Free Speech’s Non-Neutrality, Exemplified Through Sexual Assault

Few would disagree with the general principle of free speech. But the way it is taught, understood, and applied is not neutral. Reclaim HLS makes this point with its new art piece, which divides a Belinda Hall wall into “Silenced” and “Privileged” speech. On the “Privileged” side lies fliers from another student. The “Silenced” side consists of Socratic Shortcomings posts that were removed from halls and classrooms, a Justice for Palestine event poster (which required a lengthy negotiation with DOS before disseminating), and a sign stating a student was told they were “not allowed to say”  who raped another student. Sexual assault survivors constitute a marginalized population that rarely benefit from free speech rights, demonstrating the way power structures provide only disparate access to free speech.

Student reading speech-related art piece in Belinda Hall

To clarify, there is no legal basis on which to tell a student they may not state who raped whom. There are restrictions on what the school may say under the Family Educational Rights and Privacy Act (FERPA), but that applies to the sharing of confidential records to which non-parties do not have access. Constitutionally speaking, school officials may obstruct speech of a survivor if it’s a substantial disruption to school activities, but not simply to avoid “discomfort and unpleasantness.” Apart from institutional actions, the student who was accused of assault may bring a defamation lawsuit, but he would face an uphill battle in proving falsity and harms. Yet, as the Belinda Hall sign demonstrates, institutions routinely try to pressure survivors into silence, versus empowering or even allowing them to speak.

Sexual assault survivors constitute only one example of a group that societal mechanisms constrain from free expression, while the privileged use the “free speech” principle as a tool to justify oppressing others. As Jelani Cobb discusses, free speech is used as a diversion, a “counterpoint to the violation of principles relating to civil rights. And as Roberto Jenson and Elvia Arriola explain, because it remains “explicitly rooted in the myth of objectivity and neutrality,” a critical approach to free speech doctrine is particularly “crucial.” Richard Delgado suggests a more “nuanced” comprehension of free speech, which includes: “the understanding of the free expression paradigm as a tool for legitimating the status quo.” After all, “communication is expensive, so the poor are often excluded; the dominant paradigm renders certain ideas unsayable… [and] constructs certain people so that they have little credibility in the eyes of listeners.”

HLS’ recent discussion lacks such critical analyses, providing yet another example of the importance of access to Critical Race Theory–a discipline that explores the complexities and contours of free speech. The school’s lack of CRT  represents a gaping hole in our legal education.

Sexual assault survivors are disproportionately represented in other identity groups facing prejudice, while victim-blaming and rape culture further stigmatize and undermine their voices. Jenson and Arriola describe how survivor speech exists within a particular cultural context: “[T]he vast majority of survivors of sexual violence are ignored, blamed, pathologized, threatened, disbelieved, and otherwise revictimized when they protest the violation.” With some populations being pressured–or outright threatened–into silence, “free speech” constitutes a privilege that only some can access.

Reclaim student putting up a banner that was later removed by the administration.

Free expression conversations should be mindful of which voices possess credibility and strength and the structures that maintain those unequal power relations. We must also examine the practical impacts of these power differentials: silencing survivors not only undermines the possibility of accountability for perpetrators, it discourages future survivors from coming forward. At Harvard, only 5-28% (depending on the violation type) of survivors who completed the recent climate survey said they reported their assault to an authority.

By learning the theories that critique the absolutist framing of free speech, we can better act to promote previously-marginalized voices. Currently, free speech doctrine simply gives the impression of open discourse for all, while certain populations have always known they are not allowed to speak.  When discussing speech, we must consider the impacts power has on access and reception to expression.

–  Harassment/Assault Law-Student Team (HALT)

Editor’s Note: HALT is a student group at Harvard Law.