It’s not free speech

So Harvard rescinded the admission of 10 students because they posted horrid memes on a private discussion group for admitted freshmen. Apparently there was a restricted group that required posting of offensive meme in the common area for inclusion in the group.
What a perfect illustration of school-age peer pressure. “But mom, I didn’t want to [insert form of bullying]. It was Heather’s idea, I was just there!”
Harvard can do what it wants, so free speech discussions are moot.  Furthermore, I’m sure that in a different context there are legally sound arguments to be made that the actions were a form of protected speech, but in the reality, these kids were not expressing any thought. I will bet one hundred American dollars that not a single one of those students is going to come forward and espouse the views illustrated in the memes. Furthermore, I doubt that Harvard would have revoked acceptance (well, I hope not) for a student who published a simple essay setting forth a noxious belief. These students only have 2 possible explanations for posting the memes (a) I’m craven, so I’ll do just about anything to be accepted by my peers, or (b) I think images of murdered children with racist text are humorous, and I was shocked to learn that others disagree.
So why are my Boston/Cambridge neighbors discussing this as a First Amendment issue? (“Punishing students academically for their political views or their personal values is a serious mistake,” Dershowitz said, adding that he did not see the memes and had no first-hand knowledge of the situation. “These actions are not consistent with the spirit of the First Amendment.”) For their political views?  I don’t think this was the case.

It wasn’t satire, or quotation (Dennis Lehane took a body blow, unfair, in my opinion, for describing what he heard as a child during the busing riots). No points were being made; no opinions offered. It was not expressive conduct, arguably less deserving of First Amendment protection than throwing rotten eggs at a speaker. At least the egg-thrower is delivering a message.
And on the issue of sending a message, I have always hated that concept, but in this limited instance, I hold out a small amount of hope that today’s young people will stop rolling their eyes when mom and dad warn them about Internet postings. Yes, they are forever. No, they are not private. And someday they may come back to deprive you of an opportunity in a way that really hurts.

Author: Lowry Heussler

Lowry Heussler is a lawyer from Cambridge, Massachusetts. Having participated in the RBC as a guest-blogger, she made it official in 2012. Her most important contribution to the field of public policy to date was her 1994 instruction to Mark Kleiman, "Read Ann Landers every day. You need to learn about real people." Her essay on the 2009 arrest of Henry Louis Gates went viral and brought about one of her proudest moments, being described as "just another twit along the lines of Sharpton, Jackson, Gates, etc." (Small Dead Animals Blog). Currently serving as General Counsel to BOTEC Analysis Corp., she has been a public housing lawyer, a prosecutor for the Board of Registration in Medicine, a large-firm associate and a small-firm partner. She serves as a board member for NEADS, Dogs for Deaf and Disabled Americans, a charity that trains service dogs to increase independence for people with disabilities.

24 thoughts on “It’s not free speech”

  1. You can say what you want. And the government can't punish you. But I-as a private citizen, as a private corporate entity-can legally shun you.

  2. With apologies-and in full agreement about the main point of the post-I'm going to head off on a bit of a tangent about the reporting, and perhaps reporting in general.

    It's hard to know what Dershowitz actually thinks, since all we have is his response with no indication of precisely what question the reporter put to him or just how much information he had about the situation before he responded. I wonder if the reporter framed this as a question about the First Amendment, with the Harvard incident as an example, or if she asked about the Harvard incident and Dershowitz brought up the First Amendment. Those are two very different responses. Was it made clear that the Facebook feed to which those aspiring to membership in the "horny teens" group had to post was set up by Harvard as a group for all admitted students and was therefore as much Harvard territory as Dershowitz's classroom at that institution?

    As you observe, the linked Boston Globe article, which seems to be the source of the Dershowitz interview, specifies (I suspect this was at Dershowitz's insistence) that he had no first-hand knowledge of the situation. The article does note that Dershowitz also said that "it might have been better to admit the students then require them to discuss their posts with an adviser."

    It also isn't clear from the article that the acceptances have been truly, in the elegant terminology of the article, "yanked": if the students were indeed preemptively "sent down", there would be no basis for asking them to submit a statement explaining what the heck they were thinking. It sounds like the acceptances have become to some degree conditional. However, I think Harvard's response is a good one: require the students to engage thoughtfully and in writing with the issue.

    1. I need to correct an error I made: according to the Harvard newspaper, The Crimson, the Harvard-established Facebook group for admitted students was not the location in which the problematic memes had to be posted. In fact, the Harvard Facebook group spawned a number of subgroups as students discovered mutual interests, one of which was memes, and some members of that group decided to create another group, focused on "darker" memes. It was the general meme group, not the Harvard admitted students group, in which applicants to the "darker" meme group had to post something.

      However, at least one student has learned something: a student involved in the "darker" meme group shared the contents of the letter from Harvard only on condition of anonymity, because, according to the Crimson, "they did not want to be publicly identified with the messages."

