HARASSMENT, PARODY, AND PATRIOTIC (& UNPATRIOTIC) GORE: TENSIONS BETWEEN ACADEMIC FREEDOM AND PROPER GOVERNANCE OF STUDENT & FACULTY SPEECH AT COLLEGES & UNIVERSITIES   By Harvey A. Silverglate     (L-R: Hon. Gordon Doerfer, Chief Justice SJC Margaret H. Marshall, Harvey A. Silverglate, Dustin A. Lewis, and Hon. Frederick L. Brown. John Adams Courthouse, Boston, Massachusetts)   Presented as a talk to the New England Appellate Judges’ Conference held in Boston on 4 November 2005   Final oral delivery version                           When I co-authored the book The Shadow University, published in 1998 and then released a year later in paperback format – I’ve provided a copy for each of you, by the way – I directed my attention to the relatively recent phenomenon of censorship largely by the left, directed to the right, on college campuses. Such censorship, carried out most frequently by means of politically biased speech codes, more recently re-named “harassment” codes, was, and remains, aimed at, in the words of the censors, protecting historically unrepresented and disadvantaged groups from harassment on the basis of gender, race, sexual orientation, and a number of other classifications. In practice, such censorship was used not against true harassment as we have long understood the common law and statutory meaning of that term, but against speech that might make the listener feel uncomfortable, perhaps unwelcome. The overwhelming portion of such censorship was aimed, as my book demonstrates, against speech clearly protected by academic freedom and, on public campuses, federal and, in some instances, the often-broader state constitutional guarantees of free speech. While my book did contain some examples of censorship of those on the left, I did predict that since the political pendulum seems always to be swinging in this country, the increasingly deeply entrenched culture of censorship would one of these days begin to move against the left. And, indeed, largely as a result of the terrorist attacks of September 11, 2001, followed by the amorphous and seemingly endless “war on terrorism,” we have begun to see more and more campus censorship in the name of patriotism. This confirms my book’s thesis that once we cease looking at free speech as modal – that is, as a primary value in itself and not just a work-horse to be used to haul a politicized or ideological wagon – we so weaken its support in times of social and political distress that we render it essentially useless in the long run. The worm turns. And while it has begun to turn very dangerously in the world outside of the campus, thanks largely to fear of terrorism and to seriously restrictive provisions of the USA/Patriot Act and other measures, it has begun to turn, too, on our campuses. Hence, censorship has now become very much a bi-partisan undertaking, with the traditional civil libertarian liberals, and the libertarian conservatives, and a few others engaging in a rear-guard action trying to fight back. I am going to focus this talk on two inter-related aspects of this problem, namely the assault on parody and the expanding definition of verbal “harassment.” I have chosen parody because I want to avoid, for purposes of this talk, dealing with the more subtle and difficult issue of restrictions on speech that be beyond the protections of advocacy speech set out in the 1969 Supreme Court decision in Brandenburg v. Ohio, which protected advocacy, even advocacy of violence, except for “advocacy [that] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” I believe that the Department of Justice is currently undertaking a fresh assault on the line drawn in Brandenburg , but that is the subject for another talk at another time. For now, I want to restrict my comments to an area where the Supreme Court, and indeed the society, has long been clear that constitutional free speech protections apply without any real doubt or hedging – namely, the protection of parody as a form of political commentary and criticism. It is becoming increasingly clear that censorship of campus parody, coming from the left in the past 25 years in the name of avoiding “harassment” of “historically disadvantaged groups,” now comes from both the left and the right, although directed at different targets The anti-libertarian left, and its mirror-image on the right, disagree about many things, but they appear to agree on the appropriateness of resorting to the age-old response of censors to uncomfortable speech: “Shut up!” they reasoned. In the longer article that I submitted for inclusion in the materials distributed to you, from which this shorter talk is largely adapted, I have set out in substantial detail two recent incidents of censorship at Harvard Law School, one aimed at alleged sexual harassment, and the more recent incident aimed at purported racial harassment. In both incidents, the attempts at censorship were directed against what were absolutely clear examples of parody – examples that, on the basis of utterly unambiguous Supreme Court precedents that were decided by unanimous courts, provide the broadest possible protection for such speech in “the real world” – that is, the world outside of the ivy walls and gates. What one may say with complete immunity and impunity in Harvard Square , one says in Harvard Yard only at the risk of one’s personal and professional well-being. Because I have set out both of these incidents in great detail in the written article distributed to you, I will truncate these two stories. However, I do urge you to read the article I’ve given you, because it is hard to believe these stories without the details – the devil, as the saying goes, is truly in the detail.   * * * *   On April 4, 1991, New England School of Law professor Mary Joe Frug was stabbed to death in Cambridge.  The ghastly murder remains unsolved.  At the time of her death, Frug was working on a comprehensive treatment of feminist legal philosophy.  In the piece, she insisted that the contemporary legal system “constructs” women's sex and gender roles, and that legal rules and discourse “permit and sometimes mandate” not only the “sexualization” of the female body, but also its “terrorization.”  Her draft was laced with expletives. Examples are given in the written article I’ve distributed to you. After much dispute among the student editors of the Harvard Law Review, Frug's piece was published in that prestigious journal after her death as a memorial, despite the fact that those opposed to its publication insisted the draft was a poorly written, vulgar political treatise.             One year after Frug’s death, the Review distributed its limited-circulation annual parody issue, the Harvard Law Revue.  The Revue typically consists of parodies of articles published in the Review the previous year.  The 1992 Revue included a scathing parody of Frug's work. The article was cruelly attributed to "Mary Doe, Rigor-Mortis Professor of Law.”  While references to Frug's violent death were offensive and tasteless, meriting rightful criticism, the piece as a whole was an unstinting criticism of the Law Review's decision to publish Frug's unfinished draft. It seemed more an unabashed satire of radical feminist scholarship than a mockery of Frug's death. However, reasonable people can disagree on this and see it as utterly tasteless and cruel mockery.             Most of the Harvard Law School community was never intended to see the parody. Nevertheless, the parody, not surprisingly, was widely leaked. Beginning on April 9, 1992, when twelve female law students distributed a pamphlet expressing outrage, the parody produced a growing torrent of increasingly angry open letters. The president of the Review wrote an open letter apologizing for the publication of the parody and stating that steps had been taken to respond to the “crisis.” The Review ceased all distribution of the Revue and suspended its publication indefinitely.             The authors of the parody penned a public recantation.  The editors originally responsible for publishing Frug’s actual “Manifesto” now apologized for not protesting the satire. Law School Dean Robert Clark wrote another “open letter,” declaring that “The piece offends all standards of decency.…The President of the Review has indicated that steps are being taken to address underlying problems and attitudes…and I shall consider what further steps may be appropriate.”             Dean Clark initially declared that the School would not punish the offense and that “I agree with those who think that the best response to offensive speech is not to curtail it forcibly, but to condemn it, and explain why it is wrong.” Dean Clark’s response did not satisfy those calling for vengeance, who eventually intimidated him into submission.  Angered by what they saw as the dean's indifference to the incident, nine Law School organizations, on April 16, 1992, demanded Clark's resignation.  Three days later, Professor David Kennedy, conflating the legally distinct concepts of speech and action, characterized the parody as a “terror” attack on the lives of women: “Many women…experienced the document's delivery as a direct threat of personal violence.”             Kennedy asked the Law School’s judicial Administrative Board to bring charges against the authors and Law Review officials. He further recommended that the Administrative Board look into whether the authors and those in positions of authority at the Law Review might be morally disqualified from becoming lawyers.              Kennedy's letter earned the support of a self-appointed Revue Action Committee. Professor Alan Dershowitz, one of the very few faculty voices publicly favoring freedom of expression in this imbroglio, wrote a syndicated column in which he sharply criticized the effort to bring disciplinary charges against the students.  Professor Laurence Tribe – a leading constitutional law expert who had gained national attention by questioning Judge Robert Bork's commitment to liberty – publicly replied, writing that “the mutilation of Professor Frug's memory go[es] well beyond speech in any meaningful sense.”             Four weeks after Kennedy brought his charges, the Ad Board ruled that it could not punish the authors of the parody because no “law school rule imposes limits on the content of publications by students that would be applicable here” or empowers the Administrative Board to deal with such “harassment.”  