Can someone be penalized under a law merely for publicly criticizing it? Northwestern University adjudicated a sexual harassment case against Professor Laura Kipnis after activists filed two complaints over a Kipnis column in the Chronicle Review that criticized activists for exploiting Title IX to create “sexual paranoia” on campuses. They decided that criticism doesn’t constitute a Title IX violation … for now:

In the Review essay, published in February, Ms. Kipnis decried a prevailing “sexual paranoia” on college campuses. She alluded to Peter Ludlow, a professor of philosophy at Northwestern who has been accused of sexual misconduct by students in two separate instances. Shortly thereafter, two graduate students filed complaints against Ms. Kipnis with Northwestern’s Title IX coordinator, arguing that the professor’s piece had misrepresented and impugned one of Mr. Ludlow’s accusers and had had a “chilling effect” on students’ ability to report sexual misconduct. Ms. Kipnis, a professor in the department of radio, television, and film, detailed the investigation that followed in another Review essay, published on Friday. “What I very much wanted to know,” she wrote, “was whether this was the first instance of Title IX charges filed over a publication.”

Another professor at the University of South Carolina, Justin Weinberg, says this shows that the system works:

As I noted earlier, the Title IX investigation yielded no finding of retaliation against Kipnis. One can only imagine how disappointed she will be with this. It turns out that the process she had been demonizing—which of course may have its flaws—pretty much worked, from her point of view. … Now put yourself in the shoes of the graduate student, for a moment. She has made a Title IX complaint against a well-known and highly established professor in her program that involves a serious accusation of rape. She is sued for defamation by the professor. The lawsuit is dismissed. But then another professor at her university, Kipnis, writes an essay in her profession’s main news outlet that echoes Ludlow’s account that they were consensually dating, implies she is lying, and suggests that her complaint of rape is an exaggeration and “melodrama.” Kipnis urges readers to see her as harming Ludlow, rather than the other way around, and implies that Ludlow is not a real harasser. Further, when Kipnis is informed about the facts, she refuses to alter the relevant language to remove the implications. What is the lesson to the student, and to others who might come forward?

I can think of two. First, in a free society, allegations of wrongdoing get to be scrutinized and criticized by others. Second, if the scrutiny and criticism miss the mark, others can scrutinize and criticize that without fear of government sanction outside the already established boundaries of libel and slander. No one gets to take public action without public scrutiny in a free society, especially when that action takes place in the context of government intervention, either directly or through proxies, which is what the Obama administration has made universities through Title IX.

I doubt that Professor Weinberg would agree with the common good of free speech and debate, as he uses the all-too-common but when discussing it:

Am I cheerleading for the harassment and punishment of academics for legitimate speech? Nope. I don’t see where I defend harassment in this post nor where I call for punishment. Also, “legitimate speech” is kind of question-begging, don’t you think? I’m a huge fan of free speech, but most of even the staunchest free speech defenders don’t think all speech should be legal.

Actually, by championing a quasi-legal adjudication of a column written by an academic, Weinberg is in fact endorsing punishment for speech. The “all speech isn’t legal” argument is vapid and ignorant. All speech isn’t legal, but outside of incitement to riot, direct threats, the release of classified material, or obscenity, none of it is punishable by government or its proxies, thanks to the First Amendment. Libel and slander are torts, not crimes, and action has to be brought by the complainants into court where they have the burden of proof. Opinion is almost entirely removed from that sphere.

Glenn Reynolds addresses the tyrannical adoption of the concept of criminalization of criticism of criminalization, and urges Congress to act:

Obama’s Department of Education has taken such a broad view of the federal Title IX antidiscrimination law (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”) that we have reached the ultimate in absurdity: Feminist students silencing feminist professors in the name of equality. … Title IX, as its simple language provides, was intended to open up colleges to women, not to empower a Stalinist bureaucracy to torment people who don’t toe the feminist line. Congress needs to haul some Department of Education bureaucrats up for hearings, then rewrite Title IX to make clear that it doesn’t grant the kind of sweeping powers over academic expression that educrats have seized. Despite what they might think at the Department of Education, 1984 was written as a cautionary tale — not an instruction manual.

The 1984 reference hits the nail on the head. As I wrote last month, the people pushing these encroachments on free speech aren’t victims; they’re Robespierres looking for secular heretics to force into submission:

We have had plenty of precedent for what happens when government controls speech, from Robespierre to Mao’s Cultural Revolution to A. Mitchell Palmer. All of those precedents involve people wanting to take a short cut to Utopia by the silencing of dissent, political and cultural. The people who trade off freedom for action value a forced and phony multiculturalism based on imposed participation over a true blend of people through free association. The latter takes work, and more importantly, true tolerance, even for those who remain locked in their peculiar kinds of bigotry. The former only takes power – and power will always be more attractive. Only freedom, including the freedom to speak unpopularly, can ensure true and sustainable tolerance. Too bad that so few of our fellow Americans understand that, but thankfully we can still remind them of their birthright of liberty … for now, anyway.

The best remedy for bad speech is more speech, not government intervention. The best prevention for the above dynamic is to use free speech before government intervenes in the first place.