Kindly inquisitors, revisited: twenty years on, the case for restricting speech in the name of tolerance is weaker than ever.

• Author: Rauch, Jonathan
• Position: Kindly Inquisitors: The New Attacks on Free Thought - Excerpt - Essay

In 1993, reason published an essay by Jonathan Rauch derived from his book Kindly Inquisitors: The New Attacks on Free Thought. In it, he defended what he called "liberal science"--liberal societies' open-ended, decentralized system for developing knowledge by subjecting ideas, and often their proponents, to public criticism--from then-newfangled attacks by those who sought to protect minorities from excoriating or discriminatory speech.

This month, on the book's 20th anniversary, the Cato Institute and the University of Chicago Press are publishing an expanded electronic edition of Kindly Inquisitors. This essay is adapted from the author's new afterword.

TWENTY YEARS AGO, in 1993, Salman Rushdie was a hunted man. Iran had sentenced him to death for writing a novel that allegedly defamed Islam; governments and intellectuals in the West had responded with a measure of defiance, but a larger measure of ambivalence and confusion. Was Rushdie entitled, really, to write a book that he could have anticipated would deeply offend Muslims?

In 1998, as part of an agreement to restore diplomatic relations with Great Britain, the Iranian government formally withdrew its support from the fatwa against Rushdie, and the author resumed public life. But Rushdie's freedom has not put to rest the Rushdie affair. The fatwa's report echoed loudly in 2005 when a Danish newspaper published cartoons, some of them provocative, depicting the Prophet Muhammad. The resulting uproar occasioned, in the West, a chaotic mix of confusion, apology, and defiance, not unlike that which met the Rushdie affair.

The Danish government said, "Freedom of expression is the very foundation of the Danish democracy," but then went on to say, "However, Danish legislation prohibits acts or expressions of a blasphemous or discriminatory nature." When Danish authorities chose not to prosecute the cartoons' publisher, death threats and violent protests around the world led to the murders of several hundred people. In France and Canada, publications that republished the cartoons found themselves under government investigation for inciting hatred or violating human rights. Ultimately, they were not prosecuted. It would be fair to say that the West's defense of intellectual freedom was ringingly ambivalent. The more things change ...

Today, what I called in 1993 "the new attacks on free thought" are no longer new. The regulation of speech deemed hateful or discriminatory or harassing has spread internationally and dug in domestically. In the United States, hate-speech laws as such are unconstitutional. But indirect, bureaucratic prohibitions have burrowed into workplaces and universities. Federal law holds employers civilly liable for permitting the workplace to become a "hostile environment"--a fuzzy concept which has been stretched to include, for example, a Bible verse printed on a paycheck (could upset an atheist) or a Seventh-Day Adventist's discussion of religion ("religious harassment" because it "depressed" a plaintiff).

Unlike most workplaces, universities are at the heart of intellectual life, and so the bureaucratization of speech controls there is more disturbing. In American universities, the hostile-environment and discriminatory-harassment doctrines have become part of the administrative furniture. "Most colleges and universities in the United States have instituted what are in effect speech codes," write the law professors Arthur Jacobson and Bernhard Schlink, in their contribution to the 2012 collection The Content and Context of Hate Speech: Rethinking Regulation and Responses. "The codes range widely in the speech they prohibit," but even the narrower ones "can define harassment more broadly than have the federal courts." Moreover, "colleges and universities are noticeably reticent to afford defendants in campus adjudications procedural protections that in federal and state courts are routine and necessary."

Alas, these sorts of bureaucratic controls have become a background thrum of academic life. They sometimes run into challenges when they go too far in particular cases--as when Brandeis University found a professor guilty of racial harassment for explaining the origin of the word wetbacks. But the idea that minority rights justify speech codes and quasi-judicial inquisitions is barely controversial among academic administrators. History will someday wonder how the very people who should have been most protective of intellectual freedom took such a wrong turn.

Abroad, without a First Amendment to act as a buffer, direct government restrictions on hate speech have become the norm, enacted by many countries and encouraged by several human rights treaties...