To: Free Speech Advocates, University of Wisconsin/Madison
Date: January 26, 1999
Re: Speech Codes and College/University Campuses: Are codes required? Are they allowed? Is “hostile environment” law an invitation to censorship? Does the University face adverse economic consequences for failing to curtail “hostile environment” speech? Does it face adverse consequences for failing to protect First and Fourteenth Amendment rights?
Having been asked by several faculty and students at the University of Wisconsin/Madison for my legal views on whether a university such as Wisconsin risks losing its federal funding if it does not have a speech code (whether of the “hostile environment” sort or any other sort), I have put my thoughts into this first interim memo, which I am taking the liberty of distributing. It is my understanding that this issue will be discussed/debated at the Faculty Senate meeting on Monday, February 1, 1999, and I might have more to say on the subject both before, and after, February 1st. I hope this proved helpful.
In fact, a college that fails or refuses to enact codes that restrict pure speech has virtually no chance of losing its federal funds as a result, because while institutions must have in place policies and procedures that deal with harassment, the case law of the highest court in the land makes it abundantly clear that pure speech, in the absence of some factor that renders the speech constitutionally unprotected (such as threats of physical injury or extortion), may not be curtailed in the name of eliminating harassment or for any other purpose. There are exceptions to the protection of speech, but the speech’s being “offensive” or contributing to a “hostile educational environment” does not fall within the exceptions.
On the other hand, a college that enacts policies and procedures that restrict constitutionally protected rights such as free speech risks being at the losing end of an endless string of lawsuits. Hence, if a college were to decide whether or not to curtail offensive speech strictly on the basis of an economic calculus, it is clearly advantageous to obey rather than flout the Constitution. Of course, a liberal arts university has an obligation to protect academic freedom that goes well beyond legal requirements, for the world of higher education has its own set of ancient principles.
In recent years, there has been much confusion and little clarity cast upon the legal concepts and requirements that govern this area. As the discussion of speech codes has moved away from free speech issues and toward a microscopic analysis of employment law, the major and controlling legal principles have been subordinated in the debate. However, because there is no statute nor regulation known that can trump a constitutional requirement, it is essential that the debate be brought back to first principles. The First Amendment to the United States Constitution is the first among all relevant principles.4 A fine analysis of employment law is entirely beside the point and utterly irrelevant to the question of whether a state university may restrict speech in the name of whatever value is sought to be protected, whether it be some species of “equality,” “equal opportunity,” “civility,” or “civil rights.” While these values are worthy and important, they must be achieved through other lawful and constitutional means.
Proponents of speech codes5 have generally sought to justify the adoption of such campus legislation under two rubrics — either banning “offensive speech” or curtailing speech likely to produce a “hostile educational environment.” Codes that ban “offensive” speech are claimed by their supporters to be constitutionally acceptable on the basis of a 1942 Supreme Court opinion, Chaplinsky v. New Hampshire,6 which carved out an exception to the general rule of First Amendment protection for so-called “fighting words.” Proponents of codes that prohibited the utterance of words that would likely create a “hostile educational environment” for members of a “historically disadvantaged group” claim they are justified on the basis of a body of federal legislation and attendant regulations that have been applied to the workplace setting by employment law (so-called “Title VII” law) and which are the subject currently of a major effort by speech code proponents to transfer wholesale to the educational environment that is controlled by a different body of federal law (“Title IX”) but which, more importantly, is controlled by the First Amendment’s protections of free speech and academic freedom.
These two types of speech codes, and their respective attempted legal justifications, are best treated separately, and I shall do so in this memorandum. As shall be seen, the “offensive” speech codes are unconstitutional on the basis of a very straightforward and traditional constitutional analysis. In every single case of which I’m aware, where such a code has been attacked frontally, the code has been declared unconstitutional.
The “hostile environment” speech codes, on the other hand, are unconstitutional on the basis of an analysis which begins with the observation that this approach, while a clever oblique rather than direct attack on the First Amendment, is at bottom no more effective than the more direct approach employed by “offensive” speech codes. In recent years there have been other oblique attacks on the First Amendment (discussed below), and all of them have failed on the basis of very lop-sided — and frequently unanimous — majorities of the United States Supreme Court’s sitting members. The Supreme Court has left no doubt whatsoever that the First Amendment will trump all efforts, both direct and oblique, to water it down in the name of other social and legal values. Title VII workplace law and Title IX education law cannot be interpreted so as to allow, much less require an institution of higher learning to curtail speech anywhere on campus, especially in the classroom which is the cauldron of the educational process. Such laws may be applied to genuine harassment, but not to speech cleverly classified as acts of harassment. If these statutes and regulations were in fact interpreted to apply to pure speech, they would thereby be rendered unconstitutional. Of this there can be little doubt, as the analysis below will demonstrate.
Codes Banning “Offensive Speech” Under the “Fighting Words” Doctrine
Typically, proponents of codes that ban “offensive” speech claim that such codes, while not required on campuses, are nonetheless constitutionally permissible. They argue that because the Supreme Court has ruled that “fighting words” may be outlawed by government even in the face of the First Amendment, then, by analogy, it violates neither the First Amendment nor academic freedom to ban fighting words or offensive speech on campuses of higher education.7
This attempted justification for speech codes is based upon the United States Supreme Court’s 1942 decision in the case of Chaplinsky v. New Hampshire.8 There, the Court added “fighting words” to the small category of language that did not enjoy First Amendment protection:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. (Chaplinsky v. New Hampshire, 315 U.S. at 571-2).
Reams of legal and pseudo-legal articles and memoranda have been written in support of the proposition that the “fighting words” exception to the First Amendment gives colleges and universities the power (although not the obligation) to ban offensive speech. However, most serious legal authorities recognize that the “fighting words” doctrine has been effectively abandoned by the Supreme Court and that offensive speech enjoys virtually full constitutional protection.9 Even those who believe that the doctrine retains some viability agree that it applies so narrowly — only to speech likely to produce an immediate violent reaction — so as to be a valid basis for virtually no campus speech code that has yet been written.10 In any event, anyone doubting that a typical “offensive language” speech code would be considered unconstitutional on the Madison campus need simply read the 1991 decision of the United States District Court when it declared unconstitutional the University of Wisconsin’s student speech code.11
In the case of The UWM Post, Inc. v. Board of Regents of the University of Wisconsin System (hereafter referred to as UWM Post), the University, led by a number of its law faculty members who had drafted and vetted the code and assured the Board of Regents of its constitutionality, argued that the code fell within the category of “fighting words” (UWM Post). The court discussed the manner in which this doctrine had been narrowed over the years and concluded that the code failed the constitutional test because “the elements of the UW Rule do not require that the regulated speech, by its very utterance, tend to incite violent reaction” (UWM Post). The court made clear that speech that merely “may demean an individual’s characteristics without tending to incite that individual or others to an immediate breach of the peace” is fully constitutionally protected in light of the evisceration of this aspect of the “fighting words” doctrine over the years.
