Yesterday a significant chunk of the librarian
Twitterverse Twittersphere Twhatever-it’s-called lost its collective cardigans over a critique of the newly implemented ALA Statement of Appropriate Conduct at Conferences. Will Manley, author of the critique in question, argues that the code of conduct is a substantially flawed document and, in support of that conclusion, he raises four concerns: (1) that the group statuses singled out for protection from harassment are undefined and vague, (2) that the policy will have a chilling effect on intellectual freedom, (3) that much of the code’s language is ambiguous, and (4) that the code does not provide due process for alleged violators. To be honest, I find nothing particularly shocking or offensive about Manley’s criticisms. I also don’t happen to think they are convincing, but I’ll get to that in a minute. Where the real drama unfolds is in the comments to Will’s post, which quickly descended into a mess of identity politics, tone-deafness, ad hominem arguments, and general foolishness.
You can read Manley’s post and subsequent comments in their entirety by clicking the word trainwreck.
I’m not going to do a point-by-point analysis of Manley’s concerns: Matthew Ciszek already has a good refutation of Manley’s critique, as does Nina de Jesus. Instead, I want to look more broadly at the issue of anti-harassment policies. Believe it or not, but there are substantive reasons not to reject anti-harassment policies. There are also substantive reasons to endorse said policies. Let’s look at each in turn. (And I apologize in advance for the very rough treatment of each position; I don’t want to take too long a lunch break #newyearsevelibrarian)
The libertarian* argument
Those who reject anti-harassment policies typically make the argument that (1) most harassment is already covered by existing policy and (2) anti-harassment policies stifle otherwise protected speech (or, intellectual freedom). Manley invokes this argument (poorly I might add). On the first part, Eugene Volokh explains that most harassment occurs “one-to-one”, that is, when a speaker is saying things to one listener that the listener clearly doesn’t want to hear. This type of harassment is clearly restrictable on the grounds that restricting it does not infringe upon the speaker’s ability to spread a message or make a public expression of a belief. One-to-one harassment annoys and offends (rather than persuades or convinces) and can therefore be dealt with without violating freedom of speech. Likewise, unwanted physical contact is not speech and, therefore, not at an intellectual freedom issue. If anything, that’s sexual battery, which is wrong in its own rights. However, the free speech libertarian argues that public speech not aimed at an individual is protected no matter how offensive. The libertarian will advocate for the “marketplace of ideas” where there should be no restrictions on the content of public speech. For example, a speaker at ALA Midwinter may want to present arguments against book-challenges raised by fundamentalist Christians. No matter how offended fundamentalist Christians in the audience feel about the presentation (and the ALA code mentions religion), the free speech libertarian would argue that the presentation must be allowed on the “marketplace of ideas” doctrine. Likewise, if speakers wanted to criticize affirmative action, advocate for an Equal Rights Amendment, discuss millennials unfavorably, or otherwise express a contested view, anti-harassment policies could have a chilling effect. Restricting public speech on the basis of its content, no matter how offensive, is antithetical to democratic values, so the argument goes. Think of it this way: while an anti-harassment policy may allow a lesbian or gay audience member some redress against a speaker who argues that homosexuality is immoral, it would also allow a fundamentalist Christian redress against a lesbian or gay speaker who argues that traditional Christian attitudes towards homosexuality are immoral. The best response is to avoid content-based restrictions all together and allow the truth to emerge on its own. Again, so the argument goes.
Whatever you think of the free-speech libertarian position, you should at least know that it is the dominant view in the United States. You know the whole “I hate what you say, but I’ll defend your right to say it” doctrine? That’s what I’m talking about. This is why the ACLU (in?)famously defended the right of Nazis to assemble in Skokie and the right of Fred Phelps to spout hate. This is why the Supreme Court ruled that both burning a flag as well as burning a cross are protected speech (though illegal on other grounds). The list goes on and the point is clear: offensiveness and emotional outrage do not trump freedom of expression. Like it or not, that’s the status quo. (If you’re interested, Anthony Lewis wrote a history of the libertarian view in his recent book Freedom for the Thought that We Hate.)
