“The Coddling of the American Mind” is a smart essay in The Atlantic written by Greg Lukianoff, President and CEO for the Foundation of Individual Rights in Education (FIRE), and Jonathan Haidt, a social psychologist best known for his book: “The Righteous Mind: Why Good People are Divided by Politics and Religion.” They describe a growing trend they are observing on university campuses: [1. I suggest reading the entire article. I have some quotes in my piece, but the full article is superb. The full article has links to other pieces which expound on the problems Lukianoff and Haidt describe. I added a link to the Vox article they mention. It provides a harrowing look at the fear some professors live in right now.]
A movement is arising, undirected and driven largely by students, to scrub campuses clean of words, ideas, and subjects that might cause discomfort or give offense. Last December, Jeannie Suk wrote in an online article for The New Yorker about law students asking her fellow professors at Harvard not to teach rape law—or, in one case, even use the word violate (as in “that violates the law”) lest it cause students distress. In February, Laura Kipnis, a professor at Northwestern University, wrote an essay in The Chronicle of Higher Education describing a new campus politics of sexual paranoia—and was then subjected to a long investigation after students who were offended by the article and by a tweet she’d sent filed Title IX complaints against her. In June, a professor protecting himself with a pseudonym wrote an essay for Vox describing how gingerly he now has to teach. “I’m a Liberal Professor, and My Liberal Students Terrify Me,” the headline said. A number of popular comedians, including Chris Rock, have stopped performing on college campuses (see Caitlin Flanagan’s article in this month’s issue). Jerry Seinfeld and Bill Maher have publicly condemned the oversensitivity of college students, saying too many of them can’t take a joke.
I recently touched on this trend in: “The Modern Scarlet Letter.” The thrust of that piece was that shame culture censors speech and ideas. The shame culture wants to be the gatekeeper for all ideas, thoughts, and speech. The moral foundation for shame culture, I wrote, was moral relativism. I focused on the moral angle of this argument and relied Haidt’s work. Lukianoff and Haidt approach from another angle:
The press has typically described these developments as a resurgence of political correctness. That’s partly right, although there are important differences between what’s happening now and what happened in the 1980s and ’90s. That movement sought to restrict speech (specifically hate speech aimed at marginalized groups), but it also challenged the literary, philosophical, and historical canon, seeking to widen it by including more-diverse perspectives. The current movement is largely about emotional well-being. More than the last, it presumes an extraordinary fragility of the collegiate psyche, and therefore elevates the goal of protecting students from psychological harm. The ultimate aim, it seems, is to turn campuses into “safe spaces” where young adults are shielded from words and ideas that make some uncomfortable. And more than the last, this movement seeks to punish anyone who interferes with that aim, even accidentally. You might call this impulse vindictive protectiveness. It is creating a culture in which everyone must think twice before speaking up, lest they face charges of insensitivity, aggression, or worse.
I agree with Lukianoff and Haidt, this is more than political correctness. It’s the closing of the American mind. [2. Borrowing the phrase from Allan Bloom’s “The Closing of the American Mind” (1987). His book found the same problems with society in 1987 as Lukianoff, Haidt, others, and myself have found: moral relativism is destroying western culture. The replacement for what moral relativism is not “good” or progressive. Bloom noted that relativism was destroying and leading the decline in western liberal education. Time is proving his analysis to be right.] We’re fostering a culture that shames people into submission to mob sentiment. Lukianoff and Haidt discuss the psychological harm and social ramifications of having hyper-insecure and sensitive people as citizens. The results are students incapable of interacting with the world at large. I want to build off of their piece; specifically addressing how the alleged harm students claim is not actionable legal harm. I address legal harm to point out that their alleged harm, even if true, is not enough to extinguish free speech.
Focusing on harm allows comparison to court cases where people allege similar or worse harm from speech as students are doing. What you find is these students allege harm that pales in comparison to the proven harm in major speech cases. In nearly every major case, courts have ruled speech should not be censored, despite actionable harm being present. I’ll use a US Supreme Court decision to illustrate my point.
The case I want to focus on is Snyder v. Phelps, otherwise known as the Westboro Baptist Church case. [3. There are other cases that drive this point home. I’m focusing on one case to stay at a readable length. But if you want further reading, see the following Supreme Court of the United States (SCOTUS) cases: 1. US v. Stevens (2010): In this case SCOTUS struck down a statute that criminalized videos depicting animal cruelty. 2. Hustler Magazine v. Falwell (1988): SCOTUS ruled against Jerry Falwell after he sued Hustler Magazine when they wrote a fake letter in their magazine depicting Falwell’s first time having sex. This case established the concept of a parody and why it is protected speech. 3. Texas v. Johnson (1989): SCOTUS held that burning a US Flag was protected speech. 4. Cohen v. California (1971): SCOTUS protected a man’s right to wear a jacket in a court room that said “Fuck the draft” in protest of the Vietnam War. All of these cases show one point: People have a right to free speech and you cannot suppress that speech, especially if your reason is that you don’t like the speech. Which is what these students are arguing, they don’t like the speech and want it banned. That’s not constitutional or accepted under law. There is case law where censoring speech was accepted, but, generally speaking, safe spaces/discomfort with speech is not enough to meet those cases.] You probably recognize the case because Westboro is the church that protests the funerals for American soldiers with highly offensive signs. In an 8 – 1 decision, the Supreme Court upheld Westboro’s right to protest at funerals. Justice Samuel Alito was the lone dissent. Chief Justice John Roberts explained the facts as follows:
Fred Phelps founded the Westboro Baptist Church in Topeka, Kansas, in 1955. The church’s congregation believes that God hates and punishes the United States for its tolerance of homosexuality, particularly in America’s military. The church frequently communicates its views by picketing, often at military funerals. In the more than 20 years that the members of Westboro Baptist have publicized their message, they have picketed nearly 600 funerals.
Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. Lance Corporal Snyder’s father selected the Catholic church in the Snyders’ hometown of Westminster, Maryland, as the site for his son’s funeral. Local newspapers provided notice of the time and location of the service.
Phelps became aware of Matthew Snyder’s funeral and decided to travel to Maryland with six other Westboro Baptist parishioners (two of his daughters and four of his grandchildren) to picket. On the day of the memorial service, the Westboro congregation members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and Matthew Snyder’s funeral. The Westboro picketers carried signs that were largely the same at all three locations. They stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”
The protest and highly offensive signs distressed Matthew Snyder’s family. They sued Phelps claiming, among other things, intentional infliction of emotional distress (IIED). For the non-lawyer: the Snyder’s claimed Westboro purposely protested knowing the protest would cause emotional trauma and harm to the Snyder family. A jury awarded Snyder’s family a verdict of $10.9 million against Phelps, the judge lowered this to $5 million. The jury and judge agreed that Phelps had damaged Snyder and his family. The case was appealed and reversed on appeals before making it to the Supreme Court. It should be noted: Phelps never contested whether there was harm at the Supreme Court; emotional trauma was a given. As I mentioned previously, the Supreme Court held 8 – 1 that Westboro’s protest was protected by the First Amendment from tort liability (meaning people could not claim harm by the speech). The Supreme Court ruled the First Amendment was more important to uphold than the harm suffered by the Snyder family. To do otherwise would potentially chill free expression.
First, let’s compare these facts to our safe space students. Students are claiming they need help from universities to keep them safe from speech that “harms” them. The speech they want protection from is anything that challenges their personal worldview. As an example, Lukianoff and Haidt bring up students who were distressed by classes teaching rape law, or use the word “violate.” These words or classes trigger students and cause potential trauma to them. Contrast that to the Snyder family: They had just lost their son in a war; Westboro protested their son’s funeral with highly offensive signs; Westboro conceded they had intentionally inflicted emotional distress on appeal.
There is no comparison. The inability to cope with classroom discussion pales in comparison to strangers protesting a funeral with signs saying the deceased is going to hell. This is why attorneys, like myself, often laugh at these students. They claim to need protection from speech that offends their sensibilities. Their “harm” is incomparable to people like the Snyder’s who faced a verbal assault. The lone dissent in the Phelps case was written by Justice Alito. Justice Ginsberg said after the decision:
Justice Alito’s heart-felt dissent underscored the incomparable distress suffered by the Snyder family. Although no member of the Court joined him, his opinion aligned with the views of many Court-watchers, including one of the nation’s newest—retired Justice Stevens recently told the Federal Bar Council he “would have joined [Justice Alito’s] powerful dissent.”
I want to pull out part of Justice Alito’s dissent in this case to provide further comparison to the student’s claims. He begins his dissent with this line (page 23):
Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.
He describes the what Westboro did as a “brutal attack” that was “almost certain to inflict injury” in order to “attract public attention.” He notes Westboro did not dispute they inflicted emotional distress on the Snyder family. Westboro claimed that the First Amendment gave them the right to go ahead anyway. Justice Alito disagreed, saying that while Westboro had the right to free speech, that did not mean they were shielded from the consequences of that speech.
The question then remains: do trigger warnings, micro-aggressions, and safe spaces rise to the level of harm in the Phelps case? Those students may answer yes, but the real answer is an unequivocal “No.” Justice Alito stood up for the Snyder family because they were distinctly harmed. I doubt he would do the same for trigger-warning crowd. The harm being claimed by students is not similar; it is not a brutal or vicious attack on them. In fact, in a number of cases, the students are claiming harm from people making inadvertent statements.
What these students are describing is a fragility of the mind, not actual harm. Even if you accept their claims of harm as being similar to the Snyder family, it would not be enough to censor speech. Remember, the Snyder’s lost their case. The Court held that the First Amendment protected Westboro’s right to free speech. To summarize: students can’t claim a similar harm; and if they could, it wouldn’t be enough to censor speech.
This is why students are turning to the Culture of Shame. They have to convince culture to censor speech for them. This should also be prevented, for the same reason we uphold the right to free speech. Free speech is important, it allows the dissemination of thoughts and ideas. Censoring speech without harm is the work of tyrants; or in the case of these students: coddled minds. [4. I’m not the only one arguing safe spaces are unconstitutional. A number of attorneys and legal scholars say safe spaces and the alleged harm are not only unconstitutional, but antithetical to the entire concept of free speech. In other words: shame culture and coddled minds have to be defeated to protect our culture of free and open speech.]
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.
Chief Justice John Roberts, Snyder v. Phelps (2011), page 15.