Say No To Speech Codes

Harvard Law recently passed hate speech measures that threaten to limit the liberty of its students, professors and administrators. Albeit motivated by the good intention to promote a better working and educational environment, the Law School has set a dangerous precedent for the abridgement of speech, without addressing the causes of hatred.

According to the Guidelines Concerning Harassment Through Discriminatory Conduct. "It is forbidden discrimination for any member of the Law School community, on the basis of race, color, religion, gender, sexual orientation, disability, age, or national origin, to subject any other member of the Law School community to any...physical contact or interference with freedom of movement that has the purpose or effect of...creating an intimidating, demeaning, degrading, hostile, or otherwise seriously offensive working or educational environment at Harvard Law School."

So what happens of Bob insults Jim and attempts to walk past him, and then Jim blocks bob and demands an apology from him? For how long must Bob's passage be blocked before he could rightly claim that Jim interfered with his "freedom of movement" in such a way that it "had the effect of creating an intimidating environment?" This rule is so broad and so vague that, at best it will be inconsistently applied, and at worst it cold be manipulated to persecute students.

The guidelines also state that "It is...forbidden discrimination for any member of the Law School community, on the basis of race, color, religion, gender, sexual orientation, disability, age or national origin, to engage in any...speech...that would be viewed by a reasonable person as physically intimidating under the circumstances and that has the purpose or effect of unreasonably interfering with an individual's work or academic performance or of creating an intimidating, demeaning, degrading, hostile, or otherwise seriously offensive working or educational environment at Harvard Law School."

The third commentary to the guideline adds that "though appropriately broad on a university campus, the right of free expression does not encompass a right to engage in abusive or intimidating conduct..."

Will flying the PLO flag from a window be considered "intimidating" conduct to Israeli students" Will a prochoice rally that makes use of hangers dripping in red paint be intimidating to pro-lifers? How will the line be drawn between what is personally or politically offensive and what is objectively intimidating and discriminatory?

The draft guidelines surrounding "Harassment by Personal Vilification," are perhaps easier to apply, but are philosophically very troubling when analyzed closely. These guidelines prohibit any speech that has all of the following four properties:

1. "Is intended to insult or stigmatize another...on the basis of their race, color, religion, gender, sexual, orientation, disability, age or national origin."

2. "Makes use of words or non-verbal symbols that are commonly understood to convey direct, visceral hatred or contempt for human beings on the basis of their race, color, religion, gender, sexual orientation, disability, age or national origin."

3. "Has the...effect of creating a seriously intimidating, hostile, demeaning, degrading or otherwise egregiously offensive working or educational environment..."

4. Is not "designed or intended to contribute to legal or public education, academic inquiry, or reasoned debate on issues of public concern."

Why does the first property of forbidden speech include only those insults that are based on race, color, religion, gender, sexual orientation, disability age or national origin? What about insults that are based on a student's physical appearance, academic performance, wealth or lack thereof, intelligence, social ineptitude, etc." Why should these kinds of insults not also be prohibited, if the Law School's goals is to promote a less intimidating, demeaning, degrading, hostile and seriously offensive environment? Why not also prohibit all nasty or even mildly insulting language? What about redness and unfriendliness?

The second property of forbidden speech at the Law School is that it is "commonly understood" to convey a hatred for human beings on the basis of their race, color, religion, gender, sexual orientation, disability, age or national origin. But what is "commonly understood?" Will a list be drawn up of all the words, name-calling and epithets that this category includes, so that the speech that is deemed to posses this second property will be consistently determined and clear to all students (including foreign students who may not know what is "commonly understood" to be hateful)?

Even if the ambiguities that attend this second property are cleared up, the application of this guideline will still lead those who would have used their preferred but now prohibited epithets to employ disguised or new versions of their hateful words. This obvious consequence is a major flaw in the Law School's attempt to legislate sensitivity: it tries to address selected symptoms of racism at the expense of personal liberties, as if doing so would end the racism that causes those symptoms.

