One of the PC campus’s worst excesses in suppressing unwanted speech is the drive by gays and their allies to banish or break Christian groups for their traditional beliefs on sexuality. Some 20 campuses have acted to de-recognize or de-fund religious groups that oppose homosexuality (as well as nonmarital sex), often accusing them of violating antidiscrimination rules—that is, refusing to let gays be members, or allowing them to belong but not serve as officers. The language of many policies would require a Democratic club to accept a Republican president, a Jewish group to allow a Holocaust-denying member, or a Muslim organization to accept a leader who practices voodoo.
About half of the attempts to move against Christian clubs have failed. The University of North Carolina–Chapel Hill dropped its move against a Christian club three days after getting a friendly warning letter from FIRE. “UNC couldn’t defend in public what it was willing to do in private,” said FIRE president Alan Charles Kors. “If an evangelical Christian who believed homosexuality to be a sin tried to become president of a university’s Bisexual, Gay and Lesbian Alliance, the administration would have led candlelight vigils on behalf of diversity and free association.”
Such Marcusian double standards—freedom for me, but not for thee—now have a beachhead in the law, thanks to the legendarily left-wing Ninth Circuit. In response to a “Day of Silence” sponsored by the Gay-Straight Alliance at his Poway, California, high school, Tyler Harper wore a shirt that proclaimed, on the front, “Be Ashamed, Our School Embraced What God Has Condemned,” and on the back, “Homosexuality Is Shameful/Romans 1:27.” The school principal ordered Harper to take off the shirt. Harper refused, and sued. He argued that the purpose of the “Day of Silence” was to “endorse, promote and encourage homosexual activity” and that he had a First Amendment right to use his T-shirt message as a rebuttal.
When the Poway case reached the Ninth Circuit, Judge Stephen Reinhardt and his colleague Judge Sidney R. Thomas argued in a two-to-one decision that it is permissible to exclude T-shirt messages from First Amendment protection if they strike at a “core identifying characteristic of students on the basis of their membership as a minority group”—with minority status conveyed by categories “such as race, religion, and sexual orientation.” This ruling, unless the Supreme Court takes it up and overturns it, creates a large new category of viewpoints that the First Amendment doesn’t safeguard, at least within the Ninth Circuit. Based on the loose language—“such as” could apply to numerous groups—criticism of illegal aliens might now lack First Amendment protection, says UCLA law prof Eugene Volokh. Presumably, too, one can no longer criticize any minority religious opinion, such as the Islamic view that cartoons mocking Mohammed are out-of-bounds. But pictures of Christ in urine would be perfectly fine, since Christianity remains America’s majority faith.
Some on the left applaud such Marcusian hairsplitting, arguing that First Amendment “absolutists” must learn to “balance” free speech and special protections for vulnerable groups. But in dissent, Judge Alex Kozinski expressed “considerable difficulty understanding the source and sweep of the novel doctrine the majority announces today”—nothing in state, federal, or common law supports it, he noted.
To understand the rising disrespect for free expression in the U.S., Kozinski might have been better off looking to Canada and Europe, both a bit ahead of us—if that’s the right phrase—in embracing PC censorship.
Despite stated respect for free speech in its national constitution, Canada now has a national speech code and judges and elites eager to expand it. The Canadian Supreme Court has issued a series of rulings stating that the government may limit speech in the name of worthwhile goals, such as ending discrimination, ensuring social harmony, or promoting sexual equality. The state may now seize published material judged to “degrade” or “dehumanize” any group.
What free-speech supporters would regard as horrendous abuses have become commonplace. In 1997, for instance, the mayor of London, Ontario, ran afoul of Canada’s Human Rights Code for refusing to declare a Gay Pride day, citing her Christian beliefs. The British Columbia College of Teachers refuses to certify teacher education programs at Christian universities if they urge students to abstain from premarital sex, adultery, or homosexual sex. The province’s hate-speech laws use extremely broad language, criminalizing statements that “indicate” discrimination or that “likely” will expose a group or one of its members to hatred or contempt.
