“The contemporary movement that seeks to restrict liberty on campus arose specifically in the provocative work of the late Marxist political and social philosopher Herbert Marcuse . . .”
―Alan Charles Kors and Harvey A. Silverglate
In recent years highly publicized educational commentators, like David Horowitz (2006a, 2006b, 2000), and Alan Charles Kors and Harvey Silverglate (“KS” 1998), have been arguing many of the major agenda items for the New Right with regard to higher education policy in the U.S.A. Central among these is the claim of an ostensible racism against whites on the part of a so-called academic Left, and the charge that freedom of speech has been betrayed in the American university by campus codes attempting to regulate bigoted speech against ethnic minority groups in our society. One key tenet undergirding the New Right’s charge is their assertion of a putative political need for a democratic society to maintain an absolute tolerance of abusive and even assaultive speech―as protected forms of dissent. In sharp contrast to this approach, a strategy for the defense of equal civil rights and solidarity with victims of hate speech has been developed by authors like Dolores Calderón (2006), Christine Sleeter and Dolores Delgado Bernal (2003), Richard Delgado and Jean Stefancic (1997), Mari Matsuda, Charles Lawrence, Richard Delgado and Kimberlé Williams Crenshaw (1993), and John K. Wilson (1995). They claim that freedom of speech in not absolute, and must be viewed in the context of its real political consequences.
How shall we best protect human rights in this era of acrid backlash to multiculturalism amid rival redefinitions of freedom? One place to start is to recall Herbert Marcuse’s “critique of pure tolerance” which is resoundingly derided by Kors and Silverglate, and to revisit the main ideas of his 1965 essay “Repressive Tolerance” (Marcuse 1965b, “RT”). I do find it entirely predictable that right wing writers like Kors and Silverglate feel the need to confront Marcuse as the culture wars continue into the new millennium. They assert that the philosophy of Herbert Marcuse is the intellectual progenitor of what they deplore as the contemporary tendency toward political correctness in higher education today. Their categorical condemnation of Marcuse is cantilevered by their fulsome praise for what they see as John Stuart Mill’s free speech absolutism. It is my aim to compare and contrast these competing accounts of rights to free expression, supply relevant contextual information, and improve the conditions for critically theorizing the political and philosophical issues involved.
Are There Ethical Limits to Tolerance?
Kors and Silverglate (KS 1998) allege that campus radicals are today making vocal criticisms of the First Amendment and calling for restrictions on the principle of liberty of thought. One of their central assertions is that: “The struggle for liberty on American campuses is, in essence, the struggle between Herbert Marcuse and John Stuart Mill” (KS, 110). Kors and Silverglate focus on the “Repressive Tolerance” essay to furnish evidence that Herbert Marcuse was not tolerant of all political views. It is certainly true that Marcuse was not a relativist or a pragmatist, and did not tolerate all views as equally valid or invalid. Far from it: “This pure tolerance of sense and nonsense . . .” practiced under the conditions prevailing in the United States today “. . . cannot fulfil the civilizing function attributed to it by the liberal protagonists of democracy, namely protection of dissent” (RT, 94, 117). “To treat the great crusades against humanity . . . with the same impartiality as the desperate struggles for humanity means neutralizing their opposite historical function, reconciling the executioners with their victims, distorting the record” (RT, 113). Because Marcuse’s critical theory of democracy and education is not content neutral, and looks at the concrete consequences of hate speech, in the estimation of Kors and Silverglate it undermines our freedoms of expression. “. . . Marcuse’s prescriptions are the model for assaults on free speech in today’s academic world” (KS, 71).
It is particularly disingenuous that Kors and Silverglate present Marcuse as stark antipode to John Stuart Mill, however. Of course they view Mill as the classic intellectual spokesperson for freedom of thought and action. In actuality Kors and Silverglate deflect attention away from Mill’s (as well as Marcuse’s) progressive political emphasis on rationality, social utility, and the emancipatory function of dissent. Kors and Silverglate read Mill according to their own libertarian emphasis, and romanticize Mill as advocating an abstract and indiscriminate defense of the (almost sacred) right of any person to express any opinion in any way, regardless of its content or meaning or repressive societal impact. For this kind of free speech hardliner, any regulation, even of assaultive speech, is too much (Matsuda, et. al., 11).
