A Discussion Of The First Amendment And Freedom Of Speech
November 26, 2019 12:47 PM   Subscribe

In response to a recent incident at Indiana University wherein the business school openly repudiated the bigotry of tenured professor Eric Rasmusen while noting that they could not fire Rasmusen for his comments because of the First Amendment, Lawyers, Guns and Money (and IU alum) Elizabeth Nelson spoke with Greg Magarian, the Thomas and Karole Greene Professor of Law at Washington University School of Law in St. Louis, about freedom of speech, the First Amendment, and how courts have shifted from protecting the speech of the powerless to that of the powerful. (SLLGM)

The discussion not only focuses on the legal aspect, but also the cultural one as well, discussing free speech "absolutism" and how it winds up being (to Magarian) incoherent as a philosophy.
posted by NoxAeternum (56 comments total) 24 users marked this as a favorite
 
free speech "absolutism" and how it winds up being (to Magarian) incoherent as a philosophy

I'm 100% with Greg Magarian:
Nixon became president in 1969, and First Amendment law – like so many other things – started to go to hell. The Court increasingly tightened the screws on dissenters and vulnerable speakers, and then it started to develop protections for powerful speakers and their dominant viewpoints. Today, under the Roberts Court, wealthy, powerful, and/or ideologically conservative speakers win almost all the important First Amendment victories. If you’re a commercial data miner, a big-money electoral spender, or an anti-abortion zealot, then the First Amendment odds are ever in your favor; not so much if you’re a consumer, a minor-party political candidate, or a Black Lives Matter activist.

Courts get to interpret the Constitution; they get to change the law. But We the People get to govern ourselves, which means we get to push back against constitutional doctrines that betray our values and aspirations. The Court, in my view, has badly distorted what First Amendment law is supposed to be about. We have the collective power and responsibility to reject that distortion and to agitate for restoring and refining the First Amendment’s democratic promise.
...
Floyd Abrams is a deeply honorable, very smart man who has done more good in this world than I ever will. I also think he’s wrong about some important things. I don’t think “First Amendment absolutism” is a coherent concept. First, nobody actually believes in an unlimited right to speak – think blackmail, espionage, perjury – and second, different people’s speech rights often conflict: Think money in politics. When people talk about “free speech absolutism,” what they really mean is free speech formalism: If you can state a First Amendment claim against the government, you should win. That’s generally Floyd Abrams’ view.

I reject First Amendment formalism. I care instead about a substantive view of the First Amendment. The law should foster and promote social conditions that enable people to speak, to receive information, and to consider and debate ideas, in order to learn, to contribute to democracy, and to grow and thrive as human beings. We should presumptively mistrust government interference with speech, because the government has a lot of power and an intense self-interest. But sometimes the government can help make speech more free, especially when other powerful institutions, like wealthy business corporations, are trying to suppress speech. That’s why, for example, the First Amendment shouldn’t bar the government from making ISPs operate under Net Neutrality.

I think conservatives’ pious complaints about their victimization at the hands of the PC thought police are complete and abject bullshit. Conservatives almost never suffer coerced speech suppression; rather, conservatives always have been, are today, and probably always will be the dominant speech suppressors. Here’s a simple test for judging any claim of speech suppression: Who has power, and how is power being used to suppress speech? When conservatives claim that they’re afraid to speak on campuses because of a climate of PC repression, where’s the exercise of power? There isn’t any. They’re just afraid to speak because they don’t believe they should have to bear and answer criticism. They want to proclaim “build that wall!” while the rest of us just meekly cast our eyes downward as the wall gets built. When we instead respond “building that wall is racist and inhumane, which makes you a racist, inhumane asshole,” they whine that they’re being coerced into silence.
And this case is frightening, for how the First Amendment is being used to protect the deplorable viewpoints of a powerful man. His classes aren't required any more? Sure, that's a start, but you're still paying him. I know the statements of the professor don't necessarily reflect that of the University 100%, and vis-versa, but when you have a professor who is misogynistic, homophobic, and racist in his private conversations, I'm pretty sure that rot has spread to how he treats students and colleagues.

Maybe it's only a matter of time for ouster of Eric Rasmusen, but in the meantime, he's still getting paid by the University, and in a (small?) way, represents the University.
posted by filthy light thief at 1:13 PM on November 26, 2019 [19 favorites]


I don't actually believe many Americans know what the First Amendment does. A recent study by the Campaign for Free Speech [*] puts 79% of the respondents as agreeing with the statement "The First Amendment allows anyone to say their opinion no matter what, and they are protected by law from any consequences of saying those thoughts or opinions.'" Discussion of the First Amendment is often put by conservatives as far too abstract to be meaningful. I don't know what many "free speech" advocates are actually advocating for. I agree that Eric Rasmusen should not be fired for his views that don't impact his work, but I wish I could be in better company than many of the First Amendment/free speech advocacy groups I'm aware of.

