BrianGarst.com

Malo periculosam, libertatem quam quietam servitutem.

free speech Archive

Sunday

11

January 2015

0

COMMENTS

The War on Personal Offense

Written by , Posted in Culture & Society

There’s a lot that could be said about the attack on Paris-based satirical publisher Charlie Hebdo. It’s a horrific demonstration of Islamist barbarism. It’s also provided opportunity for western outlets like the New York Times to demonstrate their warped priorities and edit their own stories that accidentally reveal too much truth, and to cravenly refuse to print the Hebdo cartoons that so riled the terrorists despite their obvious newsworthiness.

These are important topics, but I won’t be addressing them here. Others are doing so quite well already. I want to focus on another aspect of the story, and that is its place in the liberty threatening war on personal offense.

Free speech is a required ingredient for a free society. It empowers citizens to be a check on both government and other social institutions that might overwhelm the individual. Through communication, individuals can combine their dispersed power to become a potent collective force.

The obvious threat to free speech is government, protection from which being secured by the First Amendment. But government is not the only threat. As much as there is a legal and protected right to free speech, there must also be cultural respect for free speech. And that means recognizing the value in letting others speak and be heard, even when you don’t like what they say. That doesn’t mean ideas cannot be criticized, merely that the exercise of speech should be respected and honored.

Unfortunately, there are strong currents developing aimed at devaluing speech. That they are cultural currents and thus do not implicate the First Amendment make them no less troubling, or the threat no less serious. The core of this threat is the growing belief that individuals have a right not to be offended, discomforted or otherwise upset by the speech of others.

And like most bad ideas, this one seems to be emanating most strong from universities, where a new generation of students insists that respect for feelings is more important than respect for speech. For instance, the University of Iowa pulled an anti-racism display because it featured newspaper coverage of racial tension and violence over the last century on a klansman sculpture. UI’s School of Journalism director even said that, “If it was up to me … I would follow the lead of every European nation and ban this type of speech.”

It’s not just administrators and eggheads, either. Students are often times leading the charge to censorship. Michigan State University students demanded that George Will be disinvited as commencement speaker because he wrote a column about the college victim culture and the absurdity of “micro-aggressions.” When students fail to prevent hearing thoughts they don’t like, they heckle and scream to drown out the speaker and ensure no one else can hear them either. It’s not just the US, either. Stepford students are busy halting dialogue and preserving their hugboxes in the UK as well.

These are deeply disturbing trends of which I’ve only just barely scratched the surface.  It’s disturbing because valuing comfort over the give and take of ideas first leads to stagnation as militant orthodoxy prohibits new ideas, and then eventually to oppression when majority views are no longer able to be challenged.

For free speech to have any meaning, there must be a right to offend. And for it to be effective, the right to offend must be absolute.

Friday

20

December 2013

0

COMMENTS

A&E/Duck Dynasty Fight Demonstrates How the Marketplace of Ideas Has Devolved

Written by , Posted in Culture & Society

In perhaps one of the most boneheaded business decisions ever made, A&E decided to sabotage its rating juggernaut, Duck Dynasty, in a fit of PC rage over comments from Phil Robertson about homosexuality in an article by GQ. Robertson, in a manner one might expect from a plainspoken outdoorsman from Louisiana, rather crudely expressed his personal inability to relate to same sex attraction through comparison of the various sexual organs involved. While both logically unconvincing of anything and potentially distasteful to the prudish, the statement hardly represented an attack on anyone.

He also he expressed the rather orthodox Christian view that homosexuality is a sin. More specifically, he listed homosexuality among a host of other sins he sees as plaguing the nation, but since adulterers have no grievance group, homosexuality is the only one we’ve heard a big stink about. He also prefaced the discussion with this:

“You put in your article that the Robertson family really believes strongly that if the human race loved each other and they loved God, we would just be better off. We ought to just be repentant, turn to God, and let’s get on with it, and everything will turn around.”

