Speech Codes Are Still Dead

By Sedler, Robert A. | Academe, May/June 2006 | Go to article overview

Speech Codes Are Still Dead


Sedler, Robert A., Academe


SPEECH CODES ARE STILL DEAD

Speak No Evil: The Triumph of Hate Speech Regulation

Jon B. Gould. Chicago: University of Chicago Press, 2005

Jon B. Gould subtitle's his book about "hate speech" and campus speech codes "The Triumph of Hate Speech Regulation." When I read the suhlitle, I wondered it I had missed something during the last decade. I had thought that campus speech codes were dead, and that I had played a significant part in bringing about their demise by successfully litigating constitutional challenges to the University of Michigan code in 1989 and the Central Michigan University code in 1995. The University of Michigan case was the first constitutional challenge to the campus speech codes that were proliferating in the late 1980s. The code violated the First Amendment because the underlying premises of a prohibition on "hate speech" are inconsistent with the fundamental First Amendment principles of content neutrality (the government cannot say that equality is a "good" idea and racism is a "bad" idea), the protection of offensive speech, and the heightened protection ol expression in the academic context.

After Judge Avern Cohn of the United States District Court for the Eastern District of Michigan held that the University of Michigan speech code was unconstitutional in Doe v. University of Michigan, a federal court in Wisconsin struck down a supposedly narrower speech code for the University of Wisconsin system in the 1991 UWM Post v. Board of Regents. In 1992. the United State's Supreme Court held in R.A.V. v. City of St. Paul that the principle of content neutrality applied to government regulation of speech that itself was not protected by the First Amendment, such as "fighting words," and so struck down a St. Paul ordinance that had been interpreted to prohibit only "racist fighting words." In light of that decision, I wrote in 1992 that "under the law of the First Amendment, virtually any campus ban on racist speech imposed by a public university will be found to be unconstitutional." This position was confirmed by the Sixth Circuit in 1995, when I litigated a successful First Amendment challenge to Central Michigan University's speech code.

At the outset of the book, Gould acknowledges the successful First Amendment challenges to the campus speech codes. He goes on to discuss comprehensively and accurately the cases themselves and the societal context in which they were litigated. But he maintains that, despite these successful legal challenges, there has heen an "afterlife" of hate speech regulation, He says that by 1997 almost half of American colleges and universities had hate speech policies on the books, and that the court decisions holding the codes unconstitutional "were ignored, evaded and resisted." He demonstrates this rise in hate speech policies both by a quantitative analysis and by case studies of representative institutions, noting that the pattern is the same at private institutions, which are not subject to constitutional constraints, and public institutions, which are.

Gould relates the rise in hate speech regulation to what he rails 'mass constitutionalism," a process by which some legal norms fail to achieve societal legitimacy and so are not followed in practice. As he puts it: "Since the courts rely on the public's sense of legitimacy to enforce their rulings, a judicial decision that generates broad-scale defiance is not going to be accepted as a true legal norm. The decision may remain on the books, hut until a critical mass of the citizenry accepts the decision as just, fair, or at least tolerable, it will not permeate into the prevailing legal culture." He contends that the strong support for hate speech regulation on the part of university officials and academic commentators has led to the continuation of speech codes on a number of campuses. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Speech Codes Are Still Dead
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.