[*] The goal of this survey is questionable at best, which is why I'm not linking directly to the description of the results of the survey.
posted by saeculorum at 1:18 PM on November 26, 2019 [4 favorites]


I agree that Eric Rasmusen should not be fired for his views that don't impact his work

If part of his work is teaching, being a bigot absolutely impacts his work and it is unfair to students who are women/BIPOC/queer to expect them to deal with that, even indirectly by there being classes offered that they don't feel comfortable taking because, again, the professor is a fucking bigot.
posted by an octopus IRL at 1:25 PM on November 26, 2019 [29 favorites]


I agree that Eric Rasmusen should not be fired for his views that don't impact his work

This is the sort of euphemistic language that free speech "absolutism" trades in, and to me illustrates why it's incoherent. Ignoring that it's outright false as shown by the behavior of IU - they have had to make his courses electives and have someone checking his grading because his bigotry shows that he cannot be trusted to be fair, the reality is that employers have every reason to fire bigots who openly spew their bigotry in public, as they mar the reputation of their employer and make people wonder if they would be safe while working for them.

The point of the phrase "his views" is to conceal that he's a bigot. But it still remains - even using those words, it's still defending a bigot.
posted by NoxAeternum at 1:28 PM on November 26, 2019 [16 favorites]


In all the evidence I've read about Rasmusen, there's been no indication he has ever changed a grade, treated a person differently in class, recommended one student over another, or any behavior that would be (correctly) described as discrimination against a protected group. If there is any indication to that effect, he should be disciplined/fired for discrimination by his employer and we would no longer need to have this discussion. His employer is choosing the additional measures, not Rasmusen. This is roughly equivalent to proposals to have protestors bear the cost of government-provided security for their protest. I don't think it's legitimate for the same reason as Rasmusen - the response is not directly caused by the protest; it's a choice by the government.

I believe I can simultaneously say that Rasmusen is an asshole, but there is no legal basis for his (governmental) employer to do anything to him about it.
posted by saeculorum at 1:37 PM on November 26, 2019 [6 favorites]


His employer is choosing the additional measures, not Rasmusen.

Because they can no longer trust him because he's openly professed to being a bigot, and if he does act in a bigoted manner, IU is on the hook for his conduct. The additional measures are all because this one individual has shown through his own actions that he can no longer be trusted to behave in a fair manner, and the targets of his bigotry should not be asked to give him that trust.

I believe I can simultaneously say that Rasmusen is an asshole

Rasmusen is not "an asshole". He is a very public bigot, and the fact that you seem unable to call him what he actually is illustrates why free speech "absolutism" is incoherent - because when it comes down to it, it ultimately cannot face the truth.
posted by NoxAeternum at 2:03 PM on November 26, 2019 [16 favorites]


Yes, I'm defending a bigot. Rasmusen is a bigot. He's also sexist, racist, and homophobic. Are there any other terms I should apply? I happily will - I have no respect for him as a person.

I don't want to live in a world where government perception of danger outweighs actions. Again, there is zero evidence Rasmusen has interacted with a student in a way that violates the law or any discrimination policies of IU. That's also not in debate - even IU acknowledges it by describing all potential actions by Rasmusen as hypotheticals. I'm fairly certain if IU had a shred of evidence that Rasmusen acted illegally, they would be using it as justification for getting rid of him.

I view regulation by the government by viewpoint as a nuclear weapon I don't want to deploy. I don't trust this administration, and I definitely don't trust this administration to determine what is bigoted and act correspondingly. I'm aware there are costs to this stance, but I believe the costs to government declarations on acceptable beliefs are worse.
posted by saeculorum at 2:26 PM on November 26, 2019 [7 favorites]


Put another way - if you want to get rid of Rasmusen (yay - I'd be all onboard), then advocate for every professional organization he's in to reject his talks and withdraw every conference invitation. Advocate for every professional journal to decline to publish his papers. Find his corporate sponsors and advocate for them to withdraw funding. Have the university prominently discourage potential students from having him as an advisor (shouldn't be hard). Find all of his co-authors and do exactly the same thing to them. Make it so Rasmusen can't do his job and is ostracized as he should be.

Advocate against tenureship so that Rasmusen can't claim that as an excuse.

There are absolutely avenues to pursue without having the government determine that his beliefs alone warrant governmental intervention. We're not stuck here because of the First Amendment.
posted by saeculorum at 2:38 PM on November 26, 2019 [2 favorites]


Again, there is zero evidence Rasmusen has interacted with a student in a way that violates the law or any discrimination policies of IU.

Ok but the entire point of the argument is that the policies should be different.
posted by PMdixon at 2:45 PM on November 26, 2019 [4 favorites]


I'm aware there are costs to this stance, but I believe the costs to government declarations on acceptable beliefs are worse.

