The Law: Forcing Free Speech
The libertarian case for speech codes
Another campus "speech code" has bitten the dust. In late February, in a lawsuit brought by conservative law students at Stanford University, a California Superior Court found that Stanford's rules against "discriminatory harassment" violated the plaintiffs' rights to freedom of speech. Although the code prohibited only the direct, "personal vilification of students on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin," the court found that even these narrow prohibitions violated the First Amendment.
This is an expansive reading of Supreme Court precedents on hate speech. As such, it is most welcome. And it is inspiring to see a bunch of students, litigating pro se, beat the clever Stanford law professors who drew up the code. Still, one is hard pressed to celebrate the case as a victory for free speech. Stanford is a private university, and one must wonder what happened to its freedom of speech and freedom of association—not to mention its property rights—in this case.
The students could not have sued Stanford under the First Amendment were it not for the "Leonard Law." In essence, this unique provision in the California Education Code makes the First Amendment directly applicable within all private, postsecondary educational institutions in the state, treating college rules as though they were government restrictions. Stanford argued that the Leonard Law is unconstitutional because it compels private institutions to associate themselves with ideas that they do not wish to express or even tolerate. The court ruled that the Leonard Law did not restrict Stanford's speech, but merely "expand[ed] the realm of speech without favoring one side or the other." It also held that the law did not burden Stanford's freedom of association because the university could easily disassociate itself from the hateful speech it was seeking to discourage—for example, by publicly denouncing it.
Stanford didn't appeal. President Gerhard Casper told the press that he despaired of explaining to the public a position that he could not even explain to Stanford's students and trustees. It thus falls to those who are unencumbered by President Casper's official responsibilities to explain why the Leonard Law is probably unconstitutional and, in any event, a very stupid idea.
A student's decision to enroll at Stanford, on whatever terms and conditions it offers (including disciplinary rules), is voluntary. Both the freedom to take one's money and talents elsewhere and the freedom to sue the university for failures to uphold its end of the bargain are powerful antidotes to P.C. tyranny.
One would not expect this argument to persuade the American Civil Liberties Union: Lacking confidence in private autonomy except when it comes to sex, the ACLU supports the Leonard Law, and its lawyers have been busy forcing private actors it doesn't like (such as Georgetown University) to fund, sponsor, and include the speech of groups it does like (gay and lesbian groups). However, it is disconcerting to watch otherwise sensible people hop on this statist bandwagon.
The conservative Individual Rights Foundation, a public interest law firm in California, has threatened private colleges with lawsuits under the Leonard Law. It has also embarked upon a campaign to bring that law to other states, and has vowed to lobby for statutes that would prohibit private employers from restricting their employees' freedom of speech. Similarly, Rep. Henry Hyde (R-Ill.) has proposed to amend Title VI of the Civil Rights Act—which prohibits discrimination in federally funded institutions—to require the recipients to also observe the First Amendment.
While well-intentioned, such conservative attempts to combat P.C. mania with regulation are seriously misguided. Conservatives cannot beat the left at its game of creating private rights against "discrimination," and they shouldn't even try. This is more than a point of abstract principle; it affects not merely speech codes, but broader civil rights questions.
Modern free speech law has two basic tenets: a "wide-open and robust" public debate, and strict government neutrality with respect to the content and viewpoint of private speech. This means Americans must suffer a certain social incivility, and we wind up protecting false and pernicious ideas along with intelligent, rational discourse. But these costs are dwarfed by the manifest dangers of the alternative to robust debate—allowing a monopolistic government to police the marketplace of ideas. Similarly, we insist on government neutrality as our only effective hedge against government favoritism.
But rules that guard against government abuse make no sense when applied to private institutions. In a non-monopolistic market, any central, uniform rule—even a rule that itself embodies the values of freedom and diversity—will almost invariably restrict private options and social diversity. None of the thousands of colleges and universities in this country can coerce conformity among anyone except the faculty and students who have voluntarily contracted into the existing arrangements. In this context, "First Amendment principles" are not a guarantee of freedom but a zero-sum game of redistribution. They marginally expand the "freedom" of some individuals—for example, those who want to work or study at Notre Dame without speech codes, or at a multicultural St. John's. But Notre Dame and St. John's lose the freedom to be Notre Dame and St. John's.
For this reason, the First Amendment is generally understood to protect private speakers against compelled speech and association. Thus, the Supreme Court has struck down state laws imposing a "right of reply" requirement upon newspapers, on the grounds that such a requirement would force private speakers to associate themselves with unwelcome speech.
Unfortunately, however, the Supreme Court, in a particularly egregious 1980 case, Pruneyard Shopping Center v. Robins, upheld a California statute that granted picketers and leafleteers access to private shopping malls. Private malls, the Court said, are in effect public places and, unlike newspapers, have no viewpoint of their own that could be distorted by other private speakers on the premises.
One would think that universities are more like newspapers than shopping malls. They trade in ideas and speech, and the right not to transmit or to associate themselves with speech is central to their function. Nonetheless, the Stanford case was decided principally under Pruneyard and its tortured reasoning.
The court reasoned that Stanford had in effect forfeited its right to exclude by opening its campus and admissions to the general public. Using the same implausible argument, other courts have held that the "generally open" St. Patrick's Day Parade cannot exclude gay and lesbian advocates, except when the parade is being held in protest against the court-ordered inclusion of such groups. Perhaps Stanford can now exclude hateful speech in protest against the Leonard Law, even if it cannot do so as a general matter.
The Stanford decision also followed Pruneyard in holding that the law which compelled the toleration of unwanted speech was "neutral" and did not impose any particular viewpoint or "dogma." Wrong again. The Leonard Law imposes a dogma—namely, the idea that education is best pursued in an atmosphere of "robust debate." (The California court went so far as to label this a "compelling state interest.") But what of educational institutions that place a priority on rational discourse, discipline, or civility?
Religious institutions in particular are inclined toward the search for truth through obedience to tradition rather than robust debate—and toward policies that are more restrictive than those allowed under the First Amendment. To be sure, the Leonard Law contains a narrow exception for institutions that are "controlled by a religious organization," as does the Hyde Amendment. But even entirely secular colleges should be entitled to believe that there is good speech and bad speech; that they should teach the good and discourage the bad; and that they should not be forced to provide a forum for Khalid Muhammed or David Duke, notwithstanding their undeniable contributions to robust debate. Strange as it may sound to California judges, millions of individuals are eager to enroll in such censorious institutions. Depriving them of that option (or confronting them with an all-or-nothing choice between a bible school and a free-for-all) is not a plausible state interest, let alone a compelling one.
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.
Michael S. Greve is executive director of the Center for Individual Rights, a public interest law firm in Washington, D.C.
