Turning off political speech
Armed with speech codes, universities target expression they deem offensive, and conservatives say they suffer most
When students at Roger Williams University published The Hawk’s Right Eye, a conservative journal written by members of the campus College Republicans, they hoped their articles would bring attention to conservative political issues.
They did not realize, however, that the articles would lead to a decision by administrators of the private university in Rhode Island to create a system of prior review for all student publications.
“We have to go through our adviser, and if our adviser deems anything objectionable, then it goes to the publications board,” said Jason Mattera, president of the College Republicans and editor of The Hawk’s Right Eye. “I think it goes down to a root of intolerance of dissenting or discordant views.”
Robert Avery, general counsel and vice president of human resources at RWU, said the university’s goal is to ensure that there are a diverse number of voices heard on campus.
“[The university] is looking to allow the maximum amount of speech without invoking legal problems,” Avery said.
Because the university is private, the First Amendment does not prohibit RWU officials from censoring students.
Though it is rare when a university imposes prior review of a student publication because of controversial speech, the controversy at RWU was not the only instance this fall of administrators halting student political speech.
There are many types of political speech, but the types of speech that are most likely to be censored come from students who express strong, but not necessarily partisan, viewpoints on a polarizing issue, and express those viewpoints in ways that students or administrators find particularly offensive.
While administrators at these colleges say they support free speech and open debate, many of these same administrators point to speech codes and anti-discrimination policies designed to ensure civil debate as justification for censoring student speech.
And though most observers of college censorship contend that students are more likely to be censored for engaging in conservative, rather than liberal speech, these observers also agree that the motive for censoring is often apolitical.
“The students who are more likely to be censored are conservative or religious, but it would be a bad assumption to think that all censors are liberal,” said Greg Lukianoff, director of legal and public advocacy for the Foundation for Individual Rights in Education, an organization that lobbies for student speech rights on college campuses.
Bryan Auchterlonie, executive director of the Collegiate Network, a nonprofit organization that supports conservative college publications, agreed.
“It’s uncomfortable speech, typically administrators take steps to protect the [campus] environment,” he said. “It’s an effort to keep out what college administrators call hostile environments.”
Courts, however, have repeatedly held that speech cannot be restricted by public school officials simply because it offends others or makes them uncomfortable.
Despite that legal prohibition, administrators have censored political speech, specifically citing goals to prevent offensive speech.
Speech that might ‘provoke’
Administrators often cite their school’s own campus speech code when censoring political speech. Speech codes vary among universities in the amount of restrictions they place on speech, but they tend to prohibit anything from uncomfortable to harassing to inflammatory speech.
Lukianoff said speech codes restrict speech at many colleges throughout the country.
“In the past year alone, we have seen dozens of examples of blatant violations of the free speech rights of students,” he said.
Jon Gould, a professor at George Mason University who is working on a book about hate speech regulation, said speech codes developed in the late 1980s as a response to rising intolerance on college campuses. In many instances, he said, the language of these codes was symbolic, and rarely used to impose punishment on students.
“Many administrators adopted policy to say, ‘We have this problem taken care of,’” Gould said. “They are enforced so rarely, they are almost entirely symbolic.”
Estimates of the number of restrictive speech codes on college campuses vary widely and range from less than 10 percent to more than 65 percent of campuses.
Students and free speech advocates are fighting to remove speech restrictions at universities that used speech codes to censor political speech.
In April, FIRE supported two students who filed a lawsuit against Shippensburg University in Pennsylvania, claiming that the university violated their First Amendment rights by imposing speech zones and restrictions on speech that might “provoke.” One of the plaintiffs, Walter Bair, sued because he was forced to take down anti-Osama Bin Laden posters when administrators decided that the posters might offend other students.
In September, a federal district court judge issued a preliminary injunction preventing Shippensburg from enforcing parts of its conduct code on the grounds that the code was likely unconstitutional. (See COURT, this page.)
In November, a student at Southwest Missouri State University, Ryan Cooper, filed a lawsuit against the university for what he claims are unconstitutional restrictions on his right to freely speak about conservative issues.
The suit, filed with the help of the Alliance Defense Fund, claims the First Amendment violations include the imposition of speech zones and restrictions on how and where students can distribute written materials. Cooper, who edits a conservative campus publication, The Bear’s Paw, said he filed suit because of the restrictions placed on his ability to distribute his publication. (See UNFIT, page 24.)
While some students are challenging speech codes in general, other students are finding that university anti-discrimination policies within these codes conflict with their right to free speech.
The politics of pastries
Across the country, College Republicans and other conservative student activists have held “affirmative action bake sales” — not to raise money but to express their opposition to affirmative action.
Organizers of these bake sales sell cookies or pastries at prices that vary depending on the customer’s race and gender. At the University of California at Irvine, for example, bake sale organizers sold cookies that ranged from $1 for white males to 10 cents for American Indian women.
Though these bake sales have been staged on colleges throughout the country without a problem, administrators at a handful of universities, in response to student protests, have shut them down.