So, bigotry should be "acceptable", and the government should have no role in declaring bigotry unacceptable?

Because that's what you are saying there, just concealed by euphemistic language - that the government saying that bigotry is unacceptable is somehow harmful to us.

Also, saying "our hands are tied until he actually hurts someone in a manner that I consider harm" is, in my view, a reprehensible position dripping with privilege. As people have pointed out, his presence itself harms students who are the targets of his bigotry, leaving them questioning whether or not they are safe at IU. Saying that we shouldn't do anything until he does something that you consider harm not only sets up the morally abhorrent position of "who gets hurt to your satisfaction first", but shows a disavowment of the harm that is being suffered. This is a horrible position to hold, built on privilege and the knowledge of not being in the cross hairs of his bigotry.

There are absolutely avenues to pursue without having the government determine that his beliefs alone warrant governmental intervention.

Or we can reject euphemistic language like "his beliefs", acknowledge that he is a bigot and the full ramifications of that, and note that there's a reason that Niemuller did not start with "First they came for the bigots".
posted by NoxAeternum at 2:51 PM on November 26, 2019 [18 favorites]


So, bigotry should be "acceptable", and the government should have no role in declaring bigotry unacceptable?

To be precise, I believe the government can and should declare bigotry unacceptable, but the government should not take legal action (like terminating an employee) based on bigotry expressed as speech.
posted by saeculorum at 3:04 PM on November 26, 2019 [2 favorites]


there is zero evidence Rasmusen has interacted with a student in a way that violates the law or any discrimination policies of IU.

The man believes that:
* Women do not belong in the workplace, especially academia;
* Gay men are promiscuous and will abuse students, and ergo also don't belong in academia;
* Black students are unqualified and academically inferior to white students.

Do you really think none of these beliefs ever influenced his grading, or his attitudes in class? Do you think he gave the same academic encouragement and support to women that he gave to men? That he never gently suggested a black student should look for a different career?

They say they're not firing him because they have no proof that these happened - because it's damned hard to contact all of the people who've ever been in his class and ask them about the details. They can't review his past grading habits, because nobody keeps those papers around, and they certainly don't have a way to compare the grades he gave women or black students or gay students to what other teachers gave those same students in similar classes.

"We can't prove this sexist racist homophobic bigot ever let his beliefs influence his teaching style" is a cop-out. Does anyone in academia believe that teachers' personalities have nothing to do with the quality of lessons they teach?

Rasmusen said he's had Christian and conservative students "shyly approach" him and say they were happy to find a professor open in his beliefs.

Did he give he same support and inspiration to non-Christian students? Or did he give preferential treatment to the ones he agreed with?
posted by ErisLordFreedom at 3:13 PM on November 26, 2019 [12 favorites]


They can't review his past grading habits, because nobody keeps those papers around,

No one keeps the papers around but after marking work don't they write the marks down and put them on someone's record?
posted by biffa at 3:21 PM on November 26, 2019 [1 favorite]


Just knowing that your professor doesn't think you are qualified to undertake the academic work he is facilitating is enough to negatively impact academic performance. There is a lot of research about stereotype threat. Can you imagine being a black student taking a class from an instructor that you know expects you to fail because of your race?
posted by soren_lorensen at 3:31 PM on November 26, 2019 [25 favorites]


No one keeps the papers around but after marking work don't they write the marks down and put them on someone's record?

They do, but without the papers or tests themselves, they don't have proof that he graded non-het-white-men's work more harshly. He could claim, and probably does, that men averaged better grades than women because they're just better students, which is why he believes they're better students.

If no black man ever received higher than a "B" grade in his classes, he'll claim that's because they're just not as good at the work. You can't use the final grades to prove that he's biased.
posted by ErisLordFreedom at 3:49 PM on November 26, 2019 [10 favorites]


Free speech absolutism is the Dave Matthews Band of academic politics. It has a lot of undeniable merits. But god, the fans....
posted by escabeche at 3:55 PM on November 26, 2019 [8 favorites]


It has a lot of undeniable merits.

It does? Because from where I'm sitting, it's an incoherent philosophy that routinely uses euphemism to avoid confronting reality when reality could pop its theoretical bubble.
posted by NoxAeternum at 4:00 PM on November 26, 2019 [6 favorites]


"Our official policy is to put up a sign warning students about the missing stair and to try to accommodate them as they traverse the stairway, but we are not going to fix the missing stair."

- Not an actual quote from the university administration, but it might as well be
posted by qxntpqbbbqxl at 4:02 PM on November 26, 2019 [13 favorites]


Hopefully evidence will emerge of bigoted behavior (over and above his bigoted language) and they can fire him. As it is, he is having his teaching load lightened (as students are no longer required to take his classes), which also means other instructors are having to carry that teaching burden.
posted by Dip Flash at 4:06 PM on November 26, 2019 [2 favorites]


put up a sign warning students about the missing stair

What I want to know is: Will his classes in the directory have an asterisk next to them, and a footnote saying, "this professor has a history of racist, sexist, and homophobic bigotry; because of this, no student is required to take any class with him."

