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Not All Permissible Speech is Good

By Julian J. Giordano
By Danielle Allen, Contributing Opinion Writer
Danielle Allen is the James Bryant Conant University Professor at Harvard University and director of the Allen Lab for Democracy Renovation.

Just because you can say it doesn’t mean you should. Whether our campus relationships are healthy depends on choices we make about how we advocate our views.

Last week, I explained the crucial distinction between academic freedom and free speech. Academic freedom is specifically tailored to the context of higher education and safeguards the intellectual independence of faculty and students. Free speech is a broader right protected by the First Amendment that applies within the public sphere.

Neither is an unlimited right to say whatever you please. Academic freedom and freedom of speech both make much speech permissible; they do not, however, make all speech permissible.

Legal limitations restrict both categories of speech, prohibiting incitement, intimidation, harassment, extortion, libel, defamation, and dangerously misleading acts like falsely shouting fire in a crowded theater. Academic freedom faces additional constraints from professional protocols and institutional rules, including prohibitions on plagiarism, evidence fabrication, and research that fails to meet ethical standards.

Free speech on campus is further limited by organizational protocols — the time, manner, and place requirements for demonstrations. We are watching these evolve in real time.

Academic freedom and free speech both draw lines between impermissible and permissible speech. They do not, however, help us distinguish between good permissible speech and bad permissible speech. That distinction must come from standards of scholarship and the art of rhetoric.

Importantly, permissible speech is not coextensive with good speech. More generally, many bad actions are legally permissible: smoking, gambling excessively, gluttony, being rude or insulting people, breaking informal promises, lying (legally permissible in at least some contexts), and peeing in the swimming pool.

These actions, though legally permissible, are typically also cases of poor judgment or morally unacceptable or unethical behavior.

Similarly, the fact that a speech act is permissible — under either academic freedom or free speech principles — and that someone therefore has a “right” to its utterance does not make it a good contribution or exempt a speaker from judgment or moral evaluation.

Speech acts can be factually or morally erroneous, offensive, ad hominem, and otherwise fallacious or poorly argued — all scholarly failures. Or they might not only suffer from fallacious arguments but also display failures of judgment, emotional calibration, or expression, all types of rhetorical failure.

Harvard’s values statement contains two guidelines that help distinguish between good and bad speech. Our behavior on campus should embody “respect for the rights, differences, and dignity of others” as well as “honesty and integrity in all dealings.” Scholarly standards and longstanding norms from the art of rhetoric make concrete how to live by these values.

One logical cut distinguishes between the impermissible and permissible. Then a second, within the category of the permissible, distinguishes the good and the bad. Once we understand this, it becomes easier to figure out how to respond to problematic speech acts. Are they actually impermissible? Or are they permissible but bad?

For now, I’ll focus on the impermissible category. I’ll discuss permissible but bad speech acts in my next column.

Expressive acts alleged to be impermissible require adjudication and, if found to violate certain rules, require sanction. Our system of sanctions helps realize the expectation in the University values statement that we take accountability for our actions and our conduct within the community.

To determine whether a speech act is impermissible, we ask a series of questions. Has the accused party violated the law, including workplace laws that prohibit the creation of a hostile environment? Have they violated campus policies, such as non-discrimination, anti-bullying, and time, manner, and place requirements for demonstrations?

Our processes for adjudicating these questions are not yet stable. The same was true of early campus efforts to implement Title IX policies in response to sexual harassment allegations. It has taken years, and many proceedings before Harvard administrative boards, to refine adjudication procedures and establish usable precedents — regarding evidence procurement and due process, for example — to meet appropriate standards.

Yet, answers to questions about how to adjudicate whether speech acts are impermissible are urgently needed. In 1990, the Faculty of Arts and Sciences established a committee of three highly-distinguished faculty members — Joseph S. Nye Jr., Henry Ehrenreich, and Michael J. Sandel — to develop the FAS policy on speech. That policy stands to this day and is the basis for the time, manner, and place norms we use now, as well as for key elements of the sanctioning structure for code of conduct violations.

At the end of their report, they recommended a permanent student-faculty advisory committee on free speech, involving both graduate and undergraduate students. The committee could continually discuss ambiguities in the guidelines and occasionally meet with the administration and others to discuss how to strike appropriate balances of rights in hard cases.

Unfortunately, this standing committee was never established. As a result, we currently face significant challenges. We lack a clear mechanism for clarifying the line between creating a hostile environment and exercising free speech. No existing governance body can help the University’s administrative boards develop a robust, precedent-based understanding of speech-related issues.

Though the ad boards will eventually gain this insight over time, a standing committee could expedite and enhance our campus’s learning process. Such a committee, ideally integrated into a University-wide faculty Senate, could methodically work through cases to delineate clear principles about what constitutes impermissible speech, thereby guiding the whole campus with a consistent set of standards.

Far better to learn and teach proactively than to rely on sanctions to do our intellectual work.

Danielle Allen is the James Bryant Conant University Professor at Harvard University and director of the Allen Lab for Democracy Renovation.

This piece is the third installment in a series that will identify and assess the difficult ethical questions surfaced by Harvard’s recent leadership crisis.

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