In June, on PBS, I was a member of a seminar on “Safe Speech, Free Speech and the University.” We were discussing the rising tide of college speech codes-punishing students for a wide, vague spectrum of “offensive” speech. The session was held at Stanford University, which has enacted a typically slippery code that can ensnare students who have no idea they are breaking it.
There were two Stanford students and one recently graduated Stanford alumnus on the panel. Two were black; the other was Asian-American. All were bright, articulate, and firmly in favor of punishing speech for the greater good of civility on campus.
During the past two years, I have visited over 20 colleges and universities around the country, from Penn State and Columbia University to the University of Utah and the University of Tennessee. With few exceptions, I have found that minority students-and women-do indeed believe that the First Amendment (and its spirit in private institutions) must bend when hate speech is at issue.
When I tell them that James Madison, the architect of the First Amendment, intended it to be of most value in times of bitter crisis, they point out, with various degrees of civility, that Madison, a dead white male, lived in a time of slavery. He and the First Amendment are abstractions.
Many white male students, faculty members, and administrators are also convinced that speech must have its limits if racism, sexism, and homophobia are to be extirpated in and out of the classroom. They would banish professors infected with any or all of those viruses.
Indeed, most of the white, liberal students who consider themselves activists look at you with genuine puzzlement when you tell them how Oliver Wendell Holmes described the test of free speech: “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought-not free thought for those who agree with us but freedom of thought that we hate.”
These new Jacobins are powered by a genuine faith that they are working for an undeniable good- creating and sustaining true equality on campus by eradicating speech that makes minorities, women, and gays feel unwanted. Convinced that they are occupying the moral high ground, they see their opponents as using free speech as a cover for their own racism, sexism, or disgraceful indifference.
And they are joined by the undeniably influential editorial writers of The New York Times who-on May 12, 1991 described as “sloganeering” any attempts to criticize “political correctness” on campus. “The real danger,” said the Times, “is the rising tide of hate.”
The Times approves of campus speech codes-as if it is necessary to curb speech in order to curb bigotry. Educators presumably have no other way to educate students out of what they have learned at home or among poisoned peers.
Underlying this conflict between the relatively few free speech students and administrators, on the one hand, and the censors-for-the-common-good on the other is a deeper debate: proponents of civil rights vs. proponents of civil liberties. It has hardly been mentioned in the abundance of reports on the civil wars on the campuses.
Among the law professors on the PBS panel were Thomas Grey of Stanford, who is white, and Randall Kennedy of Harvard, who is black. Grey essentially wrote the Stanford speech code and Kennedy-himself a powerful exemplar of free speech and thought-is in favor of college codes.
Both Grey and Kennedy served as clerks to J. Skelly Wright on the U.S. Court of Appeals for the District of Columbia Circuit. Wright was a courageous, indomitable defender and implementer of civil rights. Both Grey and Kennedy also served as clerks to Thurgood Marshall on the Supreme Court, Marshall, while a consistent advocate of free speech, has been most influential as a paladin of civil rights.
Throughout the country, both on campus and off, There is an intense conflict between civil-rights and civil-liberties students, administrators, and professors. In the American Civil Liberties Union-whose national board declared its opposition to college speech codes only after lengthy debate-the legal director, John Powell, who is black, still maintains that a balance has to be struck in these matters between the First and the 14th Amendments. The latter guarantees everyone equal protection under the law. Powell and the civil-rights legions argue that students have the right to be protected from demeaning and denigrating speech if they are to be, and feel, equal on campus.
This split between civil-rights and civil-liberties forces has been dramatically evident during debates about college speech codes on various boards of affiliates of the ACLU. Black board members, with exceptions, have called for support of the speech codes.