A pro-con discussion of speech codes and free speech
At Emory University, certain conduct that is permissible off campus is not allowed on campus. Specifically, some speech and behaviors are prohibited in Emory's version of what are derogatorily labeled "politically correct" codes but are more commonly known as hate speech codes. Emory's code begins with its definition of banned behavior.
Discriminatory harassment includes conduct (oral, written, graphic or physical) directed against any person or, group of persons because of their race, color, national origin, religion, sex, sexual orientation, age, disability, or veteran's status and that has the purpose or reasonably foreseeable effect of creating an offensive, demeaning, intimidating, or hostile environment for that person or group of persons.
There were approximately 75 hate speech codes in place at U.S. colleges and universities in 1990; by 1991, the number grew to over 300. School administrators institute codes primarily to foster productive learning environments in the face of rising racially motivated and other offensive incidents on many campuses. According to a recent study, reports of campus harassment increased 400 percent between 1985 and 1990. Moreover, 80 percent of campus harassment incidents go unreported.
Hate speech codes follow several formats. Some codes, including Emory's, prohibit speech or conduct that creates an intimidating, hostile, or offensive educational environment. Others ban behavior that intentionally inflicts emotional distress. Still others outlaw general harassment and threats," without clarifying what constitutes such conduct. Court rulings have prohibited public (state-run) colleges and universities from enacting codes that restrict the constitutional right to free speech based on content. Private institutions, in contrast, are not subject to these decisions. Emory, for example, as a private university, can ignore public law rulings and draft whatever hate speech policy it chooses.
Hate speech codes raise important ethical questions. When civil liberties are pitted against the right to freedom of speech, which does justice favor? Do the costs of hate speech codes outweigh their benefits? Is the harm that results from hate speech so serious that codes to restrict freedom of speech are morally required?
Arguments Against Campus Hate Speech Codes
The most fundamental argument against hate speech codes rests on the idea that they violate a fundamental human right, freedom of speech. Such a fundamental right, it is argued, should not be limited except to prevent serious harm to others. Libel or shouting "Fire!" in a movie theater, for example, can cause serious harm and, therefore, are legitimately banned. In contrast, what campuses prohibit as "hate speech" is primarily opinion that, while often offensive and unpopular, does not cause serious harm. The fundamental right to free speech should not be restricted merely to prevent hate speech.
Additionally, critics assert that the costs of hate speech codes far outweigh their benefits. Threatened by "politically correct" students who are backed by hate speech codes, students who have reasonable yet nonconforming points of view will be afraid to speak in classes. As a social institution, a university should be open to all opinions, popular and unpopular. As Oliver Wendell Holmes commented, "The very aim and end of our institutions is just this: that we may think what we like and say what we think." Hate speech codes thus inflict a major harm on our social institutions.
Censorship is only one example of how hate speech codes undercut the benefits of higher education. If these codes shield students from dissenting opinions, how will they learn to respond to such opinions after they graduate? Hate speech codes encourage an artificial reality on campus that prevents students from learning effectively to tolerate diversity.
Hate speech codes may obstruct the kind of education that promotes tolerance of diversity in other ways. Over time, the same fervor that brought hate speech codes will bring further restrictions by administrators eager to create egalitarian institutions in a nonegalitarian world.
The law school at the State University of New York, Buffalo, for example, seeks out and ask state bars to deny admission to former students who violate its hate speech code. And following the 1988 passage of the Civil Rights Restoration Act, which denies federal aid to students of private colleges and universities that violate federal anti-discrimination rules, legislators are considering a law that would force private institutions to require courses on, racial sensitivity and ethnic history. From defining what specifically constitutes "hate speech" to choosing the manner in which policies are enforced, codes clearly cause or invite more trouble than they are worth.
In Defense of Campus Hate Speech Codes
Those who advocate hate speech codes believe that the harm codes prevent is more important than the freedom they restrict. When hate speech is directed at a student from a protected group, like those listed in Emory University's code, the effect is much more than hurt feelings. The verbal attack is a symptom of an oppressive history of discrimination and subjugation that plagues the harmed student and hinders his or her ability to compete fairly in the academic arena. The resulting harm is clearly significant and, therefore, justifies limiting speech rights.
In addition to minimizing harm, hate speech codes result in other benefits. The university is ideally a forum where views are debated using rational argumentation; part of a student's education is learning how to derive and rationally defend an opinion. The hate speech that codes target, in contrast, is not presented rationally or used to provoke debate. In fact, hate speech often intends to provoke violence. Hate speech codes emphasize the need to support convictions with facts and reasoning while protecting the rights of potential victims.
As a society we reason that it is in the best interest of the greatest number of citizens to sometimes restrict speech when it conflicts with the primary purpose of an event. A theater owner, for example, has a right to remove a heckler when the heckler's behavior conflicts with the primary purpose of staging a play - to entertain an audience. Therefore, if the primary purpose of an academic institution is to educate students, and hate speech obstructs the educational process by reducing students' abilities to learn, then it is permissible to extend protection from hate speech to students on college or university campuses.
Hate speech codes also solve the conflict between the right to freely speak and the right to an education. A student attending a college or university clearly has such a right. But students exercising their "free speech" right may espouse hateful or intimidating words that impede other students abilities to learn and thereby destroy their chances to earn an education.
Finally, proponents of hate speech codes see them as morally essential to a just resolution of the conflict .between civil rights (e.g., freedom from harmful stigma and humiliation) and civil liberties (e.g., freedom of speech). At the heart of the conflict is the fact that under-represented students cannot claim fair and equal access to freedom of speech and other rights when there is an imbalance of power between them and students in the majority. If a black student, for example, shouts an epithet at a white student, the white student may become upset or feel enraged, but he or she has little reason to feel terror or intimidation. Yet when a white student directs an epithet toward a black student or a Jewish student, an overt history of subjugation intensifies the verbal attack that humiliates and strikes institutional fear in the victim. History shows that words of hatred are amplified when they come from those in power and abridged when spoken by the powerless.
Discrimination on college and university campuses is a growing problem with an uncertain future. Whether hate speech codes are morally just responses to campus intolerance depends on how society interprets the harms of discriminatory harassment, the benefits and costs of restricting free speech, and the just balance between individual rights and group rights.
This article builds on a November 1990 presentation delivered at the Center by Gerald F. Uelmen, dean of Santa Clara University School of Law and a fellow of the Center for Applied Ethics.
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