FIRE a good idea in principle, but less effective in practice

submitted by Peter Brian Barry

March 31, 2008 —

The Foundation for Individual Rights in Education (FIRE) - whose self-described mission is to "defend and sustain individual rights at America's colleges and universities" - evaluated SVSU's current policy on discrimination and harassment, giving it their "red light" rating reserved for policies that "clearly and substantially restricts freedom of speech." FIRE's bone of contention concerns the prohibition of "degrading comments or jokes" about race and gender, but also about age, height, and weight. FIRE Director of Legal and Public Advocacy Samantha Harris asks rhetorically:

"No degrading jokes about height? Weight? Age? Isn't that what pretty much every prime-time sitcom in America revolves around?"

I'll have to take Harris' word on the content of prime-time sitcoms - can't say that I'm too informed on that point. On these grounds, Harris concludes that SVSU's policy is "just plain silly."

A word about campus speech codes is appropriate. They certainly haven't fared well. During the 1980s and 90s there was a boom of them on college and university campuses, allegedly to prevent discrimination and hate-speech in particular. The typical response of courts was to strike them down as either vague or overbroad: a statute is overbroad if it prohibits a substantial amount of protected speech and vague if it does not clearly distinguish prohibited and non-prohibited speech. But speech codes didn't die out: the second wave flourishes, although their present rationale is typically to prevent harassment rather than offense or hate-speech. Since it is well established that harassment is not protected speech, the second wave of campus speech codes have fared much better on Constitutional grounds.

Notwithstanding her charming "silliness" objection - an as-yet unheard of rationale in Constitutional law - Harris declares "the mere fact that a comment or joke was made maliciously does not mean that it rises to [the] level" of harassment. Everything then turns on whether the utterance of a degrading joke about height or weight or age amounts to harassment. Does it?

It's certainly true that harassment is usually repeated or persistent, but it doesn't follow that a single speech-act couldn't harass. What is essential is that the speech "effectively bars the victim's access to an educational opportunity or benefit," as Harris notes. I find it plausible that a single joke, whether delivered with malicious intent or not, could have these effects. The essential feature of harassing speech is that it does produce the above noted effects and FIRE provides no argument that it couldn't. And since it is hard to see how any point that a speaker wanted to make with a nasty joke couldn't also be made in some other way that doesn't constitute harassment, it is difficult to see how SVSU's policy prohibits a substantial amount of protected speech. Thus, the policy is hardly overbroad.

I am sympathetic in spirit with FIRE. I regularly teach classes in ethics and the law and effectively discussing certain matters is hampered by speech codes prohibiting the very utterance of certain words or phrases. I regard myself a civil libertarian but I have little sympathy with reactionary assessments of so-called "political correctness," a buzzword that is as meaningless now as when it was first introduced. Speech can have effects and campus speech can have effects on college students. I, as a professor, and SVSU, as an institution, are obligated to ensure that no one inhibits our students' access to the benefits of an SVSU education. Not even our students.

Peter Brian Barry
assistant professor of philosophy