“Thou Shalt Be Civil, Or Else….”

By Harvey Silverglate

            One of the craftiest semantic tricks adopted by campus censors since the mid-1980s used to suppress unpopular viewpoints and supposedly offensive speech on campus has been the “civility code,” a close relative of the “harassment code.” The latter has received more attention by commentators as well as courts. But free speech advocates have been slow to recognize the dangers posed by codes that insist that students be civil to one another – or else. It is the “or else” that makes these codes mandatory, and hence a form of censorship.

            On November 7th, U.S. Magistrate-Judge Wayne Brazil, sitting in federal court in San Francisco, made one of the clearest statements I’ve yet seen as to why forced civility, innocuous as the term may sound, can all too easily be turned into a speech code and lead to unconstitutional censorship. Ruling in a lawsuit brought by the Alliance Defense Fund, a Christian public interest organization, and supported by the non-partisan and wholly-secular Foundation for Individual Rights in Education (disclosure: I co-founded FIRE and currently serve as Board of Directors chairman), Brazil issued a preliminary injunction against San Francisco State University’s so-called civility code. The jurist said that the school could enforce the portion of the code that prohibited true intimidation and harassment but it could not conflate those concepts with the act of merely telling someone something he or she did not want to hear. This ruling sends the clear message that before a public college or university – which, being a governmental institution, is bound by the constitution’s free speech provision – may shut a student up, it must actually show that the speech or conduct can reasonably be seen “to threaten or endanger the health or safety of any other person,” not just make him or her uncomfortable.

            Of course, there’s nothing wrong with civility, but, like much that is virtuous, it must be the product of voluntary self-restraint, not orders barked by an intrusive (and unconstitutional) campus feel-good bureaucracy. Magistrate-Judge Brazil said he would issue a written opinion, which we’ll be looking for. Meanwhile, let us each do a good deed and find someone today to whom to be voluntarily civil.

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