And will there always be other professors teaching those same classes, in those same time slots? (How low does his class attendance have to drop before they can fire him? I guess tenure means that can't happen, though.) Or, can they just remove his classes entirely - keep him on faculty, but give him no teaching time? If they really wanted to protect students, they would not allow him to teach, even if they had to pay him.
posted by ErisLordFreedom at 4:18 PM on November 26, 2019 [3 favorites]


Niemuller did not start with "First they came for the bigots".

No, I believe that poem starts with them coming for the communists and trade union organizers. Coincidentally, when the US has historically dabbled in censorship, communists and other activists have been the reoccurring targets. So if you want the government to once again take a more aggressive role in policing speech, you have to recognize and address that the US government specifically has an absolutely terrible track record, and that "free speech absolutism" is in many ways a reaction to this history.
posted by Pyry at 4:36 PM on November 26, 2019 [6 favorites]


I'm still boggling at the "women don't belong in the workplace". 10,000 years of labour disagrees with him. Women have always, whether we liked it or not, been in the workplace. Apparently, Sumerian temples hired thousands of women to weave cloth for them (neat thing I learned recently - and the pay wasn't so bad).

Can they fire him for being just amazingly ignorant of basic facts?
posted by jb at 4:43 PM on November 26, 2019 [11 favorites]


The pervert in me wants to retain an intolerant professor like a lab animal so that the academic community can use him to research ways to fight intolerance. That is, keep your enemies closer. As a gay leftist, I'd rather the bigot professor was fired for hate speech.

But the part that fascinates me and that I struggle with understanding is illustrated by how the interviewee thinks the leftist position rejects liberalism and in particular freedom of speech. Liberalism is a meta-position because it doesn't believe in anything, but rather says people should be free to hold independent beliefs (not sure if I am oversimplifying). Thus, I don't know if liberalism and various kinds of leftism are philosophically compatible.
posted by polymodus at 4:44 PM on November 26, 2019 [1 favorite]


(the "we" in my phrase "whether we liked it or not" was in reference to women - and based solely on the fact that I've just been pulling a lot of overtime recently and I could use a vacation from my workplace. Lovely workplace - I'm just tired and being independently wealthy and not trading my labour for my livelihood sounds really nice).
posted by jb at 4:48 PM on November 26, 2019 [2 favorites]


The more charitable read I've seen from other left-y academics is that IU is very clearly laying out a line that if he crosses, he's fired. Looking back to find documented evidence of specific misconduct with specific students will be tricky, but now that they're watching him (and students are aware), it'll be easier.

Also, as sort of touched on in the post, and more succinctly put in this thread, (by a queer, Jewish, POC, pre-tenured professor) : The question however of "should a public university respond to people on twitter flagging tweets that they don't like by firing the professor involved?" is a very simple one. If even senior white men can be fired for that, any junior woman of color professor on twitter is fucked.

posted by damayanti at 4:54 PM on November 26, 2019 [10 favorites]


Maybe it’s because I’m white and cis (and it’s privilege), but I thought the university’s response was very thoughtful, transparent, and went much further in a positive direction than I’ve ever seen before in these types of PR situations (also I’m a woman so I raged at that guy’s beliefs natch). It also didn’t read at all to me like “oh here’s this missing stair, we did a couple things so anyway best of luck byeee” but instead rather “we’re as angry as you are-at his behavior and at the limits on us in making the situation right.” I’m kind of surprised by the negative reactions to the statement.
posted by Kemma80 at 5:05 PM on November 26, 2019 [5 favorites]


So if you want the government to once again take a more aggressive role in policing speech, you have to recognize and address that the US government specifically has an absolutely terrible track record, and that "free speech absolutism" is in many ways a reaction to this history.

Ah, the Ken White defense, as this is one of his favorites when defending free speech "absolutism" - we need absolutism because the US government cannot be trusted. But as Magarian points out, being a reaction to this history doesn't make free speech "absolutism" any more coherent, and that since Nixon, we've seen that incoherence used to twist free speech "absolutism" into a tool to protect the powerful and harm the dispossessed. I would say that Skokie is one of the best demonstrations of this, where free speech advocates argued that allowing neo-Nazis to engage in what is fundamentally an act of intimidation and terror was necessary for free speech. And after Charlottesville, we saw the rejection of that argument as people pointed out that Nazis always engage in bad faith.

Yes, the US has a bad track record on freedom of speech. But then again, so does free speech "absolutism".
posted by NoxAeternum at 5:17 PM on November 26, 2019 [4 favorites]


Also, as sort of touched on in the post, and more succinctly put in this thread, (by a queer, Jewish, POC, pre-tenured professor) : The question however of "should a public university respond to people on twitter flagging tweets that they don't like by firing the professor involved?" is a very simple one. If even senior white men can be fired for that, any junior woman of color professor on twitter is fucked.