The Ad Board's decision, rather than settling the issue on behalf of free speech as a matter of academic freedom, became the catalyst for consideration of adoption of a speech code. One year later, Dean Clark appointed a faculty committee to consider adoption of sexual harassment “guidelines.”             Dershowitz himself accepted a place on the Guidelines Committee and argued that, given the context, he would prefer to have clear, narrow rules restricting speech rather than unspecified, vague, and unwritten “common law” standards or understandings.  Only three professors expressed outright opposition.              The Law School faculty passed one guideline that banned, among other things, any “speech or conduct of a sexual nature…that is unwelcome…abusive…or has the purpose or effect of unreasonably interfering with an individual's work or academic performance or creating an intimidating, demeaning, degrading, hostile or otherwise seriously offensive working or educational environment at Harvard Law School.” The school added a “savings clause” to the policy, exempting from punishment speech that would be protected by the First Amendment. This clause, however, was an illusory protection, designed to encourage the misconception that students at Harvard Law had the same free speech rights as members of the American public.  As Tribe himself had written in his leading textbook on the U.S. Constitution, savings clauses are highly problematic because they deter conduct that is actually permitted: “a law whose reach into protected spheres is limited only by the background assurance that unconstitutional applications will eventually be set aside is a law that will deter too much that is in fact protected.” Tribe nonetheless voted for the guideline. The Frug parody almost certainly would have been in violation of this guideline, as well as another guideline that forbade “speech or combination of conduct and speech that would be viewed by a reasonable person as physically intimidating…and that has the purpose or effect of unreasonably interfering with an individual’s work or of creating an intimidating, demeaning, degrading, hostile or otherwise seriously offensive working or educational environment at Harvard Law School.”  This guideline not only lacked even an illusory savings clause, but explicitly stated that “though appropriately broad on a university campus, the right of free expression does not encompass a right to engage in abusive or intimidating conduct.” Harvard’s policy, like its debate over the incident to which the policy responded, betrayed a frightening confusion of speech and conduct. Recall Laurence Tribe’s argument that “the mutilation of Professor Frug's memory” went “well beyond speech in any meaningful sense.” Recall David Kennedy’s charge that the authors had delivered “a direct threat of personal violence."             In the year 2002, a similar contretemps broke out, but this time in connection with a student who mis-spoke on an issue of race. The details are laid out in the article you have. In some ways the racial harassment brouhaha was an even more serious affront to academic freedom, for it resulted in two professors being silenced and punished for dissenting from the common belief that facially insensitive speech should be punished. Prof. Charles Nesson took a semester’s leave of absence from teaching, attending his own class as an observer, with another faculty member teaching the course for him. Prof. David Rosenberg saw the dean inform students in his tort class that if any student found it too painful to attend his class in person, the classes would be tape-recorded, and students could cut the classes and instead listen to the tapes. One’s breath is, or should be, taken away at this cowardly response to cries for censorship at the law school that produced such stalwart defenders of free speech as Holmes and Brandeis. Suffice it to say that it was the success in enacting Sexual Harassment Guidelines directed at protected speech that allowed the demand for similar Racial Harassment Guidelines to gain steam and be taken seriously. Only after considerable outside publicity and pressure did the Law School allow this further demand for a racial censorship code to die a quiet death. However, the Sexual Harassment Guidelines are still on the books. The last I checked, there have been of late no especially biting parodies at Harvard Law School on the subject of either gender or race.             