The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Professor Nadine Strossen, who served as president of the ACLU from 1991 to 2008, gave an excellent talk on campus free speech (the 2015 Richard S. Salant Lecture on Freedom of the Press at the Harvard Kennedy School's Shorenstein Center on Media, Politics and Public Policy). You can see the text here and the video here. An excerpt:
Of the many current free speech problems, the one I've chosen to address in my brief time is one that Harvey Silverglate complained about specifically at Harvard Law School, way back in 1996 in a Wall Street Journal op-ed. And it's a general problem that I wrote about even earlier, in my 1995 book, Defending Pornography.
Sadly though, this problem has become even worse since then. Specifically, I'm referring to the overbroad, unjustified concept of illegal sexual harassment as extending to speech with any sexual content that anyone finds offensive. This distorted concept has recently become entrenched on campus due to pressure from the Department of Education's Office of Civil Rights, the OCR. By threatening to pull federal funds, the OCR has forced schools, even well-endowed schools such as Harvard, to adopt sexual misconduct policies that violate many civil liberties, as denounced by an admirable, remarkable open letter that 28 members of the Harvard Law School faculty published last fall, with the signers including distinguished female professors who are lifelong feminist scholars and women's rights advocates.
Tonight, I'm going to be zeroing in on just one of these problematic sexual misconduct policies, namely, as I said, the sexual harassment concept, because its subversion of free speech is germane to the theme of this lecture series.
Of course, combating gender discrimination, violence and sexual assault is of the utmost urgency. I hope that goes without saying, but I will underscore it: of the utmost urgency.
But, OCR's distorted concept of sexual harassment actually does more harm than good to gender justice, not to mention to free speech. More than 20 years ago, my book, Defending Pornography, made this point in the context of opposing laws that some feminists were then advocating, laws that would ban sexual expression that they viewed as demeaning to women. In fact, there was a vigorous campaign for one such law right here in Cambridge, which was defeated, thanks in large part, to other anti-censorship feminists, including the Boston Women's Health Collective, the publishers of the classic, Our Bodies Ourselves.
Well, alas, all these years later, decades later, my book's message is still relevant in response to the still ongoing efforts to suppress sexual expression for the purported sake of women's equality and safety, now through the vehicle of campus sexual harassment policies….
She offers many examples, and much helpful analysis; there are a few matters on which I might disagree with her, but on balance I think this is much worth reading—and I hope will be particularly influential among liberals, given Strossen's liberal credentials. (If it's also influential among moderates and conservatives, of course, all the better.)