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Some Lessons from the Sorry History of Campus Speech Codes
For 40 years, experiments in restricting "hate speech" have failed.
Concern about the proliferation of hate speech motivates many who oppose the recent acquisition of Twitter by billionaire Elon Musk, who says he plans to turn the heavily moderated platform into a bastion for free speech. Sources ranging from writers at major news publications to CEOs have voiced fears that free-speech-friendly policies will make the platform a haven for “totally lawless hate, bigotry, and misogyny,” as actress Jameela Jamil put it in her farewell-to-Twitter tweet.
But those who take for granted that hate speech should be policed on Twitter would do well to learn the history of attempts to police hate speech on campuses in the United States. Some readers may be surprised to learn that American universities have attempted to regulate hate speech for four decades now: This real-world experiment has shown how subjective and nebulous restrictions chill speech in often-surprising ways. What began as an attempt to police hateful speech in the 1980s has resulted in ever-changing policies that do little to increase tolerance, but have ended the careers of many students and professors, chilled legitimate discourse, and—in the process—undermined public faith in the intellectual integrity of higher education.
Future participants in the discussion of hateful speech should recognize that discriminatory harassment can be banned in a way that doesn’t lead to the abuses and collateral consequences that characterize campus efforts to ban the hazy concept of hate speech.
From theory to practice: How hate speech theory became campus policy
The campus free speech movement famously began in Berkeley in 1964, and just one decade later, the free speech rights of college students were vindicated in the Supreme Court in multiple opinions. Those who celebrate those victories, however, might be shocked to discover that just one more decade later campus policymakers would begin passing their own restrictions on students’ freedom of speech in the name of supposedly enlightened censorship.
But the seeds had been planted as early as 1965 by the philosopher Herbert Marcuse, who wrote that the ideal society wouldn’t simply tolerate freedom of speech—this, he called “repressive tolerance”—but would rather refuse to tolerate “intolerant” speech. By the early 1980s the chief proponent of anti-hate speech regulations was the critical race theory pioneer, Richard Delgado, but he had a problem. Because it was already clear that under the First Amendment one could not punish speech on the basis of viewpoint, Delgado—who was later joined by legal scholars Charles Lawrence, Mari Matsuda, and Kimberlé Crenshaw—largely relied on racial and sexual harassment rationales to exploit existing legal exceptions to freedom of speech. However, speech codes inspired by these rationales often penalized far more than harassment.
Just how broad were they? A Stanford speech code—struck down in court in 1995—banned insults based on race or sex. One policy used by the University of Connecticut and Drexel infamously banned “inconsiderate jokes” and “inappropriately directed laughter.” While UConn abandoned this code in 1989, it survived until the mid-2000s at Drexel. Florida Gulf Coast University waited until the late-2000s to get rid of its own harassment policy banning “expressions deemed inappropriate.”
Though codes like these were almost always found unconstitutional, facing defeat after defeat in court, their philosophical roots remained firmly planted in the minds of academics and administrators.
In the early 2000s, alongside overbroad conceptions of “harassment,” terms like “implicit bias,” “microaggression,” and “trigger warning” were used to label merely insensitive speech as dangerous and traumatizing. Students who grew up in the digital age began to bring the tactics of internet activism into classrooms, shouting down “offensive” speech and calling for bans on “toxic” ideas. These calls were answered by administrators, some of whom were eager to institute a new wave of repressive policies to appease the most vocal critics of open expression.
Reminiscent of the speech codes of the ‘80s and ‘90s, policies from the 2000s through today regularly define “bias,” “intolerance,” and “harassment” so broadly as to include any unpopular, unorthodox, or tongue-in-cheek speech. What’s more, hundreds of campuses across the country have deployed enforcement arms, Bias Response Teams, responsible not only for combating real harassment, but also for protecting campus communities from horrors such as snow penises and articles satirizing safe spaces.
Under such conditions, no one is safe from investigation. In 2007, a student and janitor at Indiana University–Purdue University Indianapolis was found guilty of “racial harassment” for being seen reading the book “Notre Dame vs. the Klan: How the Fighting Irish Defied the KKK.” In 2010, police reports were filed when the words “Dick and Sideboob” were found written on a dry-erase board, in violation of the University of Georgia’s “Acts of Intolerance” policy. In 2013, student journalists at the University of Alaska Fairbanks were subjected to a 10-month investigation for “sexual harassment” for an April Fools’ Day article about plans to build a new campus building shaped like a vagina. And in 2021, a Maryland Institute College of Art professor received a disciplinary warning for being insufficiently “respectful” after being accused of harassment by a colleague for making statements supportive of free expression.
How “hate speech” restrictions backfire on campus
Regulations on campus “hate speech,” sold as efforts to protect marginalized groups and prevent harassment, do neither in practice. At best, they’re ineffective, and at worst, they open the door to administrative abuses of power and contribute to a campus culture of shame and fear.
