what categories of speech are “restricted,” “unprotected,” even “punishable.”  Following is a partial list, all drawn from books that purportedly defend “free” speech.
***bias crimes
***true threats
***fighting words
***punishable incitement
***sanctionable harassment
***invasion of privacy
***facilitating criminal conduct
***incitement to unlawful action
***revealing national security secrets
***creation of an unsafe working environment
***in special purpose facilities
***restricted by time, place, and manner
***specific imminent objectively ascertainable serious harm.
In short, we do not have a system of free speech.  Rather, we have a system with both robust legally-permitted speech and selective legally-restricted speech.  Misleadingly, this system is referred to as free.   That is why, in my presentations, workshops, and consulting, I now refer to ours as a system of robust — not free — speech.  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).”
A note of caution.   Diversity advocates should be happy that we enjoy a system that supports abundant, robust, and vibrant speech.  As a former professional journalist and as someone who lived for nearly two years under a military dictatorship, I applaud those who defend our system of speech.  On the other hand, I wish folks would stop calling it “free” speech, because it isn’t.  That term is misleading, particularly when repeated over and over and over.
So let’s return to the reigning metanarrative.  What alternative narrative can diversity advocates propose?  Something like this.
“The U.S. has a tradition of legally-protected abundant, robust, and vibrant speech.  However, in the more than two centuries since the adoption of the U.S. Constitution, we have witnessed a series of laws, regulations, and court decisions that have selectively established limits to the principle of totally unmitigated speech.  During the last fifty years, the diversity movement has issued a particularly strong challenge concerning which types of speech — in fact, expression writ large — should be permitted and which types of speech should be restricted.”
This raises another question: why have so many erudite scholars insisted on using the misleading free speech misnomer as the label for a speech system replete with legal limitations?  Over the past year I have asked myriad attorneys and have received two basic answers, neither of which is compelling.  One, all attorneys know that no freedoms are absolute and that they must be balanced by other factors.  Two, the use of the term free speech is part of attorney tradition.  In other words, it is a testament to the power of personal habit, cultural conditioning, and, maybe most important, confirmation bias.
But what’s the big deal with using free speech?  No harm, no foul.  But there is harm, because such language use has deleterious consequences.  The term “free speech” has become weaponized.  It now serves as a knee-jerk response —  an all-purpose excuse — for dismissing proposals for additional limitations on speech beyond those already part of our system.  And it baits diversity advocates into staking out a publicly-losing position by opposing free speech.  But we don’t have to.  We have a better option.
We should not allow others to dictate the rules of engagement.  In arguing for equity and inclusivity in speech, we should avoid accepting the diversity-vs.-free speech framing.
Rather we should challenge – or correct — others who try to frame it that way by calmly pointing out that the American system has always placed legal restrictions on speech.
But we need to go further.  We need to recognize the importance of robust speech.  And in arguing for more inclusive language and selective speech restrictions, we need to be smart, sharp, and precise.  To do that, we need to ground ourselves in a deeper understanding in at least three critical areas:
  1. the twenty-first-century changing context of language use
  2. the historical trajectory of the diversity movement
  3. the specific kinds of language-related questions raised by that movement.

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Dr. Carlos E. Cortés

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