Harvard Bucks Free Speech Trend

When the Harvard Faculty of Arts and Sciences (FAS) tabled a crucial portion of a set of free speech guidelines this week, it not only broke with its own traditions, but also called into question what is fast becoming a national trend.

Officials at other schools around the country have established strict codes during the past year to determine what constitutes free speech, arguing that the open exchange of ideas sometimes requires universities to stifle particularly obnoxious or offensive dissent--what many term "fighting words."

But at Harvard this week, several faculty members argued just the opposite viewpoint: that the University has no right to limit the guarantees of free speech established in the Constitution.

"I objected when a private university says that it's a different community than the polity," says Richard Marius, the director of the Expository Writing program, who made one of the most forceful arguments against the Harvard guidelines at Tuesday's Faculty meeting. "I don't believe the University has it in its power to articulate anything beyond the law of the First Amendment."

And in tabling the preamble to its own long-awaited set of free-speech guidelines, Harvard has questioned the philosophical basis for such restrictions in a way that most other schools have not.

The report--written by a committee headed by Ford Professor of International Security Joseph S. Nye--was designed primarily to ensure the rights of speakers invited to Harvard while maintaining the audience's right to dissent. It was prompted by two 1987 speaking events in which speakers were shouted down by hostile audience members. University officials had feared that the incidents would deter others from coming to Harvard.

At the core of the issue is whether a university can separate the campus community from society at large when deciding what constitutes free speech.

"There are two important ideals at stake: the ideal of ensuring the greatest possible freedom of speech and the ideal of providing an environment where students can pursue their education without assualts to their dignity," says Professor of Government Michael J. Sandel.

The schools which have implemented guidelines--from Emory to the University of California to the University of Wisconsin--have reserved the right to strike a balance between those ideals on their own.

Administrators at Emory University in Georgia point out that their rules were not intended to limit free speech but rather to make open discussion more civilized. Under the Emory free-speech rules, students within the university community hold the same rights of speech, association, peaceful assembly and petitions as all citizens do. But students are also required to "respect the interests of the University community."

"I do feel we struck a balance, though the policy may be subject to change," says Joseph W. Crooks, of Emory's general counsel's office. "We are restricting the manner of expression, not the expression itself."

"Free speech is not without limitations and exceptions," says Crooks. "We want open discusions, but they have to be civilized.

But many Harvard faculty members say that full constitutional rights should apply to all people and that no such balance ought to be struck.

"The Constitution applies to students as much as anyone else," says Marius. "We have to take the risk with a few people saying hateful and ugly things and depend on the community to say that you are being hateful and ugly and we don't like it."

"The preamble was suggesting to limit the First Amendment rights of students where normally courts would not limit the people's," said Marius.

Others argue that restrictions may in fact be necessary. When rigorously questioned by President Derek C. Bok at the Faculty meeting, Nye said that he could conceive of a situation where the rights granted to members of the University are narrower than those given to the public.

"If you look at the report, it is still within the Constitution," Nye says. "It is still consistent with the Constitution legally."

And while an unusually broad and restrictive code at the University of Michigan was struck down last year by the U.S. Supreme Court, officials at other schools defend the Constitutionality of their own free speech guidelines.

The University of Wisconsin's rules, revised in September, now promise disciplinary action against students whose expression is found to be offensive. They cite the shouting of racial epithets and the hanging of derogatory banners as behavior that might warrant discipline.

"The rule stands because it does not have the vagueness and breadth of the University of Michigan rule," says James E. Sulton, special assistant for minority affairs to the Wisconsin's president.

The Harvard rules have already been reviewed twice by the office of Vice President and General Counsel Daniel Steiner '54, and the tabled portion is now being reviewed a third time. And Nye says that the added debate on the preamble will ultimately strengthen the Harvard policy.

"There is a concern in a lot of colleges and universities about how to protect free speech," says Nye. "Difficult choices have to be drawn."