Such regulations feature notoriously overbroad language, giving administrators authority to punish vast swaths of expression. Civil liberties activist and former president of the ACLU, Nadine Strossen, emphasizes the risk vague speech restrictions pose to the very marginalized groups they’re intended to help:
It is important to understand that hate speech laws are inherently likely to be enforced in ways that further entrench dominant political and societal groups, and that further disempower marginalized individuals and groups. This pattern is not a result of occasional “abuses” of the laws, but rather is the inevitable, systematic result of any use of such laws, given their irreducible vagueness.
The case archive of the Foundation for Individual Rights in Education (FIRE), where we work, is stuffed to the brim with examples that illustrate this phenomenon. Take FIRE’s lawsuit on behalf of Jared Nally, a student journalist at Haskell Indian Nations University who was banned from engaging in standard newsgathering activities after publishing articles critical of his university. Or FIRE’s lawsuit on behalf of Kimberly Diei, whose pharmacy program tried to expel her for “crude” and “sexual” social media posts about Cardi B. lyrics. As always, vague rules benefit dominant perspectives. We shouldn’t be surprised when administrators use the censorial tools at their disposal—not arbitrarily, but selectively, against those who challenge or disrupt the norms of the powers that be.
The proliferation of censorial policies on campus almost certainly fuels the trends of skepticism of open deliberation and support for “canceling” those with unorthodox views. The data bear this out, revealing alarming levels of intolerance and support for illiberal forms of protest among current college students, a majority of whom oppose inviting a wide variety of controversial speakers to campus. Two-thirds of students think it is, to some degree, acceptable to shout down campus speakers, and 41% say the same about physically blocking entry to events. Reflecting the same failure of campus policies to distinguish between speech and violence, 23% of students even say the same about using violence to stop a campus speech.
Surveys of faculty also paint a troubling picture. A notable portion, from a variety of academic disciplines, openly admit they would discriminate against colleagues (e.g., during peer-review) for ideological reasons. And almost one-in-four social science or humanities faculty surveyed in the U.S. in fact supported at least one campaign to dismiss a dissenting academic. Since 2015, 589 attempts to professionally sanction scholars for constitutionally protected expression have occurred—nearly two-thirds of which were successful, resulting in some form of sanction. In 2022 alone, there have already been 44 sanctioning attempts—and we’re only a third of the way through the year!
These attitudinal trends have real human costs. In an environment where any censorship goes, students face discipline for anything from inquiring about a rumor of sexual misconduct to parodying a gender studies handout to booing at a soccer game. A notable portion of them self-censor with some frequency when it comes to controversial topics because they are concerned with how their peers and professors will react. Scholars, too, have reason to work and study in fear, knowing their jobs can be threatened for transgressions as minor as posting a mean tweet about Mike Pence, or including pedagogically relevant redacted references to racial slurs in course materials.
The reality of a censorial campus culture understandably influences public perception, undermining trust in even the most legitimate scholarship and commentary. How seriously can we take research that confirms perspectives popular on campus, one might ask, when it emerges from an environment where professors can be fired, speakers disinvited, and students written up by Bias Response Teams for expressing disfavored points of view? Would academics honestly risk their careers to come to unpopular conclusions?
Despite the 40 year failed experiment in policing free speech on campus, support for cracking down on hate speech is spreading. FIRE’s 2022 “free speech and cancel culture” survey reveals that campaigns to restrict “hate speech” have gained traction beyond the ivory tower, with most people recognizing the importance of free speech in theory, yet many supporting censorship in practice, specifically of speech that is “considered hateful.” In this context, calls for stricter speech regulations are unsurprising. Nevertheless, cultivating a culture of freedom and constructive dialogue will depend on resisting such calls.
Those who believe that restricting tenuously defined “hate speech” will remedy our current social ills should be wary of this conviction, which they share with those who imposed the disastrous spate of campus speech restrictions beginning in the 1980s. An honest exploration of these policies yields precious little evidence that they made people safer or discourse better. Worse, they left a trail of collateral damage to the expressive freedom of marginalized students, academic researchers, and professors with unorthodox views.
If we hope to protect the widest array of perspectives and improve the quality of discourse, we should identify and restrict real harassment without conflating it with protected speech. We might look to the standard from the 1999 Supreme Court opinion, Davis v. Monroe County Board of Education, by which harassment is defined as discriminatory conduct, directed at an individual, that is “so severe, pervasive, and objectively offensive” that students “are effectively denied equal access to” education. Furthermore, social media companies should devote more resources to identifying and punishing another kind of unprotected speech: “true threats” of bodily harm and death.
First Amendment jurisprudence reflects 100 years of thought on how to protect freedom of speech in the real world. Anyone who cares about freedom of speech online or off—looking at you Mr. Musk—should learn from its wisdom.
Greg Lukianoff is a First Amendment lawyer and president and chief executive of the Foundation for Individual Rights in Education (FIRE).
Talia Barnes is a writer and copy editor for the Foundation for Individual Rights in Education (FIRE).