4.2.12 WC: 191694
Speech Codes It is the great danger of top-down discretion in the area of regulating speech that led me to
express one of the most controversial views a free speech advocate can hold: I favor precise and narrow “speech codes” on university campuses, for much the same reason I favor precise and narrow national security codification. As I will now explain, I favor such codes not because I want to see campus speech curtailed, but rather because I want to see it freer than it is today.
My general views on free speech are well-known: I am as close to an absolutist against censorship as anyone can reasonably be. In my book Finding Jefferson I describe my position as “a presumptive absolutist”.
“All speech should be presumed to be protected by the Constitution, and a heavy burden should be placed on those who would censor to demonstrate with relative certainty that the speech at issue, if not censored, would lead to irremediable and immediate serious harm. No one should be allowed — in the famous but often misused words of Justice Oliver Wendell Holmes Jr. — falsely to shout fire in a crowded theater, but anyone should be allowed to hand out leaflets in front of the theater urging people not to enter because of potential fire hazards.”
I am particularly critical of the censorship of speech on university campuses in the name of “political correctness”. As I wrote in Shouting Fire:
Though [students who seek to censor “offensive” speech] insist on being governed by the laws of the outside world when it comes to their personal lives, railing against visitor rules and curfews, they want their universities to adopt rules that restrict their First Amendment rights of free speech in order to shield them from the ugly realities of prejudice.
Yet despite my strong opposition to censorship, I have surprised both my supporters and detractors by calling for precise and narrow “speech codes” on campuses. My reasoning is simple: censorship is inevitable on all university campuses in extreme situations; if a professor used the “N” word to call on an African-American student in class — or comparable taboo words to call on a woman, a Jew, a gay or lesbian, a Latino, or an Asian-American — that teacher would be fired (or at the very least disciplined). There are other forms of expression as well that would simply not be tolerated in a university, public or private. Precisely what those are we don’t know (recall Carlin’s 7 dirty words) but we will probably know it when we see it. (Recall Justice Stewart on hard core pornography.) Accordingly, there already exists a speech common-law (or more precisely a censorship common-law) at every university. The issue, therefore, is not whether there is or should be any censorship of expression by universities. We already know the answer to that question: there is and there should be in those kinds of extreme cases. I know of no responsible person or organization that would defend the right of a teacher to use the “N” word in calling on or routinely discussing African-American students. The remaining question is
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