On the Intersection of Speech and Politics

This will be my last post guest blogging on Concurring Opinions; I am so grateful for the experience.

Almost everyone agrees that university campuses should be bastions of free speech. Fervent disagreement, however, exists just below the surface of that statement. Depending on how values are prioritized, individuals may differ on when speech becomes harassment, when speech becomes punishable conduct, and when speech is too controversial, extreme, or offensive to be permitted in the classroom. What are your first (and then your second, and third) thoughts when you hear about a UC Santa Barbara professor who emailed his students graphic photographs comparing Holocaust victims to Palestinians in Gaza? Or, what is your reaction to students in a Yale fraternity, as part of an initiation, chanting “No means yes, yes means anal” while marching around campus. Do your views change when you hear about Georgetown University denying official recognition to a pro-choice student organization because of its Catholic and Jesuit tradition?

Prior to joining Penn State Law as a Visiting Assistant Professor, I worked at the Foundation for Individual Rights in Education, an organization that spoke out against the three universities that sought to punish the UCSB professor and the Yale fraternity, and refused recognition to the H*yas for Choice. (The asterisk is because Georgetown will not permit the group to attach the term Hoyas to its name.) While at FIRE, I, a committed feminist, personally argued that the Yale fraternity’s chants did not constitute actionable harassment. Although Yale, like Georgetown, is a private university, both promise their students free speech rights.

I was constantly disheartened that FIRE was labeled as partisan, because it indicates how many people connect the speech they seek to protect to their own political beliefs and assume that others do the same.  When FIRE staffers write columns on The Huffington Post, the organization is accused of being liberal. In most other circumstances, FIRE is dismissed as a conservative mouthpiece, because much of the speech that is censored on campuses is viewed as more harmonious with conservative causes.

In fact, most of the other speech-protective organizations that we worked with when I was at FIRE have a distinct political bias. The American Civil Liberties Union, an organization that I greatly admire, claims that it does not have a political bias on speech issues, but merely has a different standard for when speech becomes harassment. This is a fair argument, but many feel that the the ACLU would be less likely to apply its lower bar for harassment to “liberal” speech.

Of course, much of the speech that universities censor has no political orientation. A theater professor was threatened with criminal charges for a poster on his door with a quote from the cult-favorite TV series Firefly, which depicted actor Nathan Fillion’s character and a line from an episode that read, “You don’t know me, son, so let me explain this to you once: If I ever kill you, you’ll be awake. You’ll be facing me. And you’ll be armed.” Then, the professor was censored again for replacing the poster with one that read “Warning: Fascism.”

I could spend hours discussing my favorite cases of university censorship; some are ridiculous, some are sad, some are reasonably debatable by even those very committed to free speech and academic freedom. Lines must be drawn. Should a law school professor be permitted to include the school’s dean in hypothetical scenarios on his exam? Is some speech so alienating to the learning process that it transcends politics and undermines the reasons that we protect free speech?

I believe that the solution is to allow for a wide swath of speech at universities, and promote a broad (and I believe correct) interpretation of robust First Amendment protections. It is too easy, once schools become intolerant of controversial positions, or become concerned about public outcry over divisive issues like Israel and Palestine, to silence too much speech.  This does not mean that I, or FIRE, is absolutist.  I would find totally acceptable the punishment of speech that truly becomes action, or harassment, or professors and universities exercising their own academic freedom rights – professors can require civil speech by students and enforce that with grades, for example.  I also believe in the school’s prerogative to speak out, without any threat of punishment, against speech it truly finds offensive.

It is almost irresistible to censor those with opinions one finds particularly odious or wrongheaded. That is why speech advocates are often wrongly accused of being partisan. The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus.


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1 Response

  1. Michael J.Z. Mannheimer says:

    Ah, it’s nice to see that campus speech codes are alive and well after so many years. Brings back fond memories: http://www.nytimes.com/1991/03/17/nyregion/campus-life-suny-binghamton-nude-photographs-prompt-debate-over-free-speech.html