And then he followed up with:

“We never, ever judge someone on who’s going to heaven, hell. That’s the Almighty’s job.”

And in a separate statement he added:

“However, I would never treat anyone with disrespect just because they are different from me. We are all created by the Almighty and like Him, I love all of humanity. We would all be better off if we loved God and loved each other.”

How bigoted and closed-minded of him. Oh wait, no, I’m confusing him with those who think silencing others is the best response to hearing anything disagreeable.

I don’t bring up Phil Robertson’s views because I necessarily share them. Some I do and some I don’t, but I’m not starting with the same set of principles as Phil Robertson, so I frequently reach different conclusions. What I did want to talk about, however, was the entirely inappropriate response to his expression from both sides.

First, the attacks on Phil Robertson seem to align with a troubling trend regarding the manner in which the modern left is engaging in political discourse. Which is to say, they aren’t. Rather than debate opponents, they ostracize them. They turn any expression of opposing views into de facto evidence of some moral deficiency (or, if they’re in academia, into evidence of a mental disorder) on part of the speaker that absolves anyone else of the need to hear, process or think critically about what they have to say. Even the mere act of organizing to express views and advance common interests is evidence of some nefarious conspiracy or shady behavior.

These are sad developments for American political discourse that undermine the functioning of our republican system. But the response from the right doesn’t always hit the mark, either.

In defending Phil Robertson from A&E’s boneheaded decision, some – including politicians like Sarah Palin and Bobby Jindal – have cited the First Amendment. This is a red herring that serves only to confuse the issue. The First Amendment protects the right of the people to speak without infringement by government. It says nothing of how other private citizens can respond to speech. If anything, the First Amendment is firmly on A&E’s side, as it protects the right of association, which includes the right to not associate, at their pleasure.

Unfortunately, the right of association is not universally supported by either the courts or the left, which while cheering A&E’s self-destructive overreaction, also oppose the right of other businesses to choose their own clientèle, so long as those clientèle belong to a PC-approved victim group (hint: that excludes Christians). Nevertheless, it is the freedom to associate that matters here. A&E ought to be able to fire whomever they please to advance the chosen vision of their brand.

Part of the problem is linguistic. “Free speech” has evolved to refer to more than just the First Amendment right to speak without government interference, but also the general public desire to encourage a marketplace of ideas through respect for different points of view. Some of then erroneously used the First Amendment as a stand-in for the latter definition of “free speech,” when it really only applies to the former. Thus confusion is unfortunate, as it undermines their case.

Dragging the First Amendment into the discussion of A&E decision to punish Phil Robertson for expressing a widely held religious view that singled out no person or group of people for proposed harm allows those who freely cheer the silencing of opponents to correctly point out that the government did not silence Robertson (indeed, no one did), and therefore A&E is in the right. But that’s not the issue. The issue should be our troubling and growing acceptance of a culture of intimidation that not only seeks to shout down those who utter views not considered politically correct, but which actively seeks to bring them personal harm in retaliation.

The First Amendment itself may not be implicated by A&E’s suspension of Robertson, or with the groups which frequently call for similar responses in other cases, but the principles and desire to promote a healthy and robust civic and political culture which led to the amendment’s inclusion in the Bill of Rights are at the very center of the matter.

Saturday

6

July 2013

0

COMMENTS

We Are the Press

Written by , Posted in Liberty & Limited Government

Sen. Dick Durbin recently authored an op-ed calling for some sort of legislation to determine who qualifies for speech protections:

In Branzburg’s case, the Supreme Court ruled that there was no absolute privilege for journalists to refuse to reveal sources to a grand jury. The ruling did, however, seem to recognize a qualified privilege for journalists. Today, some federal courts recognize a qualified privilege for journalists, while others do not.

The vagueness of this decision has led 49 states, including Illinois, to recognize a journalist privilege by statute or common law. These laws state that a protected journalist cannot be compelled to disclose sources or documents unless a judge determines there is an extraordinary circumstance or compelling public interest.