The answer here is simple - stop letting the enemy frame the discussion. People are not wanting Rasmusen fired because he tweeted something they "didn't like", they want him fired because he's a fucking open bigot who espouses that women, homosexual individuals, and minorities are inferior. This framing of "speech you don't like" is yet another way the right wing used the incoherence of free speech "absolutism" to twist it into a shield for their hate, and step one of pulling that shield back is rejecting the framing supporting it, and refusing to use it ourselves.
posted by NoxAeternum at 5:44 PM on November 26, 2019 [18 favorites]


after Charlottesville, we saw the rejection of that argument as people pointed out that Nazis always engage in bad faith.

Do you expect Donald "very fine people on both sides" Trump and his administration to act in good faith and be a fair and balanced determinator of what constitutes harmful/illegal speech and what constitutes acceptable/legal speech?
posted by saeculorum at 5:44 PM on November 26, 2019 [3 favorites]


The existence of bad regulators does not invalidate the concept of regulation, and free speech "absolutism" has itself repeatedly failed at its goals because of its philosophical incoherence allowing it to be warped into a weapon for the powerful.

The powerful have, since Nixon and Reagan, worked to make us fear the government. We should be asking why that is.
posted by NoxAeternum at 5:48 PM on November 26, 2019 [8 favorites]


The idea that people have only had cause to fear the US government since Nixon and Reagan is a very blinkered view of US history.
posted by Pyry at 6:02 PM on November 26, 2019 [5 favorites]


The idea that people have only had cause the fear US government since Nixon and Reagan is a very blinkered view of US history.

Which isn't what I said, so you can put the strawman down. Yes, the dispossessed have always had reasons to fear the government - but they also have seen the government as the agent to positive change (hence why you see the various ways that the right has worked to disenfranchise them.) What I was talking about was the right wing movement to treat government as the enemy - a movement that just happened to coincide with the dispossessed beginning to get traction with using government power to assert their rights.
posted by NoxAeternum at 6:09 PM on November 26, 2019 [3 favorites]


I think this type of bigotry (racism, sexism, homophobia) is the only sort of moral turpitude (barring actual crime) that should overcome tenure.

U.S. law is currently not in line with 1st Amendment Absolutism: there are limitations on freedom of speech for government employees, e.g., and of course commercial fraud is not protected, ditto defamation.

The Dean's statement is AMAZING, but it stops a bit too short.
posted by allthinky at 6:12 PM on November 26, 2019 [2 favorites]


The powerful have, since Nixon and Reagan, worked to make us fear the government. We should be asking why that is.
posted by NoxAeternum at 7:48 PM on November 26 [2 favorites +] [!]


The idea that people have only had cause to fear the US government since Nixon and Reagan is a very blinkered view of US history.
posted by Pyry at 8:02 PM on November 26 [+] [!]


The idea that people have only had cause the fear US government since Nixon and Reagan is a very blinkered view of US history.

Which isn't what I said, so you can put the strawman down.


...

posted by NoxAeternum at 8:09 PM


***********************************

Nox, I really love this post. Thank you for putting it together. FWIW, it's easy to misunderstand what you meant about Nixon and Reagan.

Also, I just counted. You are making up ~20 - 25% of the comments. (I don't dare search for the word absolutism, atm.) Can we let the thread grow and see what others have to say?

***************

Which, actually, brings me to why I was going to comment. Did anyone read Rasmusen's "rebuttal"? If I read this correctly, it was hosted on Indiana Uni servers and they pulled it so he had to move it to his own domain.

He goes almost line-by-line through the letter from the Provost, and I think most of us would track it to be poor arguments. Pedantic, parsing words, rhetorical, slippery slope, etc. (I may have gotten those in order accidentally. Or all the arguments share some of those facets. Or.... I was just close. The arguments just don't stand.)

Basically, all arguments that many of us would consider batter's practice.

Where it gets interesting is where he goes silent:

From:

Sometimes Professor Rasmusen explains his views as animated by his Christian faith, although Christ was neither a bigot nor did he use slurs; indeed, he counseled avoiding judgments.

all the way through the end of the letter, wherein they discuss how to minimize any potential bias in grading, forced to take a class with him, etc. he has no rebuttal.

It's not a good situation, at all. I think IU is doing what they can according to their legal team. It's looking like they did a fine job threading the needle both legally and PR-Wise.

To belay the potential argument, I don't think "Fire" should be called in a crowded theater. I think that means I am not a Free Speech Absolutist, right?
posted by a non mouse, a cow herd at 8:06 PM on November 26, 2019 [7 favorites]


I think this type of bigotry (racism, sexism, homophobia) is the only sort of moral turpitude (barring actual crime) that should overcome tenure.