The third property of prohibited speech is that it has the effect of creating an educational environment that is seriously intimidating, hostile or degrading (among other possibilities). But what objective standards can determine whether some speech creates one of these kinds of educational environments? The only way to discover if some speech intimidates somebody is by asking that person whether he/she finds the speech intimidating. And the "reasonable person" test will not diminish the subjectivity of intimidation. A reasonable person who is large and muscular probably won't be intimidated as easily as reasonable person who is short and fragile. Ultimately, a rule that punishes students for being perceived as intimidating by one of their classmates can only spell disaster for student relations and for a system that aims to protect student rights.

Fortunately, the fourth property protects speech that "is reasonably designed or intended to contributed to legal or public education, academic inquiry, or reasoned debate on issues of public concern."

But, unfortunately, there is much room for inconsistency in what is judged to be "designed or intended" to contribute to the free exchange of ideas. For example, many Black Nationalist speakers who have toured American campuses often spew vitriolic, intolerant speech that certainly possess the first three properties of prohibited speech. Judging from the bitterness, divisiveness and intimidation that these speakers often spawn on the campuses they visit, one would expect their right to speak to be curtailed. Yet, as far as I know, no college has denied racist speakers like Khalid Mohammad the right to speak, claiming that that right is protected under the aegis of academic freedom.

The reason that racist speakers pose a problem for the proposed guidelines is that these speakers often have, or claim to have, an educational message, even thought it is delivered in words that violate all notions of civility or sensitivity. Such speakers force would-be speech police to choose between interfering with the marketplace of ideas and protecting students from "discriminatory or vilifying speech."

In general, guest speakers are much more likely than any individual students to damage the favorable learning conditions sought by the Law school's guidelines. Such speakers have a much larger audience than one individual usually has. Thus, they have the potential to affect more people. The more people they affect, the more they impact the educational environment. So if the Law School's purpose in adopting speech codes is to protect the educational environment from becoming excessively hostile, intimidating or degrading, it should apply all of its prohibitions it should apply all of its prohibitions to the speech of any speakers who are invited to the Law School.

However, the Guidelines suggest that "public and semi-public speeches are unlikely to be affected by this prohibition." Yet if the Law School were to apply its policy consistently, in pursuit of a more sensitive educational environment, it would have to monitor and sometimes punish the speech of the speakers that come to its campus. This logical and undesirable implication highlights and undesirable implication highlights the dangers of formulating and implementing speech codes. Speech guidelines at an institution of learning are especially worrisome since, in democratic societies, it is the academy which is supposed to serve as the leader and bastion of free speech.

Once the content of speech can be monitored by thought-police who delineate "standards of sensitivity" for speech, there may be no stopping the slippery slope towards intellectual tyranny. What was perhaps the most intellectually alienating feature of the politically correct movement was that, in attempting to define the acceptable vocabulary of political discourse, it led to the negation of discourse. From the Sedition Act of 1798, to the McCarthy era to the PC-movement, to Harvard Law's speech codes, censorship is a dangerous threat to liberty.

One defense of speech codes like the one being instituted by the Law School is that they eliminate only ugly words like "Nigger," "Ho" and "Kike," and that the elimination of such words as acceptable because they have no informative value. But this is false. Such ugly words are very informative. Since it is usually only hateful or intolerant people who use such words, these words communicate to others the character of the people who use them. It is important and useful to know who on campus is intolerant, and speech codes make it that much more difficult to identify those who are intolerant.

There is no need to prohibit with sanctions even the ugliest of words. After all, they are just words. And selfcensorship and discretion normally prevent most intelligent students from uttering hateful words. When they do not, these students usually suffer rebuke and loss of respect from others. In an intellectual environment, perhaps more than anywhere else, an enormous amount of faith must be placed in people's ability to from the free marketplace of ideas and words. The alternative of censorship is ultimately far more sinister and dangerous words that might be spoken in a university without speech codes.

Gil B. Lahav '94 is an editor of The Harvard Review of Philosophy