When I took a communications law course as a University of Tennessee journalism student more than 30 years ago, we covered a section that dealt with what the teacher called "conflicting rights." The case involved the Sam Shepherd murder trial in Cleveland, Ohio, in which local newspapers had all but convicted Shepherd in both its news coverage and on its editorial page. (One of the newspapers even had a front-page editorial on the subject.)
A jury convicted Shepherd, but the U.S. Supreme Court overturned the conviction, declaring that the massive press coverage of the whole thing overwhelmed the jury’s ability to judge the case on its merits. (In a subsequent trial, another jury acquitted Shepherd of the murder. The affair became the basis of the popular television show, "The Fugitive," later made into a full-length movie.)
The court’s reasoning was based upon a belief that two rights collided, the right to a fair trial and freedom of the press, both outlined in the Bill of Rights. It was a clever juxtaposition of concepts, and one can say that it followed the dictum by Justice Oliver Wendell Holmes that “after all, no man has a right falsely to shout fire in a crowded threatre.” Rothbard neatly demolishes Holmes’ argument through the application of private property rights.
In the Shepherd situation, SCOTUS, in effect, declared than when free speech rights collide with the rights of the accused, then free speech must be suppressed. Keep in mind that the court’s ruling, however, was based upon a view of free speech that is made in opposition to private property and the libertarian concept of liberty.
Now, while it seemed that the court was striking a blow for protection of rights, in reality it was creating a very clever conundrum by which the authorities could choose to stifle free speech if it conflicted with other "rights" that the government held to be important. Not surprisingly, governments have moved to other areas to repress rights whenever there was "a compelling government interest" in order to do so, that "compelling government interest" being defined by, what else, the government. (Martha Stewart found out this truth the hard way when the government charged her with "securities fraud" for publicly declaring she was not guilty of insider trading, a crime with which the government had not charged her.) As Rothbard notes:
Rights correctly discovered by reason, therefore, cannot conflict. Liberty for all can be thought through on the basis of rational principle. There is no need for the fatal weakening of principle with the base alloy of “prudential” heresy.
Perhaps it is not surprising that the authorities in education at all levels eagerly have embraced the concept of "conflicting rights." In the modern academy, the overwhelming right is that of "nondiscrimination." Now, in one sense, one cannot engage in "nondiscrimination" without breaking the Law of Noncontradiction. To "discriminate" is to choose, and, as Mises and Rothbard so eloquently have pointed out, the fundamental axiom of human action is choice.
Thus, the very term "nondiscrimination" is absurd, in that we must discriminate between alternatives for our very sustenance. Given that, we must then focus upon the real meaning of "nondiscrimination," which is exercising choice for what the authorities deem the wrong reason. When people today speak of "nondiscrimination," what they mean is that one cannot engage in speech or other action that is based upon certain beliefs that conflict with what the authorities want us to have.
In the academy, the focus of "nondiscrimination" policies involves ethnicity, male and female sex, religious beliefs, and the outcomes of what we call the Sexual Revolution, and especially the practice of homosexuality and non- or extra-marital sexual relations between people. We all know the "politically correct" view for each of these categories. For people employed in academe, these are the highest ideals to which one can attain, and to violate these ideals is to commit the ultimate sin, and the commission of such an "unspeakable" act can lead to outright banishment from the community or worse.
Academe, however, also claims to hold to another "cherished" ideal, that being "academic freedom." Now, the concept of academic freedom is rather simple: individuals who are acting in the role of teacher are given broad leeway to make statements which reflect beliefs or interpretation of real-world events, written or oral, that may not be held by others. The concept of tenure within the academic community was created in order to protect the academic freedom of teachers and professors who otherwise might find their views repressed by authorities.
(That tenure has evolved into a form of protectionism for people who either are incompetent, lazy, or both does not detract from the reason why it exists. Whether or not tenure actually protects academic freedom is a matter for another discussion.)
However, once the "right" of "nondiscrimination" becomes established, it is inevitable that there will be conflicts between "nondiscrimination" and "academic freedom." Furthermore, once those rights collide, the authorities will declare that "nondiscrimination" trumps everything else. This is a politically useful means to use in order to suppress academic freedom because it is both quasi-legal and it provides the authorities with a handy tool with which to attack people who hold to views that conflict with those of the people in charge. Furthermore, in the modern academy, life has been so thoroughly politicized that anyone whose viewpoints differ with those in authority can be neutralized or figuratively destroyed through charges of "discrimination."
This brings us to the current situation involving charges against libertarian Hans-Hermann Hoppe, who teaches economics at the University of Nevada-Las Vegas. In a lecture on time preference during the fall of 2003, Hoppe said that homosexuals in general would have higher time preference because some of them engage in very risky sexual practices, and that homosexuals tend not to have children. He also noted that John Maynard Keynes, who put short time preference into near-holy status, was a homosexual and that certain economists have speculated that Keynes’ sexual proclivities may have influenced his thinking.
It is important to remember that Hoppe’s economic concepts are thoroughly Misesian, in that they are grounded in a priori logic. If the premises are true and the logical mechanisms that use those premises are correctly put into place, then the conclusion a priori is true as well. The reason that this is important is because Hoppe was reaching an academic conclusion, not expressing a statement of belief in opposition to homosexual behavior.
Hoppe’s s remarks did not sit well with one student, who filed a complaint with the university, with the current result being the "punishment" of a letter of reprimand and the docking of pay. In defending its actions, the UNLV administration declared:
UNLV is deeply committed to upholding the tenets of academic freedom, and is equally committed to investigating reports of discrimination. It is important to note that with academic freedom comes accountability, both to ensure accuracy in instruction and to avoid creating a discriminatory environment. The university has seen this process through to a fair conclusion for all parties involved.
