First Amendment is safe at UVa, W&M
February 5, 2011
As Virginians we can be justly proud that our state has some of the top colleges and universities in the nation. We have colleges that are ranked nationally in sports and academic achievement.
But now we have a new reason for pride: The Foundation for Individual Rights in Education (FIRE) has identified the University of Virginia and the College of William and Mary as two of only 13 colleges and universities in the country (in a total of 439 institutions) with "speech codes" that do not violate the provisions of the First Amendment of the Constitution.
FIRE, an advocacy organization founded in 1998, defines a speech code "as any university regulation or policy that prohibits expression that would be protected by the First Amendment in society at large. Any policy — such as a harassment policy, a student conduct code or a posting policy — can be a speech code if it prohibits protected speech or expression."
Some examples of such policies, taken from FIRE's website, are:
• Davidson College's ban on "innuendoes," "teasing," "jokes" and "comments or inquiries about dating."
• Lake Superior State University's ban on "Postings deemed offensive, sexist, vulgar, discriminatory or suggestive."
•The University of Miami's prohibition of "any words or acts ... which cause or result in physical or emotional harm to others, or which intimidate, degrade, demean, threaten, haze or otherwise interfere with another person's rightful actions or comfort."
•Central Washington University's ban on "sexist statements and behavior that convey insulting, degrading, or sexist attitudes."
•Lehigh University's policy prohibiting "sending annoying, threatening, libelous, or sexually, racially, or religiously offensive messages through electronic means."
These are examples of university policies that are so broadly written that almost any speech or behavior deemed by anyone to be "offensive" can be punished.
FIRE meticulously applies First Amendment case law in its scrutiny of such speech codes because there can be, and indeed are, instances in which certain behavior crosses the line from constitutionally protected speech to genuine harassment. But for the most part, universities' and colleges' attempts to draft such policies achieve nothing more than the creation of a stifling climate of political correctness and self-censorship.
The irony in all of this is that the American college or university is supposed to be a bastion of free expression and individuality, an environment that allows both students and faculty to engage in open debate and discussion of even the most controversial ideas.
All too often the reality is a university setting where, according to FIRE, "students are most subject to the assignment of group identity, to indoctrination of radical political orthodoxies, to legal inequality, to intrusion into private conscience, and to assaults upon the moral reality of individual rights and responsibilities."
We are seeing the effects of decades of this type of speech- and thought-policing in the current national debate over so-called "hate speech" and the notion that certain political groups are creating a toxic "climate of hate" that may be responsible for violent acts such as the recent tragic shootings in Tucson. There are renewed calls for the federal government to step in and regulate the content of broadcast media such as talk radio by requiring all media outlets to deliver a "fair" balance of viewpoints (the so-called "fairness doctrine").
To do so would place such a burden on most broadcasters as to effectively shut down the free marketplace of ideas that currently exists on the nation's airwaves.
The college experience for many young people is a profound formative time in their lives. The attitudes and beliefs they formulate there shape their entire worldviews as adults. As a result there is a direct relationship between the culture of the modern American university and society at large.
According to FIRE, "If students on our nation's campuses learn that jokes, remarks, and visual displays that 'offend' someone may rightly be banned, they will not find it odd or dangerous when the government itself seeks to censor and to demand moral conformity in the expression of its citizens. A nation that does not educate in freedom will not survive in freedom, and will not even know when it has lost it."
The University of Virginia and the College of William and Mary are to be commended for recognizing this truth and for respecting the rights of their students and faculty.