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February 17, 2004 [feather]
More on Swarthmore's speech code

Timothy Burke, who teaches at Swarthmore, is outraged that I call Swarthmore's speech code a speech code. In a long post, he explains why to his mind Swarthmore's sundry restrictions on speech are not speech codes. It's worth reading, if only to see how the defense of a speech code can be made to look like a defense of free speech.

Several points.

Swarthmore has two codes that are at issue here; one is a general harassment policy and one is a sexual harassment policy. Burke quotes extensively from the general harassment policy, which does indeed, in general, attempt to distinguish harassing behavior from the content of a person's expression, in order to argue that I have mischaracterized Swarthmore's commitment to free expression. He then denies that Swarthmore's sexual harassment policy amounts to a speech code--even though it expressly sets out to regulate certain forms of speech, and even though it places the power to determine whether someone's statement is harassing squarely in the hands of "the victim." Under Swarthmore's sexual harassment code, you could, conceivably, get in trouble for complimenting a member of the opposite sex for her looks, or for asking for dates, or even for making comments like "Men are pigs," or "A woman's place is in the home," or "I believe that homosexuality is a sin." Swarthmore's sexual harassment policy is a speech code, though it is not convenient for Burke to define it as such.

Burke insists, too, that Swarthmore's restrictions on speech cannot be considered unreasonable or chilling--cannot in other words be called a speech code--because Swarthmore stresses that offensive expression must be repeated in order to be considered harassing. Again, that's mostly true but not wholly true. It's also not quite the knockout punch he makes it out to be. First, if you read over the restrictions on speech contained within the sexual harassment policy, you will find that sometimes the policy states that a behavior must be repeated, but at other times it quite clearly does not. There is some disturbing wiggle room there. Swarthmore's policy on general harassment does state that for behavior to be harassing, it must be repeated. But it also allows for an entirely subjective assessment of what kinds of speech may be considered harassing by suggesting that the shame or pain of the complainant will be a deciding factor in determining whether certain speech is harassing.

In other words, maybe I can't file charges against you for that first affirmative action bake sale you hold. But when you do it again, after you've been warned that I feel this way about your expression, and I feel doubly belittled by it, then I may be able to claim that I have been harassed by you. After all, you made me feel bad multiple times, and you knew you were doing it, and my ability to do my work has suffered as a result. My point: the wording of the policy makes it abusable. It also amounts to a policy of prior restraint by allowing the wholly subjective issue of personal offense to play a role in adjudicating harassment claims. In order to stay out of trouble, a person must think before he or she speaks, and may find him- or herself censoring comments that could possibly cause offense.

Also not entirely true is Burke's insistence that Swarthmore's code is not a code because it states that only deliberately harassing speech will be prosecuted as harassment. That may be what the general harassment code says, but it's not what the sexual harassment policy says. In fact, that code says quite the opposite, that speech may be sexually harassing if the person at whom it is directed, or, even more chillingly, if a person who witnesses it, decides it's harassing. That's not an environment in which free expression can thrive. That's an atmosphere of intolerance designed to chill expression surrounding gender and sexuality and geared to produce a continual feeling of sexual paranoia, particularly among men. Burke may be cool with a code like that, and he may believe that never in a million years would he find himself on the wrong end of a patently absurd or even trumped-up harassment claim, but his complacency about the policy does not mean the policy itself is sound. There are dozens, if not hundreds, of male students and professors across the country who can testify to my point.

Burke states, too, that Swarthmore does not attempt to protect members of historically marginalized groups from offensive speech. That's also wrong. Swarthmore defines discriminatory harassment as "conduct, including speech, relating to a protected classfication, which has the purpose or effect of interfering with an individual's or a group of individuals' academic work performance, or creating an intimidating, hostile or offensive academic or working environment." See bake sale example above. Other campuses have defined affirmative action bake sales--a wholly protected form of political expression-- as harasssing. There's no reason to think the same sort of thing could not also happen at Swarthmore.

So, to make a long entry short: Burke and I appear to disagree about what you can and cannot call a speech code on a college campus. To my mind, a speech code is any policy that restricts or chills the content of an individual's expression (beyond the basic legal barriers of defamation and incitement to violence). For Burke, such restrictions are sometimes called speech codes (as when the faculty is nobly voting not to impose one) and sometimes not called speech codes (as when one faculty member does not want to acknowledge that Swarthmore's sexual harassment policy amounts to a backdoor method of placing restrictions on student speech without having to admit that this is what the school is doing). Colleges and universities have become quite expert at having it both ways: they claim to uphold free expression by pointing to their carefully worded encomia on the value of debate and inquiry (Burke quotes Swarthmore's at length) while at the same time they smuggle speech codes in on the backs of other sorts of policies. That's what Swarthmore's sexual harassment policy does, and it's also what Swarthmore's statement on discriminatory harassment does. It's just not responsible to pretend otherwise.

The Foundation for Individual Rights in Education has given Swarthmore a "red light" designation on speechcodes.org, FIRE's database that charts the state of free speech on campuses across the country. The "red light" designation is defined as follows:

A "red light" university has at least one policy that both clearly and substantially restricts freedom of speech. A "clear" restriction is one that unambiguously infringes on protected expression. In other words, the threat to free speech at a red light institution is obvious and does not depend on how the policy is applied. A "substantial" restriction on free speech is one that is broadly applicable to important categories of campus expression. For example, a ban on "offensive speech" would be a clear violation (in that it is unambiguous) as well as a substantial violation (in that it covers a great deal of protected expression). Such a policy would earn a university a red light.

Perhaps Burke would like to take up the issue of Swarthmore's status as a civil liberties red light district with the folks at FIRE.

UPDATE: A reader writes, "I'm afraid that you are in error regarding the Bake Sales in your scenarios. If they're bold enough to have two sets of books right out in the open, what's stopping that second act of 'harassment' being defined as the second cookie sold at the one, only and last bake sake before the "Oh, THAT speech code" is pulled out?" Touche.

posted on February 17, 2004 4:55 PM