On Speech Codes and Sodomy Laws
June 9, 2009
Over the weekend, FIRE received an e-mail from a graduate of Johns Hopkins University criticizing our decision to give Hopkins a "red light" rating for its restrictive speech codes. Like so many similar e-mails we have received since beginning our "State of Free Speech on Campus" blog series, one of the author's main points was that the speech codes on the books didn't really matter because Hopkins didn't restrict free speech in practice (in the case of Hopkins, that is categorically not true, but that doesn't matter for the discussion at hand.) The e-mail to FIRE stated that
If more concrete examples of exactly how free speech at Hopkins was being limited [sic], I would be more concerned about the poorly worded policies, but I have never, in my years as a Hopkins undergraduate, felt limited in terms of my ability to communicate with others and expressing my opinion.
We hear this argument time and again, and we try time and again to explain why speech codes are dangerous even if they are not currently being enforced on a university campus. I think a useful analogy to make, and one that might help more people understand the argument, is to sodomy laws—laws that prohibit consenting adults from engaging in certain sexual practices in the privacy of their homes. The U.S. Supreme Court declared such laws unconstitutional in its 2003 decision in Lawrence v. Texas. Until that decision, however, advocates for gay rights and others concerned with sexual privacy rightfully fought against such laws even though they were rarely (or never, in the case of some states) enforced.
The case of Lawrence v. Texas itself illustrates why such laws are dangerous even if they are almost never enforced. In that case, the plaintiff and another man were caught in a sexual act in the plaintiff's home when police entered the home in response to a reported weapons disturbance. They were charged with "deviate sexual intercourse" in violation of Texas' penal code. The enforcement of this statute against private, consensual conduct was exceedingly rare; in fact, according to the Court, "[t]he State of Texas admitted in 1994 that as of that date it had not prosecuted anyone [under its sodomy laws]...with respect to consenting adults acting in private." The statutory provision in question had been on the books since at least 1973, meaning that for at least 21 years, no one had been charged under it for private, consensual adult conduct. This is a crucial fact: after years and years of nonenforcement, the statute was suddenly enforced. This is a point we make again and again with regard to speech codes: while a particular administration—or even multiple administrations—may choose not to enforce a policy prohibiting protected speech, so long as the policy exists the university may decide to enforce it at any time, leaving students' rights in constant jeopardy.
In its decision to strike down Texas' sodomy law, the Court referred not only to the impact of a potential conviction on someone's life, but also to the detrimental effect of the existence of such laws. Writing for the Court, Justice Kennedy stated:
The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.
This is another crucial point: sometimes the act of criminalizing certain types of conduct is itself an impermissible diminution of individual rights, regardless of how many—if any—actual prosecutions occur.
FIRE has been disappointed to see how many people seem to feel that regulations prohibiting constitutionally protected expression are not a problem so long as those regulations are not actually enforced. I hope that perhaps this analogy to another area of individual rights will help to better explain the issue.