This is not promising for a school that is training lawyers, judges, and leaders. The influence of a law school racial harassment speech code, however, will not end at Harvard’s gates, nor even be limited to the academy. The academic Marxist theories of the 1960s and 70s, positing the view that true equality could be achieved only by the unequal allocation of speech rights to create a “level playing field,” found their way into college and university “offensive speech codes” in the 1980s. These codes, though later declared unconstitutional on public campuses, nonetheless gave birth to our modern-day federal “harassment” regulations under the guise of “civil rights” laws, covering workplace and campus speech (as well as conduct) that creates a “hostile environment” – as if a campus of higher education could accomplish its educational and truth-seeking goals while simultaneously catering to those seeking and expecting an innocuously inoffensive educational experience. Now our universities have virtually all adopted similarly worded “harassment” codes, arguing, speciously but effectively, that they are obligated by federal law to limit such speech on campus. This symbiotic relationship between academia and federal regulators has produced an atmosphere of profound censorship and fear on our campuses, which will end only when the courts make clear that these concepts are simply back-door approaches to a desired end: restricting otherwise protected speech.                                                   * * * *   The appearance of censorship on public and private college and university campuses, in the guise of “harassment codes,” is just the most recent in a series of efforts that censors have undertaken over the decades to curtail speech deemed offensive by some. These efforts to censor have been met with varying degrees of success except when challenged, and even then some of the challenges have failed in courts where judges simply were fooled by the “harassment” label and did not penetrate to the heart of the matter to see that what was being censored were dissident views, often couched in harsh terms, sometimes couched in the language of humor or parody. Here are just a few of the recent and most illustrative cases from around the country, from private and public campuses:   In the fall of 2001, University of New Mexico Professor Richard Berthold addressed the terrorist attacks on the U.S. in his morning class on Western Civilization, remarking, "[A]nyone who can bomb the Pentagon has my vote." The professor apologized for the statement, claiming that it was, albeit stupidly, intended to be a joke. The university’s president announced he would "vigorously pursue" disciplinary action against the professor. The president later told the professor that he had violated University of New Mexico policy with his remarks, and the professor was banned from ever teaching freshman history again—a course Berthold had taught every semester for 30 years. During the 2004-2005 school year, the University of Colorado at Boulder investigated an essay in which Professor Ward Churchill likened Americans killed at the World Trade Center on September 11, 2001, to "little Eichmanns." Though the University ultimately produced a report that states that no action should be taken against the professor because his speech falls well within the protections of the First Amendment, the report went on to state there is sufficient evidence that academic impropriety may exist in the professor’s work.   In the week following 9/11, Kenneth Hearlson, an associate professor of political science at Orange Coast College in California, was removed from his classroom for nearly four months for an investigation into a question (why there was an asymmetrical response by Arabs to the attacks on the World Trade Center compared to attacks on Israel) the professor had posed to his class. In the fall of 2004 at the University of Massachusetts - Amherst, a group of student leaders threw a party at which they parodied the racism accusations lodged after a hotly contested student election in which one of the candidates had been unfairly branded racist. The party-goers took photographs of themselves posing in front of a cartoon depicting the candidate dressed in Ku Klux Klan garb, with a moronic expression on his face. Students offended by the obviously sardonic pictures put pressure on the school’s administration, which in turn forced the student government leaders to resign their positions. In March 2004, administrators at Occidental College in Los Angeles fired a student, Jason Antebi, from his position as host of a student radio program and found him guilty of sexual harassment for satirical jokes he made on the air. The university then dissolved the entire student government. Mr. Antebi has sued the college for violating his rights, as well as the rights of the larger student community. In February 2005, Dean of Students at Northeastern Illinois University Michael Kelly threatened to bring charges against a student political group that planned to host a bake sale satirizing affirmative action. At the event, the student group planned to sell baked goods at lower prices to non-white, non-male purchasers, a perhaps ham-handed but fairly transparent comment on the allegedly un-level playing field created by affirmative action. Two months later, after corresponding with the Foundation for Individual Rights in Education, the university decided to allow the students to host the bake sale without prior restraint on their actions.   * * *   As is obvious from these examples, campus administrators have attacked speech, on and from both the left and the right, precisely when it performs the function that speech performs as its most vital and urgent calling – dissent from prevailing views and attitudes. The censorship of  such speech has been undertaken because administrators operate under cover of the claim that since the censored words are not simply “offensive speech,” but instead reach the level of “harassment,” the precedential case law from the United States Supreme Court and from various state courts of last resort simply does not apply.     