Campus Hate Speech on Trial
O'Neil, Robert M., Academe
Campus Hate Speech on Trial
Timothy C. Shiell. Lawrence: University Press of Kansas, 1998, 205 pp., $29.95
SINCE MOST WRITING ABOUT CAMpus speech codes has not only been by lawyers, but has also been rather heavily legalistic, the perspective of a well-- informed and legally sensitive philosopher is most welcome. Timothy Shiell brings to this much-debated issue of educational policy extensive research and thought, along with a belief that the subject has not gone away, and probably will not go away, however much it may have receded from the front lines and from the courts.
Shiell advances several premises that shape his analysis and enhance the value of his work for both lay and expert readers. First, he insists that the views of speech-code proponents ought to be taken seriously, and not dismissed as examples of "political correctness"-partly because so disparaging a view is unfair, inaccurate, and largely ad hominem (or ad feminam); partly because such dismissal undervalues the genuine injury that racial taunts and sexist jibes may inflict; and partly because putting codes down as "nothing but p.c." may miss the larger significance of powerful political and ideological forces that have caused many institutions to adopt codes.
Second, Shiell wisely cautions against assuming that the legal issue (much less the policy issue) has become moot, simply because campus speech codes are zero for five in the courts. The courts that struck down such codes have done so on grounds that were far from dispositive; judges have never said to universities, "You may not bar racist, sexist, or homophobic epithets on campus," but only, "You may not do so with rules that are either vague or are so broad they reach a substantial amount of constitutionally protected expression." The code that will pass muster remains to be tested in court-indeed, it may even remain to be written-- though presumably such a document is not beyond the creative powers of those who frame sensitive campus rules.
Third, Shiell warns against an unduly rigid or time-bound view of campus speech and its regulation. He recalls that what may have seemed intolerable a generation ago might appear quite tame today, though a generation hence it might once again seem unacceptable. Moreover, the Supreme Court's view of the governing law also changes over time. Who, even a decade and a half ago, would have expected a majority of the Supreme Court (including Justice Scalia) to strike down on free-speech grounds both flag-burning laws and statutes that made criminal certain forms of "hate speech"-in both instances because such laws effectively suppressed or disfavored a viewpoint or message?
Finally, Shiell cautions against "simplistic attempts to preempt debate on the topic of hate speech codes." Perhaps his clearest contribution to the ongoing debate is his insistence that these issues are inherently difficult-not only that there are no simple answers, but that the case to be made for and against speech codes of various types does not readily lend itself to easy formulas or stereotypes-if only because people do not always end up on the predictable or conventional side of the issue.
The central focus of the book is a painstaking review of the arguments for and against formal restriction of campus speech that offends or demeans, followed by an analysis of how the resulting codes have fared, both in practice and in court. …