Can the government mandate that speech not offend?

Robert Shibley Senior Vice President, FIRE
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In the wake of the January 2011 shooting in Arizona that killed 6 and injured 14 (including U.S. Representative Gabrielle Giffords), “civility” became a focus of national conversation. A political food fight over which side of the ideological aisle was indirectly at fault for the shooting erupted, and President Obama called for greater political civility in a speech in Tucson. The University of Arizona even opened a National Institute for Civil Discourse, headlined by Presidents George H. W. Bush and Bill Clinton as honorary chairs.

The debate over civility and efforts to avoid hurt feelings came sharply back into focus again yesterday with the attacks on U.S. diplomatic missions in Cairo, Egypt, and Benghazi, Libya, which tragically left U.S. Ambassador J. Christopher Stevens and three other Americans dead. The attacks were reportedly sparked by a video produced by Americans (not affiliated with the government) that allegedly insulted the Islamic Prophet Mohammed. The U.S. Embassy in Cairo put out a controversial Twitter statement condemning the film, saying it could “hurt the religious feelings of Muslims.” That the government would condemn such an exercise of free expression then itself became controversial and an issue in the presidential race.

The odds are that, as it did with the Arizona shooting, the current furor over the perceived societal damage of uncivil, offensive, or insulting speech will fade into the background, especially in the midst of this hotly contested presidential campaign season. But the focus on civility has remained extremely popular on college campuses for several years. After the Arizona shooting, colleges across the country redoubled their efforts to adopt civility policies to try to rein in what they see as the excesses of student speech. More such efforts might be expected after yesterday’s events.

North Carolina State University in Raleigh is one campus that has been bitten by the “civility” bug. Last year, its housing department instituted a civility code saying that “campus residents must be civil with each other,” requiring students to “speak to each other in a civil manner,” and prohibiting the display of items that might be seen as “disrespectful” or “hurtful.” This statement was even printed on magnets, so that every dorm resident could stick one on his or her mini-fridge.

What’s wrong with ordering students to be polite? As it turns out, plenty. While politeness is a virtue, most everyone recognizes that sometimes it’s not reasonable to expect it. For instance, what if your roommate turns out to be a racist? Must you remain polite and measure your tone as he drops casual references about how black people are inferior? What if someone down the hall is wearing a Che Guevara shirt and you’re a Cuban student whose grandfather was executed by Guevara for “counter-revolutionary activity”? Or what if you’re angry about the murder of a U.S. ambassador supposedly due to anger about film produced by some unrelated Americans? According to NC State’s policy, there was no choice: you must remain “civil” in all these circumstances.

On a public campus, however, the answer has to be “no.” The First Amendment guarantees that as a student at a public college, you have the right to feel strongly and to express yourself strongly and, yes, even rudely about your opinions, and the government may not stop you. As the Supreme Court wrote in the 1973 case of Papish v. Board of Curators of the University of Missouri, “the mere dissemination of ideas — no matter how offensive to good taste — on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” Of course, the same goes for American society at large.

The Foundation for Individual Rights in Education (FIRE, where I work) wrote to NC State explaining the problems with its policy, and received a response stating that the policy was under review. This fall, we were pleased to find that NC State’s civility policy reappeared with a preamble explaining that it was “not intended to interfere in any way with an individual’s academic or personal freedoms” and that NC State hoped that students would “voluntarily endorse the expectations outlined below.” That’s fine. NC State is free to encourage civility, but cannot require it.

But while there’s good news out of North Carolina, the First Amendment news out of Ohio is not so good. On a Tumblr blog called OSU Haters, which is apparently run by an Ohio State University student who is dedicated to exposing allegedly hateful Twitter comments by other OSU students, one reads this comment from a “former hater”:

As a consequence of my insensitivity to others at this university, my life was almost flipped upside down. Shortly after my comments I was contacted by the university that a hold had been put on my account and that I needed to meet with them immediately. … I was informed that I could be kicked out of Ohio State permanently with an official note being put on any other school I applied to about my comments. … I agreed to regular counseling about hate speech, safe ways to vent my frustration, and the newly formed anxiety I had about future employers finding out about this. I have also begun attending Diversity Leadership Transcript Program events with OSU and the office of Diversity to help me realize the importance of diversity for this country to progress.

The anonymous author does not say what his or her comments might have been. But if it’s true that Ohio State is ordering students who make allegedly “insensitive” comments to undergo regular “hate speech counseling,” putting holds on their accounts, and threatening expulsion complete with notes on their transcript about their personal opinions, Ohio State is not only unlawfully policing thoughts and expression, but courting a massive and expensive disaster in court.

No matter how much a government official might dislike your expression (and Ohio State administrators are government officials), that dislike does not give them the right to punish you for what you say or believe. After all, the next government official to come along might dislike and punish an entirely different set of beliefs! If government officials ever do legally acquire the power to punish you for your viewpoint, we’ll no longer be able to call the United States a truly free society.

Robert Shibley is the senior vice president of the Foundation for Individual Rights in Education (FIRE).