Fighting for Free Speech

January 9, 2005

If you have a child in college the most important book you both should read is available free of charge. The Foundation for Individual Rights in Education (FIRE) has just released on-line its FIRE’s Guide to Free Speech on Campus  (www.fireguides.org). This guide is a must-read for college students and their parents, for it arms them against the various attempts at thought-control and censorship that too many universities, those presumed bastions of free speech and open inquiry, have institutionalized in their unconstitutional speech codes.


When it comes to such codes, FIRE knows whereof it speaks. For several years FIRE has defended those students and faculty whom overzealous, ideological, or just plain ignorant college administrators have tried to deprive of fundamental Constitutional rights such as “freedom of speech, legal equality, due process, religious liberty and sanctity of conscience,” as FIRE’s Mission statement puts it. Time after time, FIRE has used public scrutiny and sometimes the courts to compel universities to restore to students and faculty the rights wrongfully denied them.


The Guide fulfills the other charge of FIRE’s mission, which is to work “nationally to inform the public about the fate of liberty of our campuses.” But the Guide is more than just a how-to manual. It contains as well an elegantly written, brief history and analysis of the idea of free speech and its central place in our liberal democracy, as well as outlining the legal rulings on free speech that bind public institutions.


This understanding of the legal, moral, philosophical, and historical place of free speech in our political culture is particularly important for students in higher education. Universities are vocal in their assertions that they are protected spaces nurturing of “free inquiry,” “academic freedom,” “diversity,” “dialogue,” and “tolerance,” and that they welcome all views, no matter how far from the mainstream. The prospective student is led to believe that, as the Guide puts it, “Regardless of your background,” college is “the one place where you could go and hear almost anything—the one place where speech truly was free, where ideas were tried and tested under the keen and critical eye of peers and scholars, where reason and values, not coercion, decided debate.”


But when the sometimes impressionable and naïve freshman actually arrives on campus, he or she finds a different reality. The student quickly learns that “America’s colleges and universities are all too often dedicated more to indoctrination and censorship than to freedom and individual self-government.” The loudly lauded ideals of “diversity” and “tolerance” in fact often camouflage a rigid orthodoxy that only the most confident and assertive of young adults are likely to challenge.


In true Orwellian fashion, “In order to ensure ‘diversity’ and ‘tolerance,’ [the university] will censor and silence those who are different or independent.” Given that most universities and their faculty are overwhelmingly liberal and secular, this means that conservative, observant Jewish, or Christian students are the most likely to discover that “diversity” doesn’t mean diversity of political viewpoint, and that “tolerance” doesn’t extend to people of Western faith (non-Western religions are another matter, as they benefit from the university’s idealization of the multicultural “other”). This enforcement of political orthodoxy on the part of public institutions extensively funded by taxpayer money is obviously a betrayal of “the standards that [universities] endorse publicly,” and so these administrators “have failed to be trustees and keepers of something precious in American life.”


The Guide arms students with the philosophical and legal arguments that undercut most attempts to suppress free speech on campus. Particularly helpful is the summary of Supreme Court decisions that have defined speech and indicated its legal limits, legal knowledge many universities arrogantly ignore when they construct their various codes.



For example, contrary to popular opinion, the First Amendment also protects religious speech: as the Court said in 1993, “a free-speech clause without religion would be Hamlet without the prince.” Thus universities cannot tell religious student groups (as several campuses have tried to) that they cannot restrict leadership positions to members of the religion. As the Guide puts it, “The First Amendment’s free exercise [of religion] clause, combined with First Amendment protections for free speech and free association—not to mention decency and common sense—clearly permit religious organizations to use their religious principle to select their leaders.”


Another important limit students need to understand is the “fighting words” exception to free speech, which is frequently invoked by speech code proponents. Yet despite some incoherence in the various courts’ interpretation of this limit, the Guide points out the definition of “fighting words” has been increasingly narrowed by the Supreme Court and other courts: “Presently, in order to be exempt from First Amendment protections, fighting words must be directed at an individual, and that person must be someone who realistically might actually fight” (a definition that rules out most college professors, by the way). Defined thus, the “fighting words” limit is exceedingly narrow, and since its definition in a 1949 decision, “the Supreme Court has not found a single case in which it deemed speech to be sufficiently an instance of fighting words that could be banned. The category of fighting words, thus, is alive far more in theory than in any actual practice.”


This narrow interpretation of “fighting words” means that students should challenge any campus speech code that justifies itself with this doctrine, as its application is unlikely to pass Constitutional muster. So too with other limits to free speech frequently cited as justifications of censorship, such as “incitement,” “obscenity,” “indecency,” or “emotional distress.” In each case, the courts have ruled that the benefit of the doubt goes to the right of free speech, and any limits based on these exceptions must pass strict legal tests.


Every page of the Guide is filled with such useful legal facts the knowledge of which will arm students against universities attempting to censor speech. For example, many universities invoke court decisions applicable to high schools, yet the Supreme Court has explicitly indicated that universities are very different from high schools in terms of their constituents and missions, that of the university being to provide a public space for the free exchange of ideas by voting-age adults. So too with other issues, such as the differences between public and private schools; the impact of state laws on private schools (the Leonard law in California, for example, gives students at private schools the same rights as those at public); the prohibition against the compulsion of adherence to “an official point of view on any particular political, philosophical, social, or other subject,” the so-called “right to conscience”; the conflict of harassment codes and “hate speech” restrictions with free speech rights, and many others. In each case, the Guide gives students the legal and philosophical information necessary for defending their rights.


In addition to invaluable discussions of First Amendment law and its applicability to college campuses, the Guide contains many specific scenarios and examples of unconstitutional overreach on the part of college administrators and ideologues.  Some of these might appear fantastical, but they all actually happened at U.S. colleges and universities. For example, if you think no university would shut down a student paper because a student leader charged it with sexual harassment for running a satirical cartoon that poked fun of her tight clothes, think again—-this actually happened at Tufts University, which threatened to shut down a conservative student paper because female students the paper satirized charged the paper with sexual harassment. FIRE got involved and convinced the university that the satire was protected speech and so any sanction of the paper would be unconstitutional. In case after case that FIRE has been involved in, attempts to suppress students’ free speech rights fail when the cases are publicized and the university is threatened with the public relations nightmare of litigation.



FIRE’s Guide has one simple but important message: students do not give up their free speech rights when they step onto a college campus, and they should never acquiesce in the attempts of faculty, administrators, or student organizations to compel them to forgo that right. But the burden is on the student to fight for his or her rights and demand that the university demonstrate that its restrictions do not violate Constitutional rights. To this end the Guide provides “Five Steps to Fighting Back,” and reminds student that there are allies outside the university, not the least of which is FIRE itself, willing and able to help in the fight against censorship on the part of those in the university who enjoy a privileged and protected space precisely so that the campus can welcome all ideas and opinions, no matter how unpopular.


As the Guide puts it, quoting John Milton, “If any institution on earth should be ‘the mansion house of liberty,’ trusting in ‘a free and open encounter’ of truth and error, it should be higher education in a free society.” It is a sad indictment of our intellectual corruption that higher education has taken the lead in attempting to make sure that “free and open encounters” occur only within strictly defined and ideologically biased parameters. But it is heartening to know that organizations like FIRE are actively fighting to make colleges and universities live up not just to their own ideals but also to the fundamental values of our republic.

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