Don't Put Speech on Trial

Senator Trent Lott’s calamitous experience last month illustrates the extent to which race—and speaking about race—still poses a dark, incendiary threat in American life. At issue in Lott’s case, of course, was his wistful allusion to a time when the races were separate, and when real feelings were harbored but not openly expressed, a time when what we now call “hate speech” showed itself infrequently in the “marketplace of ideas.”

But another recent controversy, closer to home, came from the opposite end of the racial conversation—that is, from African Americans—and illustrates how the issue of free speech about race is measured differently, depending upon whose race is being assaulted.

Specifically, we heard members of Harvard Law School’s Black Law Students Association (BLSA) recently announce their desire to introduce a code to ban offensive, racially-charged speech after a number of on-campus incidents involving racial slurs. It was not without some historic irony that Harvard’s BLSA called for codes proscribing offensive words; after all, it was in this very same law school’s marketplace of ideas that eventual Supreme Court Justice Oliver Wendell Holmes, Jr., studied, taught and vigorously defended the constitutional right of free, unfettered speech.

Holmes, of course, fervently believed that the protection of free speech was of paramount importance—even unpopular, hateful speech deemed offensive by those toward whom it is directed. Moreover, he believed in assiduously protecting, as he put it, not only “free thought for those who agree with us but freedom for the thought that we hate.”

However, for increasingly larger numbers of university students, thought that is hated, by virtue of ideology, cannot even exist. Only acceptable biases can be taught or debated; only condoned and stylish beliefs can be promulgated. But the process of self-victimization actually runs counter to the objectives of the BLSA’s own stated purpose of creating a “discriminatory harassment policy” to ameliorate ethnic insensitivity. As ACLU president, Nadine Strossen wrote in the Duke Law Journal, “Because civil libertarians have learned that free speech is an indispensable instrument for the promotion of other rights and freedoms—including racial equality—we fear that the movement to regulate campus expression will undermine equality, as well as free speech. Combating racial discrimination and protecting free speech should be viewed as mutually reinforcing, rather than antagonistic, goals....”

Those calling for speech codes frequently see themselves as victims, and victimism exploits its position by calling for greater “diversity” in the community in which the victim exists. Likewise, BLSA members have advocated greater diversity in the student body and faculty at the Law School. But that very diversity normally brings individuals with unpopular views into the academic community, precisely the views the proposed speech code would attempt to silence. Thus, the call for diversity is actually disingenuous—what speech code advocates really want is a greater representation in their community of individuals who hold the same, not differing, opinions as them. Just as important, when self-identified victims set the rules for acceptable thought and speech, when only the most ‘sensitive’ groups measure the acceptability of thought and speech, the voices of those with opposing views will normally be suppressed.

There is another, more practical, reason for not implementing a campus speech code: in every instance when such codes have been challenged in court, they have been struck down for being overly broad, containing ambiguous and vague guidelines, or for attempting to modify hateful behavior by suppressing speech. In the significant 1989 Doe v. University of Michigan case, for instance, the Court, in finding against the University’s speech code, commented that, “If there is any star fixed in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein. Nor could the University proscribe speech simply because it was found to be offensive, even gravely so, by large numbers of people.”

Most would agree with the intent of Law School students who wish to create an academic community free of racism, harassment, and prejudice. One would certainly expect those individuals who have chosen the law as their livelihood to be champions of an egalitarian society—both within the ivy walls and outside in the real world. But in their zeal to punish the behavior and actions of hateful people, they have begun to make speech, rather than actions, the enemy of their cause.

As Nat Hentoff mused, “Let us suppose these codes were in place on every campus in the country. Would racism go away? Racism would go underground, in the dark, where it’s most comfortable.... But racist attitudes would still fester. The only way to deal with racism is to bring it out into the open—not to pretend it has been scared away.”

Richard L. Cravatts was director of publications at the Kennedy School of Government from 1976-78 and was director of public relations at the School of Public Health from 1978-79.