Marcuse’s authentically conservative defense of standards of rationality in discourse contrasts sharply with Kors and Silverglate. Their opportunistic view of student rights is simultaneously a cynical defense of pluralism and relativism where this is thought to furnish ammunition against Marcuse’s radically democratic politics of education as well as his commitment to more traditional and definitively rational standards of truth. Marcuse’s essay on repressive tolerance contended precisely that Mill would not have agreed to any assertion (like that of Kors and Silverglate) that his philosophy protects the abstract right of freedom of expression regardless of all content considerations.
Consistent with his defense of dissent, Mill writes: “It is proper to state that I forgo any advantage which could be derived to my argument from the idea of abstract right to a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being. Those interests, I contend, authorize subjugation of individual spontaneity to external control only in respect to those actions of each which concern the interest of other people. If anyone does an act hurtful to others, there is a prima facie case for punishing him by law, or where legal penalties are not safely applicable, by general disapprobation” (Mill, 69-70). Mill elaborates still further that: “Undoubtedly, the manner of asserting an opinion, even though it be a true one, may be very objectionable and may justly incur severe censure. . . whatever unfair advantage can be derived by any opinion from this mode of asserting it accrues almost exclusively to received opinions . . . unmeasured vituperation employed on the side of the prevailing opinion really does deter people from professing contrary opinions and from listening to those who profess them. For the interest, therefore, of truth and justice it is far more important to restrain this employment of vituperative language than the other; and, for example if it were necessary to choose, there would be much more need to discourage offensive attacks on infidelity than on religion” (Mill, 116-18).
When conservative (and/or liberal) political commentators deride multicultural reformers and antiracist educators as “barbarians at the gate,” at least they get right the general state of power relations in higher education, with reformers very much still very much at odds with established gatekeepers. Kors and Silverglate and Horowitz see things topsy turvy when they assert that it is multicultural reform that has brought to higher education an oppressive intolerance of dissent that has become the “regnant political orthodoxy” (KS, 3) constraining expressions of subtle or overt racism and sexism. Matsuda, Lawrence, Delgado and Crenshaw (1993) capture the historical and political distortion inherent in such a position: “The reality of ongoing racism and exclusion is erased and bigotry is redefined as majoritarian condemnation of racist views. . . . The powerful antiracists have captured the state and will use it to oppress the powerless racists” (Matsuda, et al., 135). According to Wilson (1995) writing three years before Kors and Silverglate on the myth of speech code censorship: “Critics of speech codes declared that a massive wave of censorship code had been imposed on college campuses in the past decade . . . but there was no ‘crisis’ of censorship on America’s campuses” (Wilson, 91). Wilson cites a 1992 study by the Chronicle of Higher Education which found that “campus codes that ban hate speech are rarely use to penalize students” (Wilson, 95). In 1999 Kors and Silverglate felt passionately otherwise and organized the Foundation for Individual Rights in Education, or FIRE, to help what they saw as a significant number of victims of illiberal policies and violations of their free speech rights on college campuses. Similarly, David Horowitz (2004) has formulated an “Academic Bill of Rights (ABOR)” that stresses institutional and professional neutrality with regard to controversial issues, a principle which, he acknowledges, has been rejected (he says “distorted”) by the AAUP which has found that the ABOR “proclaims that all opinions are equally valid,” and thus “negates an essential function of university education” (AAUP in Horowitz 2004). For an insightful critique of the covert function of ABOR, see Stanley Fish, “’Intellectual Diversity’: the Trojan Horse of a Dark Design” (Fish 2004). When the American Historical Association in February 2006 voted the ABOR down, Horowitz reported to the blogosphere that “The left-wingers who run the AHA of course support speech codes because they are totalitarians” (Horowitz 2006a).
