Could Unconstitutional Speech Codes Become a Reality at UGA?

 By Keith Stirewall

A disturbing national trend hit home recently when the University of Georgia’s Office of Student Affairs proposed the establishment of a speech code that would prohibit “intentionally harassing speech” on campus.

Were such a code even arguably constitutional, or had such a clearly misguided approach not been tried elsewhere, perhaps UGA’s plunge into “political correctness” would be less mystifying.

The proposed speech code was submitted during the first week of February to the Student Affairs Committee, which is comprised of faculty, students and administrators. After the constitutionality and prudence of the proposed code was challenged, the Committee deferred voting until March 1, while it gathers feedback from the University

Proponents of speech codes argue that they promote civil behavior and foster a more comfortable learning environment for students. However, the United States already has a speech code — the First Amendment. It provides substantial, though not absolute, protection to an individual’s right of expression against unwarranted or undue governmental interference. The proposed code at UGA would constitute a clear abridgement of the rights guaranteed under the First Amendment, regardless of its proponents’ intentions.

Speech codes, like the one UGA has proposed, encompass not only actual harassment cases, but would also expose students and faculty to an environment where charges could be brought against them for merely expressing an opinion that might offend someone else. Not surprisingly, speech codes tend to stifle free discussion and free thought, which are contrary to the goals of an institute of higher learning. As former Yale University President Benno Schmidt has stated, “A University is a place where people have to have the right to speak the unspeakable and challenge the unchallengeable.”

Certain proponents of speech codes will attempt to dismiss their detractors as sexists, racists or worse.  They will explain that the codes empower minorities and women so that they no longer feel like victims of society.

But all speech codes, especially those as vague as the one proposed at UGA, are dangerous because they send a message that, if the motivation is sound, some censorship is permissible. This paternalism also reinforces the misguided notion that some government authority, in this case the University administration, must protect powerless victims since they apparently aren’t smart enough to recognize or deal with ignorance when they confront it.

Do the ramblings of a David Duke or a Louis Farakhan damage the groups they target? To the contrary, such ignorant ramblings, insulting as they are, undermine the very positions they expound. People must be free to engage such demagogues, not be protected from them.

Moreover, should UGA take a month to receive comments on the proposed code? Are constitutional protections now subject to plebescite on campuses? As a federal district court judge in California recently stated when striking down a similar code, perhaps college administrators need some sensitivity training on the First Amendment.

Many schools are now backing away from speech codes, mainly because they are counterproductive. Far from engendering harmony and understanding, they more often become sources of resentment, tension and extensive and expensive litigation.

Free speech is a right that should be treasured, not taken away because it’s occasionally insulting. And of all the places where free speech should be thriving, the University is probably the most vital, for it is at the University where our future leaders are being educated.  An educated student is not only one who can pass a test in the classroom, but one who can think and function in the real world. In the real world, opinions will clash and unconventional thoughts will be aired, occasionally to someone’s dismay, but more often to the benefit of the better idea.

UGA should not only decline to implement the proposed speech code, but should do so unabashedly. Well-intentioned threats to civil liberties are still threats, and should be dealt with as such.

Keith Stirewalt is Communications Director of the Georgia Public Policy Foundation, an independent, non-partisan research organization based in Atlanta, Georgia. The Foundation promotes free enterprise, limited government and individual responsibility.

Nothing written here is to be construed as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature. © Georgia Public Policy Foundation (February, 1994) Permission is hereby given to reprint this article, with appropriate credit given.