In this essay, I am concerned with how a culture has risen around Title IX and how it clashes with a culture of free speech. Title IX culture has confidence we can safely distinguish the offensive from the hateful, abusive, and dangerous. It is also profoundly skeptical of the tolerance that undergirds America’s older free speech culture.
This older free speech culture emerged from First Amendment jurisprudence but is not identical with it. To distinguish the informal norms of free speech from First Amendment jurisprudence (and for aesthetic symmetry) I will call it “1A culture.” 1A culture is profoundly skeptical about regulating viewpoints and confident that principled tolerance is better than even careful regulation because authorities might overreach. My neat division of Title IX culture from 1A culture is idealized to be sure. I’m after something like the informal norms (attitudes, behaviors etc.) that develop around aspects of society–in this case, legislation.
Skepticism about Title IX culture is morally and epistemically justified. This skepticism is stronger than “I’m personally justified in my skepticism.” Everyone should be skeptical of Title IX culture and this should translate into wariness of any legislation borne of Title IX culture. I will consider two of the strongest argument in favor of Title IX culture. Jeremy Waldron provides a reason to be confident about speech regulation. Herbert Marcuse provides a reason to be skeptical about tolerance. Both arguments are ultimately unsuccessful.
There is a practical worry, however. The costs of Title IX non-compliance are more immediate and severe than the costs of violating the First Amendment. Universities have a strong incentive to comply with Title IX norms over First Amendment considerations. If a university student, a faculty member, or staff complains to the Office of Civil Rights of the Department of Education that the university did not perform due diligence with regard to their Title IX complaint, the university could lose its federal funding. This includes not only public universities where the First Amendment applies strongly but any educational institution that receives student aid.
In light of this, some statistical data is also worrisome. Three major student surveys show that students make a strong distinction between offensive speech and hate speech. Confidence in the First Amendment is actually higher in college students (73%) than in the entire adult population (56%). In the same survey, over two-thirds of students (78%) agreed that colleges should “should expose students to many speech and viewpoints” which is 12 percentage points higher than the adult population as a whole.
Only half of the students, however, thought the First Amendment protects hate speech. If the student could not correctly identify the First Amendment, they were more likely to think hate speech was not protected. In another survey students affirmed their commitment to tolerating offensive messages (78%) but those same students said universities should restrict “slurs and other language that is intentionally offensive to certain groups”
Students are confident that those empowered to regulate campus speech can draw a bright line between offensive speech and speech intended to offend certain protected groups. Students raised on Title IX are uncomfortable, mostly, with censoring messages that are offensive but they are quite comfortable that authorities can distinguish between those messages and hate speech.
The moral norm in 1A culture is the conviction that authorities should be neutral between viewpoints in any speech regulation. As Justice Robert Jackson put it: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act.” On college campuses, 1A culture says while there may be time, place, and manner restrictions, there should never be a viewpoint or sentiment that cannot be expressed. 1A culture’s primary activity is a principled tolerance of speech. Principled tolerance is seen as an activity–doing something–not merely an indifference.
For 1A culture, life outside of our private spheres is one where we can be confronted at anytime by people trying to persuade us to buy into their viewpoint or just to acknowledge their viewpoint exists. It is, then by nature, chaotic and diverse. A certain order exists. Adherents cannot harass us or shout their viewpoints in a manner that is too disruptive of people who just want to go about their day. But any restrictions on the agora would have to neutral between viewpoints. It is wrong for any viewpoint to be expressed with a bullhorn not just Neo-Nazi ones.
I find in Marcuse the strongest critique of 1A culture’s tolerance. Marcuse explicitly abandons 1A culture’s commitment to viewpoint neutrality. There is both an epistemic and moral assumption nestled in Marcuse. There is epistemic confidence that the revolutionaries can know accurately what we need to break off the chains of servitude and have a moral duty to do so.
A great deal of social science data suggest that any group of humans will get it wrong if they have to make judgments about which viewpoints are acceptable as Title IX culture would ask campus administrators and investigators to do. We should also be skeptical of Title IX culture’s critique of free speech tolerance. It may be true that speech co-opts spaces, and that marginalized and privileged experience free speech differently. This does not justify regulating speech as many universities have by stretching Title IX and the concept of “hostile environment” until it snaps.
The fundamental difference between 1A culture and Title IX culture is that Title IX culture exemplifies a confidence that F.A. Hayek called the “fatal conceit.” This sort of confidence is doomed because there is no group of philosopher-kings who can know enough about conditions and effects of norms. Knowledge in a is too diffuse. Speaking of market norms Hayek said, “The curious task of economics is to demonstrate to men how little they really know about what they imagine they can design.”
I cannot help but see a parallel in the attempt to design the modern day agora. There are norms of when, where, and in what manner people may speak. These norms can be policed but, without hubris toward the content of the myriad of opinions and sentiments that make up our various ways of life, what cannot be regulated is the viewpoints themselves.