FIRE announces its Speech Code of the Month for May 2009: Middlebury College in Vermont.
Middlebury’s ironically named policy on Freedom of Inquiry and Expression provides that
Student organizations bear full responsibility for arranging and financing any Department of Public Safety provisions that may be necessary in connection with controversial speakers.
The policy further states:
The Deans’ offices and [Center for Campus Activities and Leadership] also have the right to specify security measures to the organizations as seem appropriate. If the College, through the offices of the deans, CCAL or the president, judges that security arrangements are inadequate and that the sponsoring organization is either unwilling or unable to make proper arrangements, the event may be canceled by the dean or president.
So in spite of the fact that Middlebury’s College Handbook states that free speech "must be protected even when the views expressed are unpopular or controversial," the college handicaps controversial expression by charging student organizations a premium for inviting controversial speakers to campus.
The problem here is twofold. First, the policy gives the administration great disciretion to burden speech with which it disagrees. Secondly, it also allows fellow students to exercise a "heckler’s veto" over unpopular speech by threatening disruptive protests, thus requiring additional security and, accordingly, additional—and possibly prohibitive—costs.
This policy would be unconstitutional at a public university. In Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992), the Supreme Court struck down an ordinance in Forsyth County, Georgia, that permitted the local government to set varying fees for events based upon how much police protection the event would need. The Court wrote that in the case of the Forsyth County ordinance, "[t]he fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit." The Court further wrote that "[l]isteners’ reaction to speech is not a content-neutral basis for regulation…. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob." (Emphasis added.)
While Middlebury College is private, its materials (including the College Handbook) make numerous promises of free speech, such that students considering enrollment are likely to believe they would have the same rights at Middlebury as they would at any of Vermont’s public institutions. In addition to the provision about protecting controversial speech cited earlier, the College Handbook also states that "[s]tudents, student organizations, faculty, and staff at Middlebury College are free to examine and discuss all questions of interest to them and to express opinions publicly and privately," and that "[t]he common good depends upon the free search for truth and its free exposition."
Moreover, in his 2007 commencement speech to Middlebury’s graduating seniors, College President Ronald Liebowitz spoke explicitly about what he called the "value of discomfort" in a liberal arts education. Liebowitz said:
[D]iversity is intellectually and socially challenging; it forces you to engage issues more broadly than you might otherwise. It often creates unintended consequences; and it surely can make one uncomfortable. But some discomfort, amidst all that is comfortable about Middlebury, is the best preparation for a successful entry into our increasingly complex global world. (Emphasis added.)
In light of these promises, and of President Liebowitz’s statements about the importance of the discomfort that comes from hearing views that may differ from one’s own, it is hypocritical and reprehensible for the college to financially burden controversial speech on campus.
For this reason, Middlebury College is our May 2009 Speech Code of the Month. If you believe that your college or university should be a Speech Code of the Month, please e-mail firstname.lastname@example.org with a link to the policy and a brief description of why you think attention should be drawn to this code.
If you are a current college student or faculty member interested in these issues, consider joining FIRE’s Campus Freedom Network, a loosely knit coalition of college faculty members and students dedicated to advancing individual liberties on their campuses. And if you would like to help fight abuses at universities nationwide, add FIRE’s Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.