I don't care about his moral and ethical standards, nor his personal beliefs, no matter how repugnant (and wrong) they are. But if he's willing to state, in public, "I am a teacher, and I believe some of my students are inferior and incapable of learning the full scope of what I teach"... he should be fired. He's just admitted he can't do his job, and he will be cheating some of his students out of the education they paid for.

It should not be the students' responsibility to opt out of classes with a teacher who thinks they can't learn - the university has the obligation to remove any teacher who's not willing and capable of teaching.
posted by ErisLordFreedom at 9:07 PM on November 26, 2019 [24 favorites]


As a non American the idea of Free Speech seems so bizarre. That hate speech is protected and the be all end all feels cult like but that may be just the only people who talk about it online enough to catch attention are well zealots. Not that my country is a socialist freedom. It's been built as a white supremacist Christian racist country as well. But I don't understand the intense reaction from people that think you should be able to say anything at anytime. From what I've grasped it's mainly protection for the government not shutting down protest and media but it seems to have been taken as you should be able to say anything and be free from consequences? Is that a new thing?

I've always thought America being founded as over throwing the king has created this mythos that doesn't exist here in Canada and that our differing opinions of free speech is part of that. It's hard to figure out your country from outside so forgive me if this sounds ignorant.
posted by kanata at 10:27 PM on November 26, 2019 [7 favorites]


It does? Because from where I'm sitting, it's an incoherent philosophy that routinely uses euphemism to avoid confronting reality when reality could pop its theoretical bubble.

Wait, are you talking about free speech absolutism or the Dave Matthews Band? Because "Ants Marching" fucking rocks.

p.s. MetaFilter: an incoherent philosophy that routinely uses euphemism to avoid confronting reality when reality could pop its theoretical bubble.
posted by kirkaracha at 10:56 PM on November 26, 2019


This is the same IU that waited until Bobby Knight assaulted a student in plain daylight (as opposed to on the basketball court) to fire him. It’s incredibly believable that Rasmusen has allowed his bigotry to affect his teaching and that IU has looked the other way.
posted by Skwirl at 3:58 AM on November 27, 2019 [5 favorites]


“Ah, a free speech debate! This is where I’m a Viking!” - every cis het white dude online.

Seriously this thread is depressing af y’all don’t even know how pathetic you come across pretending to have legal, academic rationale for supporting bigots.
posted by odinsdream at 6:03 AM on November 27, 2019 [10 favorites]


Master's tools, master's house.

If you're sick of going down all the legalistic rabbit holes in search of The Reason Why This Keeps Happening, there's another way.
posted by Sheydem-tants at 6:05 AM on November 27, 2019 [5 favorites]


But I don't understand the intense reaction from people that think you should be able to say anything at anytime. From what I've grasped it's mainly protection for the government not shutting down protest and media but it seems to have been taken as you should be able to say anything and be free from consequences? Is that a new thing?

Well, newish, in that it's another way that free speech "absolutism" has been twisted into a defense of bigotry. Magarian points out why that is with his analysis:
Floyd Abrams is a deeply honorable, very smart man who has done more good in this world than I ever will. I also think he’s wrong about some important things. I don’t think “First Amendment absolutism” is a coherent concept. First, nobody actually believes in an unlimited right to speak – think blackmail, espionage, perjury – and second, different people’s speech rights often conflict: Think money in politics. When people talk about “free speech absolutism,” what they really mean is free speech formalism: If you can state a First Amendment claim against the government, you should win. That’s generally Floyd Abrams’ view.

I reject First Amendment formalism. I care instead about a substantive view of the First Amendment. The law should foster and promote social conditions that enable people to speak, to receive information, and to consider and debate ideas, in order to learn, to contribute to democracy, and to grow and thrive as human beings. We should presumptively mistrust government interference with speech, because the government has a lot of power and an intense self-interest. But sometimes the government can help make speech more free, especially when other powerful institutions, like wealthy business corporations, are trying to suppress speech. That’s why, for example, the First Amendment shouldn’t bar the government from making ISPs operate under Net Neutrality.
The reality is that speech is a tool that can be used to harm, and ignoring that aspect of speech is how you wind up saying that freedom of speech requires us to allow neo-Nazis to march in force through a heavily Jewish suburb with a large population of Holocaust survivors. It's okay to distrust the government - but not to do so blindly.

(This is why "absolutist" philosophies as a general rule are incoherent by nature - an absolutist philosophy is, at its very heart, about not drawing lines between permissible/impermissible and standing completely on one side or the other. Problem is, there are very few things in the world where such a position is legitimate, and once you have drawn a line, the discussion is about where it should be, not whether it should exist. This is why you then move to formalism - but the problem there is that formalism tends to be blind, which leads to problems when the situation involves nuance.)
posted by NoxAeternum at 6:23 AM on November 27, 2019 [6 favorites]


The man believes that:
* Women do not belong in the workplace, especially academia;"


If you think that alone has not had a negative impact on women in the hiring and promotion committees that he's been on, then you are not rooted in reality. I will bet my own tenure line on it.

