f/k/a archives . . . real opinions & real haiku

Four weeks ago, in an article called “Parody flunks out,” criminal and civil rights lawyer Harvey Silverglate blamed the politically-correct atmosphere at Harvard Law School for Barack Obama’s negative reaction to the New Yorker magazine cover of July 21, 2008. Silverglate, who lectured for many years at HLS (c.v.), says “At the very least, this atmosphere stifle[s students] from admitting (to anyone but their friends) that they even got a joke involving matters of gender, race, sexual orientation, religion, or any other hot-button issue at the center of the nation’s culture wars.” He insists:

“[O]ne may not safely say in Harvard Yard what is constitutionally protected in Harvard Square. The same may be said for just about every campus where there once was a hallowed hall of learning.“

The f/k/a Gang has indeed noticed that an awful lot of lawyers — especially those with degrees minted in the past twenty years — throw around the terms sexism and racism quite recklessly, and seem incredibly thin-skinned and humorless (e.g., see this prior post on sexism and this one). But, frankly, we don’t know if Harvey Silverglate is right. Despite the Harvard Law domain name in our URL, your Editor hasn’t spent more than a few minutes on that campus, or any law school campus, in a couple decades. So far, there has been very little reaction on legal weblogs to Harvey’s accusations. We hope this post will motivate some of those who have been around law schools recently — as professors or students — to share their experience with political correctness and Free Speech on campus. Input from one or more of the group blawgers at Concurring Opinions, The Volokh Conspiracy, and Feminist Law Profs would be much appreciated — and ditto for any other interested and knowledgeable blawger (or reader), such as Steve Bainbridge, Ann Althouse, and Richard Posner.

Harvey Silverglate’s indictment of Harvard Law was made in the Boston Phoenix article “Parody flunks out: Political humor is no longer welcome in Academia as administrators choke the life out of parody” (July 30, 2008). I heard about it when Bob Ambrogi did a post at Legal Blog Watch titled “The Death of Parody at Harvard Law” (Aug. 5, 2008), which also pointed to an interesting follow-up by Silverglate, posted August 4, 2008, at The Phoenix‘s group weblog “The Free for All.” In addition, Harvard Magazine posted the article “Silverglate on Obama, HLS, and that New Yorker Cover” (August 8, 2008), in its Harvard in the News online section.

Like the f/k/a Gang (see our July 15th post), Silverglate thought the New Yorker cover was obvious and effective parody of the bogus claims made by Obama’s opponents.

When the New Yorker cover controversy erupted, our Prof. Yabut bemoaned “the emoticonally-addicted, insight-challenged society’s inability to discern satire when they see it or hear it [and even added “winkie” emoticons to the f/k/a version of the cover, to help the parody-challenged]. We also decried the related, knee-jerk, low-EQ application of Political Correctness Bans (PCBs) to anything that might offend anybody (particularly on the Left).” In an open letter to Sen. Obama, we asked him to call off his PC Police, advising him that “You need to muzzle your staff. Whiners aren’t winners. For a real Mensch with a high EQ, taking a punch should include taking a Punch-like cartoon.”

Similarly, Silverglate says he “expected the swift and nauseatingly self-righteous condemnation it received from the TV personalities and politically correct pundits.” But, he was caught off guard by the Obama Campaign’s strong condemnation of the cover.

So, Harvey asked:

[H]ow can Obama, such a brilliant student of American law, politics, and culture, not get the joke — or at least not recognize that the joke was on his enemies?

And answered:

“But then I realized I had failed to account for what can be called the Harvard Factor. The presumptive Democratic presidential nominee had, after all, been elected to the staff of the Harvard Law Review in the late 1980s and assumed the presidency of that august publication in 1990. By that time, the strictures of political correctness had seeped into all levels of American higher education and had utterly destroyed the sense of humor of so many college and university students.

“At the very least, this atmosphere stifled them from admitting (to anyone but their friends) that they even got a joke involving matters of gender, race, sexual orientation, religion, or any other hot-button issue at the center of the nation’s culture wars. And, as was predictable, the intellectual rot that began to infect the academy in the mid 1980s spread to the “real world” within a single generation. All of this displaced outrage, by Obama and many of his supporters, suddenly made sense.”

” . . . Interestingly, it was Harvard Law School, regarded by many as the apex of legal education (and located in the heart of liberal Cambridge) that early grappled with the appropriateness of punishing students for engaging in satire and parody. With the eyes of the higher-education elite watching, the fabled law school established, in the early ’90s, that a written parody poking fun at a female member of the academic community is no different than punishable ‘sexual harassment’.”

