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WOKE IDEAS, DRAG QUEENS AND ACADEMIC FREEDOM
1. Prohibiting speech and offensive behavior
We are now well into the 21st century and social and legal restrictions on speech and offensive behavior are being proposed by Republican-dominated legislatures in the states at a rate that hasn’t been seen since the Salem Witch trials in the Massachusetts colony.
In 2022 the legislature of the state of Florida passed the stop Woke Act. It is legislation designed to prohibit schools and companies from teaching or discussing social issues that might make students and employees feel guilt or shame because of their race or sex. The act makes it illegal for teacher and counselors to persuade, endorse, or make any attempt to convince students that the following ideas or opinions are true: (1) Some ethnic groups are inherently racist, (2) A person’s status as privileged or oppressed is determined by their race or gender, and (3) discrimination is an acceptable way to achieve diversity in education and business.
Governor Ron DeSantis named the new law the “stop WOKE act” because he believes that (1), (2) and (3) are part of a false political ideology that is mainly spread by liberals or far-left members of the Democratic Party.[1] According to DeSantis, a woke ideology means "an ideology of liberals and the far left." Promotion or discussion of such ideologies make students and public employees “feel guilt, anguish, or any other form of psychological distress” because of their race, color, sex or national origin.
At this writing (April, 2023), more speech-suppressing legislation is pending
in Florida that will affect all public universities within the state by
eliminating or heavily restricting diversity, equity and inclusion (DEI)
programs (for example, affirmative action). Certain college majors relating to
DEI would be eliminated or heavily restricted.
[2] The
bill would also prohibit state universities from including DEI and political
identity filters within higher education hiring processes, and bans the usage
of critical race theory in hiring. (Wikipedia)
In a recent case, the legislature of the state of Tennessee has attempted to make it illegal to perform “drag” performances on public property and in places where they could be watched by minors. The law limits “adult cabaret” performances that feature “topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators.” Those who violate the new law will be charged with a misdemeanor, or a felony for subsequent offenses.[3]
The difference between these restrictions and the Florida laws is that the Tennessee law is about behavior, not speech. Legislators argue that public drag or adult cabaret performances might be seen by children. Such performances (they say) are harmful to children, and for that reason, these performances should be suppressed. Second, the restrictions and punishments are aimed at the performers, not at the parents who bring their children to see the performances.
2. Justifiable limits of liberty
Questions about the limits of liberty are about moral justification. What are the justifiable limits to the exercise of civil and social power over the individual? When ought society use civil and social power to intervene and when ought it not intervene? Or, from the perspective of the individual: What are the justifiable limits of my liberty? How much liberty should I be allowed to have in a civil society?
2.1 Civil and social power
The topic of John Stuart Mill’s 19th century book On Liberty is “Civil, or Social Liberty: the nature and limits of the power which can be legitimately exercised by society over the individual” (p. 1).
Society has two ways of exercising its power over the individual: Civil Power (“physical force in the form of legal penalties”) and Social Power (“the moral coercion of public opinion”). The man who given a life sentence for murder and the man who is executed for the crime of not believing in the official gods have both been subjected to civil power. The gay man who is tortured, the woman who is shunned, the young woman who is bullied, and the university teacher who is prevented from discussing Critical Race Theory with his students are the victims of social power.
The questions posed by Mill are as important and relevant now as they were when Mill wrote On Liberty. In all countries it is justifiable to use physical force in the form of legal penalties for the crime of murder and assault. But there are some countries who believe it is justifiable to use civil power against those who refuse to conform to a official state religion and the practices that are commanded by that religion. Although there are many countries in the Western world that pride themselves on their social toleration of gays, lesbians and others in the LGBTQ communities, there are still many instances of intolerance of non-conforming attitudes, appearances and lifestyles. The intolerance is expressed not only in shunning (which often leads to depression and suicide), but sometimes in physical force. The rise of social media in the 21st century has also brought with it an alarming rise in hateful remarks, bullying and social shaming, fueled by anonymity.
Mill begins his argument for individual liberty by giving a brief outline of the kind of conduct that he insists must be protected from intervention. He divides them into three spheres:
a. Liberty of conscience, comprising “liberty of thought and feeling, absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological, and the liberty of expressing and publishing opinions…” (11).
b. Liberty of tastes and pursuits, comprising “framing the plan of our life to suit our own character, of doing what we like…C.” (12)
c. Liberty of combination among individuals, comprising “freedom to unite for any purpose not involving harm to others; the persons combining being supposed to be of full age and not forced or deceived.” (12)
2.2 Academic freedom and liberty of conscience
If Mill was alive at the time the stop WOKE act was being debated in the Florida legislature, he would have vigorously argued that there is no moral justification for making illegal the three woke opinions expressed in part 1.
Mill’s argument for this is set out in chapter 2 of On Liberty (“Liberty of Thought and Expression”). Without going into much detail, here is one of Mill’s arguments against the suppression of speech:
(T)he peculiar evil of silencing the expression of an opinion is that it is robbing the human race… If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error.
The Woke Act in Florida says that the following opinion (#3, above) is false and should not be expressed in public schools: “Discrimination is an acceptable way to achieve diversity in education and business.” Instead of responding that this opinion is not false, Mill would say that the first task should be to get the Florida legislators to admit that this opinion might be true. If they flatly deny that a controversial opinion might be true, then their denial “is to assume [their] own infallibility.”
