A Few Words on Content Warnings

My casebook says things like, “This case involves allegations of online harassment and threats of violence.“ This raises two questions. If a case needs a warning, why include it at all? And if a case is is worth including, why warn students about it? To some people, the first question is more troubling; to others, the second.

My book and my courses feature a wide range of materials I have selected because I think they provide the best learning experience. Some of those materials are upsetting, not because I want to make my classes upsetting for its own sake, but because the world we live in is upsetting. (If you can read U.S. v Petrovic with no emotional reaction, check your empathy lobe.) Much of the anti-“trigger warning” discourse proceeds as though the classroom ideal is complete and detached emotional obliviousness. But that’s not right. It’s best to be able to encounter material – and the world – as complete human beings, both rational and emotional.

This is why the ideal of the university is an intellectual safe space – where ideas are safe to discuss, but we are also safe from them. A good classroom is one where everyone is genuinely comfortable taking on difficult material. My job is to help build that comfort. (I say help build rather than assume or impose.) That content warning is also a content assurance: we are in this together.

It’s ironic when professors give speeches about why they don’t give trigger warnings. What else are the speeches but trigger warnings given further in advance? I prefer ones closer in time, to flag the specific materials that call for more care. Maybe you want to leave yourself a few minutes before class to rest and compose yourself, maybe you don’t. I respect you enough to let you make that call. 99% of the time, there is no reason in the world to ambush students with challenging and troubling material. Present, yes; ambush, no.

As for opting out of those discussions, there are often good pedagogical reasons not to allow it. Class proceeds on a schedule; discussions are shared experiences; a course is a coherent program of study; some topics are important to pass by. Often – but not always. Sometimes a student can do an alternative assignment with no great loss of learning and without disrupting the rest of the class.

I pick the readings I think are best overall, but it’s not as though our syllabi come to us from the transcendent realm of Plato’s Forms. I make these decisions in the abstract, before the semester. But when it comes time to work with particular students, it’s often the case that there are readings and discussion topics I could replace with ones that are better for them. If a student has experience with patent law, it does little good to make them sit through Prometheus v. Mayo again. The same is true for the student who has experience with sexual assault.

Two stories. First, my recent draft on the CFAA makes a lot of comparisons with rape law in understanding “authorization” under the CFAA. A student who read the draft thought it was distracting. I thought long and hard about whether I could make the points differently. I kept most of the discussion, because the legal theory on consent has been developed most extensively and clearly in thinking about rape law. But some of the examples really were unnecessary, or could be replaced with ones drawn from elsewhere, e.g. theft law. I’ve changed them in the version that will be published. Is my paper worse because I deviated from my original ideal? No. It’s better now. A good paper is one that convinces actual readers.

Second story. I started law school in the fall of 2002. The one-year anniversary of September 11 fell on a day I had Constitutional Law. My professor decided to mark the occasion by giving a mini-speech extolling why September 11 showed the importance of the Constitution. I stood up quietly, left, and came back five minutes later, after he was done. Draw whatever conclusions you wish.

Thanks to Chris Peterson for Storifying the tweets on which this post is based.