Bob Ambrogi explained at Legal Blog Watch that “Silverglate sees what happened at Harvard as symptomatic of a far more widespread trend to muzzle politically incorrect speech. It was a trend that began to emerge while Obama was still at Harvard and it is one, Silverglate believes, where Obama could help turn the course.” As Harvey puts it:

“If Obama wants to be the nation’s leader, he can start leading here. He needs to leave the atmosphere of censorship at the Harvard Law School and join the ranks of free men and women.”

Here’s how Harvard in the News summarized Silverglate’s argument against HLS:

“As Silverglate relates in an article published this week in The Boston Phoenix, Harvard Law School wrestled in the early 1990s with the appropriateness of punishing students for engaging in satire and parody. At issue was a piece published in the Harvard Law Review‘s annual April Fool’s Day issue, the Harvard Law Revue, in 1992, just a year after Obama, who’d been editor of the Law Review, graduated. The Law Revue piece, which Silverglate says was scathing, parodied an article just published in the Law Review that had been written by Mary Joe Frug, a feminist law professor who had been working on the article when she was murdered outside her Cambridge apartment. The parody article provoked a firestorm on campus, resulting in the law school’s adoption of sexual harassment guidelines that Silverglate describes as an 11-page censorship code. In the ‘radioactive atmosphere’ that permeated the campus at the time, even faculty members known for their support of free speech voted for the code, he writes.”

The Harvard Magazine piece also notes that Silverglate and Alan Charles Kors, Ph.D. ’69, offered a more general treatment of the subject of free speech on university campuses in their book The Shadow University: The Betrayal of Liberty on America’s Campuses (1999).” The magazine’s predecessor, the Harvard Bulletin published an excerpt from The Shadow University in “Tyranny on Campus” (Nov.-Dec. 1998). [Google Book Search also has an extensive Preview of the book.] Kors and Silverglate claimed, “Universities have become the enemy of a free society” — because politically-incorrect points of view are banned and students who do not abide by the orthodoxies of the day are stripped of their civil liberties. They want school administrators to admit that:

“This University believes that your sons and daughters are the racist, sexist, homophobic progeny–or the innocent victims–of a racist, sexist, homophobic, oppressive America. For $30,000 per year, we shall assign them rights on an unequal and compensatory basis and undertake by coercion their moral and political enlightenment.”

In November 2005, with a speech to the New England Appellate Judges’ Conference, “Harassment, Parody, and Patriotic (& Unpatriotic) Gore: Tensions Between Academic Freedom and Proper Governance of Student & Faculty Speech at Colleges & Universities,” Silverglate put his concerns into context. He focused on “two inter-related aspects of this problem, namely the assault on parody and the expanding definition of verbal ‘harassment’.” Silverglate told the judges:

“Such censorship, carried out most frequently by means of politically biased speech codes, more recently re-named ‘harassment’ codes, was, and remains, aimed at, in the words of the censors, protecting historically unrepresented and disadvantaged groups from harassment on the basis of gender, race, sexual orientation, and a number of other classifications.

“In practice, such censorship was used not against true harassment as we have long understood the common law and statutory meaning of that term, but against speech that might make the listener feel uncomfortable, perhaps unwelcome. . . .

“At some point all of us are going to have to tell college and university administrators and general counsel . . . :

When someone in the campus community utters words and ideas that some find offensive but which under no stretch of the imagination constitute a real threat or otherwise fall into a traditionally prohibited category of speech, then there is not only nothing to prosecute, but there is nothing to investigate. These are not, or at least should not be, difficult cases

In his Free For All weblog piece following up on the “Parody Flunks Out” article, Silverglate notes the column “provoked more of a [email] response than any of my columns in recent memory.” He again mentions that professors who usually had been the strongest advocates of free speech (like Alan Dershowitz and perhaps a few others) “voted for the Guidelines only because it was the best alternative in a situation that was rife with faculty and administration anger at free speech.” And he wonders whether others who refused to show up for the faculty vote at all, “were ‘purists’ for heroically boycotting the whole scene, or . . . simply threw in the towel and thereby enabled the censors.” In response to those who hope that the HLS faculty would offer “more opposition to the Guidelines had the parody arisen today rather than in 1992,” Harvey says:

.. “I wouldn’t bet on it. The small number of faculty members who opposed the Guidelines, including Dershowitz who voted for them, are much nearer to the end of their careers than to the beginning, and they are being replaced by younger faculty members whose fidelity to academic freedom in the face of a demand for politically-correct placating has not yet been sorely tested. The sad fact, in my estimation, remains: There are still things Harvard Law students could safely say in Harvard Square that they wouldn’t dare utter in Harvard Yard.”