But who should be considered to be a journalist?

The answer to the Senator’s question is stunningly easy: anyone who practices journalism. If a person engages in an act of journalism, regardless of what they do for a living or how frequently they practice journalism, then regarding that act and any issues that arise surrounding it, they are a journalist.

He goes on to state:

For a few years now, a bill to protect journalists from revealing their sources and documents has been making its way through Congress. With no current federal statute recognizing a privilege for journalists, the so-called “media shield” law attempts to establish one.

Everyone, regardless of the mode of expression, has a constitutionally protected right to free speech. But when it comes to freedom of the press, I believe we must define a journalist and the constitutional and statutory protections those journalists should receive.

I think it is all well and good if Congress is simply attempting to “define…the constitutional and statutory protections … journalists should receive.” Obviously the Constitution contains a broad protection for free speech, one frequently violated, but at some point the exact implications of the right must be applied to particular circumstances. Its limits must be marked. The courts typically play a large role in defining the boundaries or scope of these rights, but they shouldn’t be the only participant in the process. Congress should be involved as well. I don’t know  the particular details of the bill Sen. Durbin references, though I know it’s bipartisan and therefore immediately suspect in my mind as a conspiracy against the people, or whether it is a good or bad attempt to define the boundaries of journalistic protections, and the courts will continue to be there to weigh in if they should be unconstitutionally narrow. But it’s better if our legislative body do the actual legislating, rather than the judiciary.

But it is by no means necessary to reserve the rights of journalists to a privileged class. The very description of the idea leaves a sour taste. Such power in the hands of politicians to decide who deserves the full slate of journalistic rights would render ineffective the most powerful purpose for having a free and independent press: keeping the political class in check.

Sen. Durbin counters with this:

To those who feel politicians shouldn’t define who a journalist is, I’d remind them that they likely live in one of the 49 states, like Illinois, where elected officials have already made that decision.

Even if this is true, it’s no argue for federal legislation. At least with 49 different definitions there is a chance that one or more doesn’t suck. And there is recourse for those in states with bad definitions that would not be available if the same happens at the federal level.

It’s important to remember that the Constitution is not a broad grant of government authority with a few particular carve-outs. It is the opposite – a narrow and particular grant of authority for government to act in the preservation of rights. The First Amendment really ought not even have been necessary as government has no expressly granted authority to violate the rights of speech or the press, which was an argument made at the time against the inclusion of the Bill of Rights. Its existence has been wrongly interpreted over the years to mean that anything not expressly protected is fair game, and now Sen. Durbin is looking to chip away at even those limited protection by defining down nature of the press. Don’t let him do it.

Friday

14

September 2012

0

COMMENTS

Administration Pressures YouTube in Effort to Censor Anti-Islam Video

Written by , Posted in Culture & Society, Foreign Affairs & Policy, Government Meddling

Continuing to place blame in the wrong places for the latest violent outburst to sweep across the Middle East, the Obama administration has apparently asked YouTube to take down the trailer for “Innocence of Muslims,” a shoddy, amateur looking film taking aim at Islam (Hat-tip: Reason):

The trailer has been blamed for inciting violence in Libya, Egypt and Yemen. Obama administration officials said Thursday that they have asked YouTube to review the video and determine whether it violates the site’s terms of service, according to people close to the situation but not authorized to comment.

Some media observers predict that the incident will prompt calls for Google Inc.’s YouTube to play a more active role in curating the billions of hours of videos found on its site. One prominent 1st Amendment lawyer even suggested that YouTube should seek a judge’s ruling about whether to remove potentially incendiary content.

Other digital media experts, however, cited the technical limitations of scouring the torrent of videos that are uploaded to the site every minute and making value judgments about those likely to incite anger, hate or murder.

