Free Speech Ban – Closer Than You Think

Free Speech Ban – Closer Than You Think

Free Speech Ban
Overwhelming Agreement – Free Speech is Threatened
When People Learn Facts, Even Greater Agreement About Threat


At a recent Intelligence Squared debate which was featured on the Internet, the audience present in person – after hearing a robust discussion and the response to their questions – voted overwhelmingly that “free speech is threatened on campus.”

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The results weren’t even close – 66% in favor, and only 25% against.  These results are very significant for at least two reasons, says public interest law professor John Banzhaf, who has fought and won several battles in favor of free speech and against political correctness on his own campus at George Washington University.

Free Speech Ban? Yale!

First, the debate occurred on the campus of Yale University, an institution which has had a long stranding tradition of protecting free speech and academic freedom.

But recently a lecturer there was pressured to stop teaching after a few students demanded that she be fired for merely questioning the need for a university memo about Halloween costumes which might possibly offend some students’ sensibilities.  Interestingly, the protesters even demanded that her husband also leave Yale.

Rather than simply expressing disagreement with the lecturer’s view – which was not delivered in a classroom to a captive audience to her own students who might feel themselves susceptible to her – these students demanded that both she and her husband be fired from the university.

This has a very chilling effect on virtually any faculty member – especially since such demands have also been effective on too many other campuses – who might wish to question his or her own university and its views, especially if – like most – they are not tenured professors, says Prof. Banzhaf.

Thus students at Yale, who made up a significant portion of the audience, have had a first-hand and up-close view of just how serious the threat to free speech can be, even on a campus with a long and strong tradition of protecting academic freedom.

A remarkably similar and equally alarming case, according to Prof. Banzhaf, occurred on the campus of Northwestern where a female and feminist professor wrote an essay in a national professional journal somewhat critical of her university’s handling of rape allegations.

When two students complained, the tenured professor was subjected to a major Title IX investigation involving an outside law firm.  Subsequently, the professor noted the chilling effect this incident had on her, and on her freedom of speech, wondering whether anyone else who might be more susceptible to pressure – e.g., a tenured professor who was male, an instructor or non-tenured professor, etc. – would dare to speak up on controversial campus issues like rape in the future.

The second reason is that, as the Washington Post explained, “These results are striking, first, because they constitute a rout.  At most Intelligence Squared debates, both sides increase their support, drawing from those who begin undecided; but in this case, the ‘con’ side actually lost support over the course of the evening, from 27 percent down to 25 percent (despite the home-court advantage of a Yale professor on the “‘con’ side).  And the results are striking, too, for the sheer depth of support for the ‘pro’ side: Again, by the end, fully two-thirds of this audience at Yale affirmed that free speech is threatened on campus.”

For an outrageous – but all too typical – example of the continuing threat to free speech on campus, Banzhaf cites the official stated policy of the George Washington University that no student may display in any context an ancient Indian religious symbol – one sacred to millions of Hindus, Buddhists, Jains and Zoroastrians – just as Jews, Christians, and other students can proudly display their religious symbols, because it just might be mistaken for a Nazi swastika. This is a very extreme position because even the display of the true Nazi swastika in protected by free speech and academic freedom, notes Banzhaf.

What it took to end the lengthy suspension of – and the effort to expel – a student who had briefly displayed this Indian symbol, according to various media reports, was several threats of legal action, international condemnation of the action in many English-language newspapers and even in foreign language sites, embarrassing ridicule (e.g., DAILY CALLER – George Washington U. Emulates Satan-Fearing West Texas School District With Religious Symbol Ban), national calls to stop donating to the university, complaints and even threats for many religious groups, an angry letter from GWU’s own former Hillel Director and Rabbi at GWU, and many other pressures.

Free Speech Ban – GWU?

In another even more recent incident, a student who briefly flew a Palestinian flag from his dorm window was forced to take it down because of, in the words of GWU, the flag’s “effect on the community.”

Although the university first claimed that the reason was an obscure rule which allegedly prohibited flying any flag or banner, many flags routinely fly from students’ windows without objection, and pictures of these “illegal flags” are being displayed on many web sites protesting this alleged ethic discrimination.  Legal action – arguing that this constituted illegal discrimination by the university based upon ethnicity and/or race – was also threatened.

But flags and other forms of symbolic speech are protected by the First Amendment at state schools, and by free speech and academic freedom guarantees written into student codes, handbooks, and other official commitments from the university elsewhere.   This applies even to flags or other speech or expressive conduct which could be classified as hateful, since, as the Supreme Court has often ruled, there is no exception under the First Amendment for hate speech, just as there is no exception under free speech and academic freedom for hate speech, says Banzhaf.

Free Speech Ban? The Good News

Fortunately, says Banzhaf, once universities are sued over alleged violations of free speech, they often back down and agree to settle, or courts order that corrective action be taken, But, he says, legal action should not be the only remedy.  In some cases, even university presidents and top administrators have been sued.

Presidents and other university administrators would be far less likely to engage in activities which violate academic freedom if members of their faculties – especially law professors – forcefully opposed such acts, and did so by doing more than simply signing petitions, writing blog posts, etc., argues Banzhaf.

Professor of Public Interest Law
George Washington University Law School,

[Free Speech Ban photo credit Newtown grafitti, Flickr]

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