One of the few bloggers who reacted to Silverglate’s column was Nathan, a college student at North Dakota State University, who writes at the Politically Incorrect Commentary weblog. In his post “The Death of Parody in Colleges and Universities” (Aug. 5, 2008), Nathan notes that “NDSU, the school I attend is also no stranger to demonizing satire and parody.” After describing relevant episodes, he concludes:

“So this is the sorry state of parody and satire at NDSU. The paper has lost its voice and it is a given that anyone who tried to find that voice again or publish their own satire will be punished for it even though that punishment is illegal. NDSU is growing by leaps and bounds in terms of investments and size of the student body. Unfortunately, NDSU diversity of thought, ideas, and oppenness to debate seems to shrivel up the bigger the school gets.”

As I mentioned above, lawyers and professors have had little to say so far in their blawgs in response to Silverglate’s indictment of Harvard and other universities. Elizabeth Wright, a “black conservative,” pointed to and excerpted, but did not comment, on the Silverglate piece, at her Issues & Views — The Blog website, in “stifling parody and satire” (Aug. 12, 2008). So far, the only blawger that I’ve found offering an opinion on “Parody Flunks Out” is Philadelphia lawyer Max Kennerly (a Yale undergraduate and Temple Law graduate), of Litigation and Trial weblog. Max’s reaction is summarized in the title of the post: “profoundly stupid article” (Aug. 7, 2008). Max sees neither valuable parody nor censorship at HLS:

” ‘Biting political and social parody?’ Let’s not mince words: the conduct deemed acceptable (and endorsed by the administration!) at the annual Parody would get most law students expelled at their schools and get most employees fired from their workplaces, and rightfully so.

“The Parody, in general, portrays women as dumb whores and minorities as dumb criminals, and then, in specific, harnesses the most embarrassing rumors about people and then creates “humor” by implying the rumors are true. That’s it. There is nothing political about the show, and it contains no social commentary: it’s harassment, pure and simple.”

Max concludes: “If you’re going to claim restrictions on free speech, you’re going to have to look farther than some immature method of harassment that is sponsored by the administration and routinely used to intimidate the weaker social groups.” And,

“If Silverglate’s so worried about free speech, why doesn’t he look into the treatment of, say, atheist or pro-choice or anti-war college groups in the South? The only people muzzled at Harvard Law are the women and minorities who know that, if they get too bitchy or uppity, they will become targets of abuse.”

While Kennerly [who commented below] could indeed be right that the so-called parody reviews offer little helpful social commentary and are more offensive than enlightening, I agree with Silverglate that using the “h-word” harassment stretches the meaning of the term too far and that punishing such speech is unacceptable. Moreover, I find it quite hard to believe that “women and minorities” feel a need to muzzle themselves at HLS. In addition, I’m pretty sure that Silverglate and his organization FIRE (Foundation for Individual Rights) feel strongly about protecting “atheist or pro-choice or anti-war college groups in the South.” See the FIRE Red Alerts and their many Fire Guides (on topics such as free speech, religious freedom, due process), including FIRE’s Guide to Religious Liberty on Campus (2002).

Even if satire or parody makes some members of an academic community uncomfortable, Silverglate is right, I believe, that protecting free speech rights — an explaining the reasons behind such rights — should be more important on campus than protecting the feelings of adults or indoctrinating students with certain currently acceptable values. I hope the entire topic of Political Correctness hasn’t become a Third Rail issue for professors — who worry more about not rocking the boat, or about being called this or that kind of -ist, than about standing up for free speech. If you have an opinion and relevant experience, please let us know in a Comment (hopefully without vulgarities or personal attacks) or a posting at your weblog.

p.s. An article from the Associated Press over the weekend perhaps suggests the appropriate reaction to lame, insulting or adolescent attempts at satirical humor or parody on campus. In “Study: A bad joke might endanger the teller” (Washington Post/AP, Aug. 22, 2008), we learn that “Research by a Washington State University linguist found that people who tell bad jokes often endure an astonishing outpouring of hostility from the listeners.” Let those who perpetrate poor parody know they’re not funny and apparently not particularly talented — question their EQ and their IQ. But, as Harvey Silverglate preaches: “When someone in the campus community utters words and ideas that some find offensive but which under no stretch of the imagination constitute a real threat or otherwise fall into a traditionally prohibited category of speech, then there is not only nothing to prosecute, but there is nothing to investigate.”

afterwords (Aug. 28, 2008):  The discussion we hoped for has begun.  See the Comment section below for reactions by Harvey Silverglate, and blawgers Max Kennerly and Elizabeth Wright.  And, check out Elie Mystal’s energetic (but somewhat enigmatic) response to Harvey’s “outrageous contention” today at Above the Law. The ATL Editor was a 2003 graduate of Harvard Law and participated all three years in the HLS Parody production.

short summer night–
the frogs croaking
trash talk

.. by Kobayashi Issa, translated by David G. Lanoue