Stanley Fish: Speech Codes a ‘Fake Issue’

October 15, 2007

In his latest “Think Again” column for The New York Times, Florida International University professor and well-known scholar Stanley Fish discusses filmmaker Evan Coyne Maloney’s Indoctrinate U. While attempting to appear even-handed in his review of Maloney’s film, Fish dismisses several of Indoctrinate U’s concerns as “red herrings”—i.e., issues of speech or ideology on campus that Fish argues aren’t nearly as important or dire as portrayed by Maloney. Perhaps most strikingly for FIRE’s purposes, Fish trains some of his fire on Maloney’s concern with campus speech codes:

Then there’s the matter of speech codes. This is a fake issue. Every speech code that has been tested in the courts has been struck down, often on the very grounds — you can’t criminalize offensiveness — invoked by Maloney. Even though there are such codes on the books of some universities, enforcing them will never hold up. Students don’t have to worry about speech codes. The universities that have them do, a point made by “Indoctrinate U” when Maloney tells the story of how Cal Poly was taken to the cleaners (no, not his cleaners) when it tried to discipline a student for putting up a poster with the word “plantation” in it.

As any regular Torch reader knows all too well, Fish is wrong on this score. Where to start?
First, while Fish correctly observes that “[e]very speech code that has been tested in the courts has been struck down,” he vastly understates the severity of the problem by dismissively concluding that therefore “[s]tudents don’t have to worry about speech codes.” That’s hogwash. While the fact that restrictive speech codes have been consistently struck down in court offers clear proof of their unconstitutionality, it certainly doesn’t mean that “[s]tudents don’t have to worry” about them. Contrary to Fish’s assertions, a student at a college with restrictive speech codes on the books is in danger of being punished for engaging in speech clearly protected by the First Amendment. According to FIRE’s first annual speech code report, Spotlight on Speech Codes 2006: The State of Free Speech on Our Nation’s Campuses, more than 68% of the 330 colleges and universities surveyed maintained policies that clearly and substantially restrict freedom of speech. Regardless of Fish’s contention otherwise, that’s something to worry about, as FIRE’s extensive list of speech code cases proves. Besides, Fish gets it exactly backwards: the fact that speech codes are still so pervasive on our nation’s campuses despite consistently losing in court is cause for outrage, not apathy.
Further, students at schools which maintain speech codes must carefully tailor their speech to satisfy oftentimes inscrutable rules—e.g., students at The Ohio State University must be sure that their words aren’t unintentionally “threatening infliction of emotional harm,” whatever that means—or else risk discipline. The chilling effect that inevitably results causes students to self-censor and renders free speech on campus all the more elusive. This too is something to worry about.
Contrary to Fish’s casual faith in the courts, resorting to litigation in hopes of vindicating one’s right to free speech is almost never an attractive option for students. The sheer amount of time spent securing representation, preparing a case, filing charges and, if necessary, pursuing appeals is extremely daunting to students. Just ask the San Francisco State University College Republicans, who are suing SFSU after being put on trial for “harassment” for stepping on Hamas and Hezbollah flags at an anti-terrorism rally. In addition to spending countless hours preparing their defense against SFSU’s charges, the students have had to coordinate a federal lawsuit against the college they currently attend. That’s not an easy or enjoyable task by any standard, and FIRE knows firsthand that despite the strength of their case, too many students decide that a lawsuit is just not worth the time, stress, trouble and alienation.
Finally, while Fish maintains that it’s the universities that should be worried about litigation—an understandable conclusion, given the judicial track record of schools maintaining speech codes—the truth is that when challenged, universities sometimes seem to relish the fight. How else to explain, for ready example, Temple University’s current appeal of a district court’s ruling against their speech code to the Third Circuit Court of Appeals? Despite the obvious incongruity of a public institution of higher education arguing against the First Amendment, Temple seems all too eager to push the fight forward, maintaining that students like Christian DeJohn deserve the same limited free speech protections as high school students.   
Fish is wrong to conclude that students have little to worry about when it comes to speech codes. Unfortunately, FIRE’s experience proves the exact opposite to be true.