Judge Warren went even further, concluding that because the very heart of the Wisconsin student speech code was to eliminate “comments, epithets or other expressive behavior [that] demeans their addressees’ race, sex, religion, etc.,” while not regulating such expression “which affirms or does not address an individual’s race, sex, religion, etc.,” the code failed the test of content-neutrality, which requires that even when the government has a constitutionally valid basis for restricting speech (which Wisconsin did not have), it may not do so on the basis of the content or nature of the speech or the ideas embodied in the speech.. UWM Post at 23-4. Correctly, Judge Warren cited a binding precedent opinion of the United States Court of Appeals for the Seventh Circuit (which covers Indiana, Wisconsin, and several other states), which places a very heavy — indeed, virtually insurmountable — burden of presumed unconstitutionality on any scheme that restricts speech on the basis of its content. See American Booksellers Association., Inc. v. Hudnut.12
In American Booksellers Association, the Court declared unconstitutional a legislative scheme designed to get around the First Amendment’s protection of speech offensive or even arguably harmful to women. The ordinance designated pornography a civil rights violation that any offended and damaged women might redress by the filing of a civil action. The Court concluded that no amount of obfuscation could hide the fact that it was a legislative scheme aimed, albeit obliquely under the guise of “civil rights,” to ban speech promulgating a certain offensive point of view. The Court went further and held that even if the offensive language did result in damage to women’s sensibilities and worse, no content-based speech code of this sort could survive constitutional scrutiny, for there could be no approved governmental point of view on social and political questions such as gender. I shall return later in this memorandum to this important case when I discuss the failure of oblique efforts to get around the First Amendment by changing the way one describes the restrictive legislation — that is, in American Booksellers Association, calling the legislation “civil rights protection” rather than “censorship.”13 For now, suffice it to say that the Seventh Circuit’s view was affirmed by the Supreme Court.14
Judge Warren rejected as well every other argument made by the Board of Regents, including (1) that the speech banned by the code “has little or no social value since it does not serve as a ‘step’ to the truth”; (2) the speech “is not intended to inform or convince the listener”; (3) it “does not provide an opportunity for reply”; (4) the speech constitutes a kind of “verbal assault”; (5) the speech “is likely to incite reaction”; (6) the speech is not likely to form any part of a dialogue or exchange of views. The judge noted that each of these arguments had been rejected in one or another binding Supreme Court precedent.
With respect to the argument that epithets and other such speech banned by the code had a “tendency to incite reaction,” the judge noted that in order for speech to be banned, “its very utterance tends to incite an immediate beach of the peace.” It was clear to the judge that even ugly words uttered on a college campus were not the stuff out of which immediate retaliatory violence likely would emerge. UWM Post at 24-6.
No binding precedent has emerged since the 1991 UWM decision that would resuscitate the constitutionality of an “offensive speech” code on the basis of the “fighting words” doctrine. To the contrary, several Supreme Court cases have been decided that bolster, rather than weaken, the First Amendment’s applicability to such speech.15 These developments have made infinitely more accurate the observation of Harvard Law Professor Laurence H. Tribe in the 1988 edition of his seminal treatise American Constitutional Law:
[I]f the Constitution forces government to allow people to march, speak and write in favor of peace, brotherhood, and justice, then it must also require government to allow them to advocate hatred, racism, and even genocide.16
The cases bolster as well the 1990 observation of New York Law School professor and American Civil Liberties Union president Nadine Strossen, that the “fighting words” doctrine, as a practical matter, simply is no longer the law.17 It is invoked in theory, but, in the modern age, not in practice. Words far more violence-provoking than what Mr. Chaplinsky said have been accorded full constitutional protection in recent decades.
Indeed, the irrelevance of the moribund “fighting words” exception to the First Amendment is made most clear by looking at the precise words that the 1942 case actually involved, an exercise that is rarely engaged in by the case’s supporters. It was for this reason that Prof. Kors and I undertook in The Shadow University: to remind the reader of the precise words that were banned in that infamous case, and of the circumstances in which they had been uttered:
The Supreme Court unanimously upheld the criminal conviction of Walter Chaplinsky, who, proselytizing on the street in Rochester, New Hampshire, denounced organized religion as a “racket.” When Chaplinsky would not moderate his attacks, and when the crowd got angry and restive, a police officer took Chaplinsky toward the police station (but did not yet arrest him). During this trip, Chaplinsky accused the city marshal of being “a goddamned racketeer” and “a damned Fascist,” and when on to charge that “the whole government of Rochester are Fascists or agents of Fascists.” For this, Chaplinsky was arrested and charged under a statute prohibiting anyone from addressing “any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call[ing] him by any offensive and derisive name.”18
The notion that the state should be allowed to prosecute a citizen for calling government officials “fascists”, even in time of war (Chaplinsky, it should be recalled, was decided in the patriotic atmosphere that prevailed during the middle of World War II), would likely attract little support among the faculties at most American universities today. Indeed, had Chaplinsky been valid law during the Vietnam War, many of today’s senior faculty members likely would have felony convictions on their records.
As is made clear in Chapter 2 of The Shadow University, the evolution of First Amendment jurisprudence at the Supreme Court level in recent decades has extended near-absolute constitutional protection to speech far more likely to provoke violence that Mr. Chaplinsky’s epithet “fascist.” The First Amendment has been held to protect, for example: (1) antisemitic ranting that “induces a condition of unrest” and “even stirs people to anger” (Terminiello v. Chicago,19 1949); (2) flag-desecration accompanied by the words “we don’t need no damned flag” (Street v. New York,20 1969); (3) the words “Fuck the Draft” printed on the back of a young man’s jacket, worn in a courthouse during the Vietnam War (Cohen v. California,21 1971); (4) the words “White son of a bitch, I’ll kill you,” uttered by a young man to a police officer at an antiwar protest at an army induction center (Gooding v. Wilson,22 1972); (5) the phrase “Motherfucker Acquitted” in a headline in a student newspaper, written by a graduate journalism student who was ordered reinstated in the University (Papish v. Board of Curators of the University of Missouri,23 1973); (6) and a cross-burning by white youngsters on the property of a black family, in violation of a city ordinance making it a crime to place “on public or private property a symbol…which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” (R.A.V. v. City of St. Paul,24 1992). In this last case, which has an obvious negative impact on the validity of virtually any college speech code imaginable, every member of the Supreme Court agreed that the ordinance was unconstitutional, and a five justice majority singled out, as the controlling ground, that government has no power to use the criminal law in order to aid one side of a hot-button social or political issue. Hence,
One could [under St. Paul’s ordinance] hold up a sign saying, for example, that all “anti-Catholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke violence “on the basis of religion.” St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury rules.” (R.A.V. v. City of St. Paul).
As Prof. Kors and I wrote in The Shadow University, to make the point that R.A.V. drove the final nail into the coffin for speech codes:
This opinion was a straightforward application of the principle of neutrality, which prevented St. Paul from forbidding communication — in this case, “fighting words” symbolized by the burning cross or swastika — by adherents of an officially disfavored viewpoint, without similarly limiting the good guys. In R.A.V., the Court found a mechanism for discouraging authoritarian excess by groups that are temporarily in control and can dictate what is “correct.” (The Shadow University)
As we concluded, in the view of the First Amendment, the chief justification for speech codes — that they are reasonable and even necessary because aimed at protecting “historically disadvantaged” groups — is not a constitutionally adequate justification for curtailing speech in a free society. “The only ‘disadvantaged’ person, in the eyes of that First Amendment upon which everyone’s liberty depends,” Prof. Kors and I concluded, “is one reduced to silence.” (The Shadow University, 49)
One final point needs to be made. Prof. Kors and I feel confident that if the double standard by which these codes are enacted and enforced were abolished, the codes themselves probably would be abolished rather quickly. This is to say that if everyone on campus, equally, had his or her speech rights curtailed, the codes would not last. One need simply think, for example, about what would happen to a speech code if it allowed the prosecution of, say, a feminist for making a harsh personal remark to an orthodox Catholic relating to the Catholic’s opposition to abortion (“get your rosaries off my ovaries,” for example). When the shoe is on the other foot, the importance of equal speech rights for all becomes more apparent.