I doubt that whoever wrote this statement had an understanding of what he or she was saying, not because the author actually believes in "the tenets of academic freedom," but because the declaration is a logical absurdity. What the statement really was pronouncing was this:
The UNLV administration permits "academic freedom" insofar as it is politically useful to us. However, if we believe that "academic freedom" conflicts with our cherished ideals promoting the Sexual Revolution, then "academic freedom" must be squashed at all costs. We take it upon ourselves to determine what is "discriminatory" behavior and what is not; furthermore, we also take it upon ourselves to define the meaning of truth when it is spoken in the classroom. Those who stand in the way will face severe consequences.
It also is interesting to compare Hoppe’s situation with that of Ward Churchill, the embattled professor at the University of Colorado, who wrote shortly after the 9/11 attacks that the people killed in the World Trade Towers who were employed by private firms were "little Eichmanns" because they were "cogs" in the "oppressive machinery" of capitalism. The university community has rallied behind Churchill’s "right" to "academic freedom."
Hoppe has not experienced the same support at UNLV, and the reason is simple: Hoppe’s views are unpopular in the socialistic academy, while Churchill’s rabid anti-capitalism is the norm. The CU faculty openly supports Churchill because his views are theirs; however, faculty members at most universities are less likely to support "academic freedom" when is used to promote beliefs with which they are in disagreement. In other words, "academic freedom" is not so much an ideal as it is a political tool.
I have no doubt that other faculty members at UNLV encouraged the student to take action against Hoppe, who has committed the unpardonable sin of not only favoring private property rights and libertarian ideals, but also has strongly criticized democracy. One must keep in mind that democracy also is worshiped at the academy not as a consistent ideal, but rather as a political mechanism to promote the imposition of viewpoints and governmental policies that permit the seizing of private property for political use. (I also would contend a priori that some of the people involved in this shady deal are among the loudest to proclaim "academic freedom" when it fits their own purposes.)
In his book Bureaucracy, Mises points out that advocates of socialism in Great Britain held that democracy could be used as a legitimate tool to impose a socialistic order, but must not be permitted to be the apparatus for undoing such a political state of affairs once it was established. He writes:
Sir Stafford Cripps, the favorite candidate of the self-styled liberals for Prime Minister, has advised a "Planning and Enabling Act" which, once passed by Parliament, could not be discussed, still less repealed again. By virtue of this act, which should be very general and leave all "details" to the Cabinet, the Government would be endowed with irrevocable powers. Its orders and decrees should never be considered by Parliament; neither should there be a recourse to the Courts of Justice. All offices should be manned by "staunch party members," by "persons of known Socialist views."1 The British "Council of Clergy and Ministers for Common Ownership" declares in a pamphlet to which the Bishop of Bradford wrote the foreword that the establishment of real and permanent socialism requires "that all the fundamental opposition must be liquidated, i.e., rendered politically inactive by disfranchisement, and, if necessary, by imprisonment."2 Professor Joan Robinson of Cambridge University, second only to Lord Keynes himself in the leadership of the Keynesian school, is no less intolerant in her zeal to realize socialism. In her opinion "the notion of freedom is a slippery one." It is "only when there is no serious enemy, without or within, that full freedom of speech can be safely allowed." Mrs. Robinson is not only afraid of independent churches, universities, learned societies, and publishing houses, but no less of independent theaters and philharmonic societies. All such institutions, she contends, should be allowed to exist only "provided the regime is sufficiently secure to risk criticism."3 And another distinguished advocate of British collectivism, J. G. Crowther, does not shrink from praising the blessings of inquisition.4
In the same way, the academy worships at the shrine of "academic freedom," but does not wish it to be used in a way that permits someone to contradict their own viewpoints. Thus, one can say that in the modern academy, "academic freedom" has been compromised to the point where it is worthless in any meaningful terms.
During the give-and-take of the workday at my university, I am exposed to a number of conflicting viewpoints. I have heard other professors disparage the fact that I believe in God, and expressed viewpoints that support the expansion of the state are a matter of course. According to the tenets of "nondiscrimination," I can declare that being in a position to hear such things creates a "hostile" working environment that is oppressive to me.
If I were to take such a course of action, however, it would conflict with everything I hold to be important. Part of the experience of being in an academic community should be the opportunity to hear and to debate opposing points of view, and if my ears are too sensitive to hear anything that goes against my beliefs, then perhaps I should look for work elsewhere.
On the other hand, I also am keenly aware of the political atmosphere on the modern college campus, and I also understand that many of my colleagues do not share my beliefs on "academic freedom" and are prepared to act upon their own viewpoints that declare theirs to be the only permitted expression on campus. One will not see me openly criticizing the performance of "The Vagina Monologues" on campus each year (which is presented almost in the context of a religious service), nor will I take on some of the others on campus who are outspoken in their politically-protected speech and actions. Call it cowardice, call it "playing defense," or call it bowing to reality, which is the atmosphere at the academy.
I suspect that if Hoppe continues to fight this unjust action by the UNLV administration, he will win in court. However, such a fight will sap him of his strength and keep him from performing some of those important duties that are his as a professional academic. For the time being, he has the law on his side, but standing up for the law and for what is right can be costly. First-rate thinkers like Mises and Rothbard understood that truth firsthand. Hoppe now is able to experience it for himself.