YouTube is a private company, so of course has the right to accept or reject videos as they see fit. Though in turn they can be criticized for it if people perceive the process to be arbitrary or biased, which could provide an opening for a potential competitor. But for the government to make such a request is downright sinister and clearly violates the principle of free speech.

The Obama administration request may not have had an explicit or even intended threat of force behind it, but that’s largely irrelevant. The government is too big and too powerful for any request ever to just be a request. When a mafia boss asks you to do something, he doesn’t need to make a threat. Everyone will perceive it to be there just the same, even in the unlikely event that he didn’t intend any punishment for refusal. With the government antitrust goons sharpening their knives and practically drooling over the prospect of subjecting YouTube-owner Google to the same witch hunt they launched at Microsoft in the 90’s, it would be hard for YouTube  not to see the potential repercussions for refusing this “request.” That they have so far not bowed to the pressure is a point in their favor.

The quoted article goes on to cite “technological limitations” to policing user submitted content in a vain attempt to protect delicate sensibilities from any potential umbrage. But what about the philosophical limitations? Why is it Google’s responsibility to keep unwanted content from people’s eyes? If not ever being offended is so important to people, then they can go live in a cabin in the woods and hide from the outside world – as that’s the only way to accomplish it.

That the LA Times couldn’t find any potential objection, other than practical considerations, either to the administration’s behavior or the imagined “calls for Google Inc.’s YouTube to play a more active role in curating the billions of hours of videos found on its site” says as much about their quality of journalism as the whole affair says about this administration’s respect for fundamental First Amendment rights.

Wednesday

12

September 2012

0

COMMENTS

Attacks in Egypt, Libya Reveal An American Sickness

Written by , Posted in Culture & Society, Foreign Affairs & Policy

The United States is under attack.  The attacks have taken place in both Egypt and Libya. The Egyptian attack, where a mob stormed the US Embassy in Cairo, tore down the US flag and replaced it with a black flag with the phrase ‘There is no god but God and Muhammad is his prophet,’ was believed to be in response to a film that portrayed Muhammad in an unflattering light. Prior to the violence, the US Embassy in Cairo preemptively apologized for the speech of a private US citizen with the following outrageously obsequious statement:

The Embassy of the United States in Cairo condemns the continuing efforts by misguided individuals to hurt the religious feelings of Muslims – as we condemn efforts to offend believers of all religions. Today, the 11th anniversary of the September 11, 2001 terrorist attacks on the United States, Americans are honoring our patriots and those who serve our nation as the fitting response to the enemies of democracy. Respect for religious beliefs is a cornerstone of American democracy. We firmly reject the actions by those who abuse the universal right of free speech to hurt the religious beliefs of others

That this statement was made by an official representative of the US government is an embarrassment. How dare they apologize for the speech of a US citizen, as if hurt feelings are somehow to be avoided at all costs. To do so in this manner on 9/11 just adds insult to injury.The Embassy then took to twitter to defend its obnoxious statement, while also issuing more, only to later memory hole the entire episode.

The Embassy is clearly confused about American values. Respect for religious beliefs is required by our government, which is not supposed to choose sides on the topic, but not at all of the people. Our people are free to express themselves about religion as they are any other topic, and that includes the ability to criticize –  as many frequently do in the US about every major religion – and the appropriate response if you are offended is more speech of your own. That’s what sensible, emotionally stable people do in the US every day, because the real cornerstones of our democracy are respect for the rights of others, such as that to life, liberty and property. The Egyptian mob reflected no such respect, and an American embassy that thought it more important to immediately condemn private US citizens for the hurt sensibilities of a violent and explosive mob culture is an utter embarrassment.

Freedom, the single most important cornerstone of American democracy, means tolerating the ideas of others even when you find them offensive. If we really believed in aiding freedom’s spread throughout the world, we’d be vigorously defending it in the face of those who neither understand nor respect it.

Yet it’s hard to defend something when your intellectual class does not respect it. Immediately following the thuggish reaction in Egypt, articles casting blame on the filmmaker emerged, and a college professor of “Religious Studies” called for the jailing of its producer. How are we so incapable of placing the moral responsibility for violence on those who commit violence?

