Censorship: Me thinks Dean Chemerinsky doth protest too little

Dean Erwin Chemerinsky's (UC Berkeley School of Law) defense of free speech ("A New McCarthy Era," Daily Journal, Dec. 11, 2023) where he criticized the forced resignation of University of Pennsylvania President Elizabeth Magill over her comments regarding campus anti-semitism, focusses welcome attention on the increasing problem of censorship. He is a respected legal scholar and his voice is important in this public debate, but his analysis was unduly narrow and thus he missed an opportunity to condemn censorship far beyond the rarified precincts of Ivy League upper management.

In these hyperpartisan times there's a temptation to criticize censorship only when exercised by the opposite political party. Dean Chemerinsky appropriately referenced the McCarthy Era, but history has proven that censorship is not party specific but appears rooted in a general human impulse to silence dissent.

In the Antebellum South, Democratic congressmen passed a series of "Gag Rules" which forbade the discussion of slavery on the floor of the House. [The Constitutional and Political History of the United States, Vol. 2, p. 245]. Indeed, all Southern states at some point passed laws either outlawing or limiting the discussion of abolitionism. [Abolition and Free Speech, Firstamendment.mtsu.edu]

Not to be outdone, Republican Abraham Lincoln, in what is perhaps the most criticized aspect of his legacy, suspended the writ of habeas corpus during the Civil War and had Democratic Congressman (and fervent critic) Clement Vallandigham arrested and tried by military tribunal for "declaring disloyal sentiments and opinions." (After his conviction. Lincoln, fearing that imprisoning Vallandigham would make him a martyr to the South - or perhaps to the First Amendment - instead had him deported to the Confederacy.) [Wikipedia, Clement Vallandigham]

Democrat Woodrow Wilson signed the Espionage Act of 1917 and the Sedition Act of 1918 to silence opposition to WWI. These harsh laws provided for lengthy prison sentences for those who "conveyed information intended to interfere with the war effort" or speech "critical of the flag, Constitution, military, or the U.S. government." (Remarkably, convictions under these statutes were later upheld by the U.S. Supreme Court.) [Constitutioncenter.org]

Because the historical record demonstrates that censorship is subject to bipartisan abuse, it's important for First Amendment advocates to make clear they oppose ALL censorship regardless of party loyalty. Which brings us back to Dean Chemerinsky. His concern over the resignation of Ms. Magill is well taken but one wonders why he waited until a university president lost her job to speak out when campus censorship has been rampant for years:

●In 2021, MIT canceled a climate change lecture by geophysicist Dorian Abbott after students objected to his views on affirmative action. (Spoiler alert: He opposes it.) [Reason Magazine, 10/21/21]

●In 2021, Princeton forced the cancellation of a 19th century Jewish-American art exhibit because two of the featured artists had served in the Confederate army. The patron of the exhibit, a Jewish alum who had donated generously over the years, refused Princeton's demand to remove the offending artists, reasoning their inclusion would spur constructive debate. [Reason, 4/5/22]

●In 2019, the University of North Texas fired a math professor for referring to flyers left in his classroom warning professors against microaggressions such as "America is the land of opportunity" as "garbage." [Reason, 3/12/22]

These cases, though important, involve the academic freedom of individuals. But he also left unaddressed far more pernicious and consequential government censorship affecting the First Amendment rights of millions of people. He cautioned that we may be entering a new McCarthy era, noting that "there is always a temptation to want to silence and punish people we don't like" and that he's "fearful of ever giving the government...the power to declare any idea as so unacceptable that it cannot be voiced at all." His fears are well founded.

Yet one then wonders why he failed to mention, much less condemn, the most serious case of government censorship in recent memory: The Biden Administration's sophisticated and pervasive program of censoring social media. The Twitter Files, a cache of email correspondence between social media companies and the Biden Administration, the FBI, DHS, and other security agencies released to journalists by Elon Musk after he purchased Twitter, revealed an organized and expansive White House censorship apparatus designed to squelch not only political dissent but also public health information - even if true - critical of its Covid policies. A federal district court in enjoining this censorship regime described it as "the most massive attack against free speech in U.S. history" and ordered the Biden Administration to cease their "almost dystopian scenario of using power to silence the opposition." [Missouri v. Biden, 3:22-CV-01213]. A reviewing appellate court, though modifying the scope of the injunction, upheld these findings. [23-30445 (5th Cir. 2023)]. Surely, the legal, political, and social consequences of this gross abuse of presidential power dwarfs in significance to the unfortunate resignation of Ms. Magill.

Dean Chemerinsky is a respected legal scholar and defender of civil liberties. I'm sure we would all benefit if he broadened his focus in denouncing censorship to include the Biden Administration.

- Brook White

SBN 125272