Free Speech Yet at Penn State?

by Adam Kissel

November 14, 2007

Today’s Daily Collegian, Penn State’s student newspaper, ran a story by Lauren McCormack on FIRE’s review and reaffirmation of Penn State’s “red light” speech code rating. Red light schools have at least one policy that both clearly and substantially restricts freedom of speech. The story, “PSU free speech comes under ‘fire,’” highlights FIRE’s concern with unconstitutional speech code language that remains even after Penn State settled a speech code lawsuit in 2006. The school’s “Statement on Intolerance” now states:

The expression of diverse views and opinions is encouraged in the University community. Further, the First Amendment of the United States’ Constitution assures the right of free expression. In a community which recognizes the rights of its members to hold divergent views and to express those views, sometimes ideas are expressed which are contrary to University values and objectives. Nevertheless, the University cannot impose disciplinary sanctions upon such expression when it is otherwise in compliance with University regulations.

No complaint there, presuming that the Penn State regulations are themselves constitutional. When McCormack interviewed Clay Calvert, co-director of the Pennsylvania Center for the First Amendment at Penn State, he said, “I think Penn State policies ... do not raise any issues or problems.” But I think Calvert may not have been aware of the document “The Penn State Principles,” which presumes to know “the values that our students, faculty, staff, administration, and alumni possess” and expects that all members of the Penn State community are “endorsing these common principles.” Among those principles is that “I will respect the dignity of all individuals within the Penn State community [and hopefully elsewhere],” guided by this language:

I will not engage in any behaviors that compromise or demean the dignity of individuals or groups, including … taunting, ridiculing, insulting, … [Emphasis added.]

Ridicule and insults, even taunts, are protected speech, even when they are demeaning; sometimes, as in political satire, such language is the lifeblood of a free society. But when I spoke with Calvert this morning, he verified that he had addressed the question as put forth by the reporter. He said he did not have time to discuss the language above, but I do hope he will think about it and weigh in as time permits. With his help, Penn State may one day become the bastion of free speech it advertises itself to be.

I should note that in 2005, Calvert and Robert Richards interviewed FIRE’s Greg Lukianoff and then-president David French for an article published in The Georgetown Journal of Law and Public Policy. They discussed speech codes, among other things. Since the article is long, here are some excerpts (notes omitted). Calvert and Richards clearly understand the issues, which is why I really think that Calvert just hasn’t had a chance to fully consider The Penn State Principles.

The researchers at FIRE estimate that 90 percent of colleges and universities in this country have some form of a speech code. That’s a rather staggering figure given the federal courts’ proclivity to strike down such policies just over a decade ago. At the core, these speech codes may well be motivated as “an effort at eradicating discrimination, but they end up destroying the marketplace of ideas in higher education.” […]

Despite their speech-restrictive and legally problematic nature, speech codes appear to remain in favored status among college and university administrators and governing boards. While these leaders may view the policies as a way to stabilize their campus environs, they now face a battle by organizations like FIRE that have chosen to respond to what USA Today called—in a March 2004 editorial—“that bit of political correctness run amok.” […]

David French, Greg Lukianoff and FIRE are fighting far more than just legal battles challenging specific policies affecting the speech rights of students at both public and private universities. As their comments make clear, they are combating a much larger cultural problem. In particular, they are challenging an education culture, as French aptly put it, “that says, from day one, that the worst thing that ever can happen to you is to have your feelings hurt.” It is, he added, “a culture with speech informants on campuses.” For French this development represents a “frightening culture.”

Changing such a culture will not be an easy task, given that students, at an early age, often learn that civility trumps civil liberties—at least in a school setting. Even more insidious, the notion that it is somehow righteous to restrict First Amendment rights, if it spares a particular individual or group from hurtful discourse, is ratified by administrators when those same students reach adulthood at colleges and universities.

FIRE’s French and Lukianoff decry the willingness of college and university officials to close off speech when it threatens to disenfranchise another person, opting instead for the more systematic approach outlined by the Office of Civil Rights of the U.S. Department of Education. As French noted, “The question is: Is someone being denied the ability to get an education? Is the speech so severe and pervasive that someone literally cannot receive an education?” That is the standard outlined by the federal government, but it is too often ignored by administrators who believe that their mission is to create a conflict-free environment for all students. […]

In short, the stakes are high, which helps to explain why FIRE stands ready to take on the cause of free speech en the nation’s campuses. As this Article makes clear, there is no shortage of work for the organization.