The sickness and cultural backwardness witnessed in Egypt and Libya is easy to see and call out. There is something fundamentally wrong with a culture that erupts so easily into violent furor over every minor slight or insult. But we already knew this. What is striking is how the events reveal our own culture sickness – a debilitating self-doubt that makes it impossible for our representatives and intellectual class to condemn the easily condemnable.

Now there’s a second angle to the story, and it’s why I haven’t yet brought up the more violent nature of the attacks in Libya on a US consulate, which included the death of a American ambassador. Signs point in this case to a preplanned, terrorist attack, which seized upon the mob response to the film as a cover. If true, this attack demonstrates the ongoing danger posed by Islamists, and it draws into question the entire approach our government has taken to the “Arab spring,” once thought to be a democratic revolution but now looking like just a radical Islamist resurgence.

The US response to such an attack on our sovereign territory and the murder of our citizens must be sensible, but it also cannot afford to be weak. The preemptive apology to Egyptian thugs did not prevent their riot, and bending over backwards now to respond to these attacks will not prevent future attacks – it will likely encourage more of them. I don’t envy the President for having to navigate these waters, of needing to respond strongly but not excessively, but so far the actions of this government – and of the President who skips more than half of his daily intelligence briefings – have utterly failed to demonstrate the leadership necessary to quell this growing crisis.

Saturday

28

July 2012

0

COMMENTS

Free Speech Is Not a Partisan Issue

Written by , Posted in Liberty & Limited Government

A lot has been said about the various threats that have been lobbed at Chick-fil-a because of the owner’s views regarding gay marriage. Just to recap:

  • Boston’s Democrat Mayor, Thomas Menino, said “Chick-fil-a doesn’t belong in Boston” and vowed to block it from opening a chain in the city.
  • Chicago’s Democrat Mayor, Rahm Emanual, said “Chick-fil-a values are not Chicago values” and supported the efforts of Alderman Joe Moreno to block for precisely that reason the opening of a Chick-fil-a.
  • San Francisco’s Democrat Mayor, Edwin Lee, tweeted his strong recommendation that Chick-fil-a not come any closer to his city than the current closest location 40 miles away.

I think each of them has since backed off their threats, which brings me to the subject of this post. The degree to which the liberal intellectual class has responded in defense of free speech has been heart-warming (though the defense of the threats by a not insignificant number of rank-and-file liberals on Twitter and Facebook, and in blog comment sections, has been simultaneously disheartening).

It’s become a cliché in Washington to say that such-and-such is not a partisan issue (often follow by declaring it an “American issue”). This is meant to shame the other side into agreeing with the speaker, though I can’t imagine anyone finds it convincing. But the thing about free speech is that it actually is not a partisan issue, in the sense that once speech is not equally protected depending on the partisan content of that speech, then there is no such thing as free speech anymore. And that’s precisely the issue we were facing with the attacks by government thugs on Chick-fil-a.

This is not to say that there aren’t partisans that don’t believe in free speech (see Fairness Doctrine, campaign finance reform, etc.), but that free speech can’t be partisan in its application if it is to survive. Left-leaning commentators and outlets like Glenn Greenwald, Mother Jones, Andrew Sullivan, Boston Globe, Chicago Sun-Times, and Time Magazine, and a host of others, have weighed in against the threats targeting Chick-fil-a and in defense of the First Amendment. I’ll let the words of another liberal, Kevin Drum, provide my thoughts on the matter:

[T]here’s really no excuse for Emanuel’s and Menino’s actions. If you don’t want to eat at Chick-fil-A, don’t eat there. If you want to picket them, go ahead. If they violate the law, go after them. But you don’t hand out business licenses based on whether you agree with the political views of the executives. Not in America, anyway.

