Forcing Free Speech

The libertarian case for speech codes

Michael Greve from the July 1995 issue

(Page 2 of 2)

Rep. Hyde's proposed amendment, unlike the Leonard Law, would not directly impose First Amendment controls on private institutions; it would merely condition the receipt of federal funds on the observance of the Free Speech Clause, much as Title VI and IX of the Civil Rights Act restrict federal funding to non-discriminatory institutions. Taxpayers, the argument goes, cannot be called upon to support institutions that discriminate on the basis of race, ethnicity, sex, and so on. Why, then, should they be asked to support institutions that discriminate on the basis of someone's viewpoint? Having accepted the sweet of government funding, private colleges should also accept the bitter of abiding by the rules that apply to the government.

This may sound more pleasant to libertarian ears than the authoritarian drums behind the Leonard Law. But the Hyde Amendment would be even more dangerous to free speech and free choice.

Since Title VI and Title IX cover practically every educational institution in America, the reach of the Hyde Amendment would be nearly identical to that of a national Leonard Law. But unlike the Leonard Law, the Hyde Amendment would not only authorize private lawsuits by students; it would also, and principally, empower the Education Department's Office for Civil Rights (OCR) to enforce compliance by means of investigations and "voluntary" agreements with recipient institutions, reached under the threat of withholding federal funds.

In the hands of OCR and federal judges, the simple Title VI prohibitions against discrimination have mutated into goals, timetables, quotas, and diversity mandates. In the same way, under any rule that prohibits discrimination against speech, OCR would soon claim an affirmative mandate to ensure viewpoint "diversity." It already claims the authority to regulate "harassing" speech that may be perceived as hostile by women or minorities, including scholarly teaching and writing on controversial subjects. The last thing this agency needs is an actual legal mandate to investigate what's being said, taught, and written on private campuses.

In the world of the Leonard Law, conservative students and legal foundations can club a few more P.C. administrators over the head. But by that same token, the ACLU can and will compel Wellesley or Kenyon to show equal concern and respect for Nazi marches across their campuses and beggars in their libraries. The Hyde Amendment would in addition empower the OCR to bully and cajole private colleges to guarantee free speech (except, of course, ethnocentric and sexist speech) until every last one of them complies with the reigning standards of orthodoxy. Quite apart from libertarian scruples about imposing government norms on private actors, this bargain is not worth having.

The willingness of some conservatives to strike that bargain represented merely a lack of judgment at a time when liberal institutions, from Congress on down, looked well-nigh unassailable. In that environment, the attempt to beat the liberals at the anti-discrimination game seemed plausible--or at least, less implausible than the alternative of dismantling bureaucracies in the education sector and elsewhere. After November 8, 1994, such a campaign looks quite feasible.

Thus, conservatives should not send the muddled message that they wouldn't mind regulation so long as it helps the politically incorrect. It is more principled and more promising to insist that free speech is so vital and sacred that no one should tolerate government interference --even in the form of non-discrimination laws, and even if such laws are useful when it comes to private conduct.

Conservatives could also accept the premise that the Hyde Amendment and the Leonard Law share with leftist attempts to regulate speech, which is that speech is not so different from conduct after all. But they should then turn the argument around, and insist on the private right to discriminate in both areas and for similar reasons--freedom of contract, protection against compelled association, and social diversity.

This position strikes at the heart of the civil rights empire. It is a respectable position, and it is precisely in the context of speech that it will strike people as most plausible. Ultimately, the case for private discrimination may be too shocking for popular consumption. But it deserves serious consideration, and sounding two cheers for private speech codes would be a good way to test the water.