Snowflakes and Syllabi

Readers will likely remember the famous 2015 Halloween costume debate at Yale—an example that opens a chapter of Ulrich Baer’s recent book about free speech on college campuses. Prior to the yearly Halloween festivities, Yale College’s Intercultural Affairs Committee sent out an email encouraging students not to wear culturally insensitive costumes, such as “blackface or redface” or “appropriations” of Asian or Latino cultures. In response, the associate master of a residential college sent a follow-up email saying that students should not be so concerned about offensive costumes because, in effect, it is impossible to agree about stan­dards of offensiveness. Would it be culturally insensitive for a white preschooler to dress up as the Chinese Disney character Mulan, for example? According to the email, the question “seems unanswerable.” It concluded by stating that “free speech and the ability to tolerate offence [sic] are the hallmarks of a free and open society.” Shortly thereafter, a group of students confronted the associate master’s husband, a faculty member with whom she shared the associate master role. In an exchange captured on video, the students loudly stated their objection to the email, and some called for the couple’s resignation.

The students in this example— along with others at Auburn University, and the University of Missouri, and the University of California, Berkeley—have been derisively labeled “snowflakes” by their critics. The term snow­flake is generally used to refer to privileged and sheltered young adults who resist exposure to ideas and beliefs that conflict with or challenge their own. In this con­text, it connotes both a false sense of uniqueness and a weakness or vulnerability that is, of course, meant to be offensive. (Baer writes that he adopts the term in order to deprive it of its “sarcasm and sting,” but I’m not convinced it can be redeemed.) What makes these Yale students “snowflakes,” in the eyes of their critics, is their desire to restrict the expressive activities of others in order to avoid suffering offense. To their critics, restricting expression to avoid offense is the very antithesis of free speech—and an affront to the heroes who have secured and exercised that freedom in town squares, in courthouses, and on college campuses throughout US history.

Baer—who enters this debate as a university professor, a public intellectual, and a former vice provost—is clearly sympathetic to these Yale students and others like them. And in some respects, the importance of his book is fully captured by the title: we are in the midst of a pitched cultural battle for the meaning and history of free speech, and it is important for people, especially prominent academics, to take sides. Baer has sided with the students, and that means something.

The genesis of Baer’s book is a 2017 op-ed for the New York Times column The Stone, which is reprinted in chapter 4. In his op-ed, Baer argued that speech has “no inherent value” when it functions to shut down the speech of others—that is, to prevent meaningful discussion or debate. His vivid example of this phenomenon, drawing on the work of French philosopher Jean- François Lyotard, is Holocaust denial in postwar Europe. Lyotard described how Holocaust deniers publicly confronted survivors and demanded the impossible: eyewit­ness evidence corroborating their testimony about their personal experience in the concentration camps. This tactic, as Baer argues, was not just offensive but func­tioned to deny the humanity of the survivors, undercutting their ability to debate the content of the deniers’ speech on equal terms.

Speech, in short, is not merely a content vehicle. It can also func­tion as a move within a complex social and political game, a game in which some players are already victims of systematic oppression. When deployed tactically by those in positions of power, speech can manipulate and exacerbate these power imbalances to subtle but dramatic effect. Wearing black­face to a Halloween party, under the cover of jest, could operate this way, as it certainly has in the past. And if speech can function to oppress and marginalize, then claiming free speech protection is like a cheat code—a way for the already powerful to exploit their advantage without fear of social or legal repercussion. This is, in short, what “snowflakes” get right.

Baer’s point here is well taken. Speech is not just a con­tent vehicle, and the “value” of speech absolutely depends on how it functions within its social and political context. In some ways, Baer’s point resembles feminist legal scholar Catharine MacKinnon’s argument against free-speech protection for por­nography. A typical pornographic magazine or movie is not just a vehicle for (potentially offensive) content; it is also a move within a misogynistic and heteronormative power structure.

There are familiar problems, however, for any theory like Baer’s that attempts to distinguish valu­able speech from speech with “no inherent value.” One problem is the slippery slope of censorship. If a university prohibits blackface or disinvites Milo Yiannopoulos, must it also ban Leni Riefenstahl films and Gone with the Wind? Where do we draw the line? Which of these forms of expression have inherent value and which have none? And who has the authority to make this determination in a fair and consistent way?

Baer directly addresses these questions in chapter 6. He writes that we can avoid overzealous censorship by adhering to this standard: “The only type of speech that needs to be regulated . . . is speech that disputes the inherent equality of all students based on group belonging.” However, this standard contains the very same ambiguity that Baer had previously identified in his discussion of Holocaust denial. If Baer’s standard is meant to apply to speech whose content disputes the inherent equality of all students, then we have a seri­ous risk of overreach: it is hard to see how Riefenstahl stays on the syllabus. But if the standard applies to speech whose function within a social or political context is to undercut the inherent equal­ity of all students, then we might be getting somewhere. It becomes clear, for example, that a college senior’s blackface is not the same as a preschooler’s Mulan costume. A charitable reading of Baer’s argument suggests that this second functional interpretation is what he had in mind, but he does not spell this out—nor does he return to the crucial Lyotardian distinc­tion at this point in the text.

But even if Baer gets the standard right, there is still the question of who should deter­mine which speech has value and which does not. In the context of a university, Baer states that the task should fall to faculty members and administrators who are able to “balance students, faculty, and staff interests from a comprehen­sive vantage point.” Baer argues, plausibly enough, that line-drawing about the value of speech is already an important part of any univer­sity’s role in society. He writes, “The spurious idea of the innate inferiority of some racial groups” can be excluded from university discourse “just like pre-Newtonian physics.” The solution, ultimately, is for faculty and administrators to mount a principled defense of the university’s preexisting “gatekeep­ing function.”

I’m not fully satisfied by this argument—and not just because it won’t do much good for fac­ulty and administrators at public universities, who may be subject to knocks on the door from the Department of Justice. The prob­lem is that Baer again seems to forget his own distinction between the content and function of speech. We don’t teach pre-Newtonian physics because the content of that theory has been proved false according to the evidentiary standards accepted by science. But even supposing that white supremacy has been proved false in a comparable respect, its role in contemporary political life renders it important in a way that pre- Newtonian physics simply is not. The equality-undermining func­tion of white supremacist speech is also what makes it culturally and politically important—something that universities must understand and critique, not simply sweep into the dustbin of history.

The irony of the current free speech debate is that, as Baer puts it, “today’s racist firebrands carry the mantle of Mario Savio.” While the so-called snowflakes courageously speak their minds in ways that resemble the campus activism of the 1960s, their critics brandish free speech against them, often from the safety of their slick websites and their tenured professorships. The term free speech (along with snowflake) has become a weapon employed by the powerful within a complex sociopolitical power struggle. But Baer does not make enough of this reversal. What is the function of a book on free speech, after all, if the term itself carries water for the other side?

This is the key problem, and it is not enough to argue for epistemological gatekeeping or reasonable line-drawing. It requires taking a closer look at the way certain forms of speech are being used and who is using them and for what ends. We need a theory of how words get weapon­ized and how we can fight back in a society committed to open dialogue. Baer’s book helps to set this project up—an important con­tribution—but stops well short of completing it.

Brian Hutler is a Hecht-Levi Postdoctoral Fellow at Johns Hopkins University’s Berman Institute of Bioethics. His research focuses on the capture and manipulation of democratic values by antidemocratic forces. His email address is [email protected].