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.
During months of conflict on the board of the Civil Liberties Union of Massachusetts, the Rev. Grayson Ellis-Hagler—pastor of the Church of the United Community in Boston's Roxbury section and a renowned citywide civil-rights activist—distinguished between the "purist" civil libertarians (the First Amendment camp) and those with different life experiences, including black members of the board.
The latter, who know what it is to struggle for civil rights and against discrimination, must, said Ellis-Hagler "send a clear message that some forms of speech cannot be permitted." And not only on college campuses.
Ellis-Hagler was and is opposed to the ACLU's 1977 defense of the native Nazis who wanted to demonstrate in Skokie, Illinois, with its large Jewish population—including survivors of the Holocaust. Also opposed to the ACLU action in Skokie are most of the students I have met who are for limiting "bad" speech on campus.
A conclusion from this division among people of good intentions is that—in almost any context the First Amendment has a very small constituency. And when it is put up against such desirable goals as the control of bigotry, it fades—for most people—in importance.
Furthermore, civil liberties have to do, most of the time, with protection of the individual. Civil rights, on the other hand, are usually regarded, and litigated, as group rights. And that is a fundamental conflict in the battle over curbing speech on campus.
On the June 18,1991, "MacNeil/Lehrer NewsHour," Molafi Asante, chairman of the African-American Studies department at Temple University, said: "You have certainly the individual's right to say whatever he or she pleases to say. I mean, that is fundamental to the Constitution itself. You have the other point to this, 'of course, which is the collective interest.…What is the collective interest? What is best for the community? What is best for the society? And certainly I think the whole question of insensitivity is basic to this issue. And if an individual is insensitive to his or her peers or colleagues, then I think that certainly the university should be concerned about this."
This statement—more carefully wrought than most—exemplifies the ritual of balancing free speech into the back of the bus. Yes, it is "fundamental to the Constitution itself," but when the chips are down, the university must put "sensitivity" first.
By rather lonely contrast there is the view—and practice of Benno Schmidt, president of Yale. The great majority of college presidents have either put a speech code in place as a quick, cheap way of pretending they're doing something about bigotry, or they have hunkered down and tried to avoid the subject. Schmidt continually, consistently, confronts the question of free speech vs. the university as a community—with its corollary concerns of civility and sensitivity.
On the PBS program, Schmidt said: "I take a completely different view of what a university is.…I don't think the university is first or foremost a community. It's not a place, first and foremost, that is about the inculcation of thought, habits, and mind that I might agree are correct and constructive.
"The university has a fundamental mission which is to search for the truth. And a university is a place where people have to have the right to speak the unspeakable and think the unthinkable and challenge the unchallengeable.
"Now, it's not a place of violence. It's not a place for threats.…There's no place for violence, or threats of it, in a regime of freedom. But beyond that, I think that these [speech] codes make a terrible mistake.…Students think that they are codes about building communities that are based on correct thoughts, and that's antithetical, I think, to the idea of a university."
The Jacobin—or "politically correct" cadres—have actually succeeded in helping to divide the university into a number of splintered "communities." But contrary to some of what's been written, they have not succeeded—in any campus I know—in squashing or even intimidating conservative students. (A growing number of "politically incorrect" professors, however, have been bedeviled into dropping courses because of the heat, including classroom disruptions by the Jacobins.)
Conservative students enjoy their newfound role as champions of free speech, taking sardonic pleasure in depicting the righteous left as neo-McCarthyites. On many campuses, conservatives—usually with the help of funds from highly conservative foundations—are publishing alternative papers. They tend to be quite lively and witty (humor being in exceedingly short supply among the Jacobins) And these papers take much muckracking pleasure in exposing the surrenders, small and large, of university administrators to the demands of the politically correct.
Those most stifled by the pall of orthodoxy on campus are students who are liberals of an independent mind, and moderates. On campus after campus, from Brown to Stanford, I have talked to students who say there are some views they hold—or questions they want to ask—that they no longer bring up in class or in most places outside of class. It's not worth the hassle of being sent to Coventry. Questions, for example, about affirmative action. How far should it go? Questions about abortion. Should the father have any say at all in what happens to the fetus?
