Silencing and free speech
VOLOKH at mail.law.ucla.edu
Thu Feb 28 13:47:21 PST 2002
I surely agree that many students are often "silenced" by various
factors. Many (though of course not all) male students are reluctant to
speak out in crim law class against various modernizations of rape laws.
Many (though of course not all) white students are reluctant to speak out
against race preferences, or to criticize other aspects of modern civil
rights law, or to criticize disparate impact analysis on the grounds that
different groups do indeed behave differently. (Surely males and whites
"feel personally implicated" by a lot of the discussion of rape laws and
civil rights laws.)
Many (though of course not all) conservative students are reluctant
to speak out in heavily liberal classes. Many pro-life students, especially
those who come from a religious perspective, are reluctant to speak out in
discussion of Roe and Casey, where they know that the other students are
mostly secular, pro-choice, and resentful of what they see as religious
people "trying to force their morality down our throats" (though of course
many conservatives are equally resentful of secular liberals trying to force
their morality on others). And of course I have no doubt that many female,
nonwhite, liberal, and pro-choice students are also reluctant to speak out
in various contexts. I cannot tell which effects are the more pronounced --
it would be great to see some studies on this, but I know of none -- but I
believe that all of them exist in considerable measure.
But these points, I think, simply illustrate the dangers of banning
pornography, hate speech, or what have you on the grounds that it might
"silence" people because it will make them reluctant to speak out. Lots of
speech makes people reluctant to speak out; if the silencing argument is
accepted, then a very great deal of speech will be subject to such
> -----Original Message-----
> From: Tobias Barrington Wolff [SMTP:tbwolff at UCDAVIS.EDU]
> Sent: Thursday, February 28, 2002 1:32 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Firing of high school teacher for NAMBLA-related
> political ac tivi ty upheld
> Frank writes:
> >Nor do I understand how pornography silences women. The widespread,
> >outspoken protest of women against pornography seems like an obvious
> >contradiction to the claim. Maybe I'm missing the meaning of "silencing"
> >here, and this could be explained.
> This is only an indirect response to Frank's question, but perhaps it will
> be useful.
> I just got through with my unit on affirmative action -- six classes, over
> a week and a half. My constitutional law class has 104 students, about 25
> of whom are black, Latino or Asian. Only one of my non-white students
> a comment, and then only one single comment, during the entire 6-class
> discussion -- this despite the fact that many of those students are very
> smart and thoughtful, and have been vocally participating students of mine
> in previous classes. For the rest of the time, the extremely lively
> discussions were carried on entirely by white students.
> Various of my non-white students attended my office hours throughout this
> period, and they had wonderful insights. After speaking with them, I
> ask whether they might not feel comfortable contributing their thoughts to
> the class. To a person, they said no. When I asked why, they said that
> they felt personally implicated by these discussions -- specifically, that
> they felt that they would sound like they were trying to justify their
> presence at our law school, or defend their abilities or their personal
> worth, by speaking up.
> Obviously, pornography is not affirmative action. But I think that
> MacKinnon and Dworkin seek to capture a similar phenomenon in their
> analysis. Images of sexual objectification -- and, particularly, sexually
> graphic, subordinating images -- make many women feel personally
> implicated. For many women, I think, participating in public
> is made more complicated by such images. They either feel that their
> contributions will not be taken seriously because they will be viewed as
> sexual objects, or that they must justify their participation in public
> discourse despite the powerful presence of these messages.
> To make the point rather starkly: Imagine utilizing pornographic images in
> a classroom discussion of pornography and the First Amendment -- passing
> around Hustler magazine, or screening Deep Throat. (I know there are some
> teachers who employ this device -- I do not.) I dare say that many women
> in the classroom would feel the same reticence about speaking that my
> non-white students felt when we were discussing affirmative action -- a
> feeling that, in speaking, they must somehow justify themselves, or
> otherwise situate themselves personally in relation to the images of women
> that we have just viewed.
> Personally, I do not conclude from these observations that pornography
> should be more heavily regulated by the State -- just as I do not conclude
> that affirmative action is unconstitutional or unwise, despite the
> dignitary problems that the issue clearly raises for my non-white students
> in class discussions. But, in both cases, I think there is a very real
> "silencing effect" that is important to acknowledge, even if it is not
> dispositive of the larger legal questions.
> -- T
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