GLENN ALTSCHULER & DAVID WIPPMAN
Last fall, a University of Chicago lecturer announced a new undergraduate seminar titled “The Problem of Whiteness.” The course covered familiar academic territory (whiteness as a racial category), but a University of Chicago sophomore and conservative activist described it in a tweet as an “egregious” example of “anti-white hatred” and included the instructor’s photo and email address. The tweet triggered a storm of vitriolic posts and death threats, forcing her to postpone the course amid concerns for her safety and that of her students.
Whatever the student’s intent, the abuse directed at the instructor was entirely predictable. For years, a network of right-wing websites and media outlets has used an online “outrage machine” to rail against perceived instances of left-wing excess on college campuses.
The dean of the university’s undergraduate college condemned the incident as “cyber-bullying” undertaken with “the clear purpose” of inhibiting the instructor’s freedom of expression through “the mobilization of anonymous threats and public harassment.” Nonetheless, although university officials defended the instructor’s right to offer the course, they concluded that the student could not be disciplined because his speech did not constitute “a genuine threat or harassment.”
The university’s response is consistent with established First Amendment doctrine and its own “Chicago principles” governing freedom of expression. Unfortunately, as this incident and many like it demonstrate, traditional free speech rules are difficult to apply in a social media age. And institutions of higher education need to do more to create a campus culture in which the free and open exchange of ideas is embraced, dissent is encouraged and disagreement is managed through reasoned argument rather than intimidation — whether online or in person.
Over the past century, the Supreme Court has “created the most speech-protective system in the world.” To foster “uninhibited, robust, and wide-open” public discourse, the court’s First Amendment jurisprudence tolerates a wide range of problematic speech, with narrow exceptions for defamation, genuine threats, obscenity and incitement to imminent violence. The underlying assumption is that hate speech, disinformation and the like can and should be adequately countered by other speech.
Unfortunately, the internet and social media expand the impact of harmful speech “beyond anything we have encountered before.” Social media users can reach, mobilize and sometimes incite large, ideologically homogeneous and highly partisan audiences almost instantaneously and at no cost, in the process inflicting enormous harm on targeted individuals. Given social media silos, meaningfully addressing what they say through counter speech can be difficult or impossible.
This fundamental shift in the communications environment and the threat it poses has led First Amendment experts to debate whether and how free speech doctrine should be rebalanced. But the law changes slowly, and legal sanctions, as the difficulties of defining and policing hate speech have demonstrated, aren’t always the best way to change behavior. For colleges and universities, reliance on education and social norms is more feasible and may even be more effective.
As the Chicago principles note, a commitment to “free and open inquiry” is central to the very idea of a university. At the same time, as the University of Chicago’s undergraduate dean has observed, social media can enable individuals who don’t share that commitment to chill the free exchange of ideas through online coercion.
To manage this tension, students should learn, through workshops, debates, teach-ins and other means, how stalking, slurs, threats, doxxing (posting an individual’s personal information online with malicious intent) and social media mobbing can injure individuals, suppress public discourse and undermine community values.
Campus codes of conduct might also be used, far more than they now are, to identify and discuss problematic online behavior. Bates College has made a good start. The Bates code urges members of the community “to be good digital citizens and not … use the ease of transmission and/or anonymity of electronic communication to harm other students or employees.” Conduct that falls short of harassment is not subject to discipline, which might chill protected speech, but such conduct may be addressed through other means, including “respectful conversation, education and training, remedial and supportive actions, effective Alternative Resolution, and/or other Informal Resolution mechanisms.”
And colleges and universities might enlist faculty, students and staff in scripted “role plays,” followed by discussion about what does or does not qualify as cyberbullying and appropriate and inappropriate responses to specific instances of it, including the wisdom of official or unofficial investigations and of naming, shaming and shunning.
Alexis de Tocqueville once observed that “a newspaper can drop the same thought into a thousand minds at the same moment.” Social media can reach vastly greater audiences, and effectively cry fire in a crowded theater, filled with potential perpetrators as well as victims, without any factchecking or editorial intervention. We need a commensurate community response, even as we wait for the law to catch up.
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