Two and a half years ago, when an Organization of American Historians' committee, chaired by David Montgomery, was appointed to investigate threats to academic freedom on American campuses, David Beito, KC Johnson and I asked that it include threats identified by FIRE, the Foundation for Individual Rights in Education. Especially, we thought, the committee ought to investigate the threats posed by"speech codes." When the OAH committee turned a deaf ear to our request, we outlined"Why We Are Dissatisfied with the OAH's Report on Repression" here at the History News Network and pleaded for"Consulting All Sides on 'Speech Codes'" in the OAH Newsletter. In"Who's Undermining Free Speech on Campus Now?" we saw twin threats, one coming from outside the academic community and one that had emerged within it. Both David Horowitz's misnamed"Academic Bill of Rights" and"speech codes" threatened freedom of speech on our campuses, we argued.

A year ago, when the American Historical Association was slated to consider a resolution that opposed Horowitz's"Academic Bill of Rights" (ABOR), Johnson, Beito, and I proposed a substitute resolution that would have put the organization on record as opposed to both Horowitz's threat to academic freedom and to"speech codes." We set the stage in"A Time to Choose for the AHA in Philadelphia: Speech Codes and the Academic Bill of Rights." Both in meetings of Historians Against the War (HAW) and in the AHA's business meeting, there was substantial support for our substitute resolution, but it was defeated in both meetings. Some people argued that ABOR was a more pressing matter and that the two issues ought not be dealt with in the same resolution. My recollection is that no one actually spoke in favor of speech codes. Many speakers said:"I agree with you, but ...." or"I will support you next year on a separate resolution." So, the arguments against the substitute resolution carried the day. In good faith, all of us who had supported it voted in favor of the resolution against ABOR alone and that resolution passed unanimously. Beito, Johnson, and I reviewed that experience in"The AHA's Double Standard on Academic Freedom" in the AHA's Perspectives.

At this year's AHA convention in Atlanta, we are challenging all of those who said last year"I agree with you, but ..." or"I will support you next year on a separate resolution" with this resolution:

RESOLUTION OPPOSING THE USE OF SPEECH CODES TO RESTRICT ACADEMIC FREEDOM

Whereas, The American Historical Association has already gone on record against the threat to academic freedom posed by the Academic Bill of Rights;
Whereas, Free and open discourse is essential to the success of research and learning on campus;
Whereas, Administrators and others have used campus speech codes and associated non-academic criteria to improperly restrict faculty choices on curriculum, course content, and personnel decisions; and
Whereas, Administrators and others have also used speech codes to restrict free and open discourse for students and faculty alike through such methods as"free speech zones" and censorship of campus publications; therefore be it

Resolved, That the American Historical Association opposes the use of speech codes to restrict academic freedom.

Although he continues to support our position, our colleague, KC Johnson, is not an official sponsor of the resolution we are offering at this year's AHA convention because he is not a member of the organization.

In order to get this resolution on the AHA business meeting's agenda, however, Beito and I have secured the endorsement of it from more than 30 members of the AHA. It is a remarkably diverse group of historians, who teach at institutions stretching from Prince Edward Island to Hawai'i and whose politics range from rather far to the left to rather far to the right.

As importantly, however, FIRE has just released its"Spotlight on Speech Codes 2006: The State of Free Speech on Our Nation's Campuses." The press release for it is here. The report surveys the current state of"speech codes" at U. S. News & World Reports' 100"Best National Universities," its 50"Best Liberal Arts Colleges" and an additional 184 major public universities, for a total of 334 institutions across the land. I urge everyone to read the report because what it finds is, simply, stunning.

Academic communities and people should not have to be told by the First Amendment that freedom of speech is an inalienable right, one that is essential to academic life and that the burden of justifying any curtailment of it rests entirely on those who would restrict it. Public institutions, however, are bound by the First Amendment to protect free speech in ways that private institutions are not. Despite that fact and despite federal court findings to its effect in case after case, nearly three-fourths of the public institutions surveyed have"speech codes" that restrict constitutionally protected speech - speech that would be protected anywhere in the United States outside the academic community. These self-imposed codes are both detrimental to academic freedom and - to put a fine point on it - simply unconstitutional.

