Codes of silence.

• Author: Kors, Alan C.

Who's gagging free speech on campus - and why

In Carnegie-Mellon University's "Policy on Free Speech and Assembly," originally adopted in 1988 and republished periodically in the faculty and student handbooks, the university says it "encourages freedom of speech, assembly and exchange of ideas. This includes the distribution of leaflets and petitions, as well as demonstrations or protests involving speaking, discussion or the distribution of information." CMU's policy statement then sets forth content-neutral restrictions on the time, place, and manner of speech, applied equally: "The enforcement of these restrictions will not depend in any way on any subject matter involved in a protest or demonstration."

Going even further, CMU's "Statement Concerning Controversial Speakers," issued by its trustees at the height of the Vietnam War protests in 1967, reaffirmed in 1979, and republished annually, offers a ringing endorsement of academic freedom and free speech: "The assumptions of freedom are that men and women will more often than not choose wisely from among the alternatives available to them and that the range of alternatives and their implications can be known fully only if men and women can express their thoughts freely."

The CMU statement warns that the exercise of academic freedom, essential to the university's mission, will not always be pleasant to experience, but that such unpleasantness does not change the need to protect it: "It is inevitable that such an environment will from time to time appear to threaten the larger community in which it exists. When, as they will, speakers from within or from outside the campus challenge the moral, spiritual, economic or political consensus of the community, people are uneasy, disturbed and at times outraged . . . . But freedom of thought and freedom of expression cannot be influenced by circumstances. They exist only if they are inviolable."

That was then. This is now. In 1991 CMU promulgated its "Policy Against Sexual Harassment." While reiterating in the first paragraph the university's dedication "to the free exchange of ideas and the intellectual development of all members of the community," suddenly, with barely a transition, CMU proceeded to outlaw, among other things, "verbal conduct of a sexual nature [when it] has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive work environment."

Now CMU places the need for "the free exchange of ideas" in the same sentence as the need to promote "the intellectual development of all members of the community." Because the truly unfettered exercise of free speech can create a "hostile environment" that deprives a category of "historically disadvantaged" students (in this case, women) of being able to participate in the life of the university, such speech must be restricted. One student's freedom has to be restricted in order to assure another's.

The notion that one person's freedom must be restricted to protect another's is hardly controversial in itself. "Your right to throw your fist ends at the tip of my nose" is a common formulation in law and ordinary life. Yet the notion that speech may be restricted, particularly on an academic campus, is new and very different. The notion that the tip of one's nose defines the limit of a physical assault has been transformed into the notion that the tip of one's ego defines the limit of a verbal "assault." Equally significant, this protection against a "hostile environment" and certain other consequences of speech is restricted, by the explicit terms of university policy, to certain categories of "disadvantaged" students identified by sex, race, sexual orientation, and disability.

It seems surprising, at first glance, that the most potent and far-reaching assault on the First Amendment's central principal - content neutrality - has come not from politicians protecting power or reputations, nor from government agencies protecting their notions of decency or security, but from America's universities, where academic freedom has been thought to require more liberty and tolerance than in "the real world," not less. More startling yet, this assault comes above all from the political and cultural left, which, since World War I, has been the prime beneficiary of the move toward near-absolute constitutional protection for speech. Indeed, the legal doctrine of free speech has focused crucially on the rights of revolutionaries, counterculturalists, antiwar protesters, visionaries, prophets of doom, progressives, and, generally, dissidents from Western capitalism. How is it, then, that today's most vocal critics of the First Amendment are in the academy and on the left - the heirs, in fact, of the generation that, 35 years ago, gave us the Berkeley Free Speech Movement?

The contemporary movement that seeks to restrict liberty on campus has its roots in the provocative work of the late Marxist scholar Herbert Marcuse, a brilliant polemicist, social critic, and philosopher who gained a following in the New Left student movement of the 1960s. Marcuse developed a theory of civil liberty that would challenge the essence and legitimacy of free speech. Although he repeatedly declared his belief in freedom and tolerance, Marcuse built on the work of Rousseau, Marx, and Gramsci to articulate an alternative conception of liberty, placing him at odds with the Free Speech Movement, the U.S. Supreme Court's First Amendment doctrines, academic freedom, and the values of most liberal democrats. This alternative framework, which used some traditional terms but assigned them new meanings, became the foundation of academic speech codes.

In a 1965 essay entitled "Repressive Tolerance," Marcuse concluded that America's supposedly neutral tolerance for ideas was in reality a highly selective tolerance that benefited only the prevailing attitudes and opinions of those who held wealth and power. Such "indiscriminate" or "pure" tolerance, he argued, effectively served "the cause of oppression" and the "established machinery of discrimination." For Marcuse, as long as society was held captive by militarism and by institutionalized, pervasive social and economic inequality - what he characterized as "regressive" practices - "indiscriminate tolerance" necessarily would serve the highly discriminatory interests of regression.

The holders of power, Marcuse argued, maintained their control by keeping the population "manipulated and indoctrinated," so that ordinary people "parrot, as their own, the opinion of their masters." In such circumstances, "the indiscriminate guaranty of political rights and liberties" is actually "repressive." The "class structure of society," Marcuse wrote, creates "background limitations of tolerance" that necessarily limit true democratic tolerance even before the courts create whatever explicit limitations they devise (such as "'clear and present danger,' threat to national security, heresy"). He believed that "within the flamework of such a social structure, tolerance can be safely practiced and proclaimed" by those in power because dissenting - even radical - voices were powerless to change that structure.

Marcuse did not directly assail the notion that ideas for societal change should be, in his words, "prepared, defined, and tested in free and equal discussion, on the open marketplace of ideas and goods." Rather, he asserted that the current "marketplace" was rigged because of its "background limitations." Before a true marketplace of ideas could be established, allowing genuine democracy to flourish, current inequities would have to be eliminated, and this could not be done while equating the rights of dominant regressive expression and of marginalized progressive...