Art and the Myth of the ‘Right Not to Be Offended’

By October 21, 2005

Check out the fascinating story (“Censoring Art or Protecting Workers?”) about censored artwork in Inside Higher Ed. Apparently the University of Michigan at Flint is demanding that a graphic drawing called Hermaphrodite be removed from the Lesbian, Gay, Bisexual, and Transgender Center because it is creating a “hostile environment” for workers.

Anyone who pays attention to the battle for free speech on campus knows that “hostile environment” is the most abused rationale for silencing expression on campus. As I wrote in a recent column about a legal decision that threatens to badly expand what constitutes “hostile environment”:

Claims of harassment are not an incidental or occasional threat to free speech on campus, they are the single biggest loophole to punish protected speech on campus and have been for decades now.

In the 1980s and ’90s, colleges and universities passed speech codes often defining “harassment” as merely speech that “offends,” “demeans” or “stigmatizes,” in a sneaky attempt to bypass the First Amendment. Despite multiple court decisions that have overturned these codes, the number of these overbroad “harassment” codes actually increased on campuses over the years. The problem became so bad that in 2003 the Office of Civil Rights of the Department of Education actually had to issue a letter of clarification explaining to universities that “harassment” does not mean merely being offended.

In spite of the civil rights office’s letter, ridiculous allegations of harassment continue. During the past year, students across the country have been found guilty of harassment for clearly protected speech. At Occidental College a student radio shock jock was found guilty of sexual harassment for mocking male and female student representatives—and practically everyone else—on air. At the University of Massachusetts, Amherst, students were threatened with criminal harassment charges for a drawing that mocked race-baiting on campus.

At the University of New Hampshire, a student was found guilty of harassment, kicked out of the dorms and sentenced to mandatory psychological counseling for posting a flier suggesting that co-eds could lose weight by taking the stairs. And at Rhode Island College, a professor was brought up on charges of “harassment” for refusing to punish students’ offensive yet constitutionally protected speech. [Emphasis added.]

Even more recently we’ve seen how a “hostile environment” rationale was used to punish the religious speech of William Paterson University student Jihad Daniel.

To be fair, the university probably has the legal right to remove the painting. It is not harassment, but unless the university has transformed the walls of the Lesbian, Gay, Bisexual, and Transgender Center into some kind of public forum (which seems unlikely), the university does have the right to control what art it hangs on its walls.

What is moral or appropriate, however, is not always the same thing as what is merely legal. By taking this action university is sending the message that it will bend to students’ mythical legal “right not be offended.” It’s a truly dangerous myth, but it’s one that won’t seem to die.

Schools: Rhode Island College William Paterson University University of New Hampshire University of Massachusetts – Amherst Occidental College