FIRE announces its Speech Code of the Month for March 2015: Marquette University.
If you’ve been following higher ed news or reading The Torch recently, you are probably aware that Marquette University is no friend of free speech. In fact, FIRE recently named Marquette one of the ten worst abusers of free speech for its “chilling campaign to revoke the tenure of political science professor John McAdams due to writings on his private blog.”
It may not surprise you to learn, therefore, that Marquette also maintains highly restrictive speech codes. While Marquette’s policies impermissibly restrict a variety of student speech, the university’s Harassment Policy stands out in particular. According to that policy:
Harassment is defined as verbal, written or physical conduct directed at a person or a group based on color, race, national origin, ethnicity, gender or sexual orientation where the offensive behavior is intimidating, hostile or demeaning, or which could or does result in mental, emotional or physical discomfort, embarrassment, ridicule or harm.
How on earth are students expected to discuss anything remotely controversial when they can be charged with harassment for causing another person “emotional discomfort”? Almost any discussion of a difficult or sensitive issue inevitably causes someone some discomfort. The specific conversations that make one uncomfortable obviously vary by person, but each of us has our own identity and history that make certain conversations difficult to hear. If you’ve had an abortion, for example, it is almost certainly uncomfortable to hear others say they believe abortion is murder. Likewise, if you are white, it might be uncomfortable to hear that others believe you are the beneficiary of a system of ongoing racial oppression in this country. If you are the child of undocumented immigrants, it is uncomfortable to hear people refer to undocumented immigrants as criminals and call for their deportation. I could go on, but I am sure you get the idea.
Those charged with interpreting the First Amendment have long understood that discomfort and offense are part of living in a free society. As the Supreme Court said in Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (internal citations omitted):
[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view.
While Marquette is private and thus not legally bound by the First Amendment, its acts of censorship—in policy and in practice—are inconsistent with the values the university claims to support. The university’s Demonstrations Policy explicitly acknowledges:
It is clearly inevitable, and indeed essential, that the spirit of inquiry and challenge that the university seeks to encourage will produce many conflicts of ideas, opinions and proposals for action.
But if “conflicts of ideas” are only allowed at Marquette when no one feels uncomfortable, then they are not allowed at all. “You say tomato, I say tomahto” might make a catchy song, but it’s hardly a good place to set the outer limits for acceptable debate at a university committed to a “spirit of inquiry and challenge.”
For this reason, Marquette University is our March 2015 Speech Code of the Month. If you believe that your college’s or university’s policy should be a Speech Code of the Month, please email email@example.com 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 free speech, join the FIRE Student Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses.