FIRE’s Open Letter to the University of Alabama Community

November 11, 2004

Dear Faculty Senate, Student Leaders, and Administrators of the University of Alabama:


The Foundation for Individual Rights in Education (FIRE) is deeply concerned that freedom of expression is once again under assault at the University of Alabama. Last September, in response to a controversial incident at a comedy event sponsored by University Programs, the UA Faculty Senate passed a resolution that threatens to severely restrict free expression on campus. The resolution seeks to eliminate speech that might be deemed “offensive” from any approved university program or activity through regulation of and contractual restrictions upon speakers who may potentially engage in such expression.


This policy should not be adopted by the University of Alabama administration. Not only does the policy, as written, constitute a vague and dangerously overbroad restriction on what may be said by speakers at UA, but the message of the policy—that controversial forms of expression should be out of bounds—is incompatible with the “marketplace of ideas” that universities depend upon to maintain their intellectual vitality. As an institution of higher learning, UA has a moral responsibility to its students, faculty members, and the Alabama taxpayers that support it to ensure that its marketplace of ideas thrives—even when some of the ideas expressed may be unpopular or “offensive.”


The Resolution Would Give UA Administrators the Power to Arbitrarily Censor Constitutionally-Protected Speech


The Faculty Senate’s resolution contains the following recommendation that:


University officials in charge of student programming develop clear policies restricting any behavior which demeans or reduces an individual based on group affiliation or personal characteristics, or which promotes hate or discrimination, in any approved University program or activity, and that these policies be incorporated into any contract entered into by the University regarding participation in formal University programs. [Emphasis added.]


Such a vaguely worded and subjective standard will be impossible to fairly enforce and would result in the arbitrary suppression of ideas. The United States Supreme Court has consistently held that empowering public officials to ban speech based on its content will naturally result in the silencing of dissenting viewpoints.


The state may not and should not attempt to be the sole arbiter of truth. The Supreme Court recognized this principle in its opinion in West Virginia Board of Education v. Barnette (1943), a case decided during the darkest days of World War II. Justice Robert H. Jackson, writing for the Court, declared, “Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” [Emphasis added.]


The Resolution’s Speech Restrictions Are Vague and Undefined


The Faculty Senate resolution is unconstitutionally vague and will chill expression at UA by leaving doubt over what expression will be allowed. This doubt will make university groups reluctant to address controversial issues. For instance, many people feel that opposition to gay marriage is tantamount to supporting hatred and discrimination towards gays and may seek to ban expressions of support for traditional marriage by claiming they are “discriminatory.” Other subjects like abortion or reparations for slavery generate equally strong feelings. In any discussion of these topics, one side is likely to be deeply offended by the viewpoints of the other side.


To enforce the policy recommended in the Faculty Senate resolution, UA administrators would have to determine either that one side’s arguments should be silenced because they would “demean” the other side or “promote hate or discrimination,” or take the easier route of forbidding any such debates to avoid the possibility that opinions expressed by both sides will be seen as violating the policy. There is every reason to believe that the UA administration, which has been no friend to free expression, would use this policy to censor discussions and debate regarding some of the most controversial and important cultural and political issues of our time.


The Resolution Elevates “Civility” Over Freedom and Chills Free Expression


The Faculty Senate resolution also asks the administration to chill speech by groups or individuals who have no formal relationship to the University:


[W]hile freedom of speech should be less restricted in activities that are not formally recognized or facilitated by the University, all members of the University community and guests should be encouraged to behave in a civil manner and to avoid any behavior which demeans or reduces an individual based on group affiliation or personal characteristics or which promotes hate or discrimination.


This provision elevates the value of a vague concept of “civility” over the value of the concrete freedoms guaranteed to every American by the Bill of Rights.


The Faculty Senate’s statement that freedom of speech should only be “less restricted” reveals the spirit of censorship that underlies the resolution. While recognizing that UA administrators cannot hope to limit speech in activities they do not control, the policy attempts to make sure that every UA student, faculty member, and guest is informed of what views are and are not tolerated at UA. Thus, this policy would make it the stated goal of the University to discourage controversial speech by individual students.


The cure for “bad” speech is not censorship, but more speech. If UA officials believe that speech is demeaning or hateful, they are free to raise their own voices, but they are not free to censor or repress the free exchange of ideas. Censorship is the traditional tool of those who fear that the ideas opposing their own are so powerful and attractive that, if given a fair hearing, they will become popular. When a university adopts censorship as its method of dealing with unpopular or unpleasant speech, it makes the assumption that if students are exposed to such ideas they will adopt them as their own. Censorship of speech that advocates bigotry, hatred, or intolerance profoundly insults the intelligence of students by assuming that upon hearing such ideas, students will flock to support them. A university with such a low opinion of its students—who are, after all, adults—cannot hope to offer them a true liberal arts education.


The University of Alabama Has a Dismal Free Speech Record


Finally, UA’s extremely poor record regarding free speech issues indicates that the Faculty Senate’s recommended policy would not be applied solely to speech that represents bigotry, hatred, or intolerance (however those terms are defined). In fact, UA’s record on free expression issues over the last few years has been one of the worst in the country. Most recently, the UA administration ordered the Alabama Scholars Association (ASA), a faculty group that is often critical of the administration, to pay a rate eight times higher than that paid by other faculty organizations for use of the university’s mail system. UA justified this by contending that the ASA was not a “recognized” faculty group—despite the fact the university had no method for recognizing a faculty group. Read about this situation here.


In 2003, UA attempted to ban all window displays—even American flags—from dorm windows. The ban was “indefinitely tabled” following pressure from FIRE and the ASA, as well as from UA students who defiantly hung American flags in their windows to protest the ban. UA also attacked free expression in 2002, when its Faculty Senate launched an investigation into the ASA after the organization wrote to interested citizens and to members of the Alabama Legislature to protest a mandatory diversity training program for faculty that the ASA saw as Orwellian “thought reform.” The Faculty Senate dropped that investigation after FIRE brought UA’s actions into the light of public scrutiny.


These incidents demonstrate that time and time again, those in power at UA have shown precious little regard for the rights of those with dissenting opinions. When instances of unconstitutional viewpoint-based censorship at UA have been exposed, the administration has chosen to censor all views on the topic rather than allow those with officially disfavored ideas to enjoy freedom of speech. Enacting the Faculty Senate’s policy recommendation in this case would only give the UA administration another weapon in its ongoing war against freedom of expression.


It is disappointing that the faculty of the University of Alabama—a group that depends on academic freedom and free inquiry to thrive—is asking the university to enact an unlawful speech code. Any administrative policy based on the resolution will threaten the civil rights of students, in particular, and potentially of all members of the university community, as well as those of their invited guests. We encourage the Faculty Senate and the UA administration to express its support of free speech and the First Amendment by rescinding this resolution and by making it clear that it will never again propose or adopt any policies that would endorse unconstitutional censorship.


The Foundation for Individual Rights in Education

Schools:  University of Alabama

Cases:  University of Alabama: Faculty Senate ‘Hate Speech’ Resolution