Codes of Silence

Who's silencing free speech on campus--and why.

Alan Charles Kors & Harvey Silverglate from the November 1998 issue

(Page 2 of 3)

Marcuse focused on the education of the young: "The restoration of freedom of thought may necessitate new and rigid restrictions on teaching and practices in the educational institutions which, by their very methods and concepts, serve to enclose the mind within the established universe of discourse and behavior." Because students already were so heavily brainwashed to think in the manner that established power had ordained, true "autonomous thinking" was virtually impossible, and one had to take steps to wrench students from the regressive channels into which society had cast their minds. "The pre-empting of the mind vitiates impartiality and objectivity," he wrote. "Unless the student learns to think in the opposite direction, he will be inclined to place the facts into the predominant framework of values." Marcuse mocked the "sacred liberalistic principle of equality for `the other side,'" because "there are issues where...there is no `other side' in any more than a formalistic sense."

Indeed, Marcuse confidently posited that it would not be difficult to determine "the question as to who is to decide on the distinction between liberating and repressing, human and inhuman teachings and practices." The distinction between these two poles, he assured his readers and students, "is not a matter of value-preference but of rational criteria." Once the rational criteria were identified, truth was easy to determine. With this certainty, Marcuse believed that he could describe the means by which the academy should bring about this "reversal of the trend in the educational enterprise." Ultimately, such a reversal should "be enforced by the students and teachers themselves, and thus be self-imposed, the systematic withdrawal of tolerance toward regressive and repressive opinions and movements." In the short term, Marcuse proposed that the academic shock troops of this revolution "prepare the ground" for effecting such changes, even if that might involve a resort to violence. Marcuse was not troubled by this, because "there is a difference between revolutionary and reactionary violence, between violence practiced by the oppressed and by the oppressors."

In short, to produce conditions in which freedom could flourish first on campus and then in the greater society, re-education in a progressive university was essential. Revolutionary thinking then could break the stranglehold of the powerful on the minds of students and citizens. This re-education alone could create a "progressive" society, where true freedom and democracy would reign. Once this had been achieved, Marcuse promised, there would be no further need for "anti-democratic" expedients that were, after all, aimed simply at redressing the imbalance between "oppressor" and "oppressed." Censorship during this "reversal" was essential, because ubiquitous, dangerous, and regressive notions were too quickly translated into practice. Indeed, censorship, for Marcuse, must be deeply pervasive, although historically temporary. The result, he promised, would be to restore real freedom, and the words freedom and liberty once again could attain their "true meanings."

Marcuse's prescriptions for a progressive society have not noticeably taken root in the "real world" outside the academy. Most of the trends toward greater free speech for all--trends that he so abhorred--have accelerated in the three decades since he published his essay. Nevertheless, Marcuse's prescriptions are the model for the assaults on free speech in today's academic world.

Drafters of college speech codes almost invariably begin by setting out the core principle of any self-proclaimed liberal arts institution of higher learning--that the pursuit of teaching, learning, and research relies on academic freedom and on freedom of speech and inquiry. They posit the necessity of including all members of the academic community in this pursuit and proceed to take steps purportedly aimed at making these social and educational opportunities available to all. To ensure these benefits to groups of students perceived to be "historically underrepresented" or "historically disadvantaged," the codes severely limit the speech rights of individual students by prohibiting the utterance of certain unkind and, they claim, destructive words.

We have studied hundreds of these codes. While some definitions of banned speech are extremely broad and others substantially narrower, differences from one code to another are matters of degree rather than of kind. A suspension of belief in the ordinary meanings of words is required to accept the contradictions so often contained within the same code, frequently within the same paragraph, and sometimes within the same sentence. On the one hand, the codes claim to cherish free speech and academic freedom, including the freedom to express even the most challenging and offensive ideas; on the other, certain categories of "offensive" speech are banned in order to create a "comfortable" and "inclusive" learning atmosphere.

The ability of a university to endorse two contradictory policies can perhaps be explained as simple hypocrisy. Indeed, this does appear to be part of the answer on many campuses, where administrators have agendas far removed from the common pursuit of knowledge. Whether hypocritical or sincere, however, the drafters of these codes feel a need to justify the seemingly contradictory goals of free speech and free inquiry, on the one hand, and limitations on speech to achieve equal access to educational opportunity, on the other. Reconciliation of these opposing concepts is achieved primarily by Marcusean logic.

