Let’s conclude what turned out to be Free Speech Week
on The Interface
with a look at a case involving the co-chairman of Facebook’s new Oversight Board, a Zoom recording of his law school class, and the N-word.
Can you use a racist slur on Facebook? The answer is probably not, but also maybe. The company’s community standards
prohibit “direct attacks” on people based on their race. But the company also published a blog post
in 2017 laying out some of the nuances involved in deciding whether a slur is, in fact, an attack, which often depends heavily on context that goes beyond the written word.
Later this year, some of the hardest decisions about whether a post should stay up on Facebook will be made by an independent Oversight Board. The board, whose initial members were announced last month
, will allow Facebook and Instagram users to appeal when they believe that their posts have been removed in error. Facebook says it will abide by the board’s decisions, and will also ask it to issue advisory opinions on emerging policy questions.
But one of the things we know about the Oversight Board is that its initial members were selected for their commitment to free speech values. Visit the board’s website and the first message you see reads: “Ensuring respect for free expression, through independent judgment.”
Stanford University law professor Michael W. McConnell was nearing the end of a course on the creation of the Constitution last week when he decided to read a quote attributed to Patrick Henry from an 18th-century debate in Virginia.
But first, McConnell paused the Zoom video recording, according to one of his students, who spoke on the condition of anonymity, fearing backlash. Then the professor read the statement, which he said was intended to stoke racist opposition to ratification of the Constitution.
The quote included the n-word. McConnell, who is white, resumed recording and turned to other topics, the student said.
The incident took place that same week that global protests against the recent murders of George Floyd, Breonna Taylor, and Ahmaud Arbery, among others, galvanized the country — and brought a heightened sensitivity to ongoing racist oppression in the United States.
I spoke with some Stanford law students about McConnell’s class, and they told me they found his reading of the N-word painful in part because a similar incident had taken place at the law school in November. Then, a guest lecturer from Stanford’s history department read the N-word out loud while discussing racist cigarette marketing. And just last month, another Stanford professor apologized
after using a form of the N-word twice while discussing the hip-hop group N.W.A.
“There is a feeling of exasperation and people just feeling a lot of pain,” said Donovan Hicks, co-president of the Black Law Students Association at Stanford.
In his initial note to students, McConnell defended reading what he referred to as “the horrific Henry quotation” out loud: “I do not think history should be stripped of its ugliness.”
In response, the Black Law Students Association sent a letter complaining about the incident to Stanford law students and faculty. “If there is one thing black students know, it’s our own history,” the letter reads. “Ahmaud Arbery is our history. Breonna Taylor is our history. George Floyd is our history. White men refusing to stop saying ‘n—’ is our history.”
The students noted that, in the wake of the November incident, McConnell had written a note to students saying “it is hard for me to see the pedagogical purpose” of using what he called “this most extreme racial epithet known to our language.” He went on:
To my mind, political correctness as it exists in the modern university is a problem, because it can stifle discussion and silence minority views. But that does not mean that all standards of civility should be dismissed as examples of “political correctness.” The use of some terms, especially when blatant, intentional, extreme, or devoid of legitimate context, can also stifle discussion and silence minority views. We should not be quick to censure the speech of others, but we should not let worries about freedom of speech and political correctness stop us from condemning what should be condemned.
McConnell sent an email to students and faculty Friday saying he had made the decision to read the passage with “good will,” and noted he had placed the speech in its proper historical context and condemned the use of the words. He said he would not use the word again in class, but stopped short of apologizing.
McConnell told the Post
he would have no further comment. Jamal Greene, one of the other Oversight Board co-chairs, told Protocol
he “might have made a different choice” but did not condemn McConnell. Issie Lapowsky writes
McConnell’s co-chair, Jamal Greene, wrote that he has “tremendous respect for [McConnell] as a person and a scholar.”
“Striking the right tone in surfacing the ugliness of our constitutional history is a difficulty I myself have struggled with,” Greene wrote. “While I might have made a different choice in this instance, I take professor McConnell at his word that he has learned from his experience, as we all must strive to do as educators.”
This incident seems relevant to anyone looking to understand what the Oversight Board is, and how it might act. When I saw tweets this week from people begging the board to weigh in on Facebook’s decision about the Trump posts, the implication was that the board would step in and remove what Facebook would not.
In fact, Facebook has said from the beginning that initially the board will only restore posts that the board concludes it has removed in error. Eventually the board will issue opinions on what Facebook ought to take down; one person who is closely involved told me that could come within a few months. But it’s not clear any of that will be up and running before, say, the 2020 US presidential election.
More than that, though, the McConnell incident — and his co-chairman’s reaction to it — helps us understand how the board is likely to see the world. For some vocal subset of Facebook’s user base, the primary concern is that the platform allows too much speech. The board’s initial makeup and starting assignment reflect that fear that Facebook might not be allowing enough speech.
Over time in general, we just we tend to add more policies to restrict things more and more. And I think that this, while each one is thoughtful and good and we’re articulating specific harms — and I think that’s important — I do think that expression and voice is also a thing that routinely needs to be stood up for because it has the property that, you know, when something is uniformly positive, no one argues for taking it down. It’s always only when there’s something that’s controversial. Every time there’s something that’s controversial, your instinct is, “Okay, let’s restrict a lot,” then you do end up restricting a lot of things that I think will be eventually good for everyone.
For some, the McConnell classroom incident shouldn’t even qualify as an “incident” at all — a professor simply taught history, using the language of history, while condemning it to his students. To others, though, including some of his students, McConnell failed a basic test of empathy: can you avoid using a word you know to be harmful, as a show of support to Stanford’s black community and its allies?
It all feels related to a question Facebook is being confronted with more and more — and increasingly, by its own employees. Will it be a simple mirror for society, warts and all, or will it put a thumb on the scale for progressive change — including anti-racism? Zuckerberg has long said that, given his near-total control over Facebook as a company, he wants to avoid rigging the company’s services in favor of any particular viewpoint. Instead, whenever possible, he hopes to fight bad speech with more speech.
McConnell is just one member of the board, which will eventually include 40 members. He won’t hear most or even all of the cases brought to the board. And perhaps, as he begins to review cases involving offensive and dangerous speech later, he’ll find reason to vote for their removal from Facebook. But until then I’ll probably find myself thinking of the decision he made last week — the moment in his Stanford classroom, with protests raging in the world around him, when he shut off his Zoom recording to leave no record of his words.