The “Hostile Environment” Justification for Speech Codes
It is not difficult to see why no speech code readily imaginable, which is aimed at accomplishing the purported task of officially outlawing speech that is offensive on the basis of such characteristics as gender, sexual orientation, race or ethnicity, can survive First Amendment scrutiny. It is for this reason that the “offensive speech/fighting words” justification for such codes — because such codes are a clear and direct assault on the First Amendment — has fallen into disuse. Censorship, however, has not thereby disappeared. Instead, it has reappeared under a new and more clever rubric — the promotion of minority civil rights by means of the prevention of a “hostile educational environment” from developing on college campuses.
“Hostile environment” codes have become ubiquitous on American college campuses. However, as shall be show below, the real question is not whether campuses may outlaw actions that could cause a “hostile educational environment,” but rather whether words may be banned under this rubric. I am not suggesting that the University repeal its harassment code, but, rather, that it repeal only that portion of the harassment code which seeks to ban pure speech. The “hostile environment” branch of sexual harassment civil rights law does not support the creation of speech codes. “Freedom of speech” and “equality before the law” mean that all students are entitled to precisely the same rights of expression and are entitled to be treated equally by governmental authorities, including public colleges and universities. These concepts do not mean that in order to assure the “equality” of members of historically disadvantaged groups on a college campus, speech rights of some students have to be curtailed in order to provide additional comfort to other students — comfort that would not be available outside the campus gates and will not be available after graduation into the real world.
Herein lies the heart of the matter. “Hostile environment” codes that cover pure speech as well as non-verbal activities seek to limit otherwise protected speech under the rubric of protecting the civil rights of disadvantaged minorities. They claim not to censor, but rather to promote equality and civil rights. In this respect, the “hostile environment” approach to restriction of speech on campuses is simply the most recent oblique assault on the First Amendment. It will fail for precisely the same reasons every other such oblique attack has failed recently — I call this the “rose by any other name” principle.
The “rose by any other name” attacks on the First Amendment
In recent decades, opponents of free speech have sought to create exceptions to the First Amendment in order to promote their political causes and social agendas. However, the modern Supreme Court, including its conservative as well as its liberal justices, has moved toward an ever more absolute view of the primacy of free speech, has eviscerated earlier exceptions to the First Amendment, and further has created a near-absolute barrier to censorship by solidifying the doctrine of content neutrality. In an attempt to get around this seemingly impregnable protection against censorship,25 clever drafters and litigators have devised a number of schemes to accomplish their ends. None of these schemes have come even close to succeeding. However, an examination of how they were devised, and why they failed, will provide, I believe, a devastatingly clear insight into why the current push to apply workplace “harassment” law to campus speech, whether uttered by students or faculty, are doomed to failure the moment this issue reaches the Supreme Court.
The Larry Flynt/Jerry Falwell battle
In the early 1980s, well-known minister, commentator, and socially conservative icon Jerry Falwell sued his polar opposite (also an icon, but among a very different social set) Larry Flynt and Flynt’s Hustler Magazine, charging invasion of privacy, libel, and intentional infliction of emotional distress. This arose from, as the Supreme Court delicately described it in its unanimous 1988 judgment in Hustler Magazine v. Falwell,26 a “parody” published in the November 1983 issue in the form of a mock interview in which the good reverend disclosed “that his ‘first time’ was during a drunken incestuous rendezvous with his mother in an outhouse.” “The Hustler parody,” stated the Court, “portrays [Falwell] and his mother as drunk and immoral, and suggests that [Falwell] is a hypocrite who preaches only when he is drunk” (Hustler Magazine v. Falwell). The trial judge had thrown out the privacy claim but submitted the libel and intentional infliction claims to the jury, which found in Flynt’s favor on libel but in favor of Falwell on intentional infliction. Flynt sought and obtained Supreme Court review.
The reason the high court granted review in the case, notwithstanding the widespread disrepute in which Flynt is held by large segments of the population and, surely, the judiciary, became obvious in the court’s opinion. It was quite evident that under traditional First Amendment law in the privacy and libel areas, Falwell’s suit could not succeed. Parody is almost absolutely protected. Public figures are not entitled to the same privacy rights as private citizens, and the hurdle they have to overcome in proving libel is extraordinarily high. But Falwell had formulated his third claim — intentional infliction of emotional distress — in the guise of a traditional “tort” suit, claiming personal injury as a result of Flynt’s reckless and hurtful conduct. Put another way, Falwell transformed a garden variety libel case into a claim for intentional infliction of emotional distress, in a situation where Flynt quite obviously intended to cause his target distress. (This is, after all, the very object and purpose of satire.) Falwell added to the mix his own claimed personal humiliation, and asked a conservative southern jury to punish the much-reviled pornographer. This back-door approach — reworking a libel suit as a traditional tort suit — threatened, if it worked, to completely evade all of the First Amendment protections that the Supreme Court had erected over the years to protect journalists, authors, and publishers from ruinous libel suits for speech found offensive by its targets.
Reading Chief Justice Rehnquist’s opinion for the Court explains how it is that the likes of Larry Flynt won every Justice’s vote (except for Justice Kennedy, who excused himself from the case):
The freedom to speak one’s mind is not only an aspect of individual liberty — and thus a good unto itself — but also is essential to the common quest for truth and the vitality of society as a whole…. The First Amendment recognized no such thing as a “false” idea. As Justice Holmes wrote, “when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas….
[Falwell] argued, however, that a different standard should apply in this case [than in a traditional libel case] because here the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication. …In [Falwell’s] view…, so long as the utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress, it is of no constitutional import whether the statement was a fact or an opinion or whether it was true or false. It is the intent to cause injury that is the gravamen of the tort, and the State’s interest in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this type. ( Magazine v. Falwell, 485 U.S. at 50-1).
The Court went on to discuss the nature of Flynt’s parody, and the reasons why Falwell could not succeed under an “emotional distress” theory where he could not succeed as a straight libel claim:
In Garrison v. Louisiana, 379 U.S. 64 (1964), we held that even when a speaker or writer is motivated by hatred or ill-will, his expression was protected by the First Amendment….
Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject….. The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events — an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided….(Hustler Magazine v. Falwell)
The Court went on to rule that Falwell’s case had to be analyzed not as a tort case focusing on the outrageousness of the writer’s conduct and on the egregiousness of the target’s psychic injury, but rather had to be viewed under traditional First Amendment standards applicable to libel suits. Since the jury had found that the parody was obviously not meant to depict literal truth, there was no libel here, and hence Falwell’s suit had to fail.
This ruling has momentous implications for any attempt to punish offensive campus speech under a rubric other than the traditional First Amendment analysis for offensive speech — for example, the attempt to punish speech for creating a “hostile educational environment” that might, to quote the Court in Hustler Magazine, “exploit…physical traits…to injure the feelings of the subject of the portrayal” (Ibid). An attack on free speech is a rose that, by any other name, smells just the same. As the Court concluded in Hustler Magazine:
As we stated in FCC v. Pacifica Foundation, 438 U.S. 726 (1978):
The fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. (Hustler Magazine v. Falwell)
The “pornography as civil rights violation” battle27
In 1985, Judge Frank Easterbook of the U.S. Court of Appeals for the Seventh Circuit, which covers Indiana, Wisconsin and several other states, wrote the court’s opinion in American Booksellers Association Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985). The city of Indianapolis had enacted and enforced an anti-pornography ordinance that claimed to protect women from “subordination.” Judge Easterbrook saw through the ordinance’s veneer of a “civil rights” law and described it more accurately as an effort to coerce a change in attitudes. Noting that supporters of the ordinance “say that it will play an important rode in reducing the tendency of men to view women as sexual objects,” he concluded that it faced an insurmountable constitutional obstacle: It not only sought to alter attitudes, but it did so in a manner that discriminated by viewpoint, that is, favoring only “speech treating women in the approved way — in sexual encounters ‘premised on equality.'” The First Amendment, he ruled, prohibits the state both from establishing a “preferred viewpoint” for or about a group, and from taking steps to change private attitudes to suit that ideological preference.
