Gag Orders

        “When does free speech become hate speech?,” a Fox News correspondent asked recently in a reviewing yet another free speech controversy at Tufts University.  The question itself reflected the common misconception that speech rights do not or should not include the right to engage in whatever is popularly considered hate speech. “I’m not in favor of censorship but...” is a mantra of censors on college campuses who aim to outlaw speech they deem offensive, all the while proclaiming their adherence to free speech and the marketplace of ideas.  (You have to wonder what they imagine as the purpose of free speech guarantees if it’s not to protect the rights of offensive speakers; inoffensive speakers protect themselves with their own inoffensiveness.)

        Campus crusades to silence “offensive” speech have been the subject of parodies and sharp critiques for years now, but the crusaders have been undeterred.  Indeed, opposition seems to have emboldened them; restrictions on speech are increasingly arbitrary and unpredictable, as definitions of verbal harassment and discrimination become vaguer and more expansive. The most recent, hard to believe case of campus censorship, which threatens to cost a faculty member his job, comes out Maricopa County Community College District in Arizona: 

    There, on November 22, 2006, math professor Walter Kehowski posted George Washington’s 1789 Thanksgiving Day Proclamation to a district-wide list serve.  Kehowski’s email contained a link to Pat Buchanan’s website, which included Buchanan’s criticism of U.S. immigration policy.  Five MCCCD employees filed harassment complaints, asserting that the email was hostile and derogatory, because of the Buchanan link. As a result, Kehowski was placed on administrative leave, with a recommendation that he be dismissed for violating the district’s anti-discrimination policy as well as its policy on emails unrelated to MCCCD business, a policy that does not appear to be generally or consistently enforced.  (Update, June 25: Kehowski successfully settled this case; the charges aganist him have been dropped and he will return to teaching in the fall of '07.)

        It’s hard to know which is worse: punishing Kehowski for Pat Buchanan’s speech, or equating Buchanan’s speech with acts of harassment and discrimination.   Kehowski is appealing the decision against him; his case will be heard before a three person faculty panel on June 5th.  He should prevail, at least eventually: Maricopa County is bound by the First Amendment, which clearly protects his e-mail.  But even if Kehowski’s persecutors eventually lose this battle, they may have won the war by chilling politically controversial speech, which is precisely what the First Amendment is supposed to protect.

        I wish I could characterize Kehowski’s case as an anomaly, but you’ll find others like it described at, the website for The Foundation for Individual Rights in Education.  (Harvey Silverglate is a co-founder of FIRE, and I serve on its advisory board.  FIRE has publicized and intervened in Kehowski’s case.) Consider the recent controversy at Tufts University, which prompted Fox News to wonder about the difference between free speech and hate speech:

        A conservative student magazine, The Primary Source, parodied affirmative action in a Christmas carol entitled “O Come All Ye Black Folk.”   Affirmative action remains controversial on and off campus, which should make it an ideal subject for debate and satire; but, on some campuses, students who mock or otherwise challenge affirmative action risk finding themselves charged with speech crimes.  According to Fox, a Tufts student asserted that the mock Christmas carol was harassment, stating, “Clearly the carol (constituted harassment) by intimidating African-Americans at Tufts and inferring (sic) they are unintelligent and inferior.”  (Have I harassed any readers by including a link to Fox News?) The Primary Source followed this offense with publication of an attack on Islam during Muslim Awareness Week, naturally prompting complaints from the Muslim Student Association. 

        So, in this fearful new world, in which students are taught to feel oppressed and assaulted by words, The Primary Source was hauled before a disciplinary board last week on charges of harassment and violation of community standards.  (Update: The Primary Source was found guilty of harassment by the Committee on Student Life.) Speaking to Fox, Tufts faculty member Tobe Berkowitz characterized, or mischaracterized, the choice facing the Tufts community: “Are we going to put free speech first?  Or are we going to put what we consider a good environment for our students first?”  Remarkably, at this respected university, creating a “good environment” is considered in conflict with nurturing respect for political speech.

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