Thursday

24

May 2012

0

COMMENTS

Overgovernment: Anonymous Commenting Edition

Written by , Posted in Big Government

Is anonymous internet posting a good thing?  There’s plenty of room to debate the question, weighing the potentially negative impact it has had on civility in political debate and society in general, versus the benefits of encouraging more speech and protecting people from retaliation for expressing their views. But just because something might be said to be harmful, doesn’t mean government ought to have a role in doing anything about it. This is one of those cases, though a number of New York Republicans seem to disagree:

Nearly half of the Republicans serving in the New York State Assembly have proposed legislation that would ban anonymous online comments.

If enacted, the legislation would require websites — including social networks and online newspapers — to remove all anonymous comments that are brought to the attention of administrators.

An anonymous comment could remain if the author “agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.”

This awful idea is an affront to the very notion of free speech, and Wired humorously but devastatingly notes that this legislation would have banned the pseudonymous Federalist Papers from being distributed online.

The arguments given by the bills supporters are the legislative equivalent of burning down a house to kill termites. Consider this:

Republican state Assemblyman Jim Conte praised the legislation, writing that it would eliminate “mean-spirited and baseless political attacks that add nothing to the real debate.”

The legislation would “demand that those who spread rumor, conjecture or outright lies online be willing to come forward and defend the comments they post,” Republican Assemblywoman Claudia Tenney added. “We, as a society, have never expected anything less when potentially harmful words are put into print.”

But there are already satisfactory remedies to all of these supposed problems. The answer to bad speech is good speech. Mean-spirited and baseless attacks can be countered with fact-based rebuttals. Harmful lies, meanwhile, are covered under slander and libel laws, and even anonymous users can today be compelled to be revealed if they cross legal lines. There is, in other words, no rational basis for the legislation even if we ignore the issue of its unconstitutional and liberty-restricting nature.

Monday

19

March 2012

0

COMMENTS

McCain’s Campaign Finance Ignorance

Written by , Posted in Election Time, The Courts, Criminal Justice & Tort

John McCain was on Meet the Press Sunday and used the opportunity to bash the Citizens United decision that struck down his anti-free speech “campaign finance reform” legislation. He claimed that this election is unusually negative – a similar claim that was made in 2008 and which I suspect he will make in ever single election until such time as he succeed in limited free speech – and blamed that observation on Super PACs and the Supreme Court for “unloosening” all money.

In so doing, he has confirmed that he is completely ignorant about the issue which he has made his most important, and in particular what the Supreme Court ruled. According to analysis from the Sunlight Foundation, the Super PACs which McCain blames for the perceived level of negativity have received 70% of their contribution from individuals, not the corporations and unions which were the subject of the Citizens United decision. In other words, John McCain doesn’t know what he’s talking about.

Related Update: Reason offers Five Ways Citizens United Is Making Politics Better, including “competitive campaigns, funnier ads and greater freedom of speech.”

Saturday

3

March 2012

0

COMMENTS

Australia Looks to Regulate Media, Blogs

Written by , Posted in Big Government, Liberty & Limited Government, The Nanny State & A Regulated Society

Although local to Australia, this news illustrates a useful point. First, the story:

PRINT and online news will come under direct federal government oversight for the first time under proposals issued yesterday to create a statutory regulator with the power to prosecute media companies in the courts.

…The proposals, issued yesterday by Communications Minister Stephen Conroy, also seek to widen the scope of federal oversight to cover print, online, radio and TV within a single regulator for the first time.

…Bloggers and other online authors would also be captured by a regime applying to any news site that gets more than 15,000 hits a year, a benchmark labelled “seriously dopey” by one site operator.

The head of the review, former Federal Court judge Ray Finkelstein, rejected industry warnings against setting up a new regulator under federal law with funding from government.

…”There must be some effective means of raising standards of journalism and of making the media publicly accountable,” the report said. “What the media have lost sight of is that they accepted the idea of press regulation by having set up the APC to make a positive contribution to the development of journalistic standards.