In language that seems directly to address the drafters of campus codes, the court concluded that a free society lets individuals freely choose, for themselves, those things that affect “how people see the world, their fellows, and social relations.” Responding to the city’s argument that pornography poisoned the atmosphere for women, the judge rejected any “answer [that] leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us.” The First Amendment, Judge Easterbrook and his colleagues ruled, permitted neither “thought control” nor an officially “approved view of women, of how they may react to sexual encounters [and] of how the sexes may relate to each other.” Further, notions of “low value speech” and “fighting words” did not affect this case. The city did not consider the speech of low value, because it “believes this speech influences social relations and politics on a grand scale,” and it had not banned all fighting words, but only those of a particular ideology and viewpoint, a selectivity that itself violated the First Amendment.
The city of Indianapolis appealed to the U.S,. Supreme Court, which, after accepting the case for review, found the issues so clear that it affirmed Judge Easterbrook’s judgment summarily — that is, without even calling for briefs and oral arguments.28 The Court of Appeals’s holding now has the imprimatur of the U.S. Supreme Court. Under the First Amendment, clearly, there can be no “approved view of women” and of “how the sexes may relate to each other.” (The free speech issue would be obvious to academics if the question were an approved view of men, women or Americanism.) There can be no imposition of regimes aimed at changing the attitudes of free citizens by censorship and coercion, rather than by appeal to reason and decency. Freedom of speech, like its close ally freedom of conscience, in America are essential legal and moral values, and their protection begins with the recognition that we are a nation of free individuals who may define for ourselves the deepest part of our being. Disguising censorship as a “civil rights” mechanism will not succeed in gutting the First Amendment.
The “St. Patrick’s Day Parade” as a “public accommodation”
More recently yet, the Supreme Court dealt with another clever but, in the end, futile effort to attack free speech by using the legal umbrella of purported protection of civil rights. The South Boston Allied War Veterans, led by one John J. Hurley, had been authorized by the city of Boston to organize the annual St. Patrick’s Day Parade. The Veterans Council in 1993 refused to allow a gay rights organization, the Irish-American Gay, Lesbian and Bisexual Group of Boston (“GLIB”), formed for the purpose of marching in the parade under its gay rights banner in order to show its members’ pride in both their Irish heritage and their openly gay lifestyle, to march as an identifiable group under its banner. GLIB members were invited to march as Irish, but not as gay. The reason for the refusal was the Veterans Council’s unwillingness to allow its message of “family values” with a Catholic and traditional Irish flavor, to compete, in its very own parade, with an alternative lifestyle message that the Council members abhorred.
The Supreme Judicial Court of Massachusetts had sided with GLIB, which had argued that a public parade such as the St. Patrick’s Day Parade should be considered a “public accommodation”, much as a hotel or restaurant, and that denial of GLIB’s application to march under its banner violated a state law prohibiting discrimination on account of sexual orientation in places of public accommodation.
In a unanimous opinion written by Justice David Souter, the U.S. Supreme Court in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338 (1995), reversed the Massachusetts Supreme Judicial Court. Justice Souter wrote that the parade was clearly an expressive event, not just a means “for a group of people to march from here to there…to reach a destination.” Souter concluded that the Veterans Council had an absolute right to have its own parade, which it organized and underwrote, reflect its chosen message. Souter cited one after another decision from the civil rights struggles of the 60s and 70s, in which Dr. Martin Luther King, Jr. and his allies fought for the right to hold peaceful marches to promote their political and social views. Souter noted that the First Amendment protects a variety of expressive activities, including saluting a flag or refusing to do so, wearing an arm band to protest the Vietnam war, marching in uniform and displaying the swastika, and other such expressions. Hurley, 115 S.Ct. at 2345. Souter agreed that the Massachusetts public accommodations law “has a venerable history” in the protection of civil rights and that the state has the undoubted power to enact such legislation to assure equal access by its citizens to places of public accommodation:
[T]he law today prohibits discrimination on the basis of race, color, religious creed, national origin, sex, sexual orientation…, deafness, blindness or any physical or mental disability or ancestry in the admission of any person to, or treatment in any place of public accommodation, resort or amusement. Provisions like these are well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments. (Hurley, 115 S.Ct. at 2346).
But Justice Souter goes on to point out that basing a demand to limit the Veterans Council’s First Amendment rights, in the name of equality of access to public accommodations, is to try to wring more out of the civil rights laws than the First Amendment allows. “In the case before us, however,” wrote Justice Souter for the Court, “the Massachusetts law has been applied in a peculiar way….Since every participating unit [in the parade] affects the message conveyed by the private organizers, the state courts’ application of the statute produced an order essentially requiring petitioners to alter the expressive content of their parade.” Hence, “the communication produced by [the Veterans Council] would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own…..[T]his use of the State’s power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” (Hurley, 115 S. Ct. at 2347)
Justice Souter then went on to talk in terms seemingly aimed directly at writers and enforcers of campus speech codes:
[T]he council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while silent on another. The message it disfavored is not difficult to identify. Although GLIB’s point (like the Council’s) is not wholly articulate, a contingent marching behind the organization’s banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics. The parade’s organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB’s message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government’s power to control. (Hurley, 115 S.Ct. at 2348)
The Court went out of its way to voice its support for the civil rights legislation enacted by the City of Boston:
On its face, the object of the law is to ensure by statute for gays and lesbians desiring to make use of public accommodations what the old common law promised to any member of the public wanting a meal at the inn, that accepting the usual terms of service, they will not be turned away merely on the proprietor’s exercise of personal preference.
However, Justice Souter went on to warn against the attempted use of civil rights statutes in situations where they would operate by restricting First Amendment rights:
When the law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own. (Hurley, 115 S.Ct. at 2350)
The Court concluded by seeking to bring some perspective on why it is that the First Amendment must trump purported civil rights/equal access concerns when they appear to clash:
Our holding today rests not on any particular view about the Council’s message but on the Nation’s commitment to protect freedom of speech. Disapproval of a private speaker’s statement does not legitimize use of the Commonwealth’s power to compel the speaker to alter the message by including one more acceptable to others. (Hurley, 115 S.Ct. At 2351)
The Hostile Environment” Back-Door Approach to Restricting Campus Speech
By now the reader readily sees that the “hostile environment” approach purporting to promote civil rights and an equal opportunity to receive an education, fails utterly when it runs into the requirement that the University of Wisconsin, a state institution, honor the First Amendment rights of its teachers and students. It matters not whether targeted speech is denominated “offensive” or is, instead, viewed as creating a “hostile educational environment” for members of historically disadvantaged groups. “Hostile environment” legal concepts, which derive from civil rights and tort concepts applicable to the workplace, are simply powerless to overcome the near-absolute protection for free speech that the Supreme Court has consistently developed in this century, and the clear refusal of the Court to allow back-door legal approaches to breach that protection, whether the approach be cloaked in the language of civil rights, public accommodation, intentional infliction of emotional distress, or creation of a hostile educational environment. A rose by any other name smelleth as sweet. The purported justification of “civil rights” is overborne by the First Amendment; an attempt to abridge First Amendment rights to achieve a purported social good remains a violation of the First Amendment.
