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whether it is better to leave the decision as to which words in which contexts are prohibited to the after-the-fact discretion of an administrator, or to decide in advance on a list or category of prohibited expressions. In other words, is it more protective of freedom of expression to have a “censorship common-law” to be applied on an ad-hoc basis by a dean, or to have a “censorship code”’ debated and agreed upon in advance by the equivalent of the legislative branch of the university — a student or faculty senate or some other representative body.
I strongly favor a narrow code to a potentially broad common-law, because it provides advanced fair warning and an opportunity to challenge the provisions of the code before they are enforced. (That’s why I also favor a narrow code criminalizing the publication of only the most dangerous
state secrets).
In 2002, there was an ugly racial incident at Harvard Law School that led to a campaign by some student groups for censorship of offensive speech. The dean appointed a committee to recommend an approach to this delicate problem. He put me on the committee because of my vocal opposition to censorship and my support for a maximalist position on freedom of speech. My fellow committee members were surprised when I proposed that we try to draft a speech code.
“T thought you favored freedom of speech”, one of the libertarian student members said in frustration.
“T do,” I replied. “That’s why I want a code. I don’t trust the dean — or anyone else — to decide which speech should be prohibited.”
“No speech should be prohibited,” the student replied.
I then gave my examples of the professor and the “N” word.
“That’s different,” the student insisted.
“Then let’s try to codify exactly what else may be ‘different’”, I responded.
The committee spent more than a year trying to come up with a code of prohibited expressions, but it could not come to any agreement. The “N” word itself could not be prohibited because a black professor had written a brilliant book entitled “Nigger: The Strange Career of a Troublesome Word”. We tried to define the circumstances under which the “N” word could and could not be used, but we could not come to any agreement. (One person suggested that the “N” word could be used by Blacks but not Whites. Another suggested it could be used in a book but not in oral discussion.) Nor could we agree on other disputed forms of expression, such as opinions regarding negative characteristics associated with particular groups. At the end, we reported back that we could not come up with a code. It was a useful experiment in democracy and accountability. I would have preferred us to adopt a code limited to those instances of expression — such as a teacher calling a minority student by a negative racial or other term — which everyone agrees is unacceptable in a classroom setting. This would have sent a powerful message that no other type of speech, regardless of how offensive it might be to some, can be
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