Author: Dylan Bordonaro
What is Free Speech?
Free speech has long been professed to be an indispensable right in any free society. The United Nations, among others, believe freedom of speech to be an unalienable human right. Perhaps the most influential advocate of free speech, John Stuart Mill, eloquently argued the importance of protecting expression in his 1859 book “On Liberty.”
“[There] ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered,” he wrote.
Freedom of speech and freedom of the press are guaranteed in the United States by the First Amendment to the Constitution. Few exceptions to this protection exist, such as words or threats that directly and immediately incite violence. As Mill explains, all speech, regardless of content, must be protected for the right of expression to be retained by all.
“If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind,” Mill wrote.
An important balance exists in a society’s refusal to censor. People in power, who are generally part of a majority, will often push to censor minority opinions. And they are usually well-intentioned, hoping to protect people from speech that could be considered harmful.
Inevitably, power changes hands and opinions transform. Were censorship permitted, “obscene” topics such as homosexuality would have been banned decades ago. As a result of discourse in the marketplace of ideas, however, much of what was once viewed as offensive is now broadly accepted. Moreover, as the Foundation for Individual Rights in Education (FIRE) explains, counterspeech is a much stronger weapon for challenging discriminatory views than censorship.
“In order for speech to be truly free, speech that conveys deeply offensive messages, including hate, must be protected. A free people have recourse to reason, evidence, outrage and moral witness against such speech, but do not need to turn to coercive power to silence it,” FIRE’s Guide to Free Speech on Campus says.
A Contentious History: KOXY Show Cancelled, ASOC Disbanded
Occidental has maintained a long commitment to protecting free speech on campus, but it hasn’t come without its challenges.
The college’s biggest clash with free speech occurred in 2004, when then-President Ted Mitchell cancelled the KOXY radio show of Jason Antebi ’04 and disbanded the Associated Students of Occidental College (ASOC) Senate, of which Antebi was vice president.
Antebi was accused of harassment by three complainants who were offended by comments he made on his KOXY show. Coming to Antebi’s defense, Greg Lukianoff, then Director of Legal and Public Advocacy at FIRE, wrote a 28-page letter to Occidental’s then-General Counsel Sandra Cooper. The chronology provided by this document, in conjunction with an interview with Antebi himself, establishes the basis of the narrative that follows.
Two of the complainants, who were also members of ASOC Senate at the time, had a history of disagreement with Antebi. Antebi had filed harassment complaints earlier in the year against the same two students, who he believed were slandering him, but the claims were dismissed by Cooper and then-Dean of Students Frank Ayala. A short time later, when similar accusations were made against Antebi, Occidental proceeded with an investigation and pursued disciplinary action against him.
On his radio show “Rant and Rave,” Antebi referred to one student as “Vander Douche” and the other as “the bearded feminist.” No one, as Lukianoff explains, was immune to attack on his show.
“The targets of Antebi’s on-air mockery included whites, alcoholics, drug users, ‘straight-edges,’ his cohost, his former cohost, Mormons, Christians, Jews, Jehovah’s Witnesses, doctors, lawyers, Democrats, Republicans, feminists, ‘hippies,’ the Christian Right, Alan Colmes, Greta Van Susteren, Bill O’Reilly, Al Franken, campus safety officers, women, men, children, space aliens, Star Trek fans, Star Wars fans, Matrix fans, porn actors, people who don’t own Diesel shoes, people who wear socks with sandals, short people, tall people, fat people, skinny people, ‘web nerds,’ TV characters, KOXY management and even himself … Antebi was, to borrow a hackneyed phrase, ‘an equal opportunity offender,'” Lukianoff wrote.
In his defense of Antebi, Lukianoff cited an open letter written by Gerald A. Reynolds, the Assistant Secretary of the U.S. Department of Education’s Office for Civil Rights.
“The offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment,” Reynolds wrote.
After the complaints were made, Ayala decided to cancel “Rant and Rave,” much to the chagrin of KOXY’s student director Jennifer Clasen, who consistently defended Antebi’s right to speak freely on air.
“The beauty of radio is that when you don’t like what you’re listening to, you can turn the dial,” she wrote in a letter to Dean Ayala. “We do not censor, and I’m not endorsing or enforcing your decision against Antebi.”
According to Lukianoff, California has a unique law — the Leonard Law — that protects First Amendment rights at private colleges and universities in the state. Otherwise, as a private institution, Occidental would have no obligation to uphold the legal standards of free speech maintained in public spaces, including public universities.
Lukianoff refuted Occidental’s claims in his letter and would ultimately go to court to defend Antebi’s speech under the Leonard Law, asserting that the college’s claims were riddled with false accusations, misapplication of policies and disregard for protected speech.
Antebi was found guilty of sexual harassment by Occidental’s then-Title IX Coordinator Maryanne Cline Horowitz. Additionally, then-President Ted Mitchell decided to dissolve ASOC, of which Antebi was still vice president, amidst the commotion.
