Keeping Campus Speech Codes in Perspective: A Response to Eugene Volokh

In a recent column, Thomas Sowell wrote, "Nowhere else in America is free speech so restricted as on academic campuses with speech codes." Over at The Volokh Conspiracy, Eugene Volokh has taken issue with that claim, arguing that campuses are "quite speech-protective places," particularly when compared to workplaces.

While Volokh thinks that speech codes have no place on campus, he finds it important to remember that:

Speech on campuses (at least outside graded class projects, which necessarily must be evaluated based on their content) is generally far more free of institutional punishment than speech in many other places.

The obvious example, which probably affects about ten times more people than do campus speech codes, is restrictions on speech in workplaces. In most workplaces (again, university workplaces are in some measure something of an exception) speech is quite seriously restricted.

It is fairly plain that Sowell's comment is not, of course, literally true (and probably not intended to be taken that way). Speech is more restricted in American prisons than it is on American campuses. However, no one would argue that we should keep campus censorship in perspective by comparing it to the censorship that occurs in prisons. Prisons are institutions designed to punish criminals by denying them privacy and liberty, including the right to say what they want when they want. It is no surprise they impose speech restrictions. While Volokh's chosen yardstick to measure the severity of campus censorship—the workplace—is not as extreme as comparing it to prison censorship, it unduly downplays the absurd and dramatic censorship that often happens on college campuses.

By definition, workplaces are institutions that perform a particular economic function. People are paid money to complete a job. If a person accepts money to work as a cashier at the corner market, it is reasonable for the owner of the store to expect the cashier to represent the company while the cashier is working. If the owner does not want his store represented by someone who is spewing racist garbage or trashing him to customers or fellow coworkers, that is the owner's right. The owner's control of the store's image does not seriously implicate the cashier's free speech rights.

In comparing the workplace to the campus, Volokh sets aside classroom speech. However, the most apt analogy between workplaces and university campuses is between on-the-job restrictions and in-class speech restrictions. In class, professors have great control over student speech and expression. If they so chose, they may prohibit all speech but their own. Students and teaching assistants who refuse to comply may be removed as disruptive. Graded assignments, similarly, are subject to speech restrictions. They are governed by standards of academic quality (and, of course, more subjective elements), which inherently limit many forms of expression (sloppy, profane, mystical, or unclear language, etc.). This is similar to speech in the workplace, which is governed by standards of quality the employer has every right to expect. If an advertising executive turns in sloppy or racist invective for his Nike ad, Nike is right to fire him for failing to perform the job he was hired to do.

I imagine Volokh does not find work-product speech restrictions objectionable, as the economy would not function very well if such restrictions did not exist. Rather, I imagine he is thinking of the speech restrictions levied on employees when they are not directly engaged in work—for example, a casual comment made to a co-worker during a 15-minute break.

But even allowing for the possibility that employers should allow their employees the freedom to speak flirtatiously or obnoxiously on a trip to the water cooler, when we frame the workplace restrictions this way, we can see that campus restrictions are actually much more severe. While workplace speech restrictions may cover 15-minute breaks and one's lunch at the office, campus speech codes cover a tremendous amount more. Campus speech codes cover people's homes (the often-required dorm), public parks, sidewalks, stores, dining halls, eating establishments, sports teams, clubs, organizations, newspapers, emails, and Internet forums. They cover students' lives—in many cases, around the clock—not the potentially objectionable 15-minute break.

FIRE has documented numerous such cases on its website. For example, at the University of New Hampshire, one student was abruptly kicked out of his dormitory housing, forcing him to live in his car, after he posted a flier in the hall suggesting that women could avoid gaining the "freshman fifteen" by taking the stairs instead of clogging the elevators. Ohio State prohibits students from "joking" about "race, gender, socioeconomic background, etc." or "inflicting emotional harm" in the dorms. The University of Mississippi banned using "offensive language" on campus telephones. The University of Cincinnati bans student speech activities on most of the campus's open greens, common areas, and sidewalks, and threatens to punish such speech by charging the student with trespassing. Unfortunately, there is no shortage of such examples.

Although we hear of the rare case otherwise, when the overwhelming number of workers in this country are off the job, they are free to do and say whatever they want. In contrast, even when students leave class and are not engaged in schoolwork, their speech is still restricted by speech codes.

When we compare the workplace to the campus in this way, it is clear that campus restrictions are indeed much more pervasive and invasive. As FIRE's Azhar Majeed will be detailing in forthcoming legal scholarship, analogizing the workplace to the campus has already wreaked havoc on campuses nationwide. School administrators have taken the anti-harassment speech codes of the workplace and applied them directly to the campus, simply ignoring the different functions and natures of the institutions. Whatever injustice the anti-harassment speech codes cause in the workplace is intensely multiplied on the campus. Keeping campus speech codes in perspective means comparing them to speech restrictions levied on public parks, Internet forums, private apartment complexes, and The New York Times, not the workplace.