Making Free Speech Costly

When a small group of University of Arizona students protested a visit by the US Border Patrol on March 19th, they used a confrontational approach developed by activists in the 1960s. Seeing that the officers were speaking to students in a classroom while dressed in uniform and carrying firearms, they began to loudly declaim their outrage, calling them the “Murder Patrol”, citing the ties that some officers have held to explicitly racist organizations like the Klu Klux Klan, and excoriating them from slashing the water containers that humanitarian volunteers have placed in the remote border regions where undocumented migrants try to navigate the unforgiving Arizona desert.

The only differences between this protest and thousands of others held on college campuses each year were that it was not planned in advance, meaning that there were fewer participants, and that it took place in a corridor where a number of courses were in session. To be sure, the fact that the protesters could not rely upon safety in numbers and could plausibly be accused of disrupting other students’ education made them vulnerable. But it’s hard to imagine them being prosecuted on criminal charges during the roughly five decades of the American Pax Academica, in which non-violent demonstrations were usually dealt with in-house.

Unfortunately for three of the students from the March 19th protest, however, that Pax Academica appears to be over. After a series of incidents in which “alt-right” provocateurs and other arch-conservative figures were dissuaded from speaking on college campuses and outlets like Fox News took up their cause, President Trump declared his intention to intervene on behalf of “free speech.” And this outwardly minor incident at the University of Arizona is shaping up to be one of its test cases.

As anyone who spends time talking to middle-of-the-road people not directly involved with higher education in the United States can tell you, this is one issue where the Trump Administration, despite its undoubtedly self-serving motives, can count on the support, however grudging, of millions of Americans who largely disagree with its political agenda. Even though the teaching of civics has mostly disappeared from US curricula, belief in the sanctity of free expression remains strong. Indeed, it could be argued that the whole 2016 presidential campaign turned on the desire of swing voters to elect someone who would not be afraid to speak his mind, regardless of concerns about “political correctness.”

Nor is there anything inherently wrong with defending free speech. The rise of authoritarian nationalism in European countries that do prohibit forms of expression permitted in the United States suggests that banning ideas perceived as dangerous or subversive does little to prevent them from spreading and might even be counter-productive, to the extent that forbidden words and symbols acquire an allure of transgression. While the United States has also witnessed a surge in right-wing extremism, it would be absurd to claim that it is stronger than in places like Poland, Hungary, and now Germany simply because its discourse and iconography enjoy legal protection from being banned.

The problem, as the case of the students who are now being referred to as the “Arizona 3” underscores, is that not all claims to free speech are treated equally before the law. Although the disruption they are being charged with has been exaggerated – instructors in neighbouring classrooms have refused to support the university administration’s argument – a look at the mobile phone video shot by one of the protesters does confirm that they were making enough noise to distract nearby students. But the impact of their actions is being measured against a different standard than the event they were protesting.

Yes, the Border Patrol officers had been invited to speak to a student group, the Criminal Justice Association, in that classroom. They had been on campus for a Career Day earlier, which passed in a recognizably public forum without incident. But once they walked into the Modern Languages building, still in uniform and carrying firearms – which are prohibited on campus for everyone but the University of Arizona Police Department – their presence signified quite differently. As Fenton Johnson, a Professor of Creative Writing teaching in an adjoining classroom explained in a letter about the incident, seeing those officers made him apprehensive, since he did not know what they were doing there. In other words, he was already distracted before the protesting students started making noise.

Even white people who must pass through Border Patrol checkpoints on Arizona highways complain constantly about the way they are treated, their liberty infringed upon by an overzealous government agency seemingly more interested in inciting paranoia than actually doing the hard work of pursuing real criminals. Imagine then how those students felt, seeing officers wearing the uniform that every Latinx resident of the borderlands identifies as a source of potential danger. Everybody knows someone who has been harassed, often repeatedly. And many know someone who has been detained or deported.

Just as it is an exaggeration to call Donald Trump a fascist – though he certainly benefits from the support of people who deserve the name – it is an exaggeration to describe the Border Patrol as his administration’s stormtroopers. Many of its officers are themselves Latinx. And there are assuredly good men and women in their ranks, who go out of their way to perform their difficult jobs in as humane a manner as possible.

Unfortunately, though, the perception of people wearing a particular uniform is always going to be shaped by those who do the most shameful things while wearing it. Even if only ten percent of the Border Patrol is responsible for the heinous acts that the protesters referred to, such as taking the shoes from migrants they detain, that would be more than enough to make the sight of officers in uniform deeply upsetting to anyone familiar with their misdeeds.

If the students involved in the protest had the opportunity to do it over, with time to plan beforehand, they would likely have chosen a different way of expressing their outrage. In the heat of the moment, however, they could only react. While the sort of collective PTSD that living near the border instils in the Latinx community might typically inspire a flight response, it can make some people want to fight.

