My thanks to Catherine Ross for both her great responses and her congratulations on the new baby. Also, thanks to Susan Kruth for her response to Posner. I’ve decided to emerge from my paternity leave in order to make some points that I think need to be emphasized. Ross effectively addressed Posner’s assertion that this discussion was actually supposed to be about topics of his choosing rather than the larger issue of, well, “Free Speech on College Campuses.” Nonetheless, I would like to address several of Posner’s claims about the law of free speech, including the “manner” part of the First Amendment’s allowable “time, place, and manner” regulations on speech; the appropriate scope of “harassment” regulations; the issue of free speech in dorms; and his most recent hypothetical.
In Posner’s initial response to my lead article, he concedes that universities claim the “authority to punish students who … fail to be reasonably polite to each other” under the guise of “harassment” policies, but then he characterizes such action as a “regulation of manners, not of speech or opinion—in the spirit of time, place, and manner regulations that governments are permitted to impose even under the strict doctrines of First Amendment law.” I entirely agree with Ross, “Posner is wrong.”
The “manner” in “time, place, and manner” refers to whether the method of communication—completely disregarding the content of the speech—is inherently disruptive, like using a megaphone outside someone’s dorm window. As Catherine Ross aptly points out, “The first requirement for a time, place, and manner regulation is that it cannot differentiate among speakers or speech based on the content or viewpoint of the expression.” If a university punishes a student for his “manners” in the sense of conforming to social norms, the institution is absolutely making a distinction based on the content or viewpoint of that student’s speech. The Supreme Court has been unambiguous about this, stating in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” “Conventions of decency”—in other words, manners. And keep in mind that in the Papish case, the Court deemed the word “motherfucker,” as well as a cartoon of cops raping the Statue of Liberty and the Goddess of Justice, to be protected under the First Amendment. That’s hardly polite speech.
It is one of the most clearly established precepts in First Amendment law that official power may not be used to impose Eric Posner’s or anyone else’s definition of politeness. The Supreme Court said as much in the seminal 1989 flag-burning case Texas v. Johnson, 491 U.S. 397, 414 (1989): “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Indeed, some of the most quoted lines in First Amendment history illustrate this principle. In upholding the right of a Vietnam War protester to enter a courthouse wearing a jacket emblazoned with the words “Fuck the Draft,” the Court wrote that “one man’s vulgarity is another’s lyric.” Cohen v. California, 403 U.S. 15, 25 (1971). And in upholding the right of the Westboro Baptist Church to picket military funerals, the Court wrote:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.
Snyder v. Phelps, 562 U.S. 443, 460-61 (2011).
Further, a central requirement of the First Amendment, grounded in basic principles of due process, is that prohibitions on speech need to “give [a] person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Time, place, and manner restrictions on campus, properly written, give students a clear idea about the limitations they face in speaking. Again, for example, “no megaphones” is unambiguous. But how would a student know what he may or may not say if he is required to be “reasonably polite” to his peers? Such a vague standard would likely lead to students being punished for speech they had no idea would be taken badly, or to students self-censoring to avoid the risk, or both. In fact, since 1989, these kinds of vague standards have been challenged in dozens of cases, and routinely overturned or withdrawn in the face of a lawsuit.
Posner argues that speech codes should be permissible because they are well-intentioned and “designed not to stifle but to enhance discussion by discouraging students from being rude to each other.” This is an overgeneralization if there ever was one. Many speech codes have nothing to do with politeness, but rather, regulate the minutiae of campus life. Susan Kruth and I have already given examples of speech zone policies, which only serve to keep basic speech out of the view of most students and administrators.
And Posner thinks speech codes are necessary to avoid offensive speech in college dorms, where “students of radically different backgrounds and attitudes are thrown together.” He argues that while he and I can “retreat from the public square to the privacy of our homes if we find public debate offensive, students who live in dorms have no such option.” To Posner, that’s why colleges “insist on the authority to punish students who ‘harass’ each other—meaning who fail to be reasonably polite to each other.” To justify speech codes in dorms, Posner cites the example of the white student who directs racial epithets at his black roommate—a straw man because such conduct, in that context, would likely constitute the kind of “severe, pervasive, and objectively offensive” harassment that universities can (and, in fact, must) prohibit without resorting to overly broad speech codes. Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999).The “Davis standard” is a standard that FIRE has supported in public so many times that I am surprised Posner seems to be unfamiliar with it. In the real world, such serious student conflicts are often spotted in advance and a minority student placed with a racist roommate would likely be granted a quick roommate swap, and the racist student would face condemnation by his classmates, even before you had to deploy the harassment code.
Posner seems to accept as a certainty that students from different backgrounds need to be protected from one another, seizing upon the potential for hurt feelings and awkward misunderstandings while ignoring the parallel opportunities for dialogue and growth. By imposing speech codes and seeking to avoid offense at all costs, rather than recognizing the real—if sometimes difficult—value in having one’s core beliefs challenged, colleges teach students that offense is the worst possible outcome. That misguided impulse drives some of the problems Jonathan Haidt and I also discussed in our Atlantic piece last fall.
Also, it’s worth noting that the U.S. Court of Appeals for the Third Circuit addressed this very question of speech codes in student dorms in the 2010 case McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010). Interestingly—and contra Posner—the Third Circuit cited dorm restrictions as an argument against speech codes, because students would be unable to “retreat” to the privacy of their homes to speak their minds freely. The court observed:
Finally, university students, unlike public elementary and high school students, often reside in dormitories on campus, so they remain subject to university rules at almost all hours of the day. The concept of the “schoolhouse gate,” Tinker, 393 U.S. at 506, 89 S.Ct. 733, and the idea that students may lose some aspects of their First Amendment right to freedom of speech while in school, id. at 507, 89 S.Ct. 733, does not translate well to an environment where the student is constantly within the confines of the schoolhouse. “Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact.” Id. at 513, 89 S.Ct. 733. Yet this is exactly what would occur for students residing on university campuses were we to grant public university administrators the speech-prohibiting power afforded to public elementary and high school administrators. Those students would constantly be subject to a circumscription of their free speech rights due to university rules.
McCauley, 618 F.3d at 247.
Again on the topic of harassment, in his latest response Posner poses another hypothetical in addition to the epithet-spewing roommate: what if an anonymous group of “left-wing” students distributed “vicious leaflets” calling a conservative student journalist names? Posner believes that should be punishable harassment, and he asks if I would agree. Without more detailed facts, however, it is impossible to respond fully. There is absolutely no question that the left-wing students have the right to protest the student journalist by distributing critical, even “vicious,” leaflets. No credible free speech advocate would argue that the right to free speech includes a right to be free from the social consequences of that speech, including vociferous opposition. If, however, the “various and sundry” insults in the leaflet falsely accused the student of, say, criminal wrongdoing, if the leaflet suggested a violent response to the author, or if the insults were directed at the student in such a severe and ongoing way that he was effectively unable to function at the university, then the protesters’ speech might be unprotected harassment, intimidation, or defamation, or other forms of unprotected speech. But without more facts than Posner’s hypothetical offers, I would not say the university should try to identify and punish the leafleters.