A brief primer on the history and background of the relevant legislation is in order.29
History and background of Title VII/Title IX legislation.
It is instructive to consider how legal concepts applicable to the workplace are now being suggested for application to institutions of higher learning. Almost invariably, when administrators and faculty members who promulgate these codes are challenged on grounds of academic freedom, they assert that such codes are required by federal laws. This claim is extraordinarily shaky and is virtually certain of being rejected if and when it reaches the United States Supreme Court. Meanwhile, while the claim is being made — in the face of an enormous body of law that renders the claim fallacious — the question is whether colleges and universities are going to be on the side of defending, or attacking, academic freedom. Put another way, to the extent the question is genuinely in doubt, colleges and universities have a moral obligation to defend academic freedom and freedom of speech, rather than jump at the slightest invitation to join the ranks of censors.
At the height of the battle for civil rights in the Jim Crow South, Congress passed the landmark Civil Rights Act of 1964.30 Section 703(a) of Title VII deemed certain practices unlawful when engaged in by employers. It outlawed discrimination in the hiring, firing, and treatment of employees “because of such individual’s race, color, religion, sex, or national origin.” In its reference to “sex,” this statute aimed at discrimination on the basis of gender, and harassment of a sexual nature was considered one species of gender-based discrimination. It was left to the Equal Employment Opportunity Commission (EEOC) to issue regulations to enforce these provisions.
The EEOC issued guidelines in 1985, identifying harassment of employees based on sex and terming it employment discrimination under Title VII. After discussing “unwelcome sexual advances and requests for sexual favors” tied to the retaining or advancing of one’s job status, the guidelines turned to “hostile environment”:
Unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature constitute “hostile environment” sexual harassment when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.31
This formulation is familiar to anyone who has read university sexual, racial, and other harassment codes. However, even in the workplace, the outlawing of “verbal conduct of a sexual nature” marked a stark departure from the traditional dichotomy between conduct (subject to being banned an punished) and speech (subject to far more limited regulation, especially when not demanding sex as a condition of employment or advancement). Other than this blurring of speech and conduct, however, the EEOC guidelines on sexual harassment represented a fairly routine exercise of long-standing employer/employee legal concepts. If someone with supervisory authority engaged in discrimination by means of sexual harassment, the company could be held liable, just as any employer is responsible for the actions of its executives. If a lower-echelon employee harassed a peer and the company failed to take remedial steps, then the company would be liable on the ground that it allowed unlawful workplace conditions to fester.
These EEOC guidelines were the focus of the 1986 U.S. Supreme Court case of Meritor Savings Bank, FSB v. Vinson,32 where they received the Court’s imprimatur. However, that case did not involve a challenge under First Amendment free speech principles. The Supreme Court merely decided that the EEOC had the power to devise this formulation, including the workplace “hostile environment” concept. Further, the Court suggested that the “hostile environment” test would likely apply to other categories of workplace discrimination, such as race and religion.
Eight years after the Civil Rights Act of 1964, in the same year that it enacted the Equal Employment Opportunity Act, Congress passed the Education Amendments of 1972.33 Title IX of that statute mandated nondiscrimination on the basis of sex in any educational “program or activity receiving Federal financial assistance.” This nondiscrimination section further defined prohibited activity as the exclusion of a person “from participation in,” and denial to a person of “the benefits of,” any federal subsidized program. Since virtually every institution of higher learning receives federal money, these provisions apply broadly to private and public schools.
In a 1992 case, Franklin v. Gwinnett County Public Schools,34 the Supreme Court upheld the liability of the public schools in Gwinnett County, Georgia, for sex discrimination under Title IX. A male teacher had coerced a high school student into having intercourse, and , she alleged, the school authorities took no action to halt this conduct and even discouraged her from pressing charges. Upon the teacher’s resignation, the school closed the matter. The Supreme Court held that the student could sue the school district for allowing such sexual harassment — a form of sex discrimination under Title IX — to continue. In doing so, the Court casually mentioned the standard for sex harassment in the earlier Title VII workplace case, Meritor, where the EEOC’s “hostile environment” formulation had been approved for the workplace:
Unquestionably, Title IX placed on the Gwinnett County Public Schools the duty not to discriminate on the basis of sex, and “when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminates’ on the basis of sex.” Meritor Sav. Bank, FSB v. Vinson. We believe the same rule should apply when a teacher sexually harasses and abuses a student. (Franklin v. Gwinnett County Public Schools, 503 U.S. at 75)
From this kernel has grown the unsupported but widespread notion that the EEOC’s “hostile environment” standard defining sexual, racial, and other harassment in the workplace could be applied as well by the Department of Education or individual complainants to purely verbal “harassment” in academic institutions of higher learning. Because the EEOC’s definition of Title VII workplace harassment includes a proscription of offensive language directed to employees, the assumption developed that offensive language directed to students may, and indeed must be banned pursuant to Title IX. However, Franklin v. Gwinnett involved not merely speech, but speech followed by coerced sex. Further, Franklin was a high school student, not a young adult in college. This Supreme Court case hardly seems a precedent for transplanting workplace “hostile environment” speech codes to colleges and universities to restrict the speech of students and professors.
This assumption of the applicability of workplace concepts to the world of higher education has virtually no underpinning, and in fact authoritative First Amendment case law, discussed above, makes it highly unlikely that Title VII proscriptions of offensive speech would be applied to college and university faculty and students under Title IX. One can imagine a situation where Title VII concepts regulating offensive speech in the workplace might apply to college administrative personnel, or even faculty members, in certain circumstances in their roles as employees, protecting them from the creation of a hostile work environment by their supervisors. However, it is quite another thing to import workplace rules onto the college campus to regulate dialogue between and among faculty members and students.
Universities’ protestations that “the government makes me do it” have become more common since an infamous incident at Santa Rosa Junior College in California. Three undergraduate women complained to the federal San Francisco regional Office of Civil Rights (OCR) that the school, at student request, had established separate all-male and all-female Internet bulletin boards and that the women had been discussed on the male board in sexually derogatory terms. They asserted, among other things, that the men’s discussion constituted “hostile environment” sexual harassment that the college had a duty to remedy. After lengthy negotiations between the college and OCR, a settlement was reached in which the college agreed to adopt a computer network “hostile environment” speech code.
In a memorandum sent on September 20, 1994 by the college’s attorney to the OCR’s San Francisco office, the college noted that federal district courts in Michigan and Wisconsin had declared state university speech codes unconstitutional, but the college capitulated nonetheless. Santa Rosa’s settlement entailed, among other provisions, the college’s adoption of speech restrictions on its Internet bulletin boards. Had the college fought the regional OCR office, however, it likely would have prevailed for the very reasons set forth in its attorney’s memo to that office. Indeed, when New York Times columnist Anthony Lewis criticized the University of Massachusetts for proposing a speech code purportedly to comply with “Federal Department of Education regulations,” Norma V. Cantu, Assistant Secretary for Civil Rights at the Department of Education in Washington, wrote to the Times “to reassure Mr. Lewis and school officials that there are no Department of regulations that endorse or prescribe speech codes.”35
The speech deemed “sexual harassment” or “racial harassment” by the Department of Education in the academic setting at Santa Rosa is constitutionally protected speech. As noted, uttering “offensive” speech is at the very core of First Amendment protected activity, as the Supreme Court made clear in Cohen v. California (the 1971 “Fuck the Draft” case) and R.A.V. v. City of St. Paul (the 1992 cross-burning case). Were a test case on this issue to reach the Supreme Court, is is highly likely that the First Amendment would trump the “hostile environment” regulations applied to the speech of college students and faculty members. Indeed, not only does the case law in favor of strict First Amendment protections come into play, but a related set of decided cases protecting academic freedom, as closely allied to free speech, is added to the mix.36 In a test case, the Supreme Court likely would rule that offensive speech used among faculty and students, or the college’s failure to ban such speech, does not constitute discrimination by the college itself. For the Court to rule otherwise would be a statement that a university may be punished for allowing its faculty and students to engage in discourse that is absolutely protected (except for the usual exceptions for time, place, and manner, as well as physical threats, defamation, and obscenity) out on the public street. This is unthinkable, given the state of First Amendment and academic freedom law. Thus, a college without a speech code would hardly risk loss of Title IX federal funds, and surely, given the Supreme Court’s case law to date, it is inconceivable that a college would be punished with the loss of federal funds merely for seeking to litigate its right, if not its obligation, to protect rather than ban such speech.