Antebi and FIRE did not pursue legal action immediately. Instead, Antebi focused on graduating. He took time away from campus to focus on his schoolwork, and he successfully graduated in May 2004. Only then did he file a lawsuit against Occidental for violating his first amendment rights as guaranteed by the Leonard Law.
Unfortunately for Antebi, Occidental won the initial case due to a loophole: since Antebi was no longer enrolled at Occidental, he was no longer protected by the Leonard Law. This loophole meant that a private school in California, such as Occidental, could avoid legal retribution by ending the student’s enrollment (whether by graduation or expulsion).
“In retrospect, clearly [waiting to file the suit] was the wrong move,” Antebi said.
Pursuing a defamation claim, among others, while dropping the claim under the Leonard Law, Antebi won on appeal. After more than three years, Antebi and Occidental settled out of court for an undisclosed amount of money.
“I consider that a win,” Antebi said. “I know the school will try to spin that and say ‘No, we won, we settled,’ but they settled because they didn’t think they could win.”
Stuart Tochner, Occidental’s attorney in 2007, commented on the settlement in an article for the Weekly.
“From the College’s perspective, the settlement will spare the college’s employees from a wasteful diversion of attention,” he said. “The settlement was unrelated to Mr. Antebi’s claims, and was a truly nominal amount. There isn’t and never was any merit to Mr. Antebi’s lawsuit, and the College absolutely admitted no wrongdoing.”
The college’s official opinion is not shared by Antebi, FIRE or Peter Eliasberg, legal director for the American Civil Liberties Union (ACLU) of Southern California, who all believe Antebi would have prevailed under the Leonard Law were there not a loophole, which in 2008 was removed by an amendment to the Leonard Law in Senate Bill 1370.
Eliasberg believes Occidental was at fault in their persecution of Antebi.
“I felt pretty strongly that the material that the school said they were disciplining Mr. Antebi for was material that was protected by the First Amendment,” Eliasberg said. “Under the new law, [the court] wouldn’t have been able to dismiss [the lawsuit] on the grounds that he was no longer a student, and I think the court would have found that Oxy was wrong.”
Occidental’s Policies and Free Speech in Education
Even today, some Occidental students feel like their freedom to speak their minds is limited at the college, both in and out of the classroom.
“There have been several instances on campus where I felt uncomfortable expressing my views in classroom settings,” Erica Owens (senior) said via e-mail.
She believes this pressure comes more from Occidental’s culture of political correctness than from professors, and she is cautious when engaging in discussions in class.
“It sometimes feels like I’m walking on eggshells, having to stop before I speak, thinking, ‘Am I going to offend someone if I phrase my idea like this?'” Owens said. “By the time I’ve figured out a tactful way to present my opinion, the conversation’s moved on and I’m left behind.”
Claire Henriques (senior) believes this atmosphere extends well beyond the classroom.
“I would be mortified and terrified to go out in public on campus if a lot of the things I said were heard by the more sensitive bunch of Occidental students,” she said.
Aaron Hammonds (senior) echoed this sentiment.
“There is a community-approved position to have, and if you don’t believe in that, then you catch an enormous amount of flak,” he said. “Of all the places in the world, colleges are where you are supposed to be able to speak your mind.”
One of the college’s policies, from the Code of Student Conduct, claims that a student may be punished for “verbal abuse.” According to Azhar Majeed, director of the Individual Rights Education Program at FIRE, this policy is ambiguous and could mean that students could be punished by Occidental for speech that is legally protected.
“At an institution that commits itself to free speech, as Occidental does, this is simply impermissible,” Majeed said via e-mail.
Hammonds noted that the college should only concern itself with students’ physical safety and not take on the responsibility of protecting everyone’s emotions.
“The idea that you can go through life and not hear anything that bothers you is pretty absurd,” he said.
Another potential conflict with free speech at Occidental is not a clear policy, but rather a reporting system in which complaints would be reviewed against official college policies. The Dean of Students webpage provides a space for anonymous bias incident reporting, including allowing for complaints based solely on speech. Majeed believes this is problematic because of the webpage’s definition of a bias incident, which includes “speech or expression motivated … by bias or prejudice.”
“Under this broad standard, a student may find himself or herself accused of a bias incident simply for expressing a viewpoint related to such issues as immigration reform, same-sex marriage, or affirmative action, because another student could claim that such expression is motivated by, or based on, bias or prejudice toward a particular group,” Majeed said. “Thus, the policy allows for the reporting of constitutionally protected speech, including social and political commentary that should be strenuously defended and upheld on a college campus.”
Eliasberg also expressed his concerns with the policy.
“The school should make clear when they are saying that this is something for which you can be disciplined,” Eliasberg said. “If [these reports] end in discipline, they certainly could violate the Leonard Law.”
In response to the Dean of Student’s bias incident reporting, Henrique said that she would be even more cautious of what she says on campus for fear of persecution.