Champions of an abstract First Amendment freedom, like Kors, Silverglate, and Horowitz, nonetheless acquiesce when confronted with evidence of the discriminatory effects of abusive speech. They do not seem to think that an absolute right to abusive speech is profoundly problematic in a culture like ours where there is no shortage of verbal vilification and acts of race and gender persecution. Marcuse, to the contrary, believed that the doctrine of pure tolerance was systematically utilized by reactionary and liberal forces to abuse equality guarantees and derail or destroy the possibility of democratic egalitarianism. It is in this light that we must consider Kors and Silverglate’s reference to Justice Antonin Scalia’s ruling for the Supreme Court of the United States striking down as unconstitutional an anti-hate speech code in the case of R.A.V. v. City of St. Paul, Minnesota. The Supreme Court’s decision in this case protects an abstract right to freedom of expression regardless of all speech content considerations. The Supreme Court found the anti-hate speech code of St. Paul to be illegitimately one-sided or lopsided in its application. It purportedly “discriminated” against racist speech but not other types of fighting words, so that fair political discourse (or a fair boxing match, to use Justice Scalia’s metaphor) between racist and antiracist or sexist and antisexist parties would be impossible under the code. Justice Scalia formulated the Supreme Court’s thinking in the following statement: “In its practical operation, moreover, the ordinance goes beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some words―odious racial epithets, for example―would be prohibited to proponents of all views. But ‘fighting words’ that do not themselves invoke race, color, creed, religion, or gender―aspersions upon someone’s mother, for example ―would seemingly be usable ad libitum in the placards of those in favor of racial, color, etc. tolerance, and equality but could not be used by that speaker’s opponents. . . St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules” (Scalia, 275-80).
But can speech be understood apart from its content as Scalia, Kors and Silverglate would have us believe? Even though neither the Supreme Court majority in this case, nor Kors and Silverglate, would presumably condone racist violence, I take their political position to be twisted and racist. In fact, according to Wilson (1995), “Scalia’s extreme attack on all speech codes has been effectively overruled [in Wisconsin v. Mitchell]. There is no constitutional barrier to narrowly written university speech codes, even if not all forms of fighting words are punished equally” (Wilson, 101). Kors and Silverglate’s ardent defense of Scalia’s views on an abstract and pure freedom of speech even after the Wisconsin v. Mitchell case indicates their obsession with this matter. Additionally they have suppressed John Stuart Mill’s more circumspect views on the subject of intimidation by dominant parties within a public dispute. Mill (as Marcuse stresses) advocates a more progressive stance than their premise with regard to content neutrality: “. . . in Mill, every rational human being participates in discussion and decision―but only as a rational being” (RT, 106). It is in this sense that Marcuse builds explicitly upon Mill, maintaining that cogency and intellectual legitimacy are “. . . not a matter of value-preference but of rational criteria” (RT, 101). Mill stresses our obligation to know the grounds of our convictions, so that even true opinion might not abide “. . . as a dead dogma, . . . as a prejudice, a belief independent of, and proof against, argument . . .” (Mill, 97). Both Marcuse and Mill conceive of authentic democracy as possessing a political culture that honors the collision of opposing arguments as a precondition for the pursuit of truth. In their common estimation authentic democracy presupposes an educational and cultural context that facilitates autonomous and rational discourse. But it is exactly this authentically democratic educational and cultural context that is still lacking even today in the United States. Marcuse’s point in 1965 remains as valid as ever: a genuinely democratic framework is a task yet to be accomplished. We must craft such a social foundation to attain the emancipatory goals of philosophy as well as politics.
According to Marcuse, what we do have in our advanced industrial society is a contest of ideas and a contest for control within cultures generally and within educational institutions in particular. If we all have a de jure right to express any opinion in public, the de facto condition is that left opinions are usually marginalized and often suppressed, while right-wing ones, which benefit the ruling class, are given free play. (We have seen above how Mill recognized an analogous problem in his own time involving the privileged position of the conventional wisdom.) The problem today is really one of which ideas are distributed and amplified by the mass media, so that through repetition and placement in powerful media sources they become dominant, legitimized, and authoritative. He emphasized that the formation of public opinion in the West (and now nearly everywhere) was largely controlled by oligopolistic media. Dissenters had but a slim chance of influencing the debate because the price was generally out of reach of the radical opposition (RT, 118). Furthermore, any state doctrine that purported to be neutral served to reinforce the conventional pretense to freedom while obscuring its factual absence.
