Some lessons from the sorry history of campus speech codes

The following is an excerpt from a blog by FIRE President and CEO Greg Lukianoff and Copy Editor Talia Barnes recently published in the digital publication Persuasion.

Regulations on campus “hate speech,” sold as efforts to protect marginalized groups and prevent harassment, do neither in practice. At best, they’re ineffective, and at worst, they open the door to administrative abuses of power and contribute to a campus culture of shame and fear.

Such regulations feature notoriously overbroad language, giving administrators authority to punish vast swaths of expression. Civil liberties activist and former president of the ACLU, Nadine Strossen, emphasizes the risk vague speech restrictions pose to the very marginalized groups they’re intended to help:

It is important to understand that hate speech laws are inherently likely to be enforced in ways that further entrench dominant political and societal groups, and that further disempower marginalized individuals and groups. This pattern is not a result of occasional “abuses” of the laws, but rather is the inevitable, systematic result of any use of such laws, given their irreducible vagueness.

The case archive of the Foundation for Individual Rights in Education (FIRE), where we work, is stuffed to the brim with examples that illustrate this phenomenon. Take FIRE’s lawsuit on behalf of Jared Nally, a student journalist at Haskell Indian Nations University who was banned from engaging in standard newsgathering activities after publishing articles critical of his university. Or FIRE’s lawsuit on behalf of Kimberly Diei, whose pharmacy program tried to expel her for “crude” and “sexual” social media posts about Cardi B. lyrics. As always, vague rules benefit dominant perspectives. We shouldn’t be surprised when administrators use the censorial tools at their disposal—not arbitrarily, but selectively, against those who challenge or disrupt the norms of the powers that be.

Two-thirds of students think it is, to some degree, acceptable to shout down campus speakers.

The proliferation of censorial policies on campus almost certainly fuels the trends of skepticism of open deliberation and support for “canceling” those with unorthodox views. The data bear this out, revealing alarming levels of intolerance and support for illiberal forms of protest among current college students, a majority of whom oppose inviting a wide variety of controversial speakers to campus. Two-thirds of students think it is, to some degree, acceptable to shout down campus speakers, and 41% say the same about physically blocking entry to events. Reflecting the same failure of campus policies to distinguish between speech and violence, 23% of students even say the same about using violence to stop a campus speech. 

Surveys of faculty also paint a troubling picture. A notable portion, from a variety of academic disciplines, openly admit they would discriminate against colleagues (e.g., during peer-review) for ideological reasons. And almost one-in-four social science or humanities faculty surveyed in the U.S. in fact supported at least one campaign to dismiss a dissenting academic. Since 2015, 589 attempts to professionally sanction scholars for constitutionally protected expression have occurred—nearly two-thirds of which were successful, resulting in some form of sanction. In 2022 alone, there have already been 44 sanctioning attempts—and we’re only a third of the way through the year! 

These attitudinal trends have real human costs. In an environment where any censorship goes, students face discipline for anything from inquiring about a rumor of sexual misconduct to parodying a gender studies handout to booing at a soccer game. A notable portion of them self-censor with some frequency when it comes to controversial topics because they are concerned with how their peers and professors will react. Scholars, too, have reason to work and study in fear, knowing their jobs can be threatened for transgressions as minor as posting a mean tweet about Mike Pence, or including pedagogically relevant redacted references to racial slurs in course materials. 

The reality of a censorial campus culture understandably influences public perception, undermining trust in even the most legitimate scholarship and commentary. How seriously can we take research that confirms perspectives popular on campus, one might ask, when it emerges from an environment where professors can be fired, speakers disinvited, and students written up by Bias Response Teams for expressing disfavored points of view? Would academics honestly risk their careers to come to unpopular conclusions? 

Read the full article on the Persuasion blog.