Speech Codes and Professor Fish

Evan Coyne Maloney guts Professor Fish' assertion that sine the courts have consistently ruled agains speech codes on campus they are not a problem.

That is like asserting that since courts did not consider lynching legal, they were not a problem in the South during the late 1800s and early 1900s. Complete and utter bullshit.

Fish:

This is a fake issue. Every speech code that has been tested in the courts has been struck down, often on the very grounds — you can’t criminalize offensiveness — invoked by Maloney. Even though there are such codes on the books of some universities, enforcing them will never hold up. Students don’t have to worry about speech codes.

FIRE responds:

First, while Fish correctly observes that “[e]very speech code that has been tested in the courts has been struck down,” he vastly understates the severity of the problem by dismissively concluding that therefore “[s]tudents don’t have to worry about speech codes.” That’s hogwash. While the fact that restrictive speech codes have been consistently struck down in court offers clear proof of their unconstitutionality, it certainly doesn’t mean that “[s]tudents don’t have to worry” about them. Contrary to Fish’s assertions, a student at a college with restrictive speech codes on the books is in danger of being punished for engaging in speech clearly protected by the First Amendment. According to FIRE’s first annual speech code report, Spotlight on Speech Codes 2006: The State of Free Speech on Our Nation’s Campuses, more than 68% of the 330 colleges and universities surveyed maintained policies that clearly and substantially restrict freedom of speech. Regardless of Fish’s contention otherwise, that’s something to worry about, as FIRE’s extensive list of speech code cases proves. Besides, Fish gets it exactly backwards: the fact that speech codes are still so pervasive on our nation’s campuses despite consistently losing in court is cause for outrage, not apathy.

Further, students at schools which maintain speech codes must carefully tailor their speech to satisfy oftentimes inscrutable rules—e.g., students at The Ohio State University must be sure that their words aren’t unintentionally “threatening infliction of emotional harm,” whatever that means—or else risk discipline. The chilling effect that inevitably results causes students to self-censor and renders free speech on campus all the more elusive. This too is something to worry about.

Contrary to Fish’s casual faith in the courts, resorting to litigation in hopes of vindicating one’s right to free speech is almost never an attractive option for students. The sheer amount of time spent securing representation, preparing a case, filing charges and, if necessary, pursuing appeals is extremely daunting to students. Just ask the San Francisco State University College Republicans, who are suing SFSU after being put on trial for “harassment” for stepping on Hamas and Hezbollah flags at an anti-terrorism rally. In addition to spending countless hours preparing their defense against SFSU’s charges, the students have had to coordinate a federal lawsuit against the college they currently attend. That’s not an easy or enjoyable task by any standard, and FIRE knows firsthand that despite the strength of their case, too many students decide that a lawsuit is just not worth the time, stress, trouble and alienation.

I recall being a student on a college campus. I barely had the funds to attend, let alone stick my neck out, get disciplined, hire a lawyer and try to get justice. I have no idea what universe Professor Fish inhabits, but it isn't this one.