Freedom of speech is crucial both to a healthy democracy and the life of the mind. The First Amendment to the U.S. Constitution prohibits Congress from any act that would abridge it and the charters of most of our colleges and universities recognize that freedom of thought and speech are essential to a healthy academic community.
Yet, freedom of speech has been a contested value since the birth of the Republic, most commonly in periods of war, from the Alien and Sedition Acts of 1798 through the USA Patriot Act of 2001. It isn't surprising, then, that freedom of speech is now under siege. What
is new in our academic communities is that it is threatened both from within and from outside them.
The internal threat to free speech in academia is posed by speech codes. They take many forms and vary from one college to the next university. After the 1960s, when American colleges and universities ceased to operate in loco parentis, campus speech codes emerged on one campus after another as a means of securing a "safe space" for some
students who were offended by certain kinds of speech. On one campus or another, speech that is discomforting, embarrassing, flirtatious, gender specific, inappropriate, inconsiderate, harassing, intimidating, offensive, ridiculing or threatens a loss of "self-esteem" is banned by speech codes.
Too often, they target student critics of academic bureaucracy. Taken literally, speech codes would ban healthy jeering at a visiting sports team. Wouldn't want to intimidate those Aggies! More importantly, teachers have to be able to urge students to consider perspectives that they had not previously considered, without fear of being accused of being "offensive." Ultimately, speech codes are problematic because they vest final authority in the subjectivity of the offended.
Whether it is "intentional or unintentional," for example, Brown University bans all "verbal behavior" that may cause "feelings of impotence, anger, or disenfranchisement." The
nation's Founders, who did not mind offending British authorities, would have been ill-educated by such constrictions on free speech.
The problem with speech codes is that speech that should be self-governed by good manners and humility is prescripted by inflexible legal codification. Fortunately, however, the Foundation for Individual Rights in Education has fought and won a series of legal battles that have curtailed the prevalence of speech codes in public higher education.
In private colleges and universities, where First Amendment rights do not necessarily
prevail, the struggle continues on an institution by institution basis. Just when there is good news to report about the unconstitutionality of speech codes on public campuses, however, new threats to free speech arise from outside the academic community.
They come from the Center for the Study of Popular Culture. The center and its legal arm, the Individual Rights Foundation, are led by David Horowitz. A militant activist on the left in the 1960s, Horowitz abandoned it 25 years ago to become a militant activist on the right. Most recently, he has campaigned for enactment of an "Academic Bill of Rights."
Like campus speech codes, Horowitz's Academic Bill of Rights appears well intentioned. Insisting that academic communities must be more responsive to outside criticism, it adopts a form of the American Association of University Professors' 1915 "General Report of the Committee on Academic Freedom and Tenure." It holds that political and religious beliefs should not influence the hiring and tenuring of faculty or the evaluation of students, that curricular and extra-curricular activities should expose students to the variety of perspectives about academic matters and public issues, and that institutions must not tolerate obstructions to free debate nor, themselves, become vehicles of partisan advocacy.
Who could oppose such commitments? They are already features of academe's assumed values. Yet, the American Association of University Professors and the American Civil Liberties Union criticize Horowitz's "Academic Bill of Rights" as an effort to "proscribe and prescribe activities in classrooms and on college campuses."
One has only to look at the legislative progress of Horowitz's political campaign to understand why. His bill has been introduced in Congress by Rep. Jack Kingston, but it's had greater promotion in the state legislatures of California, Colorado,
Florida, Georgia, Indiana, Maine, Massachusetts, Ohio, Tennessee, and Washington.
Instead of being the even-handed vehicle it claims to be, everywhere it is a function of right-wing attacks on academic communities. In Florida, for example, Rep. Dennis Baxley says that the bill he introduced will give students legal standing to sue professors who do not teach "intelligent design" as an acceptable alternate to the theory of evolution. His critics respond that it could give students who are Holocaust deniers or who oppose
birth control and modern medicine legal standing to sue their professors. Beyond the governing authority of Florida's public colleges and universities and in the name of free thought and free speech, it would encode in state law restrictions against those values.
The Founders, who recalled their own exercise of free speech and free thought, when they challenged British governing authority, wrote guarantees protecting them from constricting government action. In academic communities, we need an alliance across ideological divides to support free speech by abolishing "speech codes" and to fight the "Academic Bill of Rights" in state legislatures and the Congress because it is a Trojan Horse that intends the opposite of what it claims on its face.
David Beito is an associate professor of history at the University of Alabama; KC Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center. Ralph E. Luker isÂ an Atlanta historian.