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If you see an opinion consisting entirely of Clarence Thomas with Samuel Alito joining, prepare yourself for a hot take. The same pair that brought us “the children yearn for the mines, actually” have some reactionary thoughts on campus free speech that are worth discussing.
From Law and Crime:
Supreme Court Justice Clarence Thomas penned and Justice Samuel Alito joined a dissent on Monday in a case about a Virginia Tech University policy for “bias intervention and response,” urging fellow justices to “resolve” once and for all the “high-stakes issue” of whether “bias-reporting schemes” tend to “objectively chill students’ speech.”
…
Thomas and Alito joined together to say they would have granted the petition and heard the case, calling it a “high-stakes issue for our Nation’s system of higher education.”Justice Thomas, noting that Speech First likened “bias reporting schemes” on campus to “a literal speech police,” said the petition “raises an important question affecting universities nationwide.”
It’s important to note that Clarence cares more about advancing the broader right-wing goal of being able to insult minorities without consequence than about any actual chilling these policies might cause. I say “actual” chilling for two reasons.
First, the consequences for being a bigot usually fall under the domain of social ostracization or preventing a hostile work or school environment. Characterizing these bias rules as “literal speech policing” like Speech First does is just a dressed-up version of “they say it… so why can’t we say it?”
Between the successful push to make PragerU content school curricula so they can use cartoon Frederick Douglass to explain why slavery wasn’t so bad and the founder of Blackwater calling for a return to imperialism, they’ve been saying it and saying it loudly. Despite marketing themselves as some fringe position, American politics are generally right of center and have been for a while now — teachers would be better funded and hospital visits wouldn’t be nearly as ruinous otherwise. People who want to yell slurs don’t want to get ridiculed for it and that’s not a matter of free speech, that’s a lack of cojones.
Second, it seems like saying something egregiously biased or hateful is less chilled behavior and more of an easy way to climb up the prestige ladder. Clarence himself provides a great example — he did hire the “I HATE ALL BLACK PEOPLE” person to clerk for him, after all. It doesn’t look like anyone actually got in trouble over Virginia Tech’s anti-bias policy, but if they did and there was a hint of right-wing spin on the content of the message, there would have been a field day over at LibsofTiktok lamenting the loss of the freedom to say some “cultures” are superior to others. Republican speakers looking to boost their book of business know that all they have to do is yell about how often their heartfelt opinions are being canceled by the woke left and they’ll end up with a speaking tour — outrage marketing is literally Jordan Peterson and Ben Shapiro’s whole schtick at this point. Students know this too.
Recognizing that this dissent is just Thomas’s “up yours, woke moralists!” speech trying to turn a moot case into some big hubbub, I’m heartbroken to admit that he has a point. What about next time? It doesn’t take a huge stretch to foresee a school using the policy as a cudgel against a minority student protesting on campus. Just last month, Northwestern students were threatened with jail time over a parody newspaper that accused the school of being complicit in genocide. Northwestern is a private institution and wouldn’t fall under the scope of such a policy, but if the fact pattern took place at CUNY, there could be a legitimate concern over if a student’s properly political opinions (and not just an attempt to throw a race-baiting party) are being chilled.
‘I Have Serious Concerns’: Justices Thomas And Alito Fear ‘Bias-Reporting Schemes’ On College Campuses ‘Objectively Chill Students’ Speech’ [Law and Crime]
Earlier: Yale Law School Trap House Incident Not A Free Speech Thing No Matter How Hard Folks Try
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
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