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Why Speech Codes Endure

Protecting free speech on campus has become a Herculean task.

By Greg Lukianoff and Robert Shibley

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November 27, 2013

At Modesto Junior College on September 17, 2013, an ordinary thing happened on what, by all accounts, is an ordinary college campus. A student, Robert Van Tuinen, was told to stop handing out literature on campus in violation of campus rules.

The literature was the U.S. Constitution. The day was Constitution Day. 

Neither the policeman who stopped him nor the administrator who tried to explain the baroque rules for campus speech batted an eye as they told Van Tuinen, over and over, that he couldn’t pass out anything on campus without permission. And proper ID. And scheduling it five days in advance. And using the tiny “free speech zone.”

The only unusual thing that happened that day was that Van Tuinen video recorded the whole affair. And because he did, a month later, Modesto Junior College was in court, faced with defending a policy that the law makes completely indefensible.

Campus speech codes are losers, both in the court of law and the court of public opinion. They expose campuses to liability in free speech lawsuits and mockery in the media. No fewer than two dozen speech codes have been defeated in court or withdrawn after a lawsuit was filed since the dawn of the modern campus speech codes era in the late 1980s.

So why then do campus speech codes and selective censorship endure? It’s likely the result of a confluence of factors that have been at work for decades now: the dramatic expansion of the bureaucratic class at universities; a campus culture that encourages both a “right not to be offended” and the idea of “free speech for me but not for thee;” and legal and regulatory incentives that often make free speech the last concern of university lawyers.   

There is no longer much room for doubt that “groupthink” is a problem on American campuses—and nowhere may this problem be greater than in the ranks of campus administrators. 

We see it in action in many forms. One such form is the Modesto administration’s complete, almost studied ignorance of their students’ constitutional rights, coupled with the apparently unshakable faith that saying the words “time, place, and manner” repeatedly will bless their speech restrictions like a form of legal holy water.

We also see censors increasingly touting themselves as doing an honorable or even heroic thing by silencing others. The disturbing sentiments of many Brown University students after a mob of hecklers shouted down a speech by New York City Police Commissioner Ray Kelly is a great example. As the Brown Daily Herald reported “Jenny Li ’14, a leader of the protest ... said she and many other students felt emotionally ‘triggered’ by Kelly’s presence, adding that protestors considered their shutdown of the talk a ‘win.’” From a purely local, political standpoint, maybe it is. But from the standpoint of the university’s business of searching for the truth, it’s an unmitigated disaster.

This allergy to hearing anything new or unpleasant has a real effect on this generation of college students. The First Amendment Center’s most recent survey of attitudes towards free speech revealed that 47% of 18-30 year olds believe the First Amendment goes too far in protecting speech. 

One might have hoped that the generation of Family Guy, Twitter, and racy video games would understand how much it relies on free speech. But living the practice of “free speech for me but not for thee” has led students to burn and steal newspapers, tear down free speech walls, and even shut down risque plays—sometimes with the connivance of college administrators.

If you’ve come to believe that college “ain’t what it used to be,” you’re probably right. In part, this is because of the current legal landscape where universities live in constant fear of liability from sexual harassment lawsuits, lawsuits over campus safety, and complaints to the federal government about sexual, gender, and racial discrimination. Any one of these can cost a university tens or hundreds of thousands of dollars in legal fees and judgments, and untold more in damage to their reputations.

Further, the federal government in the form of the Department of Education’s Office for Civil Rights (OCR) has actively made things worse from a liability standpoint. Since OCR issued its April 4, 2011, “Dear Colleague” letter dealing with sexual harassment and assault procedures on campus, colleges have been paying thousands of dollars to outside groups for trainings  that promise to help administrators navigate the maze of burdensome federal regulations and legal pitfalls.

And in the spring of this year, OCR and the Department of Justice supercharged the problem when they collaborated in a settlement with the University of Montana to unconstitutionally redefine sexual harassment to include huge swaths of protected speech. Worse still, the agencies called the settlement a “blueprint” for how schools across the country would be treated.

In this environment, what’s a rational university to do? Sure, colleges nearly always lose the speech code fights they get into, but one gets the sense that silencing the College Libertarians with taxpayer money is not particularly detrimental to one’s career in the same way that enforcing an accurate, narrow definition of harassment could be. 

The ideologues and lawyers now frequently agree: free speech isn’t worth the risk. American colleges and universities are in a bad way when their officials find that restricting and even censoring speech is the easy path, while upholding Constitutional rights can lead to severe trouble.

In order for the attitude of those in charge on campuses to change it’s necessary to alter the cost-benefit analysis they perform. There are a number of ways to do this.

Perhaps the most obvious is that colleges need to have more fear of First Amendment lawsuits and the resulting embarrassment. This could be accomplished several ways: a larger number of lawsuits, larger attorneys’ fees and judgments in such lawsuits, the piercing of the “qualified immunity” that keeps administrators off the hook for their terrible decisions  greater awareness of the problem, and greater media attention to it.

Students and faculty members must also be willing to step up and take on their institutions in court. It’s hard to defend someone’s rights if they themselves will take no part in that defense. Faculty members (especially non-tenured) are often loath to take on powerful administrations who can make their working lives much harder, while students are easily intimidated by the legions of administrators who regulate every waking moment of their lives. 

FIRE’s experience has actually been that students and faculty who take on their universities do not face much, if anything, in the way of retaliation. In fact, they are often praised by their peers and the national media as freedom fighters.

Legislators also have an important role. One of the most meaningful reforms on campus would be federal or state laws requiring universities to adopt the standard for peer-on-peer harassment set forth by the Supreme Court in Davis v. Monroe County Board of Education. In that case the Court provided key insight into what harassment should mean in the student-on-student context: student behavior must be discriminatory, targeted, and “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” 

Unfortunately, not many colleges have adopted the Davis standard, instead prohibiting vast swaths of student expression that goes far beyond what Title IX requires under Davis. The fact is that in the opinion of campus ideologues, the Davis standard has a critical defect: it doesn’t readily allow for politically motivated censorship in the name of preventing harassment. But campus lawyers would largely welcome the clarity it provides.

Creating a culture on campus where free speech is protected by default rather than stifled by default is a Herculean task. But if those who care about the marketplace of ideas on campus are to have any chance at all at reclaiming our nation’s institutions of higher education, the first step must be to change the incentives so that, for the first time in decades, the censors will be forced to play defense.

 


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