On Campus, How Free Should Free Speech Be?
By RICHARD BERNSTEIN
Published: September 10, 1989
JUSTICE HOLMES once said that ''every idea is an incitement.'' The phrase has been used ever since by legal experts who argue that just about any speech should be protected by the First Amendment no matter how much it offends certain listeners. This very notion, however, has come under attack as universities consider whether they should draw the line at racial slurs, ethnic insults or other speech that is clearly meant to cause mental harm.
At Stanford, Smith, the University of Michigan and other schools, efforts are under way to combat what has been seen as an alarming rise in racist slurs, anti-gay taunts and anti-Semitic remarks. At the University of Michigan last spring, anti-Semitic comments and racist jokes broadcast on a university radio station contributed to a faculty decision to punish any conduct that ''stigmatizes or victimizes'' people on the basis of not only race, ethnicity, religion, sexual orientation and national origin but also marital status, handicap and ''Vietnam-era veteran status.'' At Stanford, a black-faced caricature of Beethoven was placed outside a largely black students' dormitory. Stanford, the University of Wisconsin and other schools have reacted to such incidents by drafting codes - most of them not yet formally adopted - along the lines of the one at Michigan.
These moves have been defended as necessary to preserve respect for all people and to protect the increasing racial and ethnic diversity of the universities. Still, efforts to impose free speech restrictions have opened up a complex moral and legal debate over whether a university, the very symbol of free inquiry and unrestricted debate, should respond to the excesses of a handful of bigots by imposing what amounts to prior limits on expression.
As campuses prepare for the new academic year, civil libertarians are joining with conservatives to argue that putting limits on some speech sets schools and colleges on the slippery slope leading to the suppression of unpopular or unfashionable ideas. In the current issue of Commentary, for example, Chester E. Finn Jr., a former Assistant Secretary of Education who is now a professor of education and public policy at Vanderbilt University, hurled a conservative salvo in an article suggestively titled ''The Campus: 'An Island of Repression in a Sea of Freedom.' ''
''American colleges and universities are now muzzling themselves,'' Mr. Finn wrote. ''The anti-discrimination and anti-harassment rules being adopted will delimit what can be said and done on campus.'' Mr. Finn argued that the charge of racism, loosely and inaccurately made, has already intimidated scholars.
He cited several examples, including an incident at Harvard Law School last year in which the leader of a women's group attacked Prof. Ian Macneil for what she felt was sexism. Among his offenses was quoting a line from Byron (''And whispering, 'I will ne'er consent,' - consented''), which has a sexual innuendo. Also at Harvard, a student accused Prof. Stephan Thernstrom of racial insensitivity after he read to a history class from white plantation owners' journals without giving the slaves' point of view. Sensitivity Training
The American Civil Liberties Union has long taken an absolutist view of the First Amendment and has opposed efforts to punish those who utter ethnic slurs. For conservatives the concern over free speech is tied to another worry: that the tide of what might be called minority assertiveness has become so powerful on many campuses that the traditional academic enterprise is in danger. The often cited example is the case at Stanford last year, where the faculty responded to pressure from black students by jettisoning a popular freshmen requirement on Western culture and substituted another emphasizing what was called ''works by minorities, women and people of color.'' In his article, Mr. Finn criticized moves at schools like the University of Connecticut to require courses aimed at, as the universities sometimes put it, ''sensitizing'' students to questions of race, sex and sexual preference.
Many conservatives feel that demands for changes like these are being made for political, not intellectual, reasons. ''The object,'' Thomas Short, an associate professor of philosophy at Kenyon College, wrote recently, ''is to teach that minorities have been victimized by American society and are still oppressed by their fellow citizens.'' Once this idea becomes part of a new orthodoxy, debate and even scholarship on issues like affirmative action, the status of the underclass and the origins of homosexuality could be restricted, the conservatives argue, for the simple reason that some conclusions might be considered offensive to some students.
While it is difficult to gauge whether campus racism is really on the rise, the problem of racial and ethnic slurs poses difficult constitutional problems. The Supreme Court has in the past upheld limits on some forms of offensive speech. The doctrine is called ''fighting words.'' Lawrence Tribe, a constitutional lawyer at Harvard, has written that the court has generally been wary of giving powers to government to ''purge public dialogue of unwelcome words or symbols.'' But in 1942 in upholding the ''fighting words'' doctrine,'' it ruled that restrictions could be put on words ''which by their very utterance inflict injury or tend to incite an immediate breach of the peace.'' To be called ''nigger'' might well leave more enduring scars than a physical assault.
Some countries regarded as free and democratic - France and Canada among them - have strict laws against uttering racist or religious epithets. American universities could follow their example by punishing those who egregiously depart from the standards of civilized behavior. Whether that can be done without paying a cost in the openness of the intellectual world to all ideas is the difficult question that many faculties will be facing.