While it is true that Congress has enacted civil rights legislation that outlaws discrimination both in the workplace (Title VII) and on the campus (Title IX), and while it is true that administrative regulations have engrafted the “hostile environment” language onto the statutes, it is likewise true that long-standing decisions of the United States Supreme Court make it legally untenable to apply “hostile environment” restrictions to offensive or any other speech, where that speech otherwise falls into the category of constitutionally protected speech. Put another way, if one cannot ban offensive speech under a “fighting words” code because it cannot be shown to pose the threat of an immediate violent response and is not otherwise unprotected (that is, it is neither libelous nor obscene, nor threatens national security, nor constitutes an illegal extortionate or physically violent threat), then one cannot ban such speech by resort to a “hostile environment” code. Anything said by a faculty member or student on a public college campus, if it constitutes pure speech and does not meet the definition of “fighting words” nor any other exception to the First Amendment (libel and slander, threats, extortion, obscenity, and other familiar unprotected categories) and is not accompanied by some unlawful action,37 is constitutionally protected. It cannot be prohibited by speech codes, whether those codes be based on the “fighting words” doctrine or the “hostile environment” doctrine.
This means, of course, that both the majority and minority reports of the Ad Hoc Committee are off the mark. While “hostile environment” codes may prohibit a variety of actions, they may not prohibit pure speech. Hence, to seek to manipulate the language of the code, as the Minority Reports seeks to do, in order to make it more respectful of academic freedom, is simply to be re-arranging the deck chairs of the Titanic. In either the majority form or the minority form, that portion of the code outlawing pure speech is patently unconstitutional. Neither would survive constitutional challenge.38
The “Time, Place and Manner” Exceptions to First Amendment Protection
Despite what has been said thus far, there are in fact certain restrictions that may, constitutionally, be imposed on speech. These allowable restrictions, long defined in First Amendment law, lie in the areas of so-called “time, place and manner” restrictions. A couple of examples will make the concept clear.
It is one’s constitutional right to use an amplification system in the course of making a speech in one’s neighborhood or elsewhere. One may go down the street in a sound truck, for example, during an electoral campaign. However, municipalities may outlaw one’s use of such sound amplification equipment in a residential neighborhood at three o’clock in the morning. The municipality may not discriminate by, for example, allowing Republicans to use a sound truck in the wee hours, while prohibiting that right to Democrats; that would constitute viewpoint discrimination, a content-based double standard that offends the First Amendment’s free speech requirement as well as the equal protection clause of the Fourteenth Amendment. Such a restriction against the use of sound amplification equipment during certain nighttime hours is an example of a restriction that cuts across all three categories — time (the wee hours), place (residential neighborhoods), and manner (amplified sound truck).
Or, to use an even more familiar example, yelling “fire” when there really is a fire is an appropriate exercise of free speech. However, shouting “fire” falsely in a crowded movie theater is not protected. Why? Because, of course, a crowded theater is an inappropriate place and time for playing such a practical joke, if joke it be.
Traditional time, place and manner restrictions, familiar to all constitutional lawyers and others versed in the law of free speech, are closely related to traditional laws governing “harassment.” Long before we ever heard of “sexual harassment” and “racial harassment” statutes and regulations, the common law understood the difference between harassment (which was subject to legal restrictions, either civil or criminal) and lawful conduct. Certain kinds of harassment are effectuated by the use of speech. However, traditional notions of harassment focus not on the content of speech, but rather on the time, place and manner of the delivery of that speech.
For example, if one follows the object of one’s hatred down the street, following the person closely, shouting “I hate you, I hate you, I hate you,” repeatedly, that constitutes civil harassment in most jurisdictions. If one makes repeated telephone calls to a hated person, delivering a similar message of personal hatred, and particularly if those calls are made late at night, that constitutes harassment, both civil and criminal. However, the offense in such instances is defined not by the content of the speech, but rather by the manner (repeatedly, even in the face of a clear lack of desire of the object to hear the repeated message) in which the message is delivered. Therein lies the harassment.
The point is understood with clarity when one considers precisely the same situation, except that instead of a message of obsessive hatred, the message is one of obsessive admiration or love. Hence, if one person follows another closely down the street shouting repeatedly “You’re a genius, you’re a genius, you’re a genius,” that is harassment. The same analysis would apply to obsessive love phone calls at all hours of the day and night. It is the time, place, and manner of the delivery of the message, not its content, that determines the power of the state to make such communication a civil, or even a criminal, offense. I know of no case where someone was sued or prosecuted successfully for telling a person, on a single occasion, that he or she hates or loves the object of his or her loathing or affection, as the case may be. However, I know many cases where obsessive hate or love, delivered in a harassing manner, has been the subject of legal redress or prosecution.
The point is, or should be, simple. Pure speech, even if obnoxious to many, if it does not fall into any of the categories of unprotected speech, is fully protected by the First Amendment. Harassment, in its true sense, may be legislated against, but on the basis of total content-neutrality and only with respect to time, place and manner. (The same may be said of threats to physical safety, which are not constitutionally protected.) If a professor or student says something extremely unpleasant to any other person – whether a member of a minority group or not – that speaker is within his or her constitutional rights. If, on the other hand, the speaker delivers a message, whether one of love or of hate, to another at a time, in a place, or in a manner that constitutes harassment within the ancient common law and widely understood definition of that term, such utterance may be punished, and it does not take a special campus speech code to do it, for the civil and criminal laws governing the entire society apply. All of the arguments concerning the relationship between Title VII and Title IX sexual harassment law are entirely beside the point and are rendered irrelevant by the Constitution. To repeat the central point: It is fine for colleges and universities to have anti-harassment codes, as long as pure speech is not counted within the definition of harassment.39
The obvious conclusion is that regardless of what kinds of behavior codes the University of Wisconsin wishes to enact, and regardless of how it chooses to deal with such universally unprotected practices as quid pro quo sexual harassment as well as violations of a student’s privacy and bodily integrity (the “fondling” problem), the University must refrain from seeking to ban pure speech, for such speech is constitutionally protected. If the University wishes, it may try its hand at drafting a code banning the delivery of speech in a harassing way (time, place and manner regulations), or banning illegal threats to personal safety, but this would appear to be unnecessary because such conduct is, and long has been, unlawful under the civil and criminal laws governing society at large. Further, if the University does decide to ban threats or to control the time, place and manner of the delivery of speech, it must do so in a content-neutral manner; it may not favor “historically disadvantaged” groups. Not only are such groups wholly capable of full citizenship — living with the Bill of Rights and legal equality — but, indeed, the very goal of the expansion of civil rights has been and should remain to bring all citizens into the circle of full and equal constitutional rights.
