When Sen. Jesse Helms last year proposed restrictions on government support for offensive speech, liberals quickly branded him a Neanderthal right-wing censor.
But what about those liberals with censorial tendencies of their own? Are they Neanderthals, too-or some other, more sensitive, species?
It was Jesse Helms, the North Carolina Republican, who pushed through the Senate last summer a ban on use of federal arts money for "material which denigrates, debases, or reviles a person, group or class of citizens on the basis of race, creed, sex, handicap, age or national origin." (His more widely publicized provision would have cut off money for "obscene or indecent" materials.)
The president of the University of Pennsylvania denounced the Helms proposal as an effort "to cleanse public discourse of offensive material."
But in strikingly similar language, his own university forbids as harassment "any behavior, verbal or physical, that stigmatizes or victimizes individuals on the basis of race, ethnic or national origin … and that… creates an … offensive academic, living or work environment."
The urge to censor campus speech is prompted by dozens of ugly racist incidents that have fouled campuses around the nation. These have included the posting of racist epithets, jokes, and caricatures on signs and bulletin boards, and shameful physical and verbal attacks on minority students and homosexuals.
Vandalism and physical assaults or threats can of course be punished without free-speech qualms. But even purely verbal attacks can also inflict great trauma, especially on minority group members who feel isolated, conspicuous, and unwelcome on overwhelmingly white campuses.
The hard question, as posed by one college administrator, is this: "Do we really want a campus where a student can walk up to another student and say. ‘We don’t want niggers at the University of Connecticut’?"
I think the right answer is probably "no." To this extent, I part company with those free-speech advocates who contend that allowing such speech is part of the price we must pay to prevent erosion of the First Amendment. While a single racial epithet probably warrants no sanction beyond a warning, intentional infliction of extreme emotional distress through repeated taunts with such hate words, addressed directly at an individual, need not be tolerated.
Suppression is justified by a recognized exception to the First Amendment when "fighting words" are likely to provoke violence. But even when a violent response is unlikely, carefully calibrated sanctions may be justified in rare cases.
The danger is that the spirit of censorship, once loosed, is not easily cabined. The new campus censors sec rules to protect individuals from direct harassment as building blocks toward broader suppression of racist and other speech offensive to their values.
Thus Professor Peter Edelman of Georgetown University Law Center, in his regular column in these pages ("Progress Report," May 15, 1989, Page 20), slid effortlessly from saying that "such vile speech [should] be punished when it is directed forcefully enough at a particular individual" to suggesting that universities should suppress racist speech in general "as constitutionally worthless," and calling for revival of the discredited doctrine of group libel.
His logic would blow a gaping hole in "the bedrock principle underlying the First Amendment … that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable," in the words of Justice William Brennan Jr.’s opinion striking down flag-desecration laws last June.
It is one thing to protect individuals against outrageous forms of verbal harassment. It is quite another to brand whole categories of ideas, or means of expressing them, too offensive to be allowed.
Recent experience shows that anti-harassment rules conceived primarily to protect racial minorities from hateful epithets tend to get extended to a far wider range of speech and to an ever-lengthening list of groups of self-styled victims demanding the same special protection. Strongly colored by prevailing campus political orthodoxy, these rules cast a shadow over much speech that ought to enjoy First Amendment protection.
The rules at the University of Michigan, struck down by a federal district judge last September, had banned any speech that "creates an intimidating, hostile, or demeaning environment" if it "stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status." (How could they have omitted "size"? Are short people less deserving of sensitivity than singles or old people?)
An interpretive guide issued by the University Office of Affirmative Action suggested that Michigan students could be sanctioned for such actions as laughing at a joke about a classmate who stutters, telling "jokes about gay men or lesbians," commenting "in a derogatory way about a particular person or group’s physical appearance or sexual orientation," or saying in class such things as "women just aren’t as good in this field as men."
One Michigan student was subjected to a formal disciplinary hearing for having said in a social work research class that he believed homosexuality to be a treatable disease.
At the State University of New York at Buffalo, the law faculty voted in 1987, without defining its terms, to penalize all "remarks based on prejudice and group stereotype."
At Tufts University, a student was suspended temporarily for selling T-shirts inscribed with 15 reasons "Why Beer Is Better Than Women at Tufts."
Is it possible to protect individual minority students from being harassed with racist epithets and other personal abuse on campus without getting into censorship of everything from casual conversations to tasteless T-shirts?
I think it is. The key is not to enumerate categories of forbidden "discriminatory" speech, but rather to write narrow rules protecting every student from personal harassment that is intended to inflict extreme emotional distress, by whatever means and for whatever reason.
In enforcing such rules, account should be taken of the especially wounding nature of racist and other hate epithets, well documented by the National Institute Against Prejudice and Violence. But a student who is cruelly harassed by others in her dormitory should have the same recourse whether her tormentors revile her for being black, or white, or homosexual, or, say, obese, or politically conservative, or socially awkward.
The fundamental flaw in the spate of anti-harassment rules currently being imposed by many universities is the making of distinctions based on the content of the harassing speech.
This fosters resentment by creating protected classes of students for whose feelings special .solicitude is required. And it sacrifices free-speech principles to attack what are, after all’, only the symptoms of underlying prejudices most effectively addressed through reasoned argument, not censorship.