‘Who’s Undermining Free Speech on Campus Now?’

Check out David Beito, KC Johnson and Ralph E. Luker’s important article “Who’s Undermining Free Speech on Campus Now?” at Inside Higher Ed. KC and David are well known to FIRE for their tireless defense of freedom of speech and basic rights at their respective institutions, Brooklyn College and the University of Alabama (and anyone looking at the sheer number of cases we have had at UA can see that David has had his hands full). They write:

The internal threat to free speech in academia is posed by speech codes. They take many forms and vary from one college to the next university. After the 1960s, when American colleges and universities ceased to operate in loco parentis, campus speech codes emerged on one campus after another as a means of securing a “safe space” for some students who were offended by certain kinds of speech. On one campus or another, speech that is discomforting, embarrassing, flirtatious, gender specific, inappropriate, inconsiderate, harassing, intimidating, offensive, ridiculing or threatens a loss of “self-esteem” is banned by speech codes.

Too often, they target student critics of academic bureaucracy. Taken literally, speech codes would ban healthy jeering at a visiting sports team. Wouldn’t want to intimidate those Aggies! More importantly, teachers have to be able to urge students to consider perspectives that they had not previously considered, without fear of being accused of being “offensive.” Ultimately, speech codes are problematic because they vest final authority in the subjectivity of the offended.

Whether it is “intentional or unintentional,” for example, Brown University bans all “verbal behavior” that may cause “feelings of impotence, anger, or disenfranchisement.” The nation’s Founders, who did not mind offending British authorities, would have been ill-educated by such constrictions on free speech.

The problem with speech codes is that speech that should be self-governed by good manners and humility is prescripted by inflexible legal codification. Fortunately, however, the Foundation for Individual Rights in Education has fought and won a series of legal battles that have curtailed the prevalence of speech codes in public higher education.

I deeply appreciate the authors’ giving greater attention to the scandal of speech codes in higher education. It’s important that the country know that the supposed citadels of open discussion and intellectual innovation are riddled with codes that fundamentally limit free speech.

FIRE is engaged in a campaign to rid higher education of these inexcusable and, often, absurd codes. I am sad to say, however, even if FIRE were to succeed in getting every single school in the country to abolish its speech codes I doubt our job would be done. Many of our most outrageous cases involve administrators’ taking facially acceptable rules and applying them in ridiculous and illiberal ways. In its proceedings against Steve Hinkle for posting a flier, Cal Poly claimed that it was only applying its rules against “disruption” (never mind the fact the primary administrator involved couldn’t actually define what “disruption” meant). In cases like UNC Chapel Hill’s treatment of a Christian Fraternity and a similar situation at Rutgers, the administrations relied on anti-discrimination language that was likely constitutional on its face, but was applied in a way that violated religious freedom and right to association. And at the University of New Hampshire (a case that I think readers should reexamine; they should ask the UNH administration if changes have been made in the wake of this remarkable incident of censorship), the school justified its unconstitutional punishment of student Tim Garneau with reference to disorderly conduct (for just posting a joking flier!), its affirmative action polices and, of course, harassment. As long as the will to censor exists on college campuses, intolerant students, faculty, and administrators will find a way to squelch those opinions they dislike. While the Speech Codes Litigation Project is essential to repairing the legal landscape on campus and is helping to change the culture to one that favors truly open discussion, FIRE’s work to educate the public about the vital importance of liberty and the diligent advocacy of invaluable allies like KC and David are perhaps the most important elements in creating fundamental change.