That doesn't even touch on his ability and willingness to write letters of recommendation and support for students and colleagues. If you need letters from your department to get sabbatical or tenure or any number of internal benefits, and are a woman, you would be clearly hamstrung in your ability to earn the honor/award with this guy in your dept.

Those are concrete harms that he has already perpetrated.

(And of course, it'd be the same for everyone he's bigoted against.)
posted by oddman at 6:31 AM on November 27, 2019 [19 favorites]


Hey it is true though that just because I have stated on multiple occasions that I don't believe in key parts of my job, that's insufficient to construct an airtight syllogism that I have committed professional malpractice.

Good thing that's not a bar any reasonable person would ever apply in this context.
posted by PMdixon at 6:49 AM on November 27, 2019 [2 favorites]


I'm a little late to this part of the discussion but something it seems like a lot of people are accepting implicitly is that firing Rasmusen for his speech will open the door to retaliation against marginalized people for their speech and I don't think this is true; I think that door is always kind of open? Like, not to be all oppression Olympics but I'm a mentally ill transgender communist, three categories that are usually pretty high on the list when they start coming for people, and I don't believe for a minute that allowing Rasmusen to be a bigot publicly will protect my speech. Powerful people intent on oppression are not going to be like "this professor was allowed to be a bigot, guess we're not instituting consequences for speech, keep at it leftist rabble!". I don't actually think that protecting this man's bigoted speech protects the speech of anyone who is marginalized. If there's one thing I feel like the Democratic party has taught us repeatedly, it's that liberals/the left following all the rules doesn't stop the right from breaking them.
posted by an octopus IRL at 8:17 AM on November 27, 2019 [18 favorites]


I don't actually think that protecting this man's bigoted speech protects the speech of anyone who is marginalized.

Yeah the idea that there's any kind of reciprocity at play here is risible. I generally take advocacy for that idea that the person forwarding it is either incredibly naive or lacks skin in the game.
posted by PMdixon at 8:37 AM on November 27, 2019 [2 favorites]


They can't review his past grading habits, because nobody keeps those papers around

My wife's tenured faculty. She has to keep all graded work for something like 5 years. Most schools have a retention policy for assignments because there are pretty wide grade appeal windows and they want protection against issues exactly like this.
posted by srboisvert at 9:03 AM on November 27, 2019


They do, but without the papers or tests themselves, they don't have proof that he graded non-het-white-men's work more harshly. He could claim, and probably does, that men averaged better grades than women because they're just better students, which is why he believes they're better students.

Surely you just compare them the performance of the students with their typical performance in other modules/classes? This is pretty basic info to manipulate. My uni does this for modules when there is any concern about marking profiles and it is by no means technically advanced, its just some off the shelf software integrated into our clunky old system. Doing it to compare results for men / women, black / white students would not be a major step.

I'm suspicious that technical reasons are not the real reason not to try this.
posted by biffa at 9:32 AM on November 27, 2019 [2 favorites]


Surely you just compare them the performance of the students with their typical performance in other modules/classes? This is pretty basic info to manipulate. My uni does this for modules when there is any concern about marking profiles and it is by no means technically advanced, its just some off the shelf software integrated into our clunky old system. Doing it to compare results for men / women, black / white students would not be a major step.

I'm suspicious that technical reasons are not the real reason not to try this.


So he gives a man an B-plus and a woman a B-minus. Your software can spot that.

But can it judge the relative difficulty of any class against any other class that these two are taking? The relative worth of any essay against any other essay? For Pete's sake, if software can't tell me which squares have a fire hydrant in them, how is it supposed to replace human judgement of academic writing?
posted by Mogur at 10:09 AM on November 27, 2019 [1 favorite]


The thing about stereotype threat is that the bigotry is causal in low academic performance. It's not just an instructor maybe assigning low grades after work is complete, it's that the quality of the work being done in the first place is lower than it otherwise would be. I just went to a talk the other day about how increasing the feelings of belonging ("I deserve to be here, the quality of my work is similar to that of my peers, when I find things hard my peers probably are also finding them hard, I can improve my performance over time just the same as others can") brings the grades of students in underrepresented minority groups up to parity with majority group students. It's not that the instructors are grading the students' work differently, it's that the students are doing better work when they receive messages that they belong in that class just as much as white males do.
posted by soren_lorensen at 10:49 AM on November 27, 2019 [16 favorites]


So what I'm saying is that the bigotry is bad teaching that negatively effects student performance, along with it being morally reprehensible. I do this professionally so I've got A Lot of Opinions about pedagogy in higher education and I know that all manner of shitty teachers whose instructional abilities and styles are basically contraindicated for actual education get to keep their tenure but...maybe they shouldn't? Or at least maybe not the ones who are openly hostile to the concept of delivering a quality education?
posted by soren_lorensen at 10:55 AM on November 27, 2019 [9 favorites]


Unfortunately, soren, US society teaches us "sticks and stones may break my bones, but names will never hurt me" so thoroughly that many won't even countenance that it is an utter lie. Hence the argument that Rasmusen has done no harm because all he's done is acted on his bigotry through words.
posted by NoxAeternum at 11:10 AM on November 27, 2019 [1 favorite]


I have stated on multiple occasions that I don't believe in key parts of my job, that's insufficient to construct an airtight syllogism that I have committed professional malpractice.