So, what’s the alternative? What arguments can be raised in defense of an anti-harassment policy? I think a good counter to the libertarian position is the dignity argument raised by Jeremy Waldron in his monograph The Harm in Hate Speech (though, each chapter was previously published elsewhere and easily Googled). Though Waldron argues in favor of hate-speech legislation rather than anti-harassment policies, the issues are similar enough that Waldron’s arguments apply in both cases. Adapting Waldron, we can make the following argument:First, anti-harassment policies are not directed at thought, they are directed at harm. Specifically, these policies address the harm that harassment causes to the dignity of targeted persons or groups–where a person’s dignity is “a matter of status–one’s status as a member of society in good standing–and it generates demands for recognition and for treatment that accords with that status” (Waldron, p. 60). In the context of the ALA, a librarian’s dignity (or, arguably, any conference attendee) is the assurance of equal standing within the library community. Harassment and intimidation are, by their very nature, demeaning of the dignity of the person or group being targeted, thus depriving them of the “assurance . . . that they can count on being treated justly” (Ibid., p. 85). Note that this has nothing to do with a person’s being offended or made uncomfortable. Offense is subjective; dignity is objective. A frank discussion of sexuality or race might be incredibly uncomfortable for some listeners, but it only becomes harassment if the discussion is calculated to undermine dignity or demean those listeners.
Second, though isolated instances of one-to-one harassment should be able to be handled by existing policy (a concession to the libertarians), many isolated instances of harassment have the effect of creating an unwelcome atmosphere in which the dignity (i.e., the equal standing) of an entire group is undermined. When left unchecked, harassment can harm this “dignitary order” of the community (ibid., p. 92). Whereas we want conferences to be inclusive of many viewpoints (a concession to the marketplace of ideas doctrine), harassment compounds as an environmental toxin that undermines group dignity and, hence, undermines inclusiveness. A fair marketplace requires that all agents involved are assured equal standing but, to take just one example, harassment on the grounds of sexual identity serves to undermine that assurance among the LGBT community, thus removing them from the marketplace. This winds up not just harming the LGBT community but also harming the entire community who would otherwise benefit from the additional perspectives. Put another way, if we really want a marketplace of ideas, we have to assure all community members that their ideas will be heard.
Third, although regulating to prevent this dignitary harm may have some costs, the benefits justify the adoption of anti-harassment policies. Yes, we want a marketplace of ideas but, just as there are regulations over economic markets, there ought to be regulations curtailing abuse of the intellectual market. Think of the ALA Code of Conference Conduct as a sort of intellectual Glass-Steagall Act maybe. Given that the most frequent types of harassment are based on “race, religion, language, gender, sexual orientation, gender identity, gender expression, disability, appearance, or other group status” it only makes sense to expressly prohibit those types of harassment in order to improve the intellectual market (there’s a long conversation we could have here about identifying “vulnerable groups” but we can save that for later). I don’t really know if this is even making sense, but in a nutshell, we need the ALA Code of Conference Conduct because it is our best way of assuring librarians of all backgrounds that the library community respects their basic dignity. And we need to provide this assurance because without dignitary order we lose out on the public good of inclusiveness. This isn’t about restricting intellectual freedom, it’s about restricting all and only those actions and words that undermine dignity. So Manley’s fear that Richard Pryor wouldn’t be allowed at an ALA conference is completely unfounded: Pryor may have been offensive, but he didn’t undermine people’s dignity. Anyway, that’s the quick version of the dignity argument.
I’m just putting these theories out there for people to think about. While I do tend to lean towards the dignity argument, I do have some purely philosophical concerns about it. Likewise, while I’m not convinced of the libertarian argument, I’m not going to think poorly of those who invoke it. Whatever the case, I’m glad that the ALA has a Code of Conference Conduct and I hope that the discussions at Midwinter (in particular Andromeda’s panel on gender issues, which will probably touch on the code of conduct) are more thoughtful than what happened yesterday.
* that’s ‘libertarian’ in the philosophical sense, not the “your crazy 9/11 truther uncle who reads Ayn Rand” sense