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Watch What You Say: You May Be Violating the 'Speech Code'

Law professor and author Donald Alexander Downs argues in his book, Restoring Free Speech and Liberty on Campus, that well-intended speech codes actually hinder freedom.
University Business, Sep 2006

Restoring Free Speech and Liberty on Campus

Cambridge University Press (, 294 pp., $28.99

The title is available through<a href=''&gt; The Independent Institute.</a>

An estimated 700 U.S. colleges and universities have campus speech codes--rules about how students and faculty members can speak to one another. Campuses started adopting such codes in the early 1980s, explains Donald Alexander Downs, a professor of political science, law and journalism at the University of Wisconsin, Madison. Downs, who also is a Research Fellow with the Independent Institute, notes that the speech code movement followed the push in the 1970s and early 1980s for more diversity on campus.

Administrators saw the need to monitor communication as more students and faculty from different minority groups and walks of life started encountering each other. It may have seemed a good idea, but it was a bad move, says Downs in his book, Restoring Free Speech and Liberty on Campus.

Civility, while always a worthy goal, cannot be legislated. And while an offensive remark may be hurtful, it isn't always illegal.

In a Q&A with University Business, Downs explains the difference between rude comments and illegal harassment and talks about the work of FIRE, the Foundation for Individual Rights in Education, which is working to help students and faculty who may be unfairly punished under such speech codes.

Speech codes arose in the 1980s. The goals were two-fold honorable: There was the drive to expand the representation of different groups that had been discriminated against in the past in the student body, faculty, and the staff; and the intention to address concerns that individuals with those kinds of backgrounds would be especially sensitive to hostility on campus.

Offending speech, raciest speech, or sexist speech, are obstacles to these goals. There was a humanitarian impulse there, too. It is wrong to say racist things and overtly sexist things to people. But the larger policy goal was to help promote diversity by creating a more hospitable climate.

Another reason was based in the new theories of the harmful effects of speech. Speech was being defined not in a separate category from action, but as a form of action in its own right. Speech that could be seen as discriminatory in some way could be seen as discriminatory action or conduct.

It can be, depending upon how it is said. We have black, white, and gray areas. A clear situation would be if I, as a professor, say, 'All women in this class are not equal to men, therefore I am going to grade women lower than men.' Clearly this is speech definitely tied to conduct and no one has a problem restricting that or punishing that.

In the cases I am concerned about in the book, I note that basic expression is seen as discriminatory in itself and speech codes have been used to go after people. To me, this is punishing someone for expressing an idea.

Interestingly, if a faculty member expresses criticism of what Larry Summers said, then no one is going to criticize that as discriminatory. What this leads to is real viewpoint discrimination. It is fine if I agree with the so-called liberal view, but if I express an opinion contrary to it, then suddenly I am accused of discrimination. This can lead to a one-sided education.

You outline cases studies in the book, such as the student at the University of Pennsylvania who called a group of black women 'water buffalo'. The student was annoyed that these women were making noise outside of his dormitory. Granted the remark wasn't racist, which you note in the book, but it was insensitive.

Penn's speech code did not apply in this case. Even some defenders acknowledge this, including the president of the university. With the Penn code, there had to be an intent to vilify or harm by the remark. No one could show there was such intent here. The virtually unanimous conclusion-even by the supporters of the code at Penn-was that the code just didn't apply in this case. Even if it had, it is basically saying that a white person can never get angry at some minority students who are making noise at night because in the structures of racist society that is going to be a racist act. This student was told he was in serious trouble and that this remark could go on his record at Penn, which any employer could look at. He was told he had violated code for saying something racist. Anyone who has ever encountered that kind of process knows it is pretty oppressive.

I think the problem was that the judicial administrator felt committed to the students who complained. There was a lot of politics behind this.

They did.

I don't think you can say anything that is threatening to somebody. There is a clear line. Language that any person would interpret as intimidating in a meaningful way--that crosses a line.

You bring up other situations, such as the University of Wisconsin professor who said "Seig heil, comrades" to two graduate students whom he said had badgered him about his conservative views. This is clearly a poor choice of words. Also, the Penn student could have chosen his words more carefully.

The issue is one of civility. Civility is important. But it must be promoted through education and discussion, rather than through coercive means.

Coercion itself can often be mistaken. The book is mostly about speech codes, which are coercive mechanisms. It is like using a sledgehammer when you could use a chisel. Speech codes have the potential to be problematic in their application. This creates an injustice.