Have you stated that the people you are paid to support, are not capable of benefiting from your work? Not, "this process is flawed" or "I can't get enough done because of the stupid hoops you have me going through," but "those people, the ones you've assigned me to work for, are not going to get the full value of what I'm doing, because they're not capable of it?"

There's a big difference between "parts of this job suck and prevent me from reaching my goals," like a teacher complaining that the lack of elevators puts her disabled students at a disadvantage, and "the people I work for can't understand what I'm trying to do for them."

My hope is that, in this case, they've opened the door for his past students to come forward and file official complaints.
posted by ErisLordFreedom at 12:05 PM on November 27, 2019 [1 favorite]


kanata: As a non American the idea of Free Speech seems so bizarre.

I may have missed it, but you're the first and only person to mention this so far. For a recent examples of how hate speech was treated elsewhere: NZ declares massacre video “objectionable,” arrests people who shared it -- New Zealand's chief censor classified the Christchurch video objectionable. And New Zealand judge sends neo-Nazi to prison for sharing mosque shooting video -- Sharing the video is illegal in NZ and "encourages mass murder," judge says. Philip Arps, 44, was one of the New Zealanders arrested for sharing the video. He received the 21-month prison sentence at Christchurch District Court. (Ars Technica x2)


Put another way - if you want to get rid of Rasmusen (yay - I'd be all onboard), then advocate for every professional organization he's in to reject his talks and withdraw every conference invitation. Advocate for every professional journal to decline to publish his papers. Find his corporate sponsors and advocate for them to withdraw funding. Have the university prominently discourage potential students from having him as an advisor (shouldn't be hard). Find all of his co-authors and do exactly the same thing to them. Make it so Rasmusen can't do his job and is ostracized as he should be.

Looking to other agencies to react to and limit Rasmusen's presentation and publication access, while saying the University did all it could, sounds like passing the buck to me. If you support reducing his power through some means, why not let the University state "this man's views do not align with the views and policies of this University" and boot him? Making it so he can't do his job is trying to have it both ways.
posted by filthy light thief at 1:02 PM on November 27, 2019 [6 favorites]


I don't think that concern is about retribution, though. It's rather about being consistent, which also has to do with fairness. Another lens to use is the golden rule(s). I'm not saying that that particular argument used by free-speechers is the right one, but I think reading and articulating the argument well is a necessary step to understanding the philosophical content of the underlying arguments that are in conflict.
posted by polymodus at 1:17 PM on November 27, 2019 [1 favorite]


It's rather about being consistent, which also has to do with fairness.

As the old chestnut goes, foolish consistency is the hobgoblin of little minds. Consistency for the sake of consistency without considering the actual merits of the matters at hand is a good way to impose unfairness while creating a veneer of fairness.
posted by NoxAeternum at 3:19 PM on November 27, 2019 [4 favorites]


My wife's tenured faculty. She has to keep all graded work for something like 5 years.

Maybe works if all assignments are digital; doesn't work if paper is handed in, graded, and returned to the students. And even digital retention policies can run into problems when the software or the database changes.

I'm suspicious that technical reasons are not the real reason not to try this.

Technical reasons aren't a reason not to try it, but they are why it's not likely to work. The school isn't likely to have the resources to review his past grading habits in detail - even if they have the assignments, they may not have records of which students are white or female, and almost certainly don't have any way of tracking which students were openly gay. If they do have demographic info, it may not be stored in a way that's easy to connect to the assignments.

They may have that info for students from the last couple of years, but not the last 15+. Once a student has graduated, the college may not keep as much info about them.

All that gets much easier if they have student complaints to deal with. They can have that student's work reviewed by an independent teacher, who then checks Rasmusen's grades and notes.

The hard part is "go through thousands of student homework assignments, look at grades, and try to find a pattern that he's been slighting some students." That's a data analysis nightmare that the university doesn't have time or resources for.

It's rather about being consistent, which also has to do with fairness.

His students haven't received consistent or fair treatment. The university's policy has put the burden of proof on the victims - without even telling them that they're welcome to bring evidence.
posted by ErisLordFreedom at 11:20 PM on November 28, 2019 [3 favorites]


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