For most of the past 15 years or so — after the speech-code movement was publicly mocked and vilified during the famed water-buffalo incident — we’ve seen an interesting inconsistency from the academy. On the one hand, administrators (and the vast majority of professors) publicly profess to support free speech. On the other hand, they cling in vast numbers to formal anti-harassment and nondiscrimination policies that contain all the worst elements of the classic speech code.
While university lawyers often defend these policies (usually by arguing that the language is justified by high-school precedents or that the rules aren’t really mandatory — even as students endure investigations and punishment), it is rare to see any mainstream academic defense. Well, not until recently anyway, when a few third-year law students published a poorly reasoned attack on DeJohn v. Temple, the most recent (and leading) federal court of appeals precedent, which struck down Temple University’s speech code.
Why is it news when third-year students publish their thoughts? It’s news when it’s in the Harvard Law Review, which is still read by a not-insignificant number of legal scholars. In fact, the article was just cited by Los Angeles City College in a motion asking Judge George King to reconsider his injunction against the College’s speech code.
So, what is the heart of the students’ argument? It could have been ghost-written by Temple’s attorneys. They argue for a restrictive high-school speech standard (yet both the District Court and Court of Appeals held that Temple’s speech code failed to meet even the minimal standards of the secondary-school environment), and they argue that the same free-speech standards should apply to students on a university campus as applies to workers on an assembly line. In other words, workplace-harassment standards should govern (never mind, of course, that workplace harassment rules are often less strict than student speech codes).
Over at FIRE’s blog, Kelly Sarabyn has written the definitive takedown of the Law Review piece. I hesitate to quote too much because I want you to read the whole thing, but I have to highlight this:
Perhaps most unforgivably, the HLR analysis reveals both the author and the comment’s editors to be completely unaware of the larger legal landscape concerning campus speech codes. Amazingly, the analysis does not acknowledge that any case law on speech codes exists, let alone the fact that prior to DeJohn, eight different federal courts struck down speech codes as unconstitutional. Indeed, seven of those eight cases involved a “harassment policy” similar to the one at issue in DeJohn, and the eighth case struck down a civility policy and limited a harassment policy that was — unlike the policy in DeJohn — already narrow in its scope, narrowing it further to proscribe only true harassment.
How can you write a scholarly article about speech codes without acknowledging the unanimous case law? But the truth of the matter is that there is simply no credible constitutional argument for speech codes — at least no credible argument that relies on historic free-speech jurisprudence, controlling precedent, or the fundamental nature of the public university. The only real argument is ideological. So the speech code’s ideological defenders are left doing just what the students at the Law Review did — try mightily to pound the square peg of workplace harassment concepts into the round hole of the university’s marketplace of ideas.