Issue 12, Semester 1
By Kevin Cui
If you’ve been keeping track of discussions over content warnings on De Minimis and the Facebook JD page, you’d be forgiven for thinking that the matter has been settled, and the entire cohort is unreservedly on board with the LSS’s proposal to introduce content warning requirements for upsetting or distressing content. Perhaps the absence of vigorous debate or productive counter-arguments is understandable given the fear of being labelled a bigot if one were to express a dissenting opinion. What I don’t believe, though, is that nobody questions the implications of our current approach to handling distressing or objectionable dialogue, or no longer believes in the value of a healthy dose of skepticism.
Just to clarify, my purpose in writing this article is not to lambast proponents of content warnings, but merely to remind everyone of the difficulties and obstacles which are all too easily drowned out amidst the furore. While I respect the merits of providing content warnings for the benefit of individuals suffering from ongoing trauma, I would question whether doing so in a pedagogical context is, in some ways, antithetical to the purpose and spirit of law school, and education writ large.
It’s all well and good to mandate that lecturers provide warnings for distressing material, but my main concern is who gets to decide what material crosses that threshold and, in turn, when the obligation to provide adequate warning has been met. It’s almost impossible to predict how a varied and diverse student body will react to certain material; furthermore, if it were alleged that a faculty member was negligent in providing adequate warning, there would be no way to distinguish genuine complaints from those that are a fig-leaf for the suppression of discourse that one finds morally or politically objectionable. Already, we’ve seen the content warning debate cast aspersions on “the gendered nature” of the chosen case law in Evidence.
Most worrying of all is the potential chilling effect that these requirements could have on the willingness of lecturers to discuss controversial, yet pertinent, material, such as the Four Corners report on the Saxon Mullins case. The risk of disciplinary sanction alone is enough to threaten the quality of discourse within class discussions.
On another level, subjects such as “Evidence and Proof” and “Criminal Law and Procedure” by their very nature are intertwined with confronting topics such as sexual and domestic violence. Do we really need to introduce warnings where it’s obvious that there will be discussion of these topics? In addition, the primary materials that will be relied upon (which set out the framework for class discussions) are already laboriously set out in the reading guide of every subject. Can we sensibly provide content warnings for areas of law where fundamental principles are based upon knowledge of case law involving these topics?
This is not to mention that the sad reality of legal practice is that it often involves work relating to violence and trauma. While some may say that those suffering from ongoing trauma can simply avoid those areas of practice, that argument sits uneasily with our system of admission to legal practice, which requires lawyers to have a minimum competency in certain areas such as criminal and evidence law. Furthermore, how much foresight can we have over the trajectory of our legal careers? Giving students the option to opt-out of confronting those issues could have a detrimental effect on the long-term value of legal education.
Lastly, I think we should all be concerned about the implications of the overuse of content warnings, and more specifically whether doing so inculcates a culture of hostility towards the open discussion of difficult and confronting ideas. According to a commenter on Tess McGuire’s article, an objective of content warnings is to prevent class discussion from descending “into areas which can be really hurtful to students, even if unintentionally”. I would argue that it’s better to air these dialogues in the court of public opinion rather than allow them to simmer silently. If the scope of content warnings is not limited to the protection of individuals suffering from diagnosed trauma triggers, then the use of content warnings promotes the idea that an acceptable solution to issues such as sexual and domestic violence is to shut down discourse and dissent. That would be dangerous move for a supposedly progressive society, and in the long run only serve to perpetuate the sources of violence and trauma.
Just to reiterate, I’m not against the use of trigger warnings wholesale; they certainly have a place in polite, civil society. But I expect more from universities. I expect universities to take an uncompromising attitude in ensuring that their graduates are equipped to face future challenges. I expect universities to be the safeguard of open discourse about uncomfortable ideas. Above all, I expect any proposal that potentially undermines those objectives to be subject to far greater scrutiny than a few De Minimis articles or Facebook posts.