  3. Besides, we're talking about admission to Harvard here. Huge numbers of perfectly deserving people who would be fine additions to Harvard don't get in, because there's no way-the place is just too selective. Surely this is as good a criterion for selection as any.

    1. Well, no, we are talking about 'admittED to Harvard'. These kids had presumably turned down their offers from Yale and Rice and Dartmouth. They are now knocked flat. They will do okay, likely: a gap year will be taken and a new round of applications made.

  4. I am of two minds here.

    I haven't seen the posts in question. And I don't know precisely what conditions Harvard sets on its acceptances.

    This is different than simply refusing admission to begin with, which would be fine, because the students in question would then have the same options as the many others who don't get admitted to Harvard. The consequences here are more severe.

    So as one of your neighbors, Lowry, I see it not as a free speech issue, but as one of fairness, whether the punishment fit the crime, or even what the crime was.

    I have no firm opinion.

  5. The John Birch Society is well within its rights to refuse membership to Communists. They violate no one's free speech rights thereby.

  6. Hmm. I wonder what kinds of conversations the guidance counselors/college advising staff and US high schools are having this week. Maybe something along the line of: "Harvard — seems as if they're expecting admittees to be acting like emerging adults, not Lord of the Flies kids. And, Evergreen — seems as if they're OK with students acting like frustrated two-year-olds."

  7. Agreed, this is a private institution. Waaaaaaaaay too many people misunderstand what protections the 1st Amendment actually provides.

    1. Discussions of free speech don't necessarily begin and end with the first amendment. It's an important principle even outside that limited context. To suppose that free speech is important only because it's contained in the first amendment is to get it exactly backwards.

  8. Three stories which may enrich the discussion: the bakers who were fined over a hundred thousand for refusing to make a gay wedding cake, Brendan Eich was hounded from his corporate position at Mozilla, and Blair Hornstine's admission to Harvard was rescinded ten-fifteen years ago over plagiarism of newspaper editorials and for being a jerk. And then - 4 - there are the students at Evergreen who are trying to get Professor Weinstein fired or hounded out of office.
    I don't think it's controversial that Harvard has a right to do what it did - though it's pretty devastating to a group of kids who probably turned down Dartmouth or Princeton earlier in the year. I'm trying to puzzle through whether it was right for Harvard to do it. My inclination is that the bakers ought not have been fined if the happy couple had other reasonable options for getting their cake, that Eich's conduct five years before ought not have cost him his job, that Hornstine's plagiarism went directly to her integrity as a scholar, and that Weinstein ought to be protected in his job and students menacing him ought to be expelled. And that Harvard ought not have refused admission to those kids. I'm not doing very well at coming up with a general principle which lies behind those views, though.

    1. Harvard, though, when it admits students is also admitting them to a living environment (a dorm). I think it probably requires students to live in these dorms as Freshmen. Consequently, it bears some responsibility for creating a tolerable environment for all those students, including some who are under 18. There is not much the university can do to ensure an appropriate level of respect between students living in dorms, but they do (and I believe have the right to) exclude certain behaviors from their dorms, and many universities do that. For example, ex-felons are usually not permitted to live in dorms. I think Harvard's desire to perform this gatekeeping function for its dorms (and its community) is appropriate. We could argue about exactly what behaviors fall into the category of worthy of exclusion, but the on-line behavior of the de-admitted students sounds like something I would not want to have going on next door to me in a dorm.

    2. No bakers were fined for "refusing to make a Gay wedding cake". A bakery was fined because they declined to sell to a Gay couple the same cake they'd have happily sold to a Straight couple, and for that matter would almost certainly have happily sold to one half of the Gay couple not realizing his intended was also a dude, or would probably have sold to a film producer as a prop with no actual wedding occurring.

      To the extent there's such a thing as a "Gay wedding cake" - one with two tuxedo'd male figures atop it, for example - the bakers could refuse to make it. But in some states they have no legal right to refuse to sell their standard wedding cake to a Gay couple, just because the couple is Gay, much as in every state they can't legally refuse to sell to a Black or an Interracial couple - though, again, they could probably refuse to include figurines representing that couple.

    3. If someone wants to deny me service, I'll just go somewhere else. Theoretically. No one has ever tried to deny me service, no institutions stigmatize me, no laws are on the books or under consideration that are aimed specifically at restricting any of my right to live my life fully. The world would be a much less contentious, more harmonious place, with no outrages, no lawsuits, no noisy demands for equal treatment, if everyone were treated like I am. But, for some reason, instead of recognizing equal human dignity for all, which would indeed bring about a more peaceful world, some folks suggest instead that the people asking for fairness just shut up and accommodate themselves to a hostile world.

  9. "I will bet one hundred American dollars that not a single one of those students is going to come forward and espouse the views illustrated in the memes."

