How do you stifle unpopular speech at a place like Georgetown University whose policy states that students and faculty have the broadest possible latitude to speak, write, listen, challenge, and learn, and that speech may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or ill conceived? Thats easy. Just institute the academic analog of a SLAPP suit.
A SLAPP suit is a strategic lawsuit against public participation. This is a lawsuit brought to intimidate and silence those opposed to some powerful interest by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Those bringing a SLAPP suit do not expect to win the lawsuit. They simply want to raise the financial and psychological costs of publicly opposing their interests.
The academic analog of a SLAPP suit is to accuse someone who says something that others find to be offensive, unwise, immoral, or ill conceived of violating the universitys discrimination or harassment policies. This forces the accused to undergo an investigation while being publicly tarred as a bigot. Others get the message that it is not safe to speak out on the subject, and the threat of such investigations produces what lawyers call a chilling effect on speech.
Georgetown University is currently providing the textbook illustration of this process.
Recently, Ilya Shapiro, an administrator at the school, expressed his opposition to President Bidens decision to consider only African-American women for appointment to the Supreme Court in what many consider an offensive way by tweeting: Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identity politics benefit of being first Asian (Indian) American. But alas doesnt fit into latest intersectionality hierarchy so well get lesser black woman. In response, William Treanor, the dean of the law school, issued a campus-wide message calling the comments appalling and at odds with everything we stand for at Georgetown Law, and placed Shapiro on administrative leave, pending an investigation into whether he violated our policies and expectations on professional conduct, non-discrimination, and anti-harassment.
Shapiro cannot file a grievance against the dean because he has not been punished. His conduct is merely under investigation. Meanwhile, he is barred from campus and is being widely depicted as a racist. For example, Georgetowns student newspaper, The Hoya, ran a front-page story with Shapiros photograph directly above the headline: GULC To Investigate Racist Admin. This sends an unmistakable message to the larger academic community that it is not safe to say anything that may be construed as offensive by women or people of color. In this case, the chilling effect is truly frigid.
The beauty of this procedure is that there is no need to officially punish unpopular speakers. The investigation is the punishment, and that is all that is needed to discourage others from speaking. Since Georgetowns speech policy has not been violated, the university can effectively stifle speech while still touting its commitment to free and open inquiry, deliberation and debate in all matters, and the untrammeled verbal and nonverbal expression of ideas. Pretty cool, huh?
In many states, opponents of SLAPP suits have managed to pass anti-SLAPP laws. Those opposed to the academic analog of such suits could do the same, if they can convince universities to add the following sentence to their speech policies: The university will summarily dismiss any allegation that an individual or group has violated a university policy if the allegation is based solely on the individuals or groups expression of his, her, or its religious, philosophical, literary, artistic, political, or scientific viewpoints. This would serve as a freedom of speech safe harbor provision.
Such a provision would prevent university administrators from forcing those who hold unpopular viewpoints to undergo investigation merely because of what they say or write. This would greatly reduce the universitys ability to chill unpopular speech.
Like Georgetown, many universities make grandiloquent commitments to freedom of speech which they fail to honor in the breach. The addition of a safe-harbor provision to their speech policies makes it much more difficult to ignore these commitments and stifle unpopular speech.