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 Stanford University, at Stanford, Calif.; coeducational; chartered 1885, opened 1891 as Leland Stanford Junior Univ. (still the legal name). The original campus was designed by Frederick Law Olmsted. David Starr Jordan was its first president. , a California Superior Court found that Stanford's rules against "discriminatory harassment Ask a Lawyer
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I recently moved to nev.from abut have been going back to ca. every 2 to 3 weeks for med. " 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 sexual orientation
The direction of one's sexual interest toward members of the same, opposite, or both sexes, especially a direction seen to be dictated by physiologic rather than sociologic forces. , 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 The Leonard Law is a California law passed in 1992 that applies the First Amendment to the United States Constitution to private colleges and universities. The law also applies Article I, Section 2 of the California Constitution to private colleges and universities. ." 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 dis·as·so·ci·ate
tr.v. dis·as·so·ci·at·ed, dis·as·so·ci·at·ing, dis·as·so·ci·ates
To remove from association; dissociate.
dis itself from the hateful speech it was seeking to discourage - for example, by publicly denouncing it.
Stanford didn't appeal. President Gerhard Casper Gerhard Casper (1937 - ) was the 9th president of Stanford University from 1992-2000. He is currently the Peter and Helen Bing Professor in Undergraduate Education at Stanford. 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 Precepts, such as the Code of Professional Responsibility, that proscribe an attorney from taking certain actions in the Practice of Law.
Proceedings can be instituted to disbar an attorney who violates the 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 American Civil Liberties Union (ACLU), nonpartisan organization devoted to the preservation and extension of the basic rights set forth in the U.S. Constitution. : Lacking confidence in private autonomy except when it comes to sex, the ACLU ACLU: see American Civil Liberties Union. supports the Leonard Law, and its lawyers have been busy forcing private actors it doesn't like (such as Georgetown University Georgetown University, in the Georgetown section of Washington, D.C.; Jesuit; coeducational; founded 1789 by John Carroll, chartered 1815, inc. 1844. Its law and medical schools are noteworthy, and its archives are especially rich in letters and manuscripts by and ) to fund, sponsor, and include the speech of groups it does like (gay and lesbian groups). However, it is disconcerting dis·con·cert
tr.v. dis·con·cert·ed, dis·con·cert·ing, dis·con·certs
1. To upset the self-possession of; ruffle. See Synonyms at embarrass.
2. to watch otherwise sensible people hop on Verb 1. hop on - get up on the back of; "mount a horse"
bestride, climb on, jump on, mount up, get on, mount
move - move so as to change position, perform a nontranslational motion; "He moved his hand slightly to the right" this statist stat·ism
The practice or doctrine of giving a centralized government control over economic planning and policy.
statist adj. 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
Henry John Hyde (born April 18 1924), American politician, was a Republican member of the United States House of Representatives from 1975 to 2006, representing the 6th (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 in·ci·vil·i·ty
n. pl. in·ci·vil·i·ties
1. The quality or condition of being uncivil.
2. An uncivil or discourteous act. , 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 This article is about the concept. For the public radio show and podcast, see The Marketplace of Ideas (radio program).
The "marketplace of ideas" is a rationale for freedom of expression based on an analogy to the economic concept of a free market. . 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 in·var·i·a·ble
Not changing or subject to change; constant.
in·vari·a·bil 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 Zero-Sum Game
A situation in which one participant's gains result only from another participant's equivalent losses. The net change in total wealth among participants is zero the wealth is just shifted from one to another. of redistribution. They marginally expand the "freedom" of some individuals - for example, those who want to work or study at Notre Dame Notre Dame IPA: [nɔtʁ dam] is French for Our Lady, referring to the Virgin Mary. In the United States of America, 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 "fight 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, Prune..vard Shopping Center shopping center, a concentration of retail, service, and entertainment enterprises designed to serve the surrounding region. The modern shopping center differs from its antecedents—bazaars and marketplaces—in that the shops are usually amalgamated into 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 St. Patrick's or Saint Patrick's may refer to:
The Stanford decision also followed Pruneyard in holding that the law which compelled the toleration TOLERATION. In some. countries, where religion is established by law, certain sects who do not agree with the established religion are nevertheless permitted to exist, and this permission is called 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 David Ernest Duke is a former Republican member of the Louisiana House of Representatives, a candidate in presidential primaries for both the Democratic and Republican parties, and former Grand Wizard of the Knights of the Ku Klux Klan. , 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 cen·so·ri·ous
1. Tending to censure; highly critical.
2. Expressing censure.
[Latin c 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 Federal Funds
Funds deposited to regional Federal Reserve Banks by commercial banks, including funds in excess of reserve requirements.
These non-interest bearing deposits are lent out at the Fed funds rate to other banks unable to meet overnight reserve 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, carmot 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 OCR
in full optical character recognition
Scanning and comparison technique intended to identify printed text or numerical data. It avoids the need to retype already printed material for data entry. ) 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 (language) CAJOLE - (Chris And John's Own LanguagE) A dataflow language developed by Chris Hankin <email@example.com> and John Sharp at Westfield College.
["The Data Flow Programming Language CAJOLE: An Informal Introduction", C.L. private colleges to guarantee free speech (except, of course, ethnocentric eth·no·cen·trism
1. Belief in the superiority of one's own ethnic group.
2. Overriding concern with race.
eth and sexist speech) until every last one of them complies with the reigning standards of orthodoxy. Quite apart from libertarian scruples about imposing govemment 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 politically incorrect
Disregarding or unconcerned with political correctness.
political incorrectness n.
Adj. 1. . 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 left·ism also Left·ism
1. The ideology of the political left.
2. Belief in or support of the tenets of the political left.
left 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.