UC–Irvine was one such university where administrators cited anti-discrimination policies in halting the bake sales while students argued that they were protected under the First Amendment right to symbolic speech.
“The bake sale was pure political satire and [should have] enjoyed the fullest protections under the First Amendment,” said Bryan Zuetel, president of the UC-Irvine College Republicans.
The sale was stopped after students from a Latino student group, MEChA, notified Dean of Students Sally Peterson about the bake sale. Peterson then told the students that the different prices violated UC-Irvine’s anti-discrimination policies, Zuetel said.
The students involved in the sale, however, said it was not intended to make money but rather to make a political point by charging different prices to different ethnic and gender groups. Zuetel said that because the bake sale was an attempt to make a political point rather than a profit, it did not violate anti-discrimination policies but amounted to protected political speech.
John K. Wilson, founder of the Web site collegefreedom.org, a liberal site that promotes academic and student freedom, said he doubted that the administrators censored the affirmative action bake sales for political reasons.
“In a lot of cases, [the bake sales are censored because of the belief they violate] harassment codes … I don’t think they constitute harassment, I just think they’re a stupid form of political protest,” he said.
Wilson argued that while administrators who shut down affirmative action bake sales made a legally defensible decision, they harmed the campus environment in doing so.
“Not only would punishing this silly bake sale violate freedom of speech,” he said that shutting down the bake sales discredited students who disagreed with the protests “even though [they were] trying to raise legitimate issues.”
A question of bias?
“I think it’s hard to know [how often political speech censorship occurs] because no one has ever done a study of it,” Wilson said.
Wilson contends that nobody knows the rates of censorship of conservative or liberal political speech, but because more support groups exist for conservative college students, when conservatives are censored — such as in the affirmative action bake sales — they generate more media coverage.
“There are a lot of conservative interest groups and they’re good at getting the message out,” Wilson said.
Gould said his research suggested that the censorship of political speech was directed equally across the board but that conservatives tend to react more strongly when they are censored.
“I don’t see a political bias, I see a political jihad by opponents of harassment speech,” Gould said.
Speech vs. peace: Murky motives
Two months after the controversy at Roger Williams University and The Hawk’s Right Eye, editors resumed publishing the monthly opinion journal, after a one-month hiatus. In the most recent issue, one student, Joe Wilcox, argued that administrators had made a deliberate effort to suppress conservative political voices on campus.
“The student senate and [university] President [Roy J.] Nirschel are trying to cut funding to the Roger Williams University College Republicans Club because they believe that people should be able to express themselves freely… unless they belong to the College Republicans,” he wrote. “When the administration fails to provide competing views and instead tries to silence legitimate alternatives, they are just plain telling you that is either their way or the highway.”
But RWU administrators say they instituted prior review not to silence dissenting opinion but to maintain “community standards.”
In an open letter to the RWU community, President Nirschel wrote that he found the newsletter to be “pornographic in nature, mean-spirited and stereotypes gay individuals as child molesters, criminals or deviants.”
The issue included a front-page article accusing “militant homosexuals” of attacking free speech by pushing for hate crime legislation, and another article claiming a nationally known gay and lesbian rights group encourages children to engage in homosexual sex. The Hawk’s Right Eye also contained an article that detailed the rape of a young male by an older male.
Even June Speakman, RWU political science professor and adviser to the College Republicans, said she found the tone of The Hawk’s Right Eye offensive and that she favored the prior review system.
“This is a community and we need to treat each other with respect,” said Speakman, who is a self-described liberal Democrat. “I think the this discourse needs to be within the boundaries of civility and decency.”
Speakman added, “Let me emphasize again that it is the manner and tone of [The Hawk’s Right Eye] that is the primary problem, not the ideas or opinions presented,” she said. “I do think that it is appropriate for a university to have some kind of review process for publications that use the university’s name … I’m for prior review as long as the reviewer has no political agenda, is fair, and is given clear, if general, guidance [such as] ‘community standards.’”
Though Speakman and university administrators contend that the need to maintain campus civility can trump certain speech rights, censorship critics argue that, regardless of motive, instituting prior review of a college publication is not acceptable.
In Wilson’s “Report on Academic Freedom,” he writes, “Prior review should be prohibited at every institution, because it makes any college vulnerable to litigation, and it is unconstitutional at public colleges.”
But Speakman’s support for Roger Williams’ decision to institute prior review — an effort to maintain civility and decency — apparently falls in line with the reason administrators often favor speech codes and anti-discrimination policies.
“There is that tendency among administration, ‘Let’s just keep things as civil and polite as we can,’” Wilson said.
“I think that students and administrators lack perspective on this … they either have short historical memory or an inability to compare,” FIRE’s Lukianoff said, referencing 1960s anti-war protests.
Lukianoff said that in many cases, college administrators censored students because they value “peace and quiet” above speech.
“What I can say with great confidence is if when students open their mouths, they’re punished, they’re not going to open their mouths,” Lukianoff said.
reports, Roger Williams University, The Hawk's Right Eye, Winter 2003-04