Yes, this is an outrageous assault on the universal principle of free speech. Granting government this kind of authority is, simply put, a recipe for tyrannical disaster. But even beyond the specific issue at hand, the statement in the last paragraph above is particularly myopic.

Where does this idea come from that accountability can only come from political processes? Public accountability is provided by free market competition. There is no stronger mechanism for accountability than the ability of citizens to choose which products they do or do not consume. Political processes, which are vulnerable to corruption and favoritism, are hardly more rigorous.

The last sentence is equally fallacious. If you look carefully at the structure of his sentence, you can see the speaker deliberately hiding the nature of his argument. He speaks of “press regulation,” but not of who is regulating. Self-regulation is not the same as government regulation. The APC, or Australian Press Council, is an industry created and funded body. Its mere existence, regardless of its level of efficacy, is in no way a concession that government should be involved, and it certainly doesn’t resolve the problem of giving government power over media. A free media is a necessary but not sufficient condition for restraining the power and abuses of any government. This initiative will make Australian media, and consequently the Australian people, less free. Let’s hope such bad reasoning does not spread to other nations.

Friday

6

May 2011

1

COMMENTS

Department of Education Wants More Students Falsely Convicted of Sexual Harassment

Written by , Posted in Education, The Courts, Criminal Justice & Tort

Does the headline sound preposterous? Well, that’s exactly what will happen in response to this:

In a “Dear Colleague” letter sent to colleges and universities in April, Assistant Secretary for Civil Rights Russlynn Ali announced new federal regulations publicly funded schools must employ to address allegations of sexual harassment and sexual violence.

The new standards most notably lower the burden of proof to prosecute.

“[I]n order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred),” Ali wrote.

FIRE responds:

“The Office for Civil Rights’ unilateral revision of campus codes across the country is unquestionably unjust. Students accused of serious crimes like rape should not be tried under the same standard of proof used for a parking ticket,” said FIRE President Greg Lukianoff. “OCR is proceeding from the fallacy that reducing protections for the accused will somehow increase justice. This is a dangerous and wrongheaded idea that will undermine the accuracy and reliability of the findings of campus courts.”

Indeed.

“Preponderance of evidence” standards are not used in criminal proceedings for a reason. And while these are not strictly speaking criminal preceedings, they have far more in common with such than the civil action cited by DoE as justification in their letter. Courts have specifically found that use of a preponderance of evidence standard can violate Due Process when the repercussions are serious enough, such as when states use it as a justification to deprive parents of custody of their children. What happens to a student “convicted” of sexual harassment in a college is not as bad as losing custody of a child, but it will have severe and lasting repercussions for that individual. Depriving a student of their education and good name should thus, at the least, require the more onerous of the civil tests, clear and convincing evidence.

In addition to lowering the standard of proof, DoE is taking the unusual stance that accusers should get multiple bites at the apple. They demand that any appeals process must allow both parties to appeal a verdict, rather than the typical practice of reserving such protections for defendants, so that they do not have to repeatedly defend themselves from the same charge:

OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment. OCR also recommends that schools provide an appeals process. If a school provides for appeal of the findings or remedy, it must do so for both parties. Schools must maintain documentation of all proceedings, which may include written findings of facts, transcripts, or audio recordings.

They also wish to deny defendants (who they repeatedly refer to with the more inflammatory “alleged perpetrator”) their normal right to confront accusers (which they again tellingly call “alleged victims”).

This system clearly eschews the normal American disposition toward favoring the rights of the defendants, and instead stacks the deck in favor of the accusers. It’s the Mike Nifonging of campus sexual harassment enforcement, and should serve as a warning to any entity considering accepting federal dollars.

← Older Entries

About Me

profileI serve as Vice President of the Center for Freedom and Prosperity, a non-profit think tank dedicated to preserving tax competition and free markets. This site features my personal views, which are not reflective of CF&P.

Search Site

Categories

Archives