“It’s a good way, especially anonymously, for people to get in really big trouble without even knowing how and why that happened,” Henrique said. “If somebody were to file a report against me, I would feel like it would be very hard to get out of. I wouldn’t want to be on this campus anymore.”
Neither Title IX Coordinator Ruth Jones nor Assistant Dean of Community Engagement Ella Turenne believe that the bias incident reporting webpage encourages reports to be filed on the basis of speech or that it implies that there will be punishments for protected speech. They explained that students are not punished for speech that is protected, but that all students have the right to file a complaint for any reason. During an investigation of a reported bias incident, the administration would determine if, in fact, policies were violated.
Eliasberg explained that the policies could instead be used to monitor students, such as for data collection or education, even if they are not disciplined. Turenne confirmed that the reporting could serve as an avenue for the administration to educate individuals (including complainants and respondents).
“Just because you have the right to express yourself and say something racist that doesn’t rise to the level of harassment, doesn’t mean that it’s a great thing for the community,” Turenne said. “I would want to know [if] those things are happening because it contributes to the climate of the campus.”
However, Majeed explained that a major problem with the policy is its ambiguity.
“It is difficult to decipher what, exactly, the college intends by this formulation, and students are likely to be confused as well,” Majeed said. “This will almost certainly create a harmful, chilling effect on campus discourse, whereby students will self-censor rather than risk being reported and made subject to an investigation.”
Eliasberg acknowledged the negative effect that certain opinions can have on people, but reiterated that speech should be protected to allow conversations, instead of silencing, to take place.
“I think words can hurt a lot. I don’t pretend I have not been insulted based on my religion and I wasn’t happy to be the object of comments that many people would consider to be anti-Semitic,” Eliasberg said. “But I think overall, colleges and universities are places where we should err very strongly on the side of allowing people to speak and allowing a broader amount of dialogue, not a lesser amount.”
Occidental’s harassment policy, which was used to discipline Antebi in 2004, has received a green-light rating from FIRE because it eschews ambiguity and adheres to the Davis standard which, as established by the Supreme Court, defines “hostile environment” harassment as an established pattern of offensive actions or speech that limit a student’s access to education.
Lukianoff believes that the policy was misinterpreted and misapplied in his case; Antebi believes that administrators should not be trusted to make correct judgments about speech.
“What you don’t want to have happen is someone determining what speech is good and what speech is bad,” Antebi said. “That is incredibly subjective.”
Jones sees no conflict between the college’s policies and freedom of speech, and she believes that academic freedom is essential.
“Our objective is not just to be consistent with the law, but to have a community and to have our rules in such a way that people understand we are an academic community, and at the core of an academic community is to have discourse about important issues and to share varying opinions about important issues,” she said.
Jones is part of the Campus Committee on Sexual Respect and Misconduct that is formally proposing an addition to the sexual harassment policy this semester that reiterates the importance of protecting academic freedom at Occidental.
“This commitment requires that the college protect community members’ advocacy in their teaching, learning and research, including advocacy that may be controversial, provocative, or unpopular,” the proposal says. “This protection extends to the civil expression of ideas, however controversial, in the classroom, residential life and other campus-related activities.”
Brian Erickson (senior), who sits on the CCSRM and fully supports the proposal, also believes that some students need to be protected to ensure that they, too, have access to free expression. He believes there are certain measures, such as trigger warnings, that can help students when discussing difficult topics without threatening free expression.
“We must recognize that students who are personally impacted by the provocative themes they bring up might process the conversation differently from those who aren’t,” he said via e-mail. “Failing to address this reality silences those students. If we really care about protecting ‘free speech,’ then we have to examine all the factors — including those over which we have no direct control — that make some students feel less ‘free’ than others.”
Defending academic freedom, President Barack Obama ’83 spoke to Iowa students in September about diversity of opinion.
“I don’t agree [that] when you become students at colleges, you have to be coddled and protected from different points of view,” he said. “Anybody who comes to speak to you and you disagree with, you should have an argument with them, but you shouldn’t silence them by saying you can’t come because I’m too sensitive to hear what you have to say.”
In an interview with the Weekly in 2012, Politics Professor Caroline Heldman explained that conservative students at Occidental, since their beliefs are constantly challenged, are best positioned for intellectual growth.
“They’re learning tolerance, they’re learning equanimity in the face of disagreement and they’re finding out what they believe by constantly having those beliefs challenged,” she said. “I actually think that Oxy is an ideal place for conservative students to come.”
Antebi agreed with Heldman, but he considered what this environment might mean for the education received by the much larger, progressive proportion of the student body.
“Everyone [aside from conservatives] who is paying tens of thousands of dollars to go [to Occidental] is being shortchanged,” he said. “The reason you are there is to get an education. I would argue that they are preventing a lot of students from actually getting a complete education, a holistic education, by making sure that people can’t actually engage in debate.”
Feeling silenced, some students believe that this healthy interaction of ideas is lost at Occidental.
“In classes, I tend to avoid topics that will cause [disagreement],” Hammonds said. “At this point, it’s more important for me to graduate than to take a stand.”
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