What you can’t say at Harvard Law School

September 24, 2008

Harvey Silverglate is a lawyer, newspaper columnist, blogger, civil liberties activist and author ("The Shadow University: The Betrayal of Liberty on America’s Campuses," written with Alan Charles Kors). I’ve known him for many years, and consider him as close to a free-speech absolutist – in the worthy tradition of former Supreme Court Justice Hugo Black – as anyone currently engaged in the never-ending battle against censorship. One doesn’t have to agree with every position Silverglate takes – I doubt he expects that. But it’s good for the culture and the country to have him out there, arguing, badgering, publicizing, provoking.

Unsurprisingly, his libertarian ire was aroused recently by the criticism that descended on The New Yorker for its parodistic cover of Michelle and Barack Obama, and he took the occasion to write a column for The Boston Phoenix on the death of parody on American college campuses, more particularly at Harvard Law School. It received "more of a response than any of my columns in recent memory," Silverglate says. "My e-mail in-box was jammed with messages."

Why did Silverglate use The New Yorker cover as a springboard to talk about college campuses? Because they have been the focus of much of his work for quite a while now – not only in his book about free speech in the university but also through his activities as chairman of the board of directors of the Foundation for Individual Rights in Education.

Many of us think of censorship issues as distant annoyances, no more than alien nuisances, arising when the Yahooville library bans "Catcher in the Rye" or Cretinburg’s school board tries to undermine the teaching of evolution (or, for that matter, when the FCC goes ballistic over Janet Jackson’s nipple). But several of the fiercest and most important free-speech controversies are in fact taking place much closer to home.

On many campuses, speech has been restricted to protect those viewed as weak, helpless or vulnerable (that is, women and minorities) against harassment and intimidation. Many otherwise liberal people see this impulse as more legitimate than the Yahooville librarian’s, but the result is the same. The heavy hand of the censor is around people’s throats.

Silverglate’s column described events at Harvard Law School, where a sexual harassment speech code was adopted after a student parody of a woman law professor sparked a huge outcry. The code prohibits speech that creates "an intimidating, demeaning, degrading, hostile or otherwise seriously offensive working or educational environment." In other words, parodists beware!

The worst kinds of hate speech are protected by our Constitution, but as Silverglate points out, private universities are free to make their own rules for which speech is acceptable on campus and which is not. So Harvard Law School has used its freedom to adopt a speech code abridging freedom of speech, and this has created a mind-boggling situation. In words that should haunt anyone who cares about the health of our society, Silverglate writes: "In Cambridge, one may not safely say in Harvard Yard what is constitutionally protected in Harvard Square."


Schools: Harvard University