What To Do When People Use Free Speech Poorly

In my last article, I distinguished between impermissible and permissible speech and, within the second category, between good and bad speech. In today’s, I discuss the category that has perhaps caused colleges the most trouble: speech that is permissible but bad.

Permissible but bad speech is like peeing in the swimming pool — it doesn’t break the law, but it violates the norm of respect for others. On college campuses, impermissible speech is met with formal adjudication and sanctions. But how should we respond to permissible but bad speech? At some level we would all like simply to banish what’s offensive, and accepting that we cannot is painful. But this does not mean bad speech needs to go unaddressed.

To understand how we ought to respond to permissible but bad speech, we’ll need one more distinction: between administrators, who are responsible for enforcing campus rules, and faculty and staff, who hold pastoral roles and are responsible for students’ learning and well-being. The province of the former is to address impermissible speech; of the latter, to manage permissible but bad speech.

Another important consideration is that bad speech, even when permissible, invariably faces consequences — not from formal sanctions but from social judgments that impact scholarly and professional opportunities and relationships. These judgments are reasonable responses to bad speech acts.

But these informal penalties should have limits. Practices like doxxing, for instance, where students’ private information is published with malicious intent, go much too far. Despite being protected by the First Amendment, this form of “rough justice” — when private individuals take the “law,” so to speak, into their own hands — is unethical, akin to when vigilantes bypass official legal channels to bring justice through physical violence to those whom they consider to have done wrong.

To uphold the University’s commitment to open inquiry, our top administrators must stop vigilante actors.

They can do so partly by doing a good job at holding actual rule-breakers accountable. History teaches that to discourage and constrain vigilante behavior, societies must put in place clear and sound institutional practices to handle any rule violations that may occur. People become more tolerant of vigilante behavior when they are unsure that stable procedures exist to respond to rule violations. Vigilante action is made evidently inappropriate when stable procedures exist for holding people to account, making it easier to shut down.

Administrators must be able to say to vigilante actors: “Back off; we’ve got this. We have a stable and robust set of campus speech rules that appropriately handles anything impermissible.”

Then, when speech is permissible but bad, they must delegate to those with pastoral duties. These faculty and staff should help our students see what is wrong with their speech, learn from it, and embrace a higher standard of speech.

We shouldn’t expect our top administrators, who have the job of enforcing rules, to condemn speakers or speech not violating rules. While they might publicly raise questions as intellectual leaders about the problems of the speech act, far more important is that they task those in pastoral roles with having performance improvement conversations, and communicate clearly to the campus that learning is underway.

One kind of permissible but bad speech to which this approach would apply is problematic classroom conduct. Instructors, even while respecting academic freedom for all in the classroom, can engage in performance improvement conversations with members of a class who speak to each other rudely or disrespectfully, reserving sanctions, of course, for actual instances of harassment or threats.

Faculty advisors can and should also have such conversations with student groups that make bad choices. These conversations should be handled with care, ensuring no public shaming or elements of retaliation, just like performance improvement in the workplace.

Such conversations are best structured in the form of debriefs organized by questions to prompt reflection: Where were our arguments sound or unsound? Where did our emotional understanding of the situation succeed? Where did it fail? What moral judgments did we make? Where did we succeed? Where did we fail? How well did our actions adhere to University values? Where did we fall short?

Mistakes occur when we confuse situations that require sanctions with situations that require pastoral care. These mistakes have occurred frequently this year, such as when University President Claudine Gay denounced the phrase “from the river to the sea.” This was a moment that required pastoral care, by those with such duties, but received an enforcement action instead.

People in authority often initially withhold judgment on speech that is permissible but bad in order to avoid cases of apparent or actual retaliation, or to avoid chilling speech. This reticence is reasonable.

But then if no response at all seems to be forthcoming, or if permissible and impermissible behavior start to be bundled together, and pressure builds through calls for accountability, there can also be overcorrection in the direction of the condemnatory statement or ill-judged police action. This was the case when Columbia University in April first sought to clear its encampment by suspending students, and thereby converting them into trespassers, without the disciplinary hearing typically required after an allegation of a violation of school policy.

What is needed is clear, simple, and transparent enforcement of campus rules against “violence or harassment directed at individuals or groups,” as the president of the University of Chicago has recently put it, and baton-passing to address anything permissible but bad. Best for administrators with enforcement duties to make clear that those tasked with pastoral duties have responded instead.

The biggest mistake of all, though, is when we assume that speech protections mean there is nothing we can do about permissible but bad speech, and thereby forget the most important thing we need to do: teach.

We should not abandon our students when they err, for if we do, we will have abandoned our mission. And there is so much to teach right now. Students are hungry for lessons about history, antisemitism, Islamophobia, Israel, Palestine, two-state solutions, diverse religious traditions, diverse ideologies, peace-making, conflict transformation, human rights, pluralism, and so on. In fact, because we have neglected to teach our students in these areas, many students are forced to teach themselves.

And at the top of the teaching list? The University’s values: Respect for the rights, differences, and dignity of others; honesty and integrity in all dealings; conscientious pursuit of excellence in our work; accountability for actions and conduct in the community; responsibility for the bonds and bridges that enable all to grow with and learn from one another.

Wartime does not excuse us from the moral obligation to live up to these values — even when the war comes to campus. To the contrary; grief and anger make it harder, but those passions also make it even more urgent to reach for our best selves.

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