Kors and Silverglate go so far as to impugn Marcuse’s political motives for writing “Repressive Tolerance.” Their chapter 4 is called “Marcuse’s Revenge” (KS, 67), and since they make no attempt to elucidate or explain this heading, I see it as an ad hominem attack. Having been forced to flee from German fascism in the 1930s, Marcuse exposed the repressive and destructive nature of indiscriminate tolerance in the essay Kors and Silverglate attack. Writing of the Nazi organizers of institutionalized violence, Marcuse said: “. . . if democratic tolerance had been withdrawn when the future leaders started their campaign, mankind would have had a chance of avoiding Auschwitz and a World War. . . . Such extreme suspension of the right of free speech and free assembly is indeed justified only if the whole of society is in extreme danger. . . . Withdrawal of tolerance from regressive movements before they can become active; intolerance even toward thought, opinion, and word, and finally intolerance in the opposite direction, that is toward the self-styled conservatives, to the political Right – these anti-democratic notions respond to the actual development of the democratic society which has destroyed the basis for universal tolerance. The conditions under which tolerance can again become a liberating force have still to be created” (RT, 110-11). Kors and Silverglate do give grudging acknowledgement to the honesty and coherence of Marcuse’s line of reasoning in “Repressive Tolerance.” Yet they dismiss Marcuse as a person “untroubled by double his standards” (KS, 69). This is their way of obscuring his crucial analytical distinctions between the emancipatory and the repressive use of tolerance, the revolutionary and the reactionary use of violence, and the dialectic of oppression and liberation in the politics of schooling.
Of course Marcuse’s ideas, as well as those of John Stuart Mill, do have their own structural limitations. They fail to emphasize adequately the role of economic conflict and the centrality of class divisions within contemporary societies and governing institutions. The state is an expression of material inequalities, and, having been captured by the exploitative forces, the state is not neutral even when it defines an aspect of justice in terms of content neutrality. Mill, and to some degree also Marcuse, continue in liberalism’s epochal false consciousness about restrictions on freedom as deformations of culture within a democratic frame, when the frame is but form, and the deformations the substance. Within the current forms of unfreedom that are yet called democracies, the prevention-of-harm criterion used by Mill to legitimate government prohibitions has been and will continue to be utilized against the left. Often this occurs by simply imputing some threat to democracy as in the case of anti-hate speech codes, while many real crimes by the right will be tolerated in practice [such as systematic police brutality, supplying arms and training to governments and armed groups around the world that commit torture, political killings and other human rights abuses, depriving millions of Americans from comprehensive health care, treating asylum seekers as criminals, implementing the death penalty in a racially biased manner, etc.] (Amnesty International, 1998).
Supreme Court justices are chosen on the basis of the lens through which they interpret legal matters, i.e. politically, not in any sense because they are democratically representative of the interests of the governed. Nor is there any systematic way to ensure a balance of political perspectives, which tend to be center-right. Yet the deliberations of nine individuals settle the rules of the game in this political culture, and there is no tribunal beyond it (unless this would be the United Nations). Federal judges have recently come under nationwide criticism for not disclosing the fact that they have substantial investments in the very companies involved in cases over which they preside. The unstated assumption of this criticism is that federal judges are not able to detach themselves from their material interests, a consideration I would also extend to the material interests generally of justices sitting on the Supreme Court of the United States.
Global Solidarity and Universal Human Rights
A concrete argument with respect to universal human rights is a first step in counteracting the inadequacy of the abstract liberal process-in-a-content-free-vacuum approach. This implies legitimate limitations on any romanticized and abstract idea of pure freedom, and can also suggest effective remedies against discrimination. The main progressive weapon here is a specifically enumerated set of economic and social rights for all which define general and enforceable conditions of justice in terms of parity, reciprocity, anti-subordination, and equal dignity, such as found in the United Nations’ Universal Declaration of Human Rights and Charter 2000: A Comprehensive Political Platform (Brodsky 1998).
