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Shibley and Lukianoff: 'Why Speech Codes Endure'

Whatever your plans this Thanksgiving, set aside a few minutes to read an important new essay by FIRE President Greg Lukianoff and Senior Vice President Robert Shibley. Titled “Why Speech Codes Endure,” the essay explains why speech codes will continue to warp the discourse on our nation’s campuses until faculty and students make a concerted effort to fight back through legal action and political activism.

As the authors point out, abolishing speech codes on the merits is an easy call:

Campus speech codes are losers, both in the court of law and the court of public opinion. They expose campuses to liability in free speech lawsuits and mockery in the media. No fewer than two dozen speech codes have been defeated in court or withdrawn after a lawsuit was filed since the dawn of the modern campus speech codes era in the late 1980s.

But, as FIRE’s infamous case at Modesto Junior College—where a student was forbidden from distributing copies of the U.S. Constitution on Constitution Day—demonstrates, mindless censorship takes place on college campuses all the time for various reasons:

So why then do campus speech codes and selective censorship endure? It’s likely the result of a confluence of factors that have been at work for decades now: the dramatic expansion of the bureaucratic class at universities; a campus culture that encourages both a “right not to be offended” and the idea of “free speech for me but not for thee;” and legal and regulatory incentives that often make free speech the last concern of university lawyers.

Perhaps most pernicious is students’ change in attitude towards the value of free expression itself:

We also see censors increasingly touting themselves as doing an honorable or even heroic thing by silencing others. The disturbing sentiments of many Brown University students after a mob of hecklers shouted down a speech by New York City Police Commissioner Ray Kelly is a great example. ... [F]rom the standpoint of the university’s business of searching for the truth, it’s an unmitigated disaster.

This allergy to hearing anything new or unpleasant has a real effect on this generation of college students. The First Amendment Center’s most recent survey of attitudes towards free speechrevealed that 47% of 18-30 year olds believe the First Amendment goes too far in protecting speech.

One might have hoped that the generation of Family Guy, Twitter, and racy video games would understand how much it relies on free speech. But living the practice of “free speech for me but not for thee” has led students to burn and steal newspapers, tear down free speech walls, and even shut down risque plays—sometimes with the connivance of college administrators.

While students want to live in an offense-free zone, college and university administrators’ first priority is to avoid legal liability, even if it means sacrificing the educational mission for which the school exists. Given this landscape, Lukianoff and Shibley argue, university administrators and general counsels conduct a “cost-benefit” analysis and decide that defending free speech is not worth the risk. The key is to change that calculus—which won’t be easy. In fact, the authors explain that forcing such a profound shift in campus culture will be a Herculean task. But it is also one that cannot be avoided:

But if those who care about the marketplace of ideas on campus are to have any chance at all at reclaiming our nation’s institutions of higher education, the first step must be to change the incentives so that, for the first time in decades, the censors will be forced to play defense.

Be sure to read the entire piece.

Image: “Young Woman with Tape on Her Mouth” - Shutterstock

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