The right to disagree with you

Yale University Prof. Stephen Carter, formerly a law clerk to U.S. Supreme Court Justice Thurgood Marshall:

We’re living at a dangerous intellectual moment. In the wake of the coldblooded police slaying of George Floyd on a Minneapolis street corner, people are marching for racial justice, a development that’s all to the good in our broken country. But when those demands turn to restricting the universe of permissible conversation, they cross a democratic line that’s worth defending.

Item: HBO Max has temporarily removed “Gone With the Wind” from its catalog, citing its racist stereotypes and glorification of Southern slavery, until the film can be reinserted with what the company considers appropriate “context.”

Item: Critics are demanding the resignation of a distinguished economist who co-edits the Journal of Political Economy because of his strongly expressed criticism of the Black Lives Matter movement.

Item: A political science lecturer at UCLA has been condemned by his own department and is under further investigation after reading aloud to his students Martin Luther King Jr.’s “Letter from Birmingham Jail,” one of the great documents of U.S. history, which includes what we’re nowadays supposed to call “the n-word.”

I question neither the pain nor the sincerity of those who are angry, fearful or frustrated. I feel the emotional impact of the moment myself. So I’m not prepared to agree with critics who say that what we’re seeing is an outbreak of an ideology they call “safetyism.”

But for the sake of our democratic future, we have to find a way past the difficult place where we currently find ourselves, a place where the expression of views that are hurtful and infuriating is viewed as out of bounds. Democracy rests crucially on the battle of ideas, and on the old-fashioned notion that the cure for bad speech is better speech.

It’s part of my job as an academic to resist the urge to judge an argument by whether I agree with it, or even whether I’m wounded by it. But professional training aside, it’s also part of my job as a citizen to allow others to make arguments that pain or frighten me — even when on the searing issue of race.

Back in law school, I worked my way through James J. Kilpatrick’s controversial volume The Southern Case for School Segregation. The book wasn’t assigned for a course. I sought it out. Kilpatrick didn’t persuade me, but he did make me think. I was taught that the vitality of intellectual life rests upon reading not only those who are right but also those who are wrong in an interesting way.

In 1959, the Harvard Law Review published a piece by the great constitutional theorist Herbert Wechsler titled “Toward Neutral Principles of Constitutional Law.” In it he criticized, among other things, the Supreme Court’s legal analysis in Brown v. Board of Education. No petitions called for Wechsler’s removal. No students staged a walkout. Instead, legal scholars penned a series of powerful and tightly reasoned responses. Wechsler’s article forced those who disagreed with him to strengthen their own arguments. That, more than half a century later, “Neutral Principles” remains one of the most-cited law review articles of all time tells us that scholars are arguing with it still.

That’s how the battle of ideas is supposed to work. I’ve long been of the view that the measure of the health of a democracy is its tolerance for dissent, particularly on matters it holds dear. The same question should be asked of social and political and religious movements: Are they able to tolerate disagreement or not? When they’re not, we should worry.

Consider the particular examples mentioned above. I’ve explained elsewhere why it’s possible to consider “Gone With the Wind” a cinematic masterpiece even while condemning its vicious and brutal message. I’d think it obvious that editing Dr. King to avoid offense is a terrible idea. And the notion that a journal editor should be removed for expressing views others (including myself) find offensive is quite simply terrifying.

As I’ve written before, my wariness on the subject is influenced by the fate of my great-uncle. During the McCarthy era, he went to prison for refusing to name names. He was a brilliant scholar, an expert on the work of Tennyson, but because he was a Communist, he found himself essentially unemployable.

Among the targets of the McCarthyites were films that presented the wrong message, academics who took the wrong positions and teachers who taught the wrong lessons. 1 With rare exception, nobody was legally prohibited from expressing views the Red hunters hated; they were simply publicly humiliated if they did — and that public humiliation often led to loss of status, and of employment. Books were removed from stores; teachers were removed from the classroom.

You might respond that in retrospect the Red Menace was overblown. Perhaps it was, but that’s not the point of the story. The point is that in that horrific era, those with power to control the words and fates of others saw the threat as real and deadly, always on the verge of rearing its destructive head. The only way to halt the spread of what they considered a dangerous idea was to punish anyone who propounded it. For a decade they largely succeeded. And for a brief and agonized moment of history, the Communist hunters kindled a bonfire that came close to consuming our democracy.

The 2020s aren’t the 1950s, but unless we do a lot better than we have been lately at coping with ideas and arguments that wound us, our democracy might still be at hazard. It’s vital to resist the temptation to allow our present moment, so rich with the potential for genuine and overdue social change, to deteriorate into a McCarthy-like hunt for wrong-thinkers. Because the more often we play with the same matches, the greater the chance that we’ll light the same blaze.

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