The Supreme Court Unanimously Rebukes Oblique Assaults on Speech.                 I do not have time now to go into detail as to how and why Supreme Court precedents make it perfectly clear that parodies such as that at Harvard Law, and indeed all of the speech that was subject to attempts at censorship in the few examples I have just given you, is absolutely and clearly protected by the First Amendment. And, I might add, it surely would be protected under the cognate free speech provisions of many state constitutions. My detailed legal arguments and citations are contained in the full article I’ve distributed to you. I will just mention the major cases. Consider the case of Hustler Magazine v. Falwell, 485 U.S. 46 (1988). In the early 1980s, well-known minister and social conservative icon Jerry Falwell sued his polar opposite, Larry Flynt, publisher of Hustler, charging invasion of privacy, libel, and intentional infliction of emotional distress. This arose from, as the Supreme Court delicately described it in its unanimous 1988 judgment in favor of Flynt, a “parody” published in the November 1983 issue in the form of a mock interview in which the good reverend disclosed “that his ‘first time’ was during a drunken incestuous rendezvous with his mother in an outhouse.” “The Hustler parody,” stated the Court, “portrays [Falwell] as a hypocrite who preaches only when he is drunk.” The trial judge had thrown out the privacy claim but submitted the libel and intentional infliction claims to the jury, which found in favor of Falwell on the latter. Flynt sought and obtained Supreme Court review. The Court’s opinion took on the challenge at its core. The Court held that parody is meant to be hurtful, and that is precisely why it is need of especially clear protection:   In Garrison v. Louisiana, 379 U.S. 64 (1964), we held that even when a speaker or writer is motivated by hatred or ill-will, his expression was protected by the First Amendment…. Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject…. The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events – an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided.               The implications of this ruling for codes prohibiting discomforting speech, including biting and quite awful parodies, under the guise of “hostile educational environment” analysis, are obvious. The "pornography as civil rights violation" battle             In 1985, Judge Frank Easterbook of the U.S. Court of Appeals for the Seventh Circuit wrote the court's opinion in American Booksellers Association Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985). The city of Indianapolis had enacted and enforced an anti-pornography ordinance that claimed to protect women from "subordination." It provided for a civil damages action by women injured by the attitudes engendered by the pornography at issue. Judge Easterbrook saw through the ordinance's veneer of a "civil rights" law and described it more accurately as an effort to coerce a change in attitudes. Noting that supporters of the ordinance "say that it will play an important role in reducing the tendency of men to view women as sexual objects," he concluded that it faced an insurmountable constitutional obstacle: It not only sought to alter attitudes, but it did so in a manner that discriminated by viewpoint, that is, favoring only "speech treating women in the approved way -- in sexual encounters 'premised on equality.'" The First Amendment, he ruled, prohibits the state both from establishing a "preferred viewpoint" for or about a group, and from taking steps to change private attitudes to suit that ideological preference.                In language that seems directly to address the drafters of campus codes, the court concluded that a free society lets individuals freely choose, for themselves, those things that affect "how people see the world, their fellows, and social relations." Responding to the city's argument that pornography poisoned the atmosphere for women, the court rejected any "answer [that] leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us." The First Amendment, Judge Easterbrook and his colleagues ruled, permitted neither "thought control" nor an officially "approved view of women, of how they may react to sexual encounters [and] of how the sexes may relate to each other." Further, notions of "low value speech" and "fighting words" did not affect this case. The city did not consider the speech to be of low value, but rather it "believes this speech influences social relations and politics on a grand scale," and it had not banned all fighting words, but only those of a particular ideology and viewpoint, a selectivity that itself violated the First Amendment.             The city of Indianapolis appealed to the U.S. Supreme Court, which, after accepting the case for review, found the issues so clear that it affirmed Judge Easterbrook's judgment summarily. Disguising censorship as a "civil rights" mechanism will not, and should not, succeed in gutting the First Amendment. The St. Patrick's Day Parade as a "public accommodation."             