If it the legislators believe themselves to be infallible and refuse to admit to the possibility that the discrimination opinion might be true, then they are robbing students of the opportunity to “exchange error for truth.” Although there are some politicians in our society who think it is a good thing to prevent students from challenging opinions that the politicians believe to be true, this is usually good only for the politician and not for the populace at large.
Mill contends that silencing the promulgation of an opinion and refusing to allow debate about it ultimately robs the populace of the benefit gained from the “clearer perception and livelier impression” of the truth as it collides with the so-called erroneous opinion. This happens when students are allowed to think critically and defend their ideas.
But none of this will happen if woke ideas are silenced in the classroom. Instead, the politically approved opinions will eventually become dogma. Mill writes that students will eventually forget the rational basis for the approved opinions and they will revert to “the manner of prejudice, …[thereby preventing] the growth of any real and heart-felt conviction from reason or personal experience.”
2.3 Drag queens and liberty of tastes and pursuits
Mill says of “the liberty of tastes and pursuits” that they give us the freedom to live a life that suits our own character, “of doing what we like…so long as what we do does not harm [others].” (12) If the life that suits a person’s character is a life of teaching philosophy or a life of drag performances (or both), then neither life should be prohibited.
The Tennessee legislators believe that exposing minors to the public performances of drag queens and topless dancers is harmful. But the statute does not make clear what it is about these performances that could harm minors. Perhaps there is fear among some parents that if children are allowed to watch the performances of drag queens, then their children might want to become drag queens when they grow up. To put it another way, behavior that some parents (and Republican legislators) believe to be offensive might be attractive to some minors. Hence, an act is harmful to minors if it might lead them to become offensive “topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.”
When Mill proposed that causing harm to others was the only justification for interfering with individual liberty, he did not apply the harm principle to the conduct of children. A minor does not have "liberty of tastes and pursuits." Parents of the minor have the right to guide their children to live an adult life that is like their own or to expose them to a variety of lives that they might want to choose when they become an adult. For example, parents whose religious beliefs condemn LGBTQ people might want to keep their children away from any exposure to them, and liberal parents might want expose their children to a variety of tastes and pursuits that they might choose to live when they come of age.
Parents have legal duties as well as rights. They have a duty not to abuse or neglect their children. But there is no evidence that taking their child to a drag queen performance is abusive. The fact that such performances are offensive to legislators is not evidence that seeing a man dressed as a woman harms the child either physically or emotionally.
And if it is (wrongly) decided that drag queen performances are harmful to minors, the person or persons who should be punished are the minor’s parents not the drag queens. Targeting and punishing female impersonators is like the medieval practice of punishing disabled and deformed people for appearing in public, except that a disability or deformity is not something that one can discard.
A majority of legislators in Florida want to suppress classroom discussions of Critical Race Theory (CRT), and in Tennessee a majority of legislators want to suppress public displays of drag queen performances. They refer to these suppressions as “freedom.” What they mean is that under their new laws, Florida students and public employees will be free from hearing a professor explain CRT and the children of Tennessee parents will free from witnessing a drag queen performance.
But “freedom from” is not what the framers of the First Amendment to the Constitution meant. The kind of freedom the framers wanted to protect is freedom to not freedom from. They did this by making them rights. Under the First Amendment, Americans have the right to choose their own religion (or none), the right to persuade others about the truth of your political opinions, and the right to associate and stand with others in front of the U.S. Capitol protesting laws that they believe are bad.
The constitutional right to freedom of speech would be encroached by state laws that prohibit the promulgation of the three woke opinions stated earlier. By making students free from attempts of teachers to convince them that woke opinions are true, they encroach on the constitutional right to freedom of speech. By making children parents free from witnessing public drag queen performances they interfere with parental rights to make decisions about what is good or bad for their children.
And if the legislators complain that students and parents should from woke speech and drag queens, then we can reply “You already have them – you can walk out of the lecture hall and you can walk away from a public drag queen performance.”
4. Free societies
Mill says of the three spheres of liberty that:
No society in which these liberties are not, on the whole, respected is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified. (12)
A society that regards itself as “completely free” must not only allow people to combine for the purpose of baking cakes for the poor, but also for the purpose of publishing and disseminating anti-Semitic or anti-Catholic literature. It must not only allow people to pursue their interest in birds and combine with others into bird watching clubs, but it must allow people to pursue their desire to take off their bathing suits and walk naked at public beaches.
The disutility of prohibitions on any of the three liberties enumerated above is encapsulated in this single sentence:
Mankind are greater gainers by suffering each other to live as seems good to themselves than by compelling each to live as seems good to the rest. (12)
If the governors and legislators of Florida and Tennessee want citizens to be free, then they should stop efforts to compel minorities to think and act in ways that “seems good” to the governor and the legislature.
[1] Tallahassee U.S. District Judge Mark Walker, wrote in a 44-page ruling that the act "violates the First Amendment" and is “impermissibly vague.”
“If Florida truly believes we live in a post-racial society, then let it make its case, but it cannot win the argument by muzzling its opponents. Because, without justification, the (law) attacks ideas, not conduct, plaintiffs are substantially likely to succeed on the merits of this lawsuit.”
Atterbury, Andrew. 16 March 2023. Politico. https://www.politico.com/news/2023/03/16/desantis-anti-woke-law-00087483
[2] House Bill 999, titled Public Postsecondary Educational Institutions.
[3] The Tennessee law was temporarily blocked by a federal judge. Cochrane, Emily. 31 March 2023. New York Times. https://www.nytimes.com/2023/03/31/us/politics/tennessee-drag-law.html
