Assessing Speech Codes
Charles Lawrence provides this argument for the defense of speech codes: insults based on an individual’s membership to certain hereditary groups (race, sex, gender, etc.) emphasize his “otherness,” decrease his standing in the eyes of his peers, and jar his psychological well-being. This damage to one’s ability to function violates Brown v. Board of Education, which gave minorities the right not to be humiliated or marginalized because such acts would violate the principle of equality under the law affirmed in the Fourteenth Amendment. Lawrence supports the Stanford code, which attempts to precisely prohibit face-to-face insults, and argues that it and other policies are consistent with the prohibition of fighting words, permitted in Chaplinsky and characterized by their intrinsic harmfulness intent to incite another to violence. Lawrence implies this policy will address the “market failure” which racism causes through its deleterious effects on university thought at large, a response to Holmes’s claim that the university is a “marketplace of ideas.”
Devlin’s argument that law is the arm of public morality can also be made here. He was a skeptic of the “no harm” principle and may have argued that a speech code is an appropriate guide for university life.
Critics of speech codes often cite John Stuart Mill, who stated in “On Liberty” that society must allow the free expression of all viewpoints. If a distasteful argument is prohibited, it will secretly become more attractive on the grounds that it’s something “‘They’ don’t want you to know.” If a majority opinion goes unchallenged too long because its rebuttals are considered offensive, people will lose the ability to defend the argument, will lose their passion for it, and might be blown away the first time they meet someone who disagrees. Most importantly, we are more likely to find the truth if we can see and discuss all the possibilities: at times a persecuted minority opinion eventually becomes common knowledge, as Christianity did. While Mill is sympathetic to restricting speech for being vulgar and abusive, he does not see how this is possible to enforce such a thing.
I believe insults diminish the sense of fraternity that should prevail on campus. Nevertheless, I agree with the Supreme Court’s assessment that the Michigan speech code was vague and overbroad. The code prohibited speech that “stigmatizes,” “victimizes,” et al, but such words are subjective, and the university’s interpretative guide, as well as the use of the code against one student who voiced concerns of racism in the dentistry department and another who expressed an opinion on the medical nature of homosexuality, indicated that Michigan was using the code to strictly regulate even rational discussion of group differences. This usage was far broader than the “fighting words” exception and clearly violated Mill’s philosophy. Even Lawrence, who is sympathetic to some censorship on campus, acknowledges the Michigan code’s unconstitutionality (“If He Hollers” 83-84).
Regarding speech codes in general, I think that Lawrence’s proposed prohibition of “fighting words” is sound and is still consistent with Mill: such words express personal animosity rather than actual ideas so their restriction will not lower our discourse. In this I agree with Feinberg, who pointed out the restriction of speech might be utilitarian itself. As good as the rule sounds in theory, however, I am extremely suspicious of its application. Merely taking offense is not a legitimate cause for grievance; indeed, principles which seem odious at first may educate and shape us in the long run. However, the Larry Summers case at Harvard shows even scholarly arguments can prove unacceptable to some academics. It is important to remember that the idea that there are no group differences is itself an assertion that requires proof. A person also has the option of not listening to his assailant, thus rendering his words no more than noise. I am not sympathetic to the argument constructed from Devlin because college students should be old enough to choose whatever life they want.
If I have to choose one guiding principle, I will take Mill because his positive, liberal view is most in keeping with the character of the university, but I would also allow the Stanford speech code (the Michigan code is too broad) provided the university strictly interpreted it. In other words, I consider open discourse more essential to the identity of a university than the comfort of its students, and a university should take care of this freedom first.