Why Did John Rawls Tolerate Hate Speech? Liberals, Learn from His Mistakes.

John Rawls (Jane Reed/Harvard file photo)

In a February 1991 issue of the Harvard Crimson, the daily student newspaper of Harvard University, undergraduate Benjamin O. Davis reported on a controversy involving a Kirkland House resident, Bridget L. Kerrigan ’91, who flew a confederate flag outside of her dormitory window. A year later, the Crimson issued a follow-up piece reporting that Kerrigan “launched her career as self-appointed defender of the First Amendment.”

Despite campus protests and pleas from fellow students to remove the flag from the window, or simply fly it in the privacy of her dorm away from the view of other people, Kerrigan maintained that she had no regrets regarding her actions and added that “through the publicity [she] gained, although most of it was negative, [she’d] gotten to meet a number of people who are interested in educating for liberty.”

Following Kerrigan’s graduation from Harvard, she enrolled at the University of Virginia Law School and went on to garner national exposure in print media and even the CBS Evening News as a vocal critic of what she referred to as “political correctness and free speech codes on campus.” Further, and most notably, Kerrigan is known for her copyright credit for the novel Legally Blonde, inspiration for the critically-successful sleeper hit film, that she co-wrote in law school with her childhood friend as reported by Amy Silverman for the Phoenix New Times. A lucrative collaboration. While still an undergraduate at Harvard, though, Kerrigan was, by her own estimations, “persecuted” as a result of her decision to fly the confederate flag from her campus window.

John Rawls, who was the James Bryant Conant University Professor of Philosophy at Harvard University at the time of the initial controversy, spoke with staff of the Harvard Review of Philosophy (HRP) about a month after Davis’ Crimson article went to print and, in the middle of his interview, was asked to share his thoughts about Kerrigan’s actions and the then university president’s response. “I don’t know that I have a useful opinion on that,” he began before he went on to add that “it would be highly offensive to black students.” Ultimately, however, Rawls said that he would “probably do the same thing [then university president] Bok did.” But what did Bok do? Refuse to condemn Kerrigan’s actions. Or, in other words, tolerate them.

SCOTUS (Unsplash)

″Under the Supreme Court’s rulings, as I read them, the display of swastikas or Confederate flags clearly falls within the protection of the free speech clause of the First Amendment and cannot be forbidden simply because it offends the feelings of many members of the community,″ Harvard President Derek Bok said as reported by Eve Epstein for the Associated Press. Bok also went on to argue that censoring offensive expressions is more dangerous than allowing them.

Similarly, Rawls told the HRP that it is “very difficult” to “decide when forms of behavior become legitimate speech.” Then, he likened the student body to a “democratic society in the small” before explaining that there are some things that shouldn’t be said out of “decency and mutual civility.” But his final thoughts on the matter highlight how a misunderstanding of what hate speech is, and how it impacts marginalized communities, can lead to apologist views regarding hate speech:

“While there ought to be a tacitly understood code of decent and civil conduct among undergraduates, one would hope it could be affirmed by students themselves, without administrative enforcement. One hopes they could have a shared sense of what is appropriate to other people’s legitimate feelings.”

In Racial Liberalism by Charles Mills, he writes that if one were to read the two thousand pages of text spanning five of Rawls’ most widely read texts, “one might get half a dozen pages, if that much” of content about race and racism. Further, writes Mills, “the secondary literature on Rawls also ignores race,” highlighting the “racial nature of the liberalism of Rawls.” Most notably Rawls’ “racial avoidance” which is an “artifact of racial privilege.”

As his comments in the HRP reveal, content about race, or inspired by racist ideas, are present in Rawls’ ideas. Further, it is insidiously embedded in his corpus. I also contend that the “tacitly understood code of decent and civil conduct” Rawls mentioned in the HRP interview is akin to a “racial contract,” as theorized by Mills, and that Rawls’ classification of a “democratic society in the small” can be applied to other institutions discussed in his books, particularly A Theory of Justice.

The purpose of the present inquiry is to draw attention to Rawls’ “racialized moral psychology” and “genuine cognitive difficulties in recognizing certain behavior patterns as racist” in an effort to highlight the importance of recognizing how racist, underlying assumptions and implicit biases can impact 1) how theorists think about issues related to race and racism and 2) the development of theories of justice.

Hate Speech and Oppressive Institutions

Harvard University, a “democratic society in the small,” for Rawls, is just one example of a space filled with people, like him, “who take their privilege so much for granted that they do not even see it as political.” His comments about the confederate flag controversy offer quite a bit of insight into Rawls’ ideas about race and racism. On the surface, it seems as if Rawls, like Bok, is simply supporting a person’s free speech rights. Kerrigan’s free speech rights. In the Racial Contract, Mills writes that “whites will act in racist ways while thinking of themselves as acting morally” and Rawls’ comments in the HRP support that claim.

When asked for his reaction to the confederate flag controversy, Rawls began by stating that he does not “have a useful opinion on that” because he is “not acquainted with the circumstances” but “it would be highly offensive to black students.” Next, in two paragraphs worth of exposition, he discussed the unjustified southern secession that led to the Civil War, the unreasonable causes that led to secession, the unreasonable nature of slavery, the inextricable symbolic link between the confederate flag and slavery, and the impossibility of changing the meaning of the confederate flag. He then went on to add the following:

“I haven’t thought about the matter from the President’s point of view. One might make a distinction between free discussion of ideas, which is especially important in the university, and forms of behavior that might be properly thought offensive to other students and then penalized in some way. But suppose that displaying the flag is a form of verbal behavior, or speech, then you have to decide when forms of behavior become legitimate speech, where that line is. And that is very difficult. I think I would try to encourage southern students to find another symbol. In a student body, itself viewed as a democratic society in the small, there are forms of speech that, for historical or other good reasons, certain groups find offensive or demeaning or hostile, and therefore out of decency and mutual civility ought not to be said. But I would probably do the same thing Bok did, when all things were considered.”