The Commanding Role of the Law Governing Academic Freedom
This is neither the time nor the place for an extended disquisition on the meaning and scope of academic freedom.40 However, a few words on the subject are essential to rebut the argument that has become the last refuge of “hostile environment” speech code proponents when all other arguments fail in the face of First Amendment challenge. They will, if pressed, agree that students’ speech may not be curtailed. They will even agree that speech of faculty may not be curtailed in most settings, such as published writings, formal lectures, and public statements. They then retreat to their narrowest position — the claim that faculty members, as employees of the university, may be restricted from uttering in the classroom words that, directed at a student or a particular group of students, would create a hostile environment.
For one thing, the argument fails because students are not employees of the university, and hence they are not entitled to Title VII’s protections.41 However, the more fundamental problem with the argument is that a classroom is the heart of the university enterprise, and any notion that the discourse between student and teacher may be limited by principles of employment law run head-on into the barrier of the First Amendment and academic freedom as interpreted by the Supreme Court.
Even a cursory review of the Supreme Court’s decided decisions on the role of academic freedom puts this argument to rest with finality.42 An alliance between the First Amendment and academic freedom took an important early step in 1957, with Sweezy v. New Hampshire.43 Not satisfied with the efforts of Senator Joseph McCarthy and the federal government, New Hampshire enacted its own Subversive Activities Act. At legislative hearings convened under the authority of the statute, Professor Paul Sweezy of the University of New Hampshire was subpoenaed and questioned about certain lectures he had given at UNH. Sweezy, a self-styled “classical Marxist” and “socialist,” denied advocating the use of violence, but he had coauthored an article that criticized the use of violence by capitalist nations seeking to preserve a social order that he felt should, and would, eventually collapse. This collapse, he predicted, would be met by violence on the part of those seeking to create a “truly human society.”
Sweezy answered some questions, but he drew the line when asked about the content of his lectures. He was cited for contempt of the legislature and jailed. Sweezy’s conviction was reversed by the Supreme Court on a technicality. In the course of doing so, however, the Court spoke in terms that made clear the majority’s displeasure with the intrusion into the teaching process as well as into the professor’s conscience and views. It spoke of the “essentiality of freedom in the community of American universities” as being “almost self-evident.” “To impose any straitjacket upon the intellectual leaders in our colleges and universities,” warned the justices, “would imperil the future of our Nation.”
Justice Felix Frankfurter, a former academic before joining the high court, took advantage of the opportunity to write a “concurring opinion” in which he criticized the then-politically correct justification the state had asserted for wielding powers of inquiry and intimidation over academics — the notion that interference with academic freedom could occur “in a limited area in which the legislative committee may reasonably believe that the overthrow of existing government by force and violence is being or has been taught, advocated or planned.” This “governmental intrusion into the intellectual life of a university” created such “grave harm,” Frankfurter wrote, that this purported justification for repression was inadequate. He stressed “the dependence of a free society on free universities” and decried the state’s “intervention…that inevitably tends to check the ardor and fearlessness of scholars.”
Thus has the Supreme Court sought to protect the sanctity of the teaching process, in and out of the classroom, that advocates of speech codes would seek to undermine. Any member of any university faculty who favors any move to curtail the speech of professors in the classroom should heed not only the precedential power of the Supreme Court’s rulings that have been consistently supportive of academic freedom as an adjunct of the First Amendment, but should look, too, to the short-sightedness of any effort by any academic to weaken academic freedom. After all, the proponents of loyalty oaths would have much favorable precedent to build upon if speech codes ever were to gain a foothold and effectively curtail faculty speech in the classroom. New Hampshire’s Professor Sweezy fought the good fight for liberty. So must we all.
Codes banning pure speech are unconstitutional, and, to the extent that speech — by virtue of the time, place and manner of delivery, or by virtue of its physically threatening nature — is harassing, the society’s laws are more than adequate to redress violations. Universities, under Title IX, do indeed have an obligation to prevent sexual harassment and other forms of harassment, properly defined and understood. They do not have the obligation, nor indeed the power, to ban pure speech, no matter how offensive, on the basis of content or point-of-view.
It is not likely that, within the lifetime of anyone reading this memorandum, in the absence of some cataclysm that destroys our liberties in one fell swoop, a university will be deprived of its governmental funding because it refuses to enact a code restricting the constitutionally protected speech of either its faculty or its students. It is quite likely, however, that a professor charged under a faculty speech code could successfully sue the university for damages and for invalidation of the code.
Indeed, this issue of the relevance of Title VII and Title IX to campus speech was dealt with by Judge Warren in UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, discussed earlier in this memo, where Wisconsin’s student speech code was declared unconstitutional. Judge Warren’s treatment of the argument is rather brief, as well it should have been, given the clarity of the issue at the most basic level. He concluded his discussion with an observation that really stops the debate before it gets started. The judge writes that even if the legal duties set forth in Title VII can be interpreted somehow to apply to the campus, “since Title VII is only a statute, it cannot supercede the requirements of the First Amendment” (UWM Post, slip opinion at 29). These civil rights laws do indeed ban discrimination on campus, and the regulations effectuating them do indeed outlaw the creation of a hostile environment on the campus; however, if “hostile environment” is interpreted so as to include the expression of unpopular or offensive or politically incorrect words, then the regulations, and perhaps the statute as well, are necessarily unconstitutional.
The fact that codes banning speech are unconstitutional does not mean that a university is powerless in seeking to promote tolerance, understanding, civility, and mutual respect among members of its community. However, the means chosen must be educational, not coercive. Teaching critical thinking, as well as the lessons of history, presumably will bring perceptive students closer to the view expressed by Justice Robert Jackson, writing for a majority of the U.S. Supreme Court in a landmark case declaring that a Jehovah’s Witness child may not be forced to recite the pledge of allegiance to the flag in violation of his religious conscience. In West Virginia Board of Education v. Barnette44 (1943), Jackson pointed out that it is quite possible that teaching American civic values as well as world history might encourage students to come to the conclusion that liberty and respect for difference are values to be honored, and that intolerance and efforts to compel conformity rather than to honor difference “achieves only the unanimity of the graveyard.” Hence, education, not indoctrination, is the path allowed by our Constitution. Education and tolerance, not “coerce[d] uniformity of sentiment in support of some end thought essential,” is the means by which a free society works towards its highest ideals. Justice Jackson was speaking of a requirement of a pledge to the flag. He might just as well have been talking, of course, of a requirement that students follow the university’s preferred views on issues of race, gender, and sexual identity. It is the obligation of colleges and universities to try to prove Justice Jackson correct — that tolerance is more likely to be promoted by education than by attempts at coerced conformity.
A general warning for how universities should not begin the quest of finding solutions to problems of bias, hatred, and incivility on campus, is found, interestingly, in the concluding words of the opinion by United States District Judge Avern Cohn, in his opinion invalidating, on constitutional grounds, the speech provisions of the harassment code of the University of Michigan. Judge Cohn wrote in John Doe v. University of Michigan, No. 89-71683, United States District Court for the Eastern District of Michigan (Southern Division) (1989):
The foregoing constitutes the Court’s findings of fact and conclusions of law…. However, at this juncture, a few additional observations of a general nature would need to be in order. As the Court noted at the hearing on August 25, 1989, there is nothing in the record to suggest that the University looked at the experience of any other university in developing its approach to the problem of discriminatory harassment. Had it done so, it might have discovered that Yale University, a private institution not subject to the strictures of the First Amendment, faced a similar dilemma pitting its efforts to promote equality against its commitment to free speech. In 1986, a sophomore at Yale was put on probation for two years by a University discipline board for disseminating a malicious flyer intended to ridicule the homosexual community. The board eventually reversed the sanction, but only after a second hearing was held at which the student was represented by historian C. Vann Woodward, author of the University’s 1975 report on free speech. New York Times, Oct. 15, 1986, at A27. That report concluded that “freedom of expression is a paramount value, more important than civility or rationality,” New York Times, Sept. 22, 1986. Writing about the case, Professor Woodward observed:
It simply seems unnatural to make a fuss about the rights of a speaker who offends the moral or political convictions passionately held by a majority. The far more natural impulse is to stop the nonsense, shut it up, punish it– anything but defend it. But to give rein to that inclination would be to make the majority the arbiters of truth for all. Furthermore, it would put the universities into the business of censorship.