I would define harassment as a kind of privacy right that is being violated. Let's say someone is making sexual advances and the other person doesn't welcome them. Harassment basically means that you keep bothering someone, making advances to someone, pestering someone who has expressed a desire to be left alone. I think that is a classic, individual right. If a person expresses the desire to be left alone, you should honor that. Do you have a right to follow someone down the street everyday and say loud things to them? I don't think you do. That person has a right to privacy.

The problem is what we construe as harassment. Perhaps we are in a class that is talking about gay rights and a Christian student has a certain moral objection and says he is being harassed. I don't think you can call that harassment in the context of the classroom. But if that Christian student walks down the street constantly badgering a gay student, then you can say that is harassment.

You use the phrase 'moral bullying' to refer to these speech codes.

I think that water buffalo case addresses this. It is saying, 'Here is the way you shouldn't offend people. You should have enlightened views about various topics. If you don't have those we are going to tell you why you are wrong. If you say something in a certain context we are going to apply the law against you.'

This is what I mean about this bullying. This would apply to the case at Yale University where a man held up a sign mocking a gay pride parade. That is just classic political speech criticizing a public event. Yet, they charged him with harassment. That is the epitome of moral bullying.

You can say one way to address these problems is to teach civility, but some might argue that without the legal clout to follow through, civil behavior is just "nice" behavior. Some believe we need the law and reprisals in order to change behavior. But I say, not being able to persuade someone of your opinion is the price you pay for a free society. You just have to keep working at it. Because the downside is also significant. There is expectation that because we are fair, enlightened people, that codes would always be applied in a conscientious way. That is not the case in way too many cases. The least I can hope for is that people recognize the down side because the book is about the down side.

I acknowledge there are some tough questions. The book at least presents the case for why there is a downside in forcing codes in a way that is not careful. Can we trust administrators to apply speech codes in a careful way, especially when administrations have other agendas that they prize over academic freedom?

There is a chilling effect on the honest expression of intellectual diversity and academic freedom. So, if you say something within the realm of orthodoxy, that is OK, but if you go outside of that you will be in trouble.

Speech codes usually address language that they say is 'demeaning.' Let's look at something like gay rights, which I support. Given the political climate out there it is understood that you don't say things that are demeaning to gay and lesbian students in class. But what if someone disagrees with the claim about gay marriage rights? Is that demeaning? To some students it would be. But you can't legislate ideas. You are saying, "If you are going to talk about gay marriage, be extra, extra careful. Don't offend anyone." But that basically means you can't talk about it. There is only one side of the issue that will be encouraged.

Then education becomes very one-sided and very tame.

I think we are seeing conservatives fighting back and this is leading to a new set of problems. Traditionally, academic freedom came from the left against the right and from outside the university. What you have with speech codes is a new kind of politics. The reason is that the right tends to be more hostile or more questioning of some of the agendas that are supported by the groups that are behind speech codes.

Affirmative action, admissions, gay rights--conservatives tend to hold views that are more questioning, or more hostile, to those points of view. Speech codes deal with demeaning people, the policy ideas embedded in them are consistent with the liberal left. It is not surprising, because, depending on the campus, the faculty and administrators are much more liberal than they are conservative.

Given the politics, and the common policy connections with the ideas embedded in speech codes--left, liberal policies, it is not surprising that conservatives end up being affected by speech codes. But this is starting to change in ways that I find equally alarming.

There are students in Alabama who complained that teaching evolution in the classroom was a form of harassment because of their conservative, Christian viewpoint.

Look at the Ward Churchill case--the professor at the University of Colorado who wrote an essay about 9/11 calling the victims 'little Eichmanns.' He was asked to speak at University of Wisconsin, Whitewater, then the administration started to regret the invitation. Administrators were under tremendous public pressure, including pressure from the legislature. I felt that once you invite someone you can't dis-invite them unless you have an exceptional reason for doing so. That is a form of censorship.

I am defending the principal, not the person. Churchill, outside the context of the classroom, has the right to speak his mind on public issues. He has the obligation to speak with intellectual honesty. He has a right to speak out about what he thinks 9/11 was about. Would Wisconsin Whitewater have disinvited him had he been a right -winger? That question has been asked. You can disagree with him, but you can't fire him for it. Then you are saying that anyone who says something controversial can be fired. Then we are not going to say controversial things and we are going to be boring. You protect the oddballs to protect those really worth hearing. The grounds upon which you can fire someone like Chruchill are the grounds on which you empower authority figures. You cannot fire someone whose viewpoints are too controversial.

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