University speech codes and their impact on free expression

University Speech Codes

Curtailments on free speech are usually associated with the political right, but a recent trend toward the creation of speech codes on university campuses suggests that demands for such codes come from the political left. The idea for such codes is that certain types of speech has an intimidating effect and damages the educational mission of the university. Such codes may be general or may contain specific terms or types of speech that are to be prohibited, with sanctions for their use. Critics see this as just a form of censorship that does not belong in a university, where freedom of expression should be supported and promoted. Others insist that such code are needed to protect the most vulnerable from verbal intimidation, though it is not always possible to demonstrate any damage from speech alone. Also, such codes are embodiments of the so-called "heckler's veto," normally proscribed because it gives the one who does not like a certain speech the right to prevent it, in contradiction of the doctrine of freedom of speech, as embodied in the Constitution and other laws.

The trend to institute speech codes at universities extends back to the 1980s, and by 1992, at least 300 universities had such codes. One reason has been heightened cultural sensitivity on the part of school administrators, who "are often more willing to punish speech that may offend minority-status individuals even though such suppression is contrary to the principle of open debate -- and the First Amendment" (Tucker 11). Usually, such codes give power to minorities to object when they believe they have been insulted, and administrators are taking action as a result. The usual reason given is that some speech constitutes harassment.

Eli Lehrer notes that three-quarters of campuses today place significant restrictions on free speech:

Under the plain language of many campus speech codes, talking about differences between races and sexes can result in disciplinary action against a student. At public universities, that is a violation of the U.S. Constitution. At private universities there ought to be an outcry from students, professors, alumni, and trustees against these official restrictions on what students can and cannot say. (Lehrer 40) while the left is generally blamed for these codes, some on the left fight against them. The ACLU has taken the stand that speech codes are wrong, and the organization has fought successfully against such codes at many universities. Most such battles have been at public universities, where the fight is easier because those universities are government entities and so prevented from engaging in censorship. The fight is now moving to private universities, where the burden is greater. This is noted by some engaged in a lawsuit against Stanford University in California, which, because it is a private institution, "has greater legal latitude in setting standards of behavior than do public universities" (Hanson 14). The issue may be complicated when a private institution takes public money for some purpose.

Such codes have had consequences that have raised fears among civil libertarians, and supposedly protecting some from speech that offends hem can harm others in different ways, as Paul Gottfried notes:

At Yale University and the University of Michigan, faculty of my acquaintance take pains to express themselves in politically correct language. The failure to do so can be costly. It has led to the summary suspension of student-newspaper editors, such as Greg Pavlik at the University of Pennsylvania in 1992, and to removal of learned works from college bookstores, such as the Bell Curve, by Charles Murray and Richard Herrnstein. Politically incorrect utterances have driven some professors from their courses. (Gottfried and Delgado 24)

However, Roger Delgado counters that such codes make the campus and the workplace safer and more pleasant, and he cites numerous incidents of hate speech and other actions and suggests that they have a deleterious effect on students and teachers alike. Delgado further argues,

Rules against hate speech, homophobic remarks and misogyny serve both symbolic and institutional values... It has been argued that such prohibitions operate in derogation of the First Amendment's guarantee of freedom of speech, but that amendment already is subject to dozens of exceptions -- libel, defamation, words of conspiracy or threat, disrespectful words uttered to a judge or police officer, irrelevant or untrue words spoken in a judicial proceeding, copyright, plagiarism, official secrets, misleading advertising and many more. The social interest in deterring vicious racial or sexual vituperation certainly seems at least as great as that underlying these other forms of speech deemed unworthy of First Amendment protection. (Gottfried and Delgado 25)

Another defender of speech codes is Barbara Bowen, the president of the Professional Staff Congress, the faculty union of the City University of New York, who states, "I don't accept that the left has created a climate of intolerance by vigorously denouncing racist speech. Racism is something that should be denounced each and every time it's encountered" (Glenn 11). Some cases, though, suggest that the sensitivity of some may be too heightened for these odes to be reasonable. David Glenn cites one case from California's Orange Coast College in which a political science professor was suspended with pay after a heated discussion with four Muslim students in one of his classes:

The students claim that Hearlson is biased against Muslims, that he accused them personally of supporting terrorism and that he inspired a jingoistic rage among other students in the class. Hearlson denies these charges, saying that he merely intended to stimulate a discussion about whether there is a double standard at work among Middle Eastern governments that have denounced the World Trade Center attacks but praise Hamas suicide bombings in Israel. (Glenn 11)