More recently, the Supreme Court dealt with another clever but, in the end, futile oblique attack on free speech by using the legal umbrella of purported protection of civil rights. I think that everyone in this room is familiar with the contest between The South Boston Allied War Veterans, led by one John J. Hurley, and the Irish-American Gay, Lesbian and Bisexual Group of Boston ("GLIB"), formed for the purpose of marching under its gay rights banner in the 1993 annual St. Patrick’s Day Parade in Boston.             The Superior Court and the Supreme Judicial Court had sided with GLIB, which had argued that a public parade such as the St. Patrick's Day Parade should be considered a "public accommodation" and that denial of GLIB's application to march under its banner violated a state law prohibiting discrimination on account of sexual orientation in places of public accommodation.             In a unanimous opinion written by Justice David Souter, the U.S. Supreme Court in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338 (1995), reversed the SJC. Justice Souter wrote that the parade was clearly an expressive event, not just a means "for a group of people to march from here to there...to reach a destination." He concluded that the Veterans Council had an absolute right to have its own parade, which it organized and underwrote, reflect its chosen message. He cited decisions from the civil rights struggles of the 60s and 70s, in which Dr. Martin Luther King, Jr. and his allies fought for the right to hold peaceful marches to promote their political and social views.  He went on to point out that basing a demand to limit the Veterans Council's First Amendment rights, in the name of equality of access to public accommodations, is to try to wring more out of the civil rights laws than the First Amendment allows “[T]his use of the State's power,” wrote Justice Souter, violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message." (Hurley, 115 S. Ct. at 2347)             Justice Souter then went on to talk in terms seemingly aimed directly at writers and enforcers of campus speech codes: Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics. The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control. (Hurley, 115 S.Ct. at 2348)               * * * *   How clear does the Supreme Court have to be before our campuses follow the lead of Falwell, Hudnut, and Hurley? Perhaps the most shocking example with which I’m familiar, of campus censorship under the guise of preventing “harassment,” involves the case of Prof. George Fletcher of the Columbia Law School, in which I was personally involved as advocate for Prof. Fletcher and for academic freedom. In a 1999 class at Columbia Law School, Cardozo Professor of Jurisprudence George Fletcher, a renowned criminal law specialist, asked a provocative hypothetical question on an exam in a required criminal law course. The question, which was based upon facts gleaned from actual cases, presented a hypothetical scenario in which an “anti-fertility” cult activist attacked three pregnant women. The query drew the ire of some people in the law school community because one of the women attacked in the hypothetical had told her doctor that she wanted to write a thank you note to her assailant, because she in fact wanted an abortion but was having difficulty obtaining one due to the advanced term of her pregnancy. The dean of the law school, David Leebron, wrote Professor Fletcher that, as a result of the complaints the dean had received regarding the question, the dean was required to consult the university’s general counsel on the question of whether the exam constituted a form of sexual harassment. In a subsequent response to Professor Fletcher’s inquiries regarding his academic freedom to ask such a provocative question, Dean Leebron wrote:   The suggestion that one of the victims wanted to thank her attacker is both preposterous and revealing. Again, it MAY be that this falls within the rubric of academic freedom, but an examination in a large course is a public act, and the same notion of academic freedom allows students and colleagues (including me) to express views on that exercise of academic freedom as it affects members of our community.   In a letter to the dean, I noted that “the notion…that the exam ‘ MAY’ be protected, is very disturbing. Surely the exam IS CLEARLY protected.” In the end, the dean dropped the investigation of Prof. Fletcher. At some point all of us are going to have to tell college and university administrators and general counsel what the then-dean of the Columbia Law School finally understood after much back-and-forth discussion and argument: When someone in the campus community utters words and ideas that some find offensive but which under no stretch of the imagination constitute a real threat or otherwise fall into a traditionally prohibited category of speech, then there is not only nothing to prosecute, but there is nothing to investigate. These are not, or at least should not be, difficult cases.