Let us recall here briefly the racially motivated killing in 1998 of James Byrd, Jr., who was dragged to death in Texas by racists in a pickup truck. A New York City police officer was fired for mocking black people and reenacting this racist killing on a float in a parade. The New York Police Department (NYPD) operates with a code or policy against the association of any of its officers with organizations that advocate hatred, oppression, or prejudice toward racial or religious groups. The New York City Civil Liberties Union argues, however, that this officer, off duty at the time of the incident, was illegally fired for merely exercising his free speech rights. The ACLU in many areas has been captured by libertarians, and has become the handmaiden of the right-wing and corporations, betraying its historical constituents.
Essential to this libertarian defense of antidemocratic and predatory speech is the “pure” tolerance which Marcuse criticizes as being “extended to policies, conditions, and modes of behavior which should not be tolerated because they are impeding, if not destroying, the chances of creating an existence without fear and misery” (RT, 82). The resurgent doctrine of pure tolerance seems to me to function today as sheer capitulation to ideologies of oppression and as a subversion of the authentic defense of human rights and liberty.
The United Nations’ Universal Declaration of Human Rights (1948) recognized this danger in the aftermath of World War II and clearly articulated an egalitarian and antiracist defense of human rights (see especially its Preamble and Articles 1 & 2). The principles of parity and anti-subordination are also infused into Article 30, which states: “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”
In the context of the United States, I see the current use of the First Amendment to protect the speech and action of those intent upon destroying the liberty rights and civil rights of others to be a clear infringement of the criterion of universality also embedded in these provisions. Charter 2000 likewise proclaims that “democratic process and procedures must not be used to restrict civil and human rights, or to enable or further undemocratic outcomes” (Brodsky, 36).
The critical literary theorist and Marxist, Georg Lukács, defended a similar notion ten years before the Universal Declaration and thirty years before Marcuse: “Authentic freedom, i.e. freedom from the reactionary prejudices of the imperialist era (not merely in the sphere of art) cannot possibly be attained through mere spontaneity or by persons unable to break through the confines of their own immediate experience. For as capitalism develops, the continuous production and reproduction of these reactionary prejudices is intensified and accelerated. . . . If we are ever going to achieve a critical distance from such prejudices, this can only be accomplished by hard work, by abandoning and transcending the limits of immediacy, by scrutinizing all subjective experiences and measuring them against social reality. In short it can only be achieved by a deeper probing of the real world” (Lukács 1980, 37).
This is where content and form combine and have concrete educational implications for critical political theory. Probing the real world means probing the dominator systems that characterize global cultures today and envisioning from the conditions of the present intelligent choices about real possibilities for our future. I find it quite paradoxical that those who promote a conservative reform approach to the humanities and a liberal arts education (Allan Bloom, Lynn Cheney, William Bennett, Dinesh D’Souza, and others) traditionally see the humanities as serving universal aims and goals, but fail to acknowledge that a discriminatory politics of race, a discriminatory politics of gender, and a discriminatory politics of class have distorted not only the curriculum within the humanities historically, but also patterns of faculty hiring and student recruitment and support. This is doubly ironic to me because I find that the liberation movements which resisted each of these forms of political oppression were inspired not primarily by a politics of difference and special interests, but rather a politics of solidarity and hope for human rights universally. Marcuse and Mill have shown that it is this universal entitlement to human rights that serves as the moral and political foundation establishing multicultural democracy.
 I am especially indebted to conversations with colleagues David Brodsky, Patricia Brodsky, Morteza Ardebili, and James Lawler for several of the critical political insights presented in this essay; first published in New Political Science Volume 25, Number 2, 2003; also in Marcuse’s Challenge to Education, Douglas Kellner Tyson Lewis, Clayton Pierce, K. Daniel Cho. (eds) (Lanham, MD: Rowman & Littlefield, 2009).
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