Conservative commentators have made much of the fact that the student protesters followed the Border Patrol officers to their vehicle, despite claiming to be afraid. But this response is not as paradoxical as it seems. Once a person who has experienced the collective trauma of being discriminated against decides to fight instead of flee, it can seem as though this aggressive posture must be maintained at all costs. After all, there are many examples from history of resistance movements that were successful so long as their leadership did not hesitate and even more of ones that faltered because of a lack of resolve.

Since conservative media are fond of hyperbole in defending free speech against the left-wing thought police that supposedly dominate American universities, we might as well indulge in some of our own in order to situate the incident in a more illuminating light. Picture, if you will, a German university in the year 1932. There are many Jewish students in the student body, most of whom have gentile friends. Although virulent anti-semitism has been on the rise outside of academia, its impact has been muted by the spirit of collegiality that prevails there. Then, in a manner of weeks, the number of uniformed SS officers on campus increases tremendously. Stories start to spread about left-wing and Jewish students being roughly handled.

Now imagine that you are a secular Jewish student at that university. Not a firebrand radical, by any means, but someone who pays attention to what’s happening to the friends of friends of friends. One day, as you are walking to a lecture, you notice that the SS is holding a recruitment session in the same building as your class and see that some of your gentile acquaintances are attending it. How would you react in that situation?

Perhaps, in retrospect, the answer seems obvious: keep quiet and leave the country as soon as possible. But uprooting one’s whole life, severing ties with one’s friends, is a lot easier said than done. Maybe you wouldn’t have been able to keep your mouth shut. Maybe you would have noticed that one of the SS officers doing the recruiting was a former classmate of yours, someone you enjoyed talking with about music. Maybe you would have forcefully declared that a university is not the place for politics and urged the students attending the session to leave. And maybe you would have been beaten up later or taken away by authorities as a troublemaker.

There is danger in using this sort of analogy, however provisionally. Imagining a future worse than the present has a way of turning into a self-fulfilling prophecy. If you call people who aren’t yet fascists by that still-potent name, some of them might end up wanting to live up to their reputation. And it also might also damage your own credibility.

But if we remain mindful of these concerns, the analogy can also do a lot of good. We can debate whether the University of Arizona protesters took the right approach. We can point out missteps that future demonstrations should try to avoid. At the same time, though, we need to remember that they exercised their freedom of speech out of outrage. Outrage is not particularly rational. Outrage is not always prudent. Outrage often leads to trouble. Yet it also has the power to break the silence that ultimately doubles as complicity.

The no-holds-barred rhetoric employed by the Arizona 3 is not to everyone’s liking. Even some of their most stalwart supporters may have doubts about whether implying that the two Border Patrol officers were murderers or white supremacists was wise. But once those officers chose to enter a classroom on the University of Arizona campus in uniform, bearing their weapons, they invited being identified, not as individuals who may or may not have personally committed the atrocities they were accused of, but as representatives of a government agency that is notorious even among fellow law enforcement personnel for both confusion in its attempt to put policy into practice and the corruption which that confusion makes possible.

While not every Border Patrol officer is directly responsible for the deaths of immigrants, whether because of their actions or, more commonly, failure to act in a humane fashion, all of them bear the burden of guilt by association. This predicament is no different from that of good cops in bad police departments or good soldiers in bad units. The men who hesitated to follow orders during the My Lai Massacre and stood aside rather than carry them out may not personally deserve the full ignominy directed at Charlie Company in the wake of Congressional Hearings into the Army cover-up, but they must bear it nonetheless, because they did not bring it to a halt.

As the Arizona 3 look forward apprehensively to their court date on April 22nd, facing potentially devastating legal expenses and even death threats, we must try to put their unscripted protest in the proper context. Even if the teachers in neighbouring classrooms had to modify or abandon their lesson plans for the day, there are worse things for college students than having to reflect upon the outrage their own government is capable of inspiring.

In responding to faculty concern about treatment of the Arizona 3, University of Arizona President Robert Robbins proffered the typical neoliberal sentiment about wanting the campus to remain a “marketplace for ideas.” What he surely meant by this is that he doesn’t want it to seem as though the campus is a progressive co-op where only Fair Trade coffee is sold and products containing GMOs are strictly forbidden. But the reality is clearly the opposite. His failure to defend the students’ right to express themselves and refusal to advocate forcefully for dismissal of the charges against them betrays his investment in the kind of campus where some ideas are more equal than others. To follow through on the conceit, Robbins seems more concerned about the feelings of Nestlé than the fate of those small, independent that Nestlé either wants to buy up or put out of business.

The University of Arizona deserves better. And so does the United States. Decades of right-wing attempts to police liberal academia have entered a new stage, in which both faculty and students who resist conservative ideology are liable to come under savage assault by a combination of traditional media like Fox News and the social media that radically amplify their impact. Increasingly, this assault assumes the form of legal action that redirects both the energy and financial resources of progressives away from collective efforts to promote social change and towards individual cases where the best possible outcome is merely to prevent further harm. As defence of “free speech” becomes the focal point of right-wing efforts to undermine the autonomy of universities, we need to defend groups like the Arizona 3 from persecution as forcefully as possible.

Photograph courtesy of Jonathan McIntosh. Published under a Creative Commons license.