This week the Supreme Court decided in favor of the government and against a collection of universities who did not wish to be compelled to allow military recruiters on campus. This complaining group had a name that referred the amusing notion of “Institutional Rights” (perhaps because they had to fill out the acronym “FAIR”). The argument that FAIR brought to the Court was that it is a violation of the universities’ First Amendment right of free speech to compel them to allow such military recruiting, because the universities object to the Pentagon’s prohibition against openly gay service.
Some may chuckle at the irony of universities complaining that they are forced to provide access to certain groups — in essence being mandated to be tolerant, even of intolerance — but it’s hard to refute the argument. Freedom of speech includes the freedom from compelled speech. In 1977, the Court upheld the right of New Hampshire residents to refrain from sporting the state’s unforgettable motto, “Live Free or Die,” on their automobiles. A Jehovah’s Witness had complained that this violated the tenets of that faith, and so had cut off “or die.” The Court said he had a right to do that, and that the law inappropriately required New Hampshire drivers to “use their private property as a ‘mobile billboard’ for the State’s ideological message” So, why — by the same logic — can’t universities be free from compulsion to support what they see as the homophobic, intolerant policies of the United States military? Hard to say, really.
Except that it’s silly. While we may agree that the Pentagon’s policies are medieval, and we may oppose recruiters’ presence on our nation’s campuses, the free speech argument won’t wash. And this is basically what Justice Roberts said, writing for the unanimous majority. To the lawyers arguing the case of FAIR, who said “how are these cases different?” the answer, in plain language, was: “Well, they just are.”
Public life is filled with arguments made by people seemingly too smart for their own good. In Washington, memos are written in government offices to justify eavesdropping and torture — in the service of freedom and democracy. A Democratic Congressional leader expresses opposition to the war in Iraq — and makes the claim that this does not in any way bind other Democrats to follow suit. In Denmark, there is a move to show their society’s tolerance — by cracking down on people wearing religious clothing (like the Afghani burqa). All these arguments have a key element in common: they are silly arguments, mounted by smart people.
In Boswell’s biography of Dr. Samuel Johnson, there is an infamous passage. Boswell and Johnson are chatting about the marvelous philosophical arguments of one Bishop George Berkely. Berkely maintained that there was no way of really knowing whether such a thing as “the world” existed beyond our individual consciousness. All we know is what we perceive, no more. There is no way of knowing whether there is some objective reality. “I never shall forget,” writes Boswell, “the alacrity with which Johnson answered, striking his foot with mighty force against a large stone, till he rebounded from it — ‘I refute it thus.'” This event stands as a towering beacon of common sense in the face of hard-to-refute yet also quite silly public arguments.
We refute them thus.