Ted Byfield, editor of the now-defunct Alberta Report, violated that province’s human rights law by publishing an article noting that some children were grateful for the education they received at the government’s residential schools for Indians, much despised by multiculturalists and admittedly abuse-plagued. An injunction against the Alberta Report forbade stories on partial-birth abortions after Byfield ran a story quoting unnamed nurses and official documents saying that some babies subject to the procedure at a Calgary hospital were born alive and deliberately allowed to starve to death.
Canada has become “a pleasantly authoritarian country,” observes Alan Borovoy, general counsel of the Canadian Civil Liberties Association. Robert Martin, a constitutional law prof at the University of Western Ontario, is harsher: Canada is now “a totalitarian theocracy,” he says, devoted to the secular state religion of political correctness.
Things are no freer across the pond. The Irish Council for Civil Liberties announced that it would prosecute any priests found distributing or quoting the pope’s words forbidding gay marriage. In England, author Lynette Burrows drew a police investigation for saying on a talk show that she opposes homosexual adoption. An Oxford student fared worse after a night out to celebrate the end of exams. Stopped by a mounted policeman, he drunkenly quipped, “Excuse me, do you realize your horse is gay?” Unfortunately, the humor-free local constabulary arrested the young man under the Public Order Act for making homophobic remarks.
By law, 11 European nations can punish anyone who publicly denies the Holocaust. That’s why the discredited Holocaust-denying British historian David Irving went to prison in Austria. Ken Livingstone, London’s madcap mayor, drew a monthlong suspension for calling a Jewish reporter a Nazi. A Swedish pastor went through a long and harrowing prosecution for a sermon criticizing homosexuality, finally beating the rap in Sweden’s supreme court.
Naturally enough, Muslims want to play the same victim game as other aggrieved groups. The French Council of Muslims says that it’s considering taking France Soir, which reprinted the Danish cartoons, to court for provocation. When French novelist Michel Houellebecq said some derogatory things about the Koran, Muslim groups hauled him into court, which eventually exonerated him. The late Italian journalist Oriana Fallaci wrote an angry anti-Muslim book, meant to waken the West to the gravity of the threat posed by Islam. Her prosecution in Italy for writing the book was pending when she died in October.
Much of Europe has painted itself into a corner on Muslim-driven censorship. What can Norway say to pro-censorship Muslims when it already has a hate-speech law forbidding, among other things, “publicly stirring up one part of the population against another,” or any utterance that “threatens, insults or subjects to hatred, persecution, or contempt any person or group of persons because of their creed, race, color, or national or ethnic origin . . . or homosexual bent”? No insulting utterances at all? Since most strong opinions can seem insulting to someone—can hurt someone’s feelings—no insults means no free speech.
Chafing under First Amendment restrictions, many censorship-prone American leftists look longingly toward successful speech control up north or overseas. That’s what they want right here.
We are very lucky to have the First Amendment. Without it, our chattering classes would be falling all over themselves to ban speech that offends sensitive groups, just as Canadian- and Euro-chatterers are doing now. We know this because our campus speech codes, the models for the disastrous hate-speech laws elsewhere, were the inventions of our own elites. Without a First Amendment, the distortions and suppressions of campus life would likely have gone national. Mel Gibson, Michael Richards, and many rap artists would be in jail, or at least facing charges.
The cause of free speech can no longer expect much help from the American Civil Liberties Union, more concerned today with civil rights and multicultural issues than with civil liberties and free speech. True, the ACLU still takes some censorship cases—it led the fight against the first wave of campus speech codes circa 1990, for instance. But the rise of the ACLU’s internal lobbies or “projects,” such as the Lesbian and Gay Project and the Immigrants’ Rights Project, has made the organization look more and more like a traditional left-wing pressure group, with little passion for the First Amendment. The ACLU is also following the money: funds flow in because the group responds to concerns of feminist, gays, and other identity groups, not because of its historical defense of free speech and civil liberties.
These days, the ACLU visibly stands aloof from obvious First Amendment cases—such as the college speech and harassment codes—and even comes down on the anti-free-speech side. Consider the group’s stance in Aguilar v. Avis Rent-A-Car System, a case involving ethnic epithets aimed by supervisors at Latino employees of Avis in San Francisco. A California court ruled that Avis had permitted a hostile environment. The California Supreme Court, abetted by both the northern Californian and the national ACLU, agreed, and upheld the lower court’s startling speech restriction: prior restraint on workers’ speech, forbidding a judge-made list of specific words. These words, not yet revealed or promulgated, will soon be taboo in every California workplace, even outside the earshot of Latino employees, and even if they are welcome. As civil libertarian Nat Hentoff wrote: “This may be the broadest and vaguest restriction of speech in American legal history.”