One could argue that, for someone unacquainted with the circumstances, Rawls had more than a few thoughts about the topic. And that he did, in fact, offer a useful opinion given that his comments do an excellent job of illustrating how racism can be “made invisible, acceptable to the white population.”

Imagine, for a moment, that Rawls thought about the matter from the point of view of Black descendants of enslaved people who attended Harvard during the time of the controversy. Like Bok, Rawls brought up feelings, but global white supremacy and systemic racism impact more than just feelings. So Rawls’ reaction to the confederate flag controversy reveals his impulse to “de-race the polity, denying [the institution’s] actual racial structuring.”

Derrick Bell walking with a group of Harvard law students after taking a voluntary unpaid leave of absence to protest the lack of tenured minority female professors. (Steve Liss/Time Life Pictures, via Getty Images/ReclaimHarvardLaw)

Was Rawls aware that the years leading up to the controversy were marked by racial tension on campus? Like the fact that in June ’88, for instance, The Department of Education opened an investigation into Harvard’s admission practices after controversies involving affirmative action made national headlines? Or that in the fall of ’89 countless student members of the Black Law Students Association, La Alianza (the Latino Students Association), the Asian American Law Students Association, and the Native American Law Student Association, formed the Coalition for Civil Rights (CCR) to unite and organize for racial justice causes on campus? Or that in ’90 Derrick Bell took an unpaid leave of absence from Harvard Law School to demand more black female faculty in support of student protesters? Or maybe he heard whispers in late ’90 about the fact that the CCR sued Harvard Law School over claims about discriminatory faculty hiring practices?

Regardless of whether or not Rawls knew the full details regarding the racial climate on Harvard’s campus during the time of his tenure in the philosophy department, judging from his reaction to the flag controversy, he had some idea of what might or might not be considered offensive to Black students on campus. But the issue isn’t the fact that the display of the flag was offensive, or that it could have hurt students’ feelings, contrary to the primary concerns of Rawls and Bok. The issue is that Rawls, like Bok, tolerated, and essentially permitted, racist hate speech.

It is not enough, especially for justice theorists, to simply make a distinction between “free discussion of ideas” and “forms of behavior that might be properly thought offensive to other students.” One must also make sure that their conception of free speech was developed outside of a framework of what Mills refers to as an epistemology of ignorance. Mills argues that, in many historical and contemporary cases, “whites have agreed not to recognize Blacks as equal persons” and that lack of recognition leads to conceptual moral handicaps.

In this case, Rawls’ racist, underlying assumptions and implicit biases impacted his ideas about racist symbols, and whether or not those symbols should be displayed on campus, led to his inability to acknowledge the “subordinate civil standing” of Black students and faculty at Harvard. Rawls failed to recognize the Black students and faculty at Harvard as rational persons, moral agents, citizens, members, people, persons, moral persons, rational agents, or politically relevant subjects in the democratic society in the small that is Harvard.

Proof for this failure of recognition lies in his ultimate agreement with Bok, his toleration of hate speech. In Words That Silence? Freedom of Expression and Racist Hate Speech, Caroline West examines “what it takes for speech to be free” and focuses on “whether the kinds of moral and political considerations commonly advanced in favor of something called ‘free speech’ necessarily tell in favor of permitting racist hate speech.” By ignoring how hate speech, and racist symbols, can impact behavior and allegedly free discussions of ideas, he also ignored the basic political realities of race and racialized lived experiences.

While West does make a sharp distinction between racist hate speech and racially discriminatory speech, the main difference being that the former is marked by intent to psychologically harm someone, one could argue that given the primary ways a particular symbol or form of speech has been it is important to take into account the potential harms of racist speech. In the case of the Harvard flag controversy, especially given the racial climate on campus at the time, the display of the flag could have, to many students, been seen as a threat. The campus protests that erupted during that time made it clear that many students believed that the display lacked value with respect to the exchange of ideas on campus. Some commented that the display negatively impacted their experiences as students. In short, the display impacted their rights and freedoms.

West explains that “racist hate speech may cause those it targets to withdraw from participation in public life and discourse” and that everyone loses “if some people are deterred from participating in collective decision-making…those who are silenced are likely to bear a disproportionate share of the loss.” In 2018, the Boston Globe reported that eight percent of Harvard’s undergraduates are Black, an increase from decades past. Therefore, during the time of the flag controversy, Black students comprised an incredibly small minority on campus, and in the midst of a tense racial climate gaining national headlines, the institution’s president felt that banning racist hate speech was more harmful than permitting it.

Mills argues that “realizing a better future requires not merely admitting the ugly truth of the past and present but understanding the ways in which these [white supremacist] realities were made invisible, acceptable to the white population.” The fact that Rawls, in support of Bok, would permit, or even tolerate, racist hate speech highlights the dangers of racial avoidance.

Even though Rawls didn’t necessarily have the power to make a decision on the matter, his privilege, power, and commitment to the racial contract impacted his ideas about race. Further, his ideas about the impacts of racism on the lived experiences of marginalized people, and, ultimately, justice more generally, ought to be read through a more critical lens in order to excavate instances of implicit bias, racism, and other forms of discrimination in his corpus.

The same critique should be applied to the work and ideas of all so-called liberal and progressive theorists and thinkers as well, both within and outside of the academy.

NYC-based philosophy graduate student whose work covers Genocide Studies, Repro + Enviro Justice, and Critical Race Theory. @moontwerk

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