E-Pluribus | May 20, 2021

Due process on campus is in trouble again, how far can and should the government go to "safeguard" free speech, and is "woke" broke?

May 20, 2021

A round up of the latest and best writing and musings on the rise of illiberalism in the public discourse:

Richard V. Reeves: Don't Roll Back Due Process on Campus

The last decade has been a contentious one for due process on college campuses. The Obama administration implemented Title IX guidance and regulations that scaled back the rights of the accused. The rules were eased during the Trump administration, but with Joe Biden now president, he and his appointees seem intent on favoring the rights of the accusers. Richard Reeves at Persuasion explains why this would be a mistake.

On the burden of proof, Nussbaum agrees with DeVos that the bar should not be “preponderance” but the higher one of “clear and convincing evidence.” Though the 2020 rule issued by the Trump administration does not insist on this higher level of proof, it at least allows individual colleges to decide which standard to adopt.
Nussbaum also approves the stricter definition of harassment taken up in the 2020 rule. Following legal precedent in other domains, verbal harassment must be pervasive and severe to be actionable.
So far, Democrats have failed to recognize any of these problems with the 2011 guidance. To the contrary, they have been harshly critical of the 2020 rule. On the campaign trail, Biden said it “gives colleges a green light to ignore sexual violence and strip survivors of their rights.” Lhamon was more outspoken, tweeting that DeVos was “taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.”
Shortly after assuming office, President Biden initiated a 100-day review to “consider suspending, revising, or rescinding” any of the new rules on Title IX that are “inconsistent” with the policies of his new administration.
One can only hope that they read and listen to Nussbaum and reconsider. It is clear that the 2020 rule is considerably fairer than the previous approach, which led to repeated miscarriages of justice. Instead of undermining the 2020 rule, the Biden administration should incentivize colleges to take additional steps to prevent assault and protect the accused. Biden’s administration could, for example, provide funding for sexual assault and harassment training and encourage universities to offer free legal counsel for students accused of assault—both worthwhile efforts.

Read it all here.

Ayaan Hirsi Ali: Safeguarding Freedom of Speech Will Require an Active Approach

Having undergone tremendous threats and persecution throughout her life for her strongly held and forcefully articulated beliefs, Ayaan Hirsi Ali has a vested interest in free speech. As the era of huge but privately owned media and tech corporations continues to unfold, Ali seems to lean towards a role for government in reining in what she sees as illiberal impulses in this sector of society whose power continues to grow.

It is not enough for governments to say they passively allow free speech. If they do not actively defend it, then the environment is soon restricted to the speech that the least tolerant individuals will allow.
As of 2021, those committed to free speech in the US face a twofold challenge. On the one hand, woke activists seek to control language in nearly all areas of life and society. In their mind, a single, correct vision of social justice justifies serious restrictions on freedom of speech and constant control.
The second challenge stems from the way in which the flow of news and information in America is controlled. With only some exceptions (PBS and NPR), in America online news sources and televised news channels are privately owned. As a result, a small number of large corporations enjoys tremendous influence over the information that American citizens receive: they wield significant indirect political power…
[…]
But how can citizens appeal decisions made against them by private corporations such as Twitter or Facebook? The relationship that exists between a citizen and the state is different from the relationship that exists between a company and a consumer or customer. The state both establishes the legal framework governing companies and is commonly bound by this framework itself; a company, on the other hand, exists to maximize profits, usually following regulations crafted by the state and its agencies.
[…]
In technological terms, 1996 was a world removed from 2021, and an older regulatory environment is now confronted with a world in which technology continues to blur the boundaries between publisher, utility and censor. American constitutional jurisprudence related to freedom of speech has traditionally focused on government restrictions of citizens’ speech. The outsized public influence of ostensibly private tech companies, however, enables private companies to put their thumb on the scale in a way that increasingly blurs the boundary between public and private.

Read the whole thing.

Elizabeth Nolan Brown: New Campaign Against 'Woke Companies' Slams Them for Not Being Woke Enough

Conservative “overreach” is a favorite trope on Twitter, but in some cases may not be a stretch. Writing at Reason, Elizabeth Nolan Brown finds Consumers' Research’s protection-from-wokeness campaign approaches self-parody.

[…] The group [Consumers' Research] has launched a major new campaign to protect consumers from "woke companies" and "put corporations on notice," telling them "it's time to start serving your customers and stop serving woke politicians." As a first step toward this end, Consumers' Research has made "an ad buy of well over seven figures" to air spots critical of American Airlines, Coca-Cola, and Nike.
But here's where things get weird: The policies these companies are under fire for are anything but woke, by any stretch of the definition. Some are politically neutral moves, like American Airlines shrinking passenger legroom. Most are things more typically criticized by Democrats and others on the left—the very "woke" factions that Consumers' Research is allegedly pissed at companies for kowtowing to.
The group's main gripe with Nike and Coca-Cola is that they've "been exploiting foreign, potentially forced, labor in China." Nike is specifically slammed for using Uighur labor. But Democrats have been calling it out abuse of Chinese Uighurs for at least as long and as loudly as some Republicans have. The condemnation has been extremely bipartisan; the idea that "woke politicians" enjoy seeing American products made with forced Uighur labor is absurd.

Read it all at Reason.