Even with the ACLU, the mainstream media, school officials, and much of the professorate AWOL, the speech police haven’t gone unopposed. Just ask former Clinton official Donna Shalala. As chancellor of the University of Wisconsin in the late eighties, she proved a fervent early advocate of campus speech restrictions. Though Shalala occasionally praised free speech, she and her team imposed not only a full-fledged student speech code, later struck down in federal court, but also a faculty code that provoked the first (and so far, only) pro-free-speech campus campaign strong enough to repeal such repressive restrictions. The Wisconsin faculty code was a primitive, totalitarian horror. Professors found themselves under investigation, sometimes for months, without a chance to defend themselves or even to know about the secret proceedings. One female professor said: “It was like being put in prison for no reason. I had no idea what it was that I was supposed to have done.”
A small group of free-speech-minded faculty formed the Committee for Academic Freedom and Rights (CAFR). The group asked for help from the Wisconsin chapter of the pro-free-speech National Association of Scholars, which enlisted as speakers such celebrated allies as Alan Dershowitz and National Journal columnist Jonathan Rauch.
The First Amendment forces got a lucky break when the university signed a foolish contract with Reebok, in which it received millions of dollars in exchange for the use of the company’s footwear by campus sports teams. The contract included a clause forbidding negative comments on Reebok products by any “University employee, agent or representative.” The clause greatly irritated the anticorporate campus Left, which had usually been lukewarm or indifferent to free-speech concerns, helping convert some of its members to the anti-speech-code side. Later, a strong defense of free speech by a homosexual professor, called a traitor to his identity group for his courage, brought in other campus leftist allies. CAFR was amazed at how quickly many would-be censors backed down when confronted with controversy and threatened lawsuits. Wisconsin rescinded its faculty code—the first university to do so without a court order.
New national groups have joined the fight for free speech on campus (and off), among them the Center for Individual Rights, the Alliance Defense Fund, and FIRE, the most relentless of the newcomers. FIRE usually starts a campaign with a polite letter to a university president, noting that some policy is either unconstitutional or a clear violation of civil liberties. If it doesn’t get the change it wants, it will then write to trustees, parents, and alumni, and take its case to the media.
FIRE now has an extensive network of campus free-speech “spies,” as its cofounder, Harvey Silverglate, jauntily calls them (Alan Charles Kors, the other cofounder, prefers “concerned members of the community”). The organization is seeking new ways to open up closed campus systems, too, such as suing administrators as individuals, which FIRE believes will get their full attention. Another new tactic is to publicize what colleges spend on fighting for unconstitutional speech codes. Most of all, FIRE is trying to show stubborn administrators that the era of hiding gross civil liberties violations behind a PC wall of silence is over: the group wins more than 95 percent of its cases.
Political correctness took hold when there were 40 radio talk shows, three networks, and no bloggers. Today, the cross-referencing of PC outrages among bloggers, radio talkers, and rights groups makes it hard to run an old-fashioned repressive campus. University presidents now understand that their reputations do not rest entirely with the PC platoons. Donna Shalala escaped Wisconsin with her reputation intact. Sheldon Hackney, former president of Penn, did not. (I named my own annual award for the worst college president, the “Sheldon,” in his honor.) When he stepped down from the Penn presidency, he didn’t become the head of a major foundation, as many expected; instead, he wound up returning to Penn as a professor. Other reputations hang in the balance. Lee Bollinger, a First Amendment expert (and affirmative-action advocate), was invisible during the free-speech debates at Michigan and is almost as recessive today as president of Columbia. But it is getting harder for the Hackneys and Bollingers to waffle.
Perhaps the battle to release the campuses from the iron grasp of PC will take decades, but the struggle for free speech is being fought—and won—now.
http://www.city-journal.org/html/17_1_free_speech.html
