Feelings and Freedom of Speech

In response to the national media attention the recent The Primary Source (TPS) harassment case has attracted, the The Tufts Daily recently ran a piece analyzing the possible long-term implications the decision could have. The article features not only FIRE’s Samantha Harris, but also Stanley Fish, Jon B. Gould, the Student Press Law Center (SPLC), and the Anti-Defamation League.

As readers of The Torch know, the recent punishment of TPS troubles FIRE. Samantha, in her statement to The Tufts Daily, wrote:

The legal definition of harassment in the educational context is conduct ‘so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.’

[…]

The fact that the Committee on Student Life found that The Primary Source’s parodies meet the university’s definition of harassment demonstrates how completely inappropriate the university's definition is.”

Fish, also concerned by the decision, told The Tufts Daily, “Presumably, some people in the university who are members of minority groups would have felt insulted… But being insulted doesn’t mean you have any legal redress against those who have offended you.”

Michael Hiestand, counsel to the SPLC, discusses the dangerous precedent this case could set. He said:

So I think we’re really talking about offending someone or hurting their feelings. And when you start punishing for that, it’s a real broad brush [with which] you’re painting… It certainly is something that if the university community really believes in free speech, they out to be discouraged by this outcome.

Amanda Rosenfeld, assistant director at the Anti-Defamation League, and Jon B. Gould, FIRE’s most recent critic, disagree with FIRE, Fish, and the SPLC. While Rosenfeld states “The ADL is very much committed to free speech and we’re not in support of stifling [the magazine],” she also says, “It sounds like in both instances, both the African-American and Muslim satire are horrific appeal to bigotry and [use] really insulting language… So I would tend to concur that that’s harassing language.” Since the ADL “applaud[s]” the punishment of TPS, it seems they do not believe a harassment charge will stifle the editorial choices of the magazine in the future.

Jon. B Gould, echoing ADL’s concern over hurt feelings, poses an amazingly subjective test, “It’s the question of, what do you do with people who are juvenile with making an argument, and what do you do with people who feel that they need to be protected from all offensive speech? That’s a balancing test that I think Tufts is going to have to wrangle with.”

If Tufts follows Gould’s advice, students will not know whether they’ve “harassed” other students until after they have spoken or written their opinions. What kind of effect will this have on discussions about inherently controversial topics like race, class, gender, religion? If I were a student whose opinion stood even slightly outside the campus mainstream, I would keep my mouth shut. Is this the kind of “education” we want to promote for future generations?