The attempt to balance the right of free speech with the "right" to be free from harassment deeply reflects Marcuse's notion of "freedom" and "tolerance." It is a fundamentally Marcusean idea that tolerance must be redefined to advance a positive social and moral agenda. The codes express a deep commitment to freedom of speech and inquiry, but when they express an equal commitment to a group member's right to be free from verbal harassment, it leads, in the name of positive freedom, to the wholesale banning not only of speech and other traditional modes of expression but even of looks, body language, and, in some cases, laughter. It leads, in short, to progressive intolerance.

A window into the thinking of some speech code crafters is found at Stanford University. The initial draft of Stanford's code was strongly influenced by professor Thomas Grey of the law school, who has posited that, under certain circumstances, constitutional commitments to freedom of expression, and to civil liberties in general, conflict with the nation's commitment to providing equal access to educational opportunities, and to civil rights in general. In a 1991 article in the Harvard Journal of Law and Public Policy, Grey expresses discomfort at the collision but considers the conflict "inescapable." In his view, the tension between academic freedom and equal educational opportunity arises from an inherent conflict between civil liberties and civil rights, between liberty and social equality.

This premise is problematic. Freedom of speech is a "liberty interest," and it deals solely with an individual's ability to express himself or herself as he or she desires. In contrast, civil rights legislation is largely protective and egalitarian, expressing the broader societal concern with how citizens are faring in comparison to other citizens. Put another way, the First Amendment protects the individual from the oppressive exercise of government power, whereas civil rights jurisprudence offers the individual recourse to the government for assistance in obtaining the necessary tools and opportunities to reap the benefits of equal participation in economic, social, and cultural life.

To bridge the perceived gap between libertarian and egalitarian interests, speech code drafters accept the dramatic thesis that individual speakers express not only their own individual views, but also those of their entire gender or ethnic group. In Stanford's speech code, banned epithets reflect "a widely shared, deeply felt, and historically rooted social prejudice against people with that [derided] trait." Because the speaker of such epithets is expressing a "widely shared prejudice," he or she has ceased to speak as an individual or to express merely his or her own thoughts, and has become a living symptom and symbol of societal oppression.

In Grey's view, such statements "make the atmosphere more difficult for [members of targeted groups] on a campus and hence deny them a level educational playing field with students not so stigmatized." A "difficult atmosphere" is, thus, the deprivation of rights and opportunities. It is therefore appropriate, by this theory, to halt the speech of individuals (and to deny their status as discrete, autonomous beings) in order to combat this cumulative effect. The traditional formula--that free speech is allocated equally to all and is not to be limited in terms of content and viewpoint--perpetuates majority dominance. Individual equality before the law must be sacrificed in the name of equal opportunity for the members of groups.

Grey justifies the unequal application of speech restrictions by making an analogy between the campus and the workplace. Grey recognizes that traditional First Amendment jurisprudence prohibits the government from restricting speech on the basis of content and viewpoint, except in very limited and long-recognized areas, such as defamation, obscenity, and threats.
In Grey's mind, however, special circumstances created by unequal power relationships between management and labor justified differential allocation of speech rights in the workplace, including constraints upon certain categories of speech and viewpoints. Thus, he finds that American labor laws could sanction an employer for stating, during a union organizing election: "If I have to pay union rates, I doubt I'll be able to keep this plant open."

That, argues Grey, is treated as a threat to the workers and prohibited as an unfair labor practice directed at discouraging union organizing. On the other hand, the government would not be able to punish an employee for saying, in the same context, "Employers who resist unionization often find a less cooperative work force afterwards." The reason for such different treatment is based, Grey concludes, on the power differential between employer and employee. From this, he moves to the proposition that the insults "nigger" and "whitey" are not equivalent because "American society and its history have created the asymmetry [between the black and white races]; a regulation cannot attempt to redress that asymmetry without taking it into account." Grey denies that it is "patronizing to students of color" to restrict insults hurled at them without restricting insults hurled at others. The vulnerability of black students and their lesser ability to "take care of themselves in verbal rough-and-tumble"--in short, their status as a "`protected group" that is "in need of official protection"--is a product of history.

University administrators seem unconcerned by the double standards and differential allocation of rights fostered by such policies. Speech codes mandate a redefined notion of "freedom," based on the belief that the imposition of a moral agenda on a community is justified by, in Marcuse's words, "the historical calculus of progress," in which every enlightened and rational person naturally strives to reduce "cruelty, misery and suppression." Since the reduction of "cruelty, misery and suppression," in this view, requires less emphasis on individual rights and more on assuring "historically oppressed" persons the means of achieving equal rights, liberty must, for now, take a back seat.