school. At private universities, you are generally recognized to have far greater rights and autonomy, and are often contractually promised these rights in the student handbook or other materials.
2. Crucially, these rights do not arise simply because someone put ink on paper ages ago. They are not mere legalisms, and they developed from a profound understanding of the processes by which we get to better and more reliable ideas, as well as more creativity and innovation. Pointing out to college administrators or classmates how they rely on freedom of speech every second of the day is helpful when you need to explain to them that they can’t just throw away the system every time it produces a thought or expression someone dislikes.
3. Colleges are supposed to provide at least as much, if not more, freedom of speech and thought as society at large, not the other way around. Campus administrators have been successful in convincing students that the primary goal of the university is to make students feel comfortable. Unfortunately, comfortable minds are often not thinking ones. Students should, however, be able to feel comfortable with engaging in devil’s advocacy and thought experimentation, and, perhaps most importantly, with the possibility of being wrong. Making it safe for people to be wrong is one of the first steps in creating an atmosphere that is intellectually vibrant enough to produce good ideas and meaningful discussion.
4. Wisdom comes from surprising places, and certainly no person in power is going to be able to guess which comments or demonstrations or satires will lead to an interesting discussion that you would not otherwise have had. University administrators will argue that some speech is simply “worthless,” forgetting that words and ideas exist only in interaction with other words and ideas. Even the stupidest joke you have ever heard can sometimes lead to an interesting discussion and call forth information or opinions that you would never have known about otherwise.
5. Be sure to read the university’s promotional materials and student handbook before attending. If you see that a public college has policies that limit pamphleteering or demonstrations to a tiny corner of the campus or has codes that prevent “annoying” language (more on these in the next chapter), ask how such policies can be squared with the college’s obligations under the First Amendment. If you are applying to a private college that promises freedom of speech in glowing language in its promotional materials but then find questionable policies that seem to impose arbitrary, vague, and broad limitations on speech buried deeper in the student handbook, write to administrators before applying and ask what this means. If you apply to a college with promotional materials that make it pretty clear that the college values, say, its Mormon identity or evangelical Christian identity, and in language that is stronger than any mention of freedom of speech, you should know that you’ll probably enjoy very few rights there, particularly if it publishes restrictions based on its distinct identity. By enrolling at such an institution, you have given your informed consent to forgo certain rights while you attend.
6. Be sure to check out FIRE’s Guides to Student Rights on Campus, including our Guide to Free Speech on Campus, which is available for free online, and research any school you’re considering applying to on our campus database to see its record on freedom of speech and whether it maintains a speech code. You can find these both at www.thefire.org. Again, the cases I discuss in this book are a small fraction of those listed on the FIRE website.
7. Remind administrators that the goal is to facilitate candid interaction between people who disagree and come from different experiences, and that making students fearful of disagreement, or holding out the threat of punishment for an unpopular opinion or even a joke, is undermining their intellectual experience.
Now, moving on in our march towards college, do you remember what it was like the first time you received one of those glossy college brochures in the mail?
YOU ARE A SOPHOMORE IN HIGH SCHOOL, and your attention has long since shifted away from the incident with the student newspaper. Turns out, you did quite well on your PSAT exam and you’ve been coming home from school every day to a mailbox full of glossy promotional materials from colleges around the country. The brochures show happy students making friends, playing Frisbee on the quad, or studying in a grand library. At night, when your other friends are watching episodes of Tosh.O on Hulu, you have been scanning info about your dream schools. You doubt that you have the scores to get into Yale, but you pore over its website, watching its promotional video over and over. It is a musical produced by students, very much like the TV show Glee. While combing through another section of the website, you stumble upon Yale’s policy on “Free Expression, Peaceful Dissent, and Demonstrations.” It bravely declares the essentiality of free speech:
The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable…. We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox. Free speech is a barrier to the tyranny of authoritarian or even majority opinion as to the rightness or wrongness of particular doctrines or thoughts.1
Your heart jumps a little. Think the unthinkable, challenge the unchallengeable! Actual debate and discourse, actual self-expression! You think to yourself, college will be so different from high school. At college, you will finally be free to debate, argue, and discuss anything without fear of punishment.
Then you Google a little more and come across a term you hadn’t seen before: “campus speech codes.” That doesn’t sound right. At college? You look a little further and realize it is no cause for concern. “Speech codes,” whatever they were, were apparently abandoned, like, a gabillion years ago.
PC Went to War with Free Speech in the 1990s, and Free Speech Lost
The most pervasive myth about campus censorship and speech codes is that this war was fought long ago and free speech won. In the late 1980s and early ’90s, America was distracted, disturbed, and sometimes delighted by a new craze: political correctness. Comedians and authors joked about the sudden commitment to a novel PC vocabulary designed to be less offensive: the gender-neutral “flight attendant” replaced “stewardess,” the non-skin-tone-related “African American” became the stand-in for “black,” and the non-heterosexist term “partner” attempted to replace “boyfriend” and “girlfriend.” These terminology shifts were benign, but it wasn’t long before America realized that political correctness had a more sinister side.
Colleges and universities across the country were at the vanguard of the PC movement. Many schools began proudly and publicly passing “speech codes” as a way of demonstrating their commitment to diversity and tolerance. This was in stark contrast to the reputation that higher education had enjoyed since the explosion of the campus free speech movement in the 1960s. The most common legal theory behind speech codes was one that characterized some kinds of protected speech as punishable harassment. Speech regulations came in a variety of forms, but their purpose was the same: to prohibit speech that might be offensive on the basis of race, gender, sexual orientation, or an ever-increasing list of other characteristics. The University of Texas at El Paso, for example, has expanded the list of protected classes to absurd lengths by including “race, color, religion, national origin, gender, age, disability, citizenship, veteran status, sexual orientation, ideology, political views, or political affiliation.” (Emphasis mine, to show the conscious targeting of core topics of debate.)2
While bizarre cases of “PC run amok” were frequently reported in the early ’90s, it was not until 1993 that these abuses got their mascot. That year, the University of Pennsylvania threw its resources at punishing a student for shouting, “Shut up, you water buffalo!” out of his window.
Unfortunately, the student had directed his