“I fear that by framing the debate as we have—one at which the liberty of free speech is in conflict with the elimination of racism—we have advanced the cause of racial oppression and placed the bigot on the moral high ground, fanning the rising flames of racism.”

This was written by Charles Lawrence, a prominent legal scholar who advocates for the regulation of racist speech. While I am not sure he meant it this way, I cannot help but read this quote as both a rebuke to the hate-speech movement and the free speech movement respectively. Anybody who is paying attention to the free speech debates on college campuses might wonder how a leftist movement which started out defending free speech ever culminated into a movement restricting speech.  Perhaps unsurprisingly, the opponents of free speech have historically been on the right side of the ideological spectrum. Whether it was the suppression of slavery abolitionists prior to the Civil War, the Palmer Raids of 1920, the arrests of union organizers, McCarthyism, or the Berkeley Free Speech Movement (FSM) in the 1960s, free speech has historically been something that liberals have stood for, fought for and died for.

Some scholars point to the theorist Herbert Marcuse (sometimes called “The Guru of the New Left”) as the catalyst for how many view speeches today. In the wake of the FSM, Marcuse published an essay titled Repressive Tolerance. In this extraordinarily influential piece, he argued that the freedoms of those in power would have to be regulated in order to cultivate greater equality and freedom for all. He posited that a supposedly neutraltolerance for ideas was actually oppressive because that mindset only benefitted those in power and maintained the status quo. Those in power, Marcuse argued, operated in a society with a hierarchical structure. He believed that “within the framework of such a social structure, tolerance can be safely practiced and proclaimed” only by those in power because anyone who dared challenge the existing status quo were essentially powerless to do so. Marcuse rejected the notion that societal change should be, in his words, “prepared, defined, and tested in free and equal discussion, on the open marketplace of ideas.” According to Marcuse, the marketplace was rigged. If the powerful and the weak were required to play by the same rules, the powerful would always win.

These ideas have a made a mark in our intellectual history. Charles Lawrence is joined by many other intellectuals and legal scholars such as Mari Matsuda, Richard Delgado, Jeremy Waldron and many others. Catherine McKinnon has built a name for herself developing complex legal theories about sexist speech. Their ideas have no doubt inspired speech codes that now appear on almost every college campus. In the late 1980s, the anti-porn crusaders retreated from the public legislative arena and reemerged with new strength on college campuses, especially in feminist and academic circles. The Atlantic reports, “The dominant poststructural dogma of the late 1980s denied the First Amendment the transcendent value that the liberal belief in a marketplace of ideas has always awarded it.” The 1980s were a time that the left started to sincerely believe that speech must be regulated in order to achieve equality. This was the decade speech codes (that supposedly protect minorities) first appeared on college campuses.

This support for regulation was not met unchallenged. Many conservatives, civil libertarians and classical liberals thought that censoring speech on campus, a place that theoretically should embrace a marketplace of ideas, was going too far. Some pointed out that what was harmful about offensive speech was not the words themselves, but the power of a history of socio-political oppression behind them. They believed censorship could never achieve progress for minorities; it could only hinder it. Furthermore, the first times speech codes were implemented, they were often followed by disastrous consequences. In Canada, when laws were passed banishing obscene pornography, it was considered a victory for women everywhere. In the wake of this ruling, the first establishments to get shut down were lesbian book stores and gay clubs. A book by Bell Hooks was confiscated as potential hate literature. In Britain, college campuses banned racist speech to curb anti-Semitism. It’s no surprise that right after that, Zionism was considered a form of racism and it was also banned, much to the anti-Semite’s delight. University of Michigan was one of the first colleges to implement speech codes against racist speech. The first year they were in effect, not a single instance of racist speech against blacks was punished. But black students were reprimanded not once, but twice because they had called white students “cracker.” How can this be possible?

The question we have to ask ourselves here is who writes, who passes, who interprets and who enforces these laws? The answer— those in power. Those in power are often not the minorities that speech codes are supposed to protect. This is not to say that speech codes never protected anybody, but one would think that if they had the effect we wanted, the incidences at Yale, Missouri and Wesleyan this past Fall would not have happened. At the very least, they would not have been as intense as they were. Is it possible that since we have been so focused on offensive speech, we have ignored what is actually fueling the bigoted fire that Charles Lawrence feared? Is it possible that by wasting activist resources on “hate speech,” those concerned with civil rights have let the underlying causes of bigotry unchecked? In this light, speech codes themselves seem to be more symbolic than practical. Practically speaking, the issues of bigotry we have seen on college campuses are more cultural in nature, which suggests a cultural remedy is needed, not more policies enacted by those in power. As Audre Lord famously quipped, “the master’s tools will never dismantle the masters house.”

Someone could accuse me of being a closeted bigot since I support free speech, even if it is offensive. I don’t doubt this to be true. I am sure that I have certain sexist and racist predilections as much as the next “privileged white male.” I also do not doubt that those who support speech regulation (legal or cultural) are also closeted bigots of some sort. What I doubt is whether or not the imputation of bigotry is the most effective way to advance our civil rights and civil liberties. I think wanting people to stop saying or doing “offensive” things is analogous to wanting them to be nicer. Is niceness and politeness really a precursor to social progress? Since when was niceness capable of changing social institutions? Even if we could get everyone to be nicer, more educated, and more socially conscious, it’s still, in my opinion, a purely cosmetic solution to the problems of oppression. It is surface level. It is nothing. Progress is painful and if it doesn’t feel like work, I guarantee you it is not going to work.

I think this is all too bad. It is too bad that it has been more than fifty years since the Free Speech Movement and what happened at the University Missouri can still happen. I do hope I have made it clear that this is no longer a left versus right issue. It is a civil rights versus civil liberties issue. Unfortunately, the activists of today don’t treat it that way. The activists of today, on both sides of the debate, are reminiscent of the 60s at its worst— a vulgar pride in their morals, intolerance of dissent from the other side, and perhaps saddest of all, the hubris that they not only may but should suspend the rights and liberties of some in order to transform students, the culture, and the nation according to their ideological vision and desire. So since when were free speech and equality enemies? The short answer is that at one point, we decided that words were important (which they are). And then soon after, we decided they were the only things that mattered.

***I owe much of the information and wording presented in this article to a collection of essays called Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties. I also would like to cite The Shadow University: The Betrayal of Freedom on Americas Campuses by Alan Kors and Harvey Silvergate***

Nucci is a member of the class of 2016.