    They (obviously) wouldn't do it in public, but in public is not where decisions are made.

    1. Except they DID do it in public. I think Harvard realized they'd admitted some dummies by mistake, drooling halfwits who didn't have the sense to not post things in a quasi-public e-forum. So they got relegated to Penn or Cornell, where they belong.

      1. That's kind of unattractive: "relegated". There's an assumption there that Harvard is utterly swell and Cornell is not. I have two close friends who did undergraduate at Harvard - neither is all that happy with his memories, and neither tried to get his own children to go there. As a grad student, I liked the place, but I am not bought in to the idea that another school couldn't have been a good fit for me.

        1. I was being a wise guy, or snarky as the kids say. It could have been worse…..they might have been marooned at Duke or Hopkins.

        2. I spent my entire educational career in public universities, and didn't realize until I arrived at a nameless (not-Harvard, not-Yale) Ivy for a postdoc that there is a joking-but-not-really-joking hierarchy among the Ivies.

    2. I'm going to make a WAG that, if you did a Venn Diagram of (people who are regulars at RBC) and (people who regularly read Instapundit) the intersection set would be fairly small. And I'm contending that (RBC readers) are the poorer for it, miss out on views diametrically against theirs. One phrase regularly used at Instapundit is, "You want more Trump? This is how you get more Trump." I think we are better off when views, even unpleasant ones, can be expressed in public. We had a number of commenters here at RBC before the election and after who seemed utterly surprised by the extent of the disdain for Hillary Clinton out in the electorate - that was costly! And I think some of it had to do with squeamishness about being the skunk at the garden party among the social circles in which we run. Hounding Murray off the stage at Middlebury and hounding Weinstein out of his job at Evergreen (AFAIK Weinstein is holding on by skin of his teeth, and I hope he makes it) lessens the ability of Middlebury and Evergreen students to understand the panoply of views out there.
      I myself am the proprietor of two youts, eighteen and twenty. Good kids. I don't think they'd necessarily be immune to saying stupid stuff if egged on by their friends. It's better if kids can say stuff without huge consequences, and get push back, than if they can mutter only within their own little drum circles.

      1. And I'm contending that (RBC readers) are the poorer for it, miss out on views diametrically against theirs.

        I don't disagree, but have you said the same thing to Instapundit regulars?

        Because one thing I hate is getting lectures about how "coastal elites," (You know, like New York real estate billionaires) don't understand the rest of the country and hold it in contempt, while no one is lecturing the non-coastal non-elites about how maybe they shouldn't have such an attiitude of salt-of-the-earth (insert Blazing Saddles joke here) self-reliant, common-sense, "real American," superiority.

        Sixty million people live in California and New York State combined. Somehow all those who are offended by "elite" attitudes have no trouble being dismissive of them, and others like them.

      2. I am largely in agreement (not to be confused with "bigly in agreement," which, strangely, would mean something significantly different). I'm not sure, however, that this is at base an issue of differing opinions-except insofar as the students in question held the opinion that it was a good idea to post those memes. Without knowing much about the memes themselves, I'm fairly sure, as paulwallich suggested above, that, e.g., the student who posted the picture of a Mexican child labeled as a pinata would not consider him/herself as having expressed the opinion that Mexican children should be beaten to death.

        I'm reminded of the story (possibly apocryphal) of the young salesman who made some kind of foolish mistake that ended up costing his small company (let us say) $150,000. When the boss called him in and read him the riot act, he expected to be fired. "Are you serious?" the boss asked. "I just spent $150 K making sure that you're the one person on the team I can be absolutely certain will never ever make that kind of mistake going forward!"

        I haven't seen the memes and am not in a position to second-guess Harvard. They have their principles and priorities. But I think an opportunity was lost here to do some real education. I would be inclined to admit the students on a limited basis, perhaps in a probationary status. Canned "sensitivity training" would probably be a loser, but a serious conversation with an advisor, and perhaps some assigned research on what those kinds of pictures and slogans mean to people who are the targets and on the history of that kind of hateful representation might result in some young people who end up with much more mature views of the issues than their initially better-behaved peers.

      3. According to Harvard, "As a reminder, Harvard College reserves the right to withdraw an offer of admission under various conditions including if an admitted student engages in behavior that brings into question his or her honesty, maturity, or moral character."

        Is this an appropriate policy? To note, it refers to "offers of admission", which would seem to differentiate between students who have been attending the school for some amount of time and those who have only just been admitted. Maybe there is some definition of this difference elsewhere in their policy). As such, it seems pretty reasonable to me.

        As to the subjective nature of "honesty, maturity, or moral character", I could imagine those concerned that student expression in general is being overly curtailed might worry about an abused interpretation. However, on its face, the actions of these student would seem to fit easily within an offense against honesty, maturity and moral character.

        I really see no problem with the decision.

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