'Volokh Conspiracy' and Local Media Decry Virginia Speech Codes

Ever since the University of Virginia (UVa) eliminated all four of its speech codes to earn FIRE's coveted "green light" rating, local and national media have put the spotlight on the speech codes remaining at other public universities in Virginia.

When FIRE announced the news, we noted that UVa joins The College of William & Mary as two Virginia institutions in an elite group of 13 "green light" schools and that we are now turning our attention to three more Virginia public universities: George Mason, rated "red light," and James Madison and Virginia Tech, both rated "yellow light."

How bad for free speech are these three schools' policies? A. Barton Hinkle explains—and notes FIRE's work—in the November 2 Richmond Times-Dispatch:

Nearly no one considers himself pro-censorship. Yet as FIRE has exhaustively documented, institutions of higher learning--which ought to welcome freewheeling intellectual debate--often are among the most censorious and oppressive places in America. And unfortunately, a few of the worst offenders are right here in Virginia.

For instance, although James Madison University asserts that students have the right to free speech, it also insists "free speech and peaceful assemblies must be registered with Madison Union Scheduling at least 48 hours in advance." Anyone hoping to compile a List of Incredible Oxymorons surely would have to begin with "free speech by permit only."

But JMU is nothing compared with Virginia Tech, which continues to flirt with totalitarian impulses. Witness the attempt earlier this year to shut down the student newspaper because of anonymous comments posted on its website. [That was a FIRE case.] That episode followed the drafting of a diversity policy for the college of arts and humanities that amounted to an ideological loyalty oath [Here it is.] [...]

[Virginia Tech] made it clear that professors hoping to enjoy a fruitful career would have to "do a better job of participating in and documenting their involvement in diversity initiatives"--an effort deemed "especially important for candidates seeking promotion to full professor." [Another FIRE case--and here's the memo from Provost Mark McNamee.] [...]

[...] [Virginia Tech] still maintains a reporting system for "incidents of prejudice," free-speech-zone rules, and forbids the use of school computers for "unwarranted annoyance."

Yet when it comes to Orwellian regulation of thoughtcrime, Tech remains a rank amateur next to George Mason University. GMU maintains a speech code that prohibits "any form of bigotry ... whether verbal, written, psychological, direct, or implied."

[...] [I]t is not hard to imagine what might qualify as implied psychological bigotry: just about anything. [...] A couple of years ago, the College Republicans at San Francisco State University were hauled up on charges and accused of "incivility" and "intimidation" because they held an anti-terrorism rally in which they invited people to walk on the flags of Hamas and Hezbollah, two terrorist organizations. [Another FIRE case.] If this is the threshhold for perceived bigotry, then just imagine how, say, a student cartoon mocking the proposed Cordoba mosque in Manhattan might go over.

[...] What's more: "The sale, distribution, or solicitation of any ... newspaper by GMU and non-GMU organizations and individuals is subject to prior authorization." Taken together, such policies give GMU officials a blank slate to control what members of the university community can say and hear on campus.

Hinkle concludes with just the right points:

All of the schools above are public universities, which makes their speech codes acts of state-sponsored censorship. UVa has taken the right step by relaxing its speech codes. It's time for the rest of Virginia's public colleges to do the same.

Hinkle's great piece was picked up by the Media General News Service and the Star Exponent (Culpeper, Va.)—and by Volokh Conspiracy bloggers Todd Zywicki and Ilya Somin. Somin writes:

[T]the code was instituted by the central administration, not the Law School. If it were up to the law school faculty, I have no doubt we would vote overwhelmingly to abolish the code. It is also unlikely that GMU's extremely vague and broad speech restrictions would survive judicial scrutiny.

That said, Hinkle is absolutely right to point out the egregious flaws in the GMU code and to urge George Mason and other schools to repeal their codes without waiting for a legal challenge to arise. It shouldn't take a lawsuit to force universities to uphold freedom of speech. And the case of UVA shows that repeal is not politically impossible, and won't draw a massive political backlash.

In response, noted legal scholar Hans Bader provides some important perspective in a comment:

GMU's speech code plainly violates a high-profile First Amendment case it lost back in 1993. See Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993) (striking down George Mason University's discipline of fraternity for racist, sexist skit on free-speech grounds, and rejecting argument that the restriction on speech was justified to prevent a "hostile and distracting learning environment["]). [Italics added.]

Let's hope that Somin is right and that George Mason University (as well as James Madison University and Virginia Tech) will reform its policies cooperatively. UVa and William & Mary did it that way—why not the others?