Sunday, June 24 , 2018, 11:31 pm | Overcast 63º

 
 
 
 

Susan Estrich: Folly of Punishing Speech Because You Disagree With It

The thing about free speech is how often it's just plain wrong — wrongheaded, factually wrong, deceitful, even. That's always been true.

And there have always been two schools of thought about what you do about it. One is that you pronounce yourself, or like-minded others, to be the ruler of the universe, and you only allow people to say, write and broadcast what you agree with.

Those who don't are vilified and punished; they lose their jobs and their reputations.

When this happens in other countries, we call it totalitarianism. Dictatorship. Censorship.

Lately, when it happens here, we call it Tuesday. That's how often, how routine it's become — at universities, at private companies, big and small. No need to name names. 

With classes starting soon, professors are being warned that our lectures might be recorded and, if we say something "impolitic," released to the world.

I remember all those years teaching criminal-law classes: Whenever I first introduced the topic of rape, I would vigorously take the side of the rapist to ensure all sides were presented.

What would happen to me today? Would I be punished for not giving trigger warnings before I told my own story? Or for taking the "wrong" side in the debate? How lucky that I'm on leave.

Of course, our Founding Fathers had a different idea. They knew the danger of punishing speech because you disagree with it.

They understood that the answer to speech that is wrong, wrongheaded, hateful or unpatriotic (not to mention unscientific) is not less speech but more speech; not censorship but an open market of ideas; not dictatorship but democracy.

I am not talking about speech that incites violence, speech that preaches hatred and killing, speech that poses a clear and present danger.

I'm talking about speech that raises questions that we only talk about in private for fear that someone's head will be chopped off. 

When Harvard President Lawrence Summers — a great mind, love him or hate him — wondered whether there might be some biological explanation for the underrepresentation of women in math and science, he was, very soon thereafter, no longer president of Harvard. 

But guess what? The problem did not disappear. Firing Larry Summers did not open up the floodgates for women. It just shut down the debate. 

A whole lot of good that did. 

Worse than no good. If you want to trigger backlash, if you want to leave people thinking precisely what you don't want them to think, shut down the debate.

Tell them they have no right to think that. Meet their argument not with a counter-argument but with a delete key and a pink slip.

As if that will further understanding. As if that will make things better. As if that will encourage open and honest dialogue.

Not that I blame the supervisors who quake when they see such posts. Leave them unanswered and, whoosh, you're vulnerable to accusations that you've tolerated, if not created, a hostile environment for women, or for men, or for someone. 

This is not what we spent a lifetime fighting for. It was to encourage debate about equality, not squelch it, in the hopes that open dialogue would lead to action and change.

It was to encourage leaders such as Maria Klawe, the president of Harvey Mudd College, to educate more women to take those high-paying STEM jobs, if that's what they want — or to go off and cure diseases in Africa, if that's what they want.

Maybe the reason that there aren't more women in those engineering jobs is because women have more important, if less lucrative, things to do. But we'll never know if we can't even talk about it.

Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.

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