Why Harvard Was Right Not to Ban the Black Mass

 
 

A policy that disempowers university officials from prohibiting student events on the basis of the viewpoint they express demonstrates institutional genius.

Earlier this month, a student group at Harvard announced it would perform a Black Mass on campus. After vociferous protests from Christian student groups, the Archdiocese of Boston, some faculty members, and Harvard University President Drew Faust, the sponsors of the Black Mass backed down and canceled the event.

Writing here at Public Discourse, James McGlone makes an admirable attempt to make sense of the freedom of speech issues surrounding these events. McGlone argues that, although “ideas should never be banned from an academic community, even if some find them offensive,” nevertheless “some actions and events are so hate-filled and bereft of any redeeming qualities that their existence tears at the fabric of a community” and so “should not be allowed to take place.” On this basis, McGlone argues that President Faust should have banned the Black Mass. I worry, however, that this is a very dangerous line to take.

Private Institutions and the Right to Free Speech

Let’s start with some first principles. Most important, Harvard University is a private educational institution, not the government or a “state actor” within the meaning of our free speech jurisprudence. As a matter of law, therefore, the First Amendment does not apply to Harvard, and so there is no legal issue here. Even if President Faust had banned the Black Mass, she would not have violated anyone’s First Amendment rights.

When a private institution prohibits certain speech on its properties, those who want to engage in such speech still have plenty of opportunities to do so. They can find other private facilities to accommodate them; they can buy or build their own facilities; or they can repair to the public square, where the government is in charge and is restricted in its ability to ban speech by the First Amendment. Private actors such as Harvard never have a monopoly on the venues or means of speech. Thus, if a private actor prohibits certain speech within its purview, the effect is minor, often trivial.

Moreover, market discipline on private institutions will ensure that such institutions do not go overboard in prohibiting speech. A private university that announced, for example, that no groups, publications, or events expressing a given viewpoint would be tolerated on campus would soon suffer from declining enrollments, reduced alumni giving, and increased difficulty in hiring and retaining faculty and staff. Private institutions have a legal right to prohibit speech with which they disagree, but they have strong incentives not to do so often or extensively.

Even if we leave aside legal issues and confine the discussion to moral issues, however, there is no real issue of freedom of speech related to the Black Mass. For, as far as I know, no one interfered with the freedom of speech (or, for that matter, the freedom of religion, which may well be the right category here) of the students who wanted to hold the Black Mass. Yes, many people condemned the proposed Black Mass and issued protests and denunciations, but such actions are themselves only speech. No one used force or the threat of force to interfere with the event. If the event had occurred, no one, I suspect, would have attempted to disrupt it. When the response to speech is just more speech, no one’s freedom of speech has been compromised.

Ideas vs. Hateful Actions: Who Decides?

This brings us back to McGlone, who thinks that President Faust should have not only denounced the Black Mass but also prohibited it. Here, McGlone and I part company.

The problem with McGlone’s distinction between “ideas,” which he says should never be banned from an academic community, and “actions and events” that are “hate-filled and bereft of any redeeming qualities,” which he says should not be allowed to take place, is not that there is no such distinction. There surely is, and McGlone makes a fine attempt to set it out in a principled way. The problem with the distinction is that, if it is to be used in practice to permit some events and prohibit others, someone must have the power to decide which events promote intellectual discourse on important issues and which are merely offensive and are, in McGlone’s words, “bereft of any redeeming qualities.” Who gets that power? In a private university such as Harvard, presumably the university president, or, ultimately, the board of trustees.

Is it wise for a private university to confer that power on anyone? I tend to think not. In this case, President Faust’s response to the offending event was entirely correct. She declared publicly that the decision by a student group to hold the event was abhorrent, which it undoubtedly was. If she had authority to prohibit student events on the basis of the viewpoint they express, and if she had chosen to exercise that authority in this case, the world would have been a better place, all things considered. But that doesn’t mean that the world would be a better place, all things considered, if President Faust and similar officials at other private universities had this power and were in the habit of using it.

Since they are only human beings like the rest of us, any university officials entrusted with this power would make some mistakes in exercising it. Sometimes, they would fail to prohibit harmful events, and in such cases the result is just what it would have been if they lacked the power altogether. In other cases, however, university officials would prohibit some events that really do contribute to the intellectual life of the university. In that case, the harm is serious.

Political Correctness and Institutional Power

If this were all there were to it, the question would become whether the benefits of prohibiting some harmful events exceed the costs of prohibiting some valuable ones. But there is much more to this matter, because—and this is the critical point—errors in the exercise of the power to suppress speech will not be randomly distributed across viewpoints. That is, it will not be the case that, for every political or religious or philosophical viewpoint, valuable events expressing that viewpoint are equally likely to be prohibited by university officials. On the contrary, all human experience in this area shows that people tend to conclude much too easily that expressions of viewpoints very different from their own are extremely offensive and lacking in “redeeming qualities.”

Perhaps this would not be so serious an issue if university officials were an ideologically diverse group, so that, across institutions, their tendencies to prohibit events expressing certain viewpoints would cancel out, and, on a societal basis, every viewpoint’s events would be equally likely to be prohibited. But that’s not what would happen. For, as everyone knows, and as plenty of academic research confirms (see Maranto, Redding, and Hess’s fine book, The Politically Correct University), university faculty and officials are a largely ideologically homogeneous group holding ideas and values that skew strongly toward the left end of the spectrum. Hence, the events that they will find to be valueless will tend disproportionately to be conservative and religious in nature.

McGlone is right that there is a principled distinction between a lecture by Ryan Anderson, which may offend the university’s gay and lesbian students, and a Black Mass, which may offend the university’s Catholic students, but it’s quite another thing to say that university officials will always recognize and respect that distinction.

Often, they won’t. Not only will their own ideological commitments incline them against some conservative and religious events, but university officials will also face tremendous pressure from large numbers of similarly left-leaning students and faculty to shut down such events (see the discussion by Robert Oscar Lopez of just such a case last month involving the Anscombe Society at Stanford University and numerous commencement speakers this spring). If university officials are disabled from suppressing student events on the basis of the viewpoint they express, then such officials will have excellent resources with which to resist such pressure: they can express unbounded sympathy with the offended students and faculty but plead a lack of authority to do anything about the offending event. If university officials have such authority, however, we would need to rely on their moral courage to stare down irate students and faculty, and requiring moral courage of people in high office is always a dangerous proposition. So much better to praise such courage when it exists, but to design institutions on the supposition that it will not.

One of the great geniuses of the American people has been our talent of designing institutions to accomplish social purposes. On the grandest scale, the framers did that in designing the world’s most enduring and successful constitutional government. On a less grand scale, American lawyers and businesspeople have done it in the American corporation, producing a form of human organization that facilitates the raising of capital to fund innovation and increase the world’s stock of goods and services. In private academic institutions, a policy that disempowers university officials from prohibiting student events on the basis of the viewpoint they express is more of the same institutional genius. It is a wise feature of institutional design that produces the best effects in the long run.

The result at Harvard is precisely the one for which we should hope. Those engaged in socially harmful speech were met by the speech of others with more sense, and good sense prevailed, not by force, but simply by being good sense.

Robert T. Miller is professor of law and the F. Arnold Daum Fellow in Corporate Law at the University of Iowa College of Law.

 

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