New York Times, Oct. 15, 1986, at A27.
While the Court is sympathetic to the University’s obligation to ensure equal educational opportunities for all of its students, such efforts must not be at the expense of free speech. (Doe v. Michigan)
The bottom-line question is: Are the faculty and students of this great university capable of living with the Bill of Rights? One hopes the answer is yes.
2. The usual categories are groups, viewed as historically disadvantaged, designated by race (typically defined somewhat loosely as African-American, Hispanic, and sometimes Asian), sex (women), and sexual orientation (gays and bisexuals).
3. So-called “liberal” or “liberal arts” colleges and universities pose entirely different questions for purposes of speech code analysis than parochial institutions of one kind or another (military schools, religious seminaries and colleges, other institutions with an announced mission incompatible with the aims of liberal education). Liberal institutions of higher learning are dedicated to academic freedom, unfettered intellectual inquiry, free exchange of ideas, and related doctrines and concepts. Parochial institutions that are not devoted to academic freedom and related practices have at least a moral obligation, and perhaps a legal contractual obligation to potential enrollees, to make clear the restrictions to free thought and speech that a student should expect there.
4. The due process clause of the Fourteenth Amendment makes the First Amendment’s free speech guarantee applicable to state governmental entities. Further, there are state constitutional provisions which supplement the federal constitution’s protection of free speech.
5. I refer to such codes as “speech codes,” whereas their proponents typically prefer to refer to them as “harassment codes.” However, to the extent that one includes “verbal behavior” or “verbal conduct” within the definition of “harassment,” such codes are fairly designated “speech codes.”
7. It is axiomatic that the First Amendment, as indeed all of the Bill of Rights (the first 10 amendments to the United States Constitution) and the Fourteenth Amendment, apply only to governmental entities and not to private organizations or civil society in general. Hence, the First Amendment controls the power of state colleges and universities to restrict speech, whereas private institutions are free of such inhibitions to their exercise of power. This does not mean that private colleges are free of all legal constraints on their power to restrict speech and other aspects of academic freedom. Indeed, Prof. Kors and I argue in The Shadow University that there are serious contractual and other constraints on the power of liberal arts institutions to betray liberal educational practices, such as free speech and free inquiry. See, in particular, Chapters 3 (“What Is Academic Freedom?”) and 14 (“Sue the Bastards?”]. However, since the University of Wisconsin is a public institution, it is clear that the Bill of Rights fully applies, and the university is not empowered to restrict speech in a manner unavailable to the government itself.
10. In light of the fact that the United States Supreme Court has also imposed an obligation on the government to provide reasonable protection to unpopular speakers in order to avoid the “heckler’s veto” problem, one may ask when indeed a situation would ever arise where “fighting words” would be banned on the ground that an immediate violent response would be provoked.
11. The UWM Post, Inc., et al. V. Board of Regents of the University of Wisconsin System, Case Number 90-C-328 (United States District Court for the Eastern District of Wisconsin), filed October 11, 1991 (Hon. Robert H. Warren, Senior United States District Judge). Judge Warren
15. These cases are discussed in varying degrees of detail in Chapter 2 (“Free Speech in a Free Society”) and 3 (“What Is Academic Freedom?”) of The Shadow University. Particular attention should be paid to the Supreme Court’s 1992 decision in R.A.V. v. City of St. Paul, 505 U. S. 377 (1992).
25. The Court has retained, although it has narrowed, exceptions to First Amendment protection in the areas of obscenity, defamation, and national security. Obscenity laws apply narrowly to a category of explicit, hard-core sexual depictions. Defamation applies to factually untrue statements that defame an individual and has no relevance in the modern era to notions of “group defamation.” National security is not, of course, jeopardized when students speak frankly to one another. Hence, these exceptions to the First Amendment do not apply to the speech code controversy.
26. Hustler Magazine v. Falwell, 485 U.S. 46 (1988). The opinion, written by Chief Justice Rehnquist, was signed by seven justices, with Justice White concurring in the judgment and Justice Kennedy not participating. There was no dissent.
27. Much of this discussion is taken from The Shadow University, at 191-2. The reader of Chapter 8 of the book will see the larger context in which this case was decided. It is also enormously useful to refer to one of the early seminal works in this area of the law and the political forces that have sought to tear down First Amendment protections in the name of some asserted higher good, namely Donald Downs, The New Politics of Pornography (University of Chicago Press, 1989).
37. For example, so-called quid pro quo sexual harassment is clearly unlawful, occurring when a person in a position of power and authority — typically a professor — threatens a student with a poor grade unless the student engages in sex with the professor. Such conduct has nothing to do with speech codes, and such sexual harassment codes are not at all problematic from a First Amendment point of view. Similarly, not allowing members of certain racial groups to take a course, or grading them poorly on the basis of race, or not allowing them to participate in classroom discussions, are all activities clearly prohibited by civil rights laws; speech codes are irrelevant to such behavior. Such activities as sexual fondling not only violates sexual harassment law, but constitutes the crime of assault or indecent assault everywhere. Speech codes are entirely unnecessary in the battle against such conduct. Conduct codes, the civil and criminal law, and standards of the teaching profession are quite adequate.
38. Indeed, the student speech code that was invalidated by the federal district court in UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, discussed above, contained a hostile environment provision as well as a “fighting words” offensive speech provision. Judge Warren gave short shrift to this oblique attack. He held that to the extent these Title VII arguments are hurled at the First Amendment, they fail because “[s]ince Title VII is only a statute, it cannot supersede the requirements of the First Amendment.” Slip opinion at 30. Further, the whole enterprise of trying to eliminate a “hostile environment” by prohibiting “discriminatory comments, epithets and abusive language” that “demean” members of disadvantaged groups must fail because “the terms nevertheless allow the rule to prohibit protected speech.” Slip opinion at 38.
39. The importance of distinguishing protected from unprotected speech, and the manner in which codes can be constructed without offending the First Amendment, are set forth with illumination in Donald A. Downs, Jr., “Speech Codes and the Mission of the University,” printed as a chapter in W. Lee Hansen (ed.), Academic Freedom on Trial: 100 Years of Sifting and Winnowing at the University of Wisconsin – Madison (Office of University Publications, University of Wisconsin – Madison, 1998), 157.
40. The reader interested in learning more about the subject of academic freedom is directed to Prof. Hansen’s useful volume, Academic Freedom on Trial, discussed in the preceding footnote, as well as Chapter 3 (“What Is Academic Freedom?”) of The Shadow University, which discusses the relationship between academic freedom and the First Amendment. Another essential resource is William W. Van Alstyne, ed., Freedom and Tenure in the Academy (Durham: Duke University Press, 1993).
41. We need not get into the irrelevant question of whether employees of the university might have Title VII rights to be treated in a certain manner by their administrative superiors. Thus, a professor might have rights that limit the ability of a departmental chairman to act discriminatorily. And surely clerical personnel are covered by Title VII. But this is a far cry from a claim that students may claim such protections from verbal statements uttered by their teachers in the classroom.