One brave student at New York University Law School, Barry Endick, actually signed his name to a complaint about this bristling orthodoxy, in a letter in the law school student publication The Commentator. He told of the atmosphere in the law school created by "a host of watchdog committees and a generally hostile classroom reception regarding any student right of center." This "can be arguably viewed as symptomatic of a prevailing spirit of academic and social intolerance of…any idea which is not 'politically correct.'…We ought to examine why students, so anxious to wield the Fourteenth Amendment, give short shrift to the First. Yes, Virginia, there are racist assholes. And you know what? The Constitution protects them too."
And there are law schools with speech codes. The most egregious code belongs to the State University of New York at Buffalo School of Law. Again, it begins with the obligatory obeisance to freedom of speech and thought—which it then takes away: "Every intellectual community worthy of the name thrives on sharp and heated controversy—on the free and full expression of opposing ideas and values; on impassioned arguments for, and equally passionate arguments against. Given the particular professional skills required for the practice of law, law schools—including this one—especially prize and encourage such unencumbered give-and-take, the more lively and uninhibited the better."
However, "because the common law and two centuries of Constitutional tradition have long given American lawyers a special role in assuring fairness and securing equal treatment to all people, our intellectual community also shares values that go beyond a mere standardized commitment to open and unrestrained debate. We support the particular values shaped by the special traditions and responsibilities of the legal community to which all of us—students and faculty alike—belong." (Emphasis added.)
Any and all expressions of "bigotry, prejudice and discrimination are abhorrent to those traditions; they not only detract from the person uttering them, but reflect poorly upon the profession as a whole."
Therefore, "by entering law school, each student's absolute right to liberty of speech must also become tempered in its exercise, by the responsibility to promote equality and justice." So, with astonishingly imprecise, vague, and overbroad language, the law school faculty says it will crack down on any and all remarks directed at another's "race, sex, religion, national origin, age, or sexual preference" as well as "racist, sexist, homophobic and anti-lesbian, ageist and ethnically derogatory statements." As if that weren't broad enough, also beyond the pale at Buffalo are "other remarks based on prejudice and group stereotype."
The sins of bad speech, moreover, will pursue the student after graduation: "Where such acts indicate that a student may lack sufficient moral character to be admitted to the practice of law, the school can and will make appropriate communication to the character and fitness committees of any bar to which such a student applies, including, where appropriate, its conclusion that the student should not be admitted to practice law." (Emphasis added.)
I first learned of this vengeful view of law students' free speech rights from two students at the law school. Both were members of the conservative Federalist Society. On inquiry, I found that indeed the only students against the policy were members of the Federalist Society. On the left, the law school chapter of the National Lawyers Guild was all for the code; and later, the national guild came out for speech codes everywhere.
Only one professor at the law school criticized the speech restrictions—and even he was careful to be circumspect. SUNY Buffalo is the most "politically correct" law school I have ever come across.
Around the country, most law professors—even the First Amendment specialists—have been silent on the speech codes, as well as other "politically correct" power trips. Similarly, most other professors, including liberals, have shied away from any direct confrontations with the Jacobins, even when other professors have been relentlessly attacked because of their "wrong ideas."
There is fear on campus; fear of being put on a list—as there was fear during the McCarthy years of being on a list. And in most places, the administrators do not protect those professors accused of being "racist" or "sexist." And they go after students so accused with cold zeal.
Harvard law professor Alan Dershowitz—the boldest and bravest of First Amendment defenders—has written: "I feel this problem quite personally, since I happen to agree, as a matter of substance, with most 'politically correct' positions. But I am appalled at the intolerance of many who share my substantive views. And I worry about the impact of politically correct intolerance on the generation of leaders we are currently educating."
Leaders will indeed emerge from the ranks of these college and university graduates. Among them will be the lawyers, judges, educators, legislators, and Supreme Court justices of the future. And the mind-set with which they leave the campus in these years is: Some censorship is OK provided that the motivations are OK.
Nat Hentoff writes for The Village Voice.
This article originally appeared in print under the headline "The New Jacobins".