The Regrets of Institutional Responsibility

Some thoughts about recent contretemps regarding the regulation of speech

Photo by Michael Dziedzic on Unsplash

The hard-working staff here at Drezner’s World has been thinking a lot about regret as of late. Part of it was due to Lydia Polgreen’s almost-but-not-entirely persuasive longform New York Times essay about gender transition surgery for minors, in which she points out that regrets are simply a part of growing up.¹ Part of it is due to reading Adam Serwer’s longform Atlantic essay from last year about how conservatives started to regret the U.S. Supreme Court’s Citizen’s United decision once corporations started diverging from conservative views on economic and social issues.

Part of it, however, is thinking about the pandemic caused a lot of bad decision-making. Many folks to adopt positions that with the benefit of hindsight might have proven to be badly in error. There were some huge mistakes, like vaccine denialism. There were some moderate-sized mistakes, like officials underestimating the deleterious impact that remote teaching would have on students of all ages. Then there were some peripheral mistakes, like institutions such as universities, nonprofits, and corporations deciding that it was necessary to issue statements of support or denunciation about important issues of the day.

With the public sphere currently quite raw from debates about Israel and Palestine, it seems as though many of these institutions have been caught flat-footed by expectations that they need to weigh in on the war in Gaza. Last week New York’s Jonathan Chait made an interesting point on avoidable free speech controversies — for many institutions there is no need to weigh in with an attempt at an authoritative opinion. The reason this is harder than it sounds is because of what’s happened over the past five years:

A significant proportion of the domestic strife we are currently experiencing is completely avoidable. It is a product of the newfound expectation that institutions will issue statements about national and world events. The solution is to simply stop making such statements.

Institutions have been making statements about issues outside their purview for a long time. But the murder of [George] Floyd was a break point. The video was so ghastly, everybody saw it, and it came against the backdrop of a pandemic and a president who had routinely shattered long-standing social norms.

Donald Trump not only attacked minorities in nakedly racist terms, he openly refused to treat people and even regions that didn’t support him as equal citizens. Presidents traditionally alternated between dual roles of party leader and symbolic head of state, but Trump essentially abdicated the latter role. A wave of schools, municipalities, and corporations rushed in to fill the vacuum of leadership and unity. Professional sports teams, which had traditionally commemorated causes like honoring the troops and opposing breast cancer, were soon displaying anti-racist messages.

The trouble, of course, is that the precedent was quickly extended to issues that were not as unifying. Suddenly, CEOs, mayors, and university presidents were routinely deciding what position they needed to take about various conflicts.²

Chait goes on to argue that calls from institutional stakeholders for moral clarity are easier said than done: “The truth is that ‘moral clarity’ is usually controversial. In a large, diverse society, disagreement over basic moral precepts is natural.”

I’d disagree with Chait’s last point: in some ways the reason for the institutional statements regarding George Floyd and January 6th is that those were unusually uncontroversial moments of moral clarity. The police used excessive force on George Floyd, full stop. Those who violently stormed the Capitol participated in a violent insurrection based on lies about the 2020 election, full stop. For the institutions that chose to weigh in, commenting on these matters were intellectual and public relations lay-ups.

Chait’s larger point, however — that there are dangers in commenting on every issue of the day — accords with the University of Chicago’s 1967 Kalven Report:

The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community. It is a community but only for the limited, albeit great, purposes of teaching and research. It is not a club, it is not a trade association, it is not a lobby.

Since the university is a community only for these limited and distinctive purposes, it is a community which cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. There is no mechanism by which it can reach a collective position without inhibiting that full freedom of dissent on which it thrives. It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted. In brief, it is a community which cannot resort to majority vote to reach positions on public issues.

Are there exceptions to this rule? Sure, a fact that the Kalven report explicitly acknowledged: “From time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.” Needless to say, these instances seem to be coming up more frequently as of late. But not everything falls under this category.

So remember:

• Students are allowed to say stupid things about issues of the day;

• Professors are allowed to say stupid things opine about issues of the day but that is hardly an obligation to do so;

• Universities as institutions should avoid saying much about issues of the day;

Let’s pivot from the obligations of universities to the obligations of platforms. And this leads me to some uncomfortable reporting about Substack.

Last week Jonathan Katz published “Substack has a Nazi Problem” in the Atlantic. It contains some rather disturbing allegations about who is using the site:

The platform has become a home and propagator of white supremacy and anti-Semitism. Substack has not only been hosting writers who post overtly Nazi rhetoric on the platform; it profits from many of them….

Some Substack newsletters by Nazis and white nationalists have thousands or tens of thousands of subscribers, making the platform a new and valuable tool for creating mailing lists for the far right. And many accept paid subscriptions through Substack, seemingly flouting terms of service that ban attempts to “publish content or fund initiatives that incite violence based on protected classes.” Several, including [Richard] Spencer’s, sport official Substack “bestseller” badges, indicating that they have at a minimum hundreds of paying subscribers. A subscription to the newsletter that Spencer edits and writes for costs $9 a month or $90 a year, which suggests that he and his co-writers are grossing at least $9,000 a year and potentially many times that. Substack, which takes a 10 percent cut of subscription revenue, makes money when readers pay for Nazi newsletters.

So this is bad. Even worse is the defense by Substack’s co-founders. According to Katz:

In a post earlier this year, a Substack co-founder, Hamish McKenzie, implied that his company’s business model would largely obviate the need for content moderation. “We give communities on Substack the tools to establish their own norms and set their own terms of engagement rather than have all that handed down to them by a central authority,” he wrote. But even a platform that takes an expansive view of free speech will inevitably find itself making judgments about what to take down and what to keep up—as Substack’s own terms of service attest. For all his bluster about open expression, Musk has been willing to censor posts on behalf of foreign governments, including Turkey and India.

Ultimately, the First Amendment gives publications and platforms in the United States the right to publish almost anything they want. But the same First Amendment also gives them the right to refuse to allow their platform to be used for anything they don’t want to publish or host.

“Substack is a platform that is built on freedom of expression, and helping writers publish what they want to write,” McKenzie and the company’s other co-founders, Chris Best and Jairaj Sethi, said in a statement when asked for comment on this article. “Some of that writing is going to be objectionable or offensive. Substack has a content moderation policy that protects against extremes—like incitements to violence—but we do not subjectively censor writers outside of those policies.”

I don’t think the official Substack opinion makes a ton of sense. The moment one acknowledges that content moderation is necessary, the debate then becomes where to draw the line. Maybe, maybe their position would be more defensible if McKenzie and Best were not the same guys who decided it would be a good idea to promote and publicize the likes of Richard Hanania. Their choices keep piling up and they keep leaning in one particular, odious direction.

Katz closes his essay by asking, “How long will writers… be willing to stake our reputations on, and share a cut of our revenue with, a company that can’t decide if Nazi blogs count as hate speech?” That is a good question, and it’s one I am going to have to start asking. Substack has been pretty good to me, for which I am grateful. But I worry unless the owners of the site start recognizing their responsibilities, I may regret my choice to join.

1. Just to get this out of the way: I don’t support state efforts to interfere with such surgeries. I just found Polgreen’s efforts to minimize the distinctions between those surgeries and other categories of interventions to be unconvincing.

2. Note that Chait’s position dovetails nicely with a point Serwer makes in his essay on freedom of speech: such freedom include the right to say nothing. Only under exceptional circumstances is anyone obliged to speak.