In the private sector, many institutions pay lip service to academic freedom and freedom of speech with affirmed guarantees of it, but then betray them with unacceptable constrictions. FIRE's report finds those unacceptable restrictions in both public and private institutions arising in four forms. Three of them are overly expansive definitions of harassment, policies on tolerance, respect, and civility, and definitions of disorderly conduct. The other common and unacceptable form of restricting free speech in academic communities is the establishment of"free speech zones" in small and remote areas of the campus. Restricting free speech to such zones may serve the interests of administrators in keeping an orderly campus, but administrators are the creatures and servants of academic freedom. They've not typically been its guarantors.

mark safranski - 12/21/2006

Hi Hiram,

you wrote:

"How do they conclude that? They comb a disparate body of regulations at each university and pretend that a single potentially restrictive policy is proof of a coherent and totalitarian "speech code."

The important variable is the capacity of the code to unduly restrict, chill or punish free speech.

Whether that action is abuse or use of said policies isn't substantively relevant, except in terms of the motivation of the individual administrator. Speech codes themselves are the problem, particularly in institutions dedicated to academic inquiry.

mark safranski - 12/21/2006

Ralph, David,

Thanks for your hard work on this important issue ! Could not agree more with:

"Academic communities and people should not have to be told by the First Amendment that freedom of speech is an inalienable right, one that is essential to academic life and that the burden of justifying any curtailment of it rests entirely on those who would restrict it"

Nonpartisan - 12/20/2006

I didn't pester you over here with that comment because I'd already decided to support your resolution, so I didn't want to waste your time. But you've explained yourself admirably, and I'll copy your remarks over to ProgressiveHistorians.

Thank you again for an insightful discussion.

Ralph E. Luker - 12/20/2006

N-P, Apologies to Epppie for mistaking him for her. (The only Eppie's I've known were women.) I read your comment that what I'd said here was less than satisfactory and I couldn't reply there, so I'm doing so here. My point about murder is that having laws on the books does not prevent things from happening. So, having speech codes on the books doesn't guarantee that "hate speech" won't happen. It is obviously in society's interest that murder not happen, so I'm in favor of outlawing it. It's less obvious that all of what gets called "hate speech" is anti-social. In fact, the Constitution protects free speech -- so the burden of proof is on those who would restrict it -- not on those of use who oppose restrictions. How do you teach a literature that uses the "n-word" if the "n-word" is classified as "hate speech" -- which in some cases, it obviously is? I'm pretty confident that most gays, women, Hispanics, African Americans, etc, are really quite strong enough to survive the offense of hearing words whose original intent was to demean them. Passing codes against the use of those words does nothing to diminish sexism or racism. It only drives them underground, where they canker and fester -- and will re-emerge and re-manifest themselves in even more destructive ways than words can express.

David T. Beito - 12/19/2006

If your membership is still current, I hope that you can be at the business meeting to vote.

Nonpartisan - 12/19/2006

Good points. Thanks for your comments -- you've both given me a lot to think about.

Ralph E. Luker - 12/19/2006

No one who supports this resolution is in favor of "hate speech." Having speech codes on the books in academic institutions does nothing to prevent ugly incidents from occurring any more than having laws against murder on the books prevents murder from occurring. Similarly, having speech codes on the books does not create the "safe space" they apparently aim to create.
There are state laws against harassment and hate crimes, for example. I see no reason why those laws are insufficient for governing conduct on campus. The whole notion that campus communities must be "safe spaces" where civil law is unevenly enforced ("safe spaces" for drug use and alcohol abuse, for example) is the source of considerable difficulty.
The appeal to "safe space" arguments assumes that female and ethnic minority students are, by definition, weaklings who need special protections that state law does not provide. In the process of providing those protections, we've made it difficult to teach Huckleberry Finn. That's a sacrifice I'm unwilling to make. If state law needs strengthening, let's do that. But speech on campus should be at least as free as it is elsewhere in society.
The hate speech that your reader at Progressive Historians cites was an important teaching moment and one that, apparently, the faculty members at her school missed. To a large degree, speech codes exist because faculty members abandoned their responsibilities in teaching moments.

Nonpartisan - 12/18/2006

Great point about the codes being subject to uneven enforcement to serve the whims of administrators.

The best point I've seen on the other side so far is that elimination of all restrictions on speech would allow some really hateful things to occur on campuses. One of my commenters brings up an instance of a right-wing protester at his school hurling nasty sexist epithets at female students as they walked past. Would your resolution explicitly permit obvious hate speech such as this to exist on campus? Or would laws already on the books protect students from being verbally assaulted from the sidelines for their gender or hairstyle or the like? I'm unclear on that part at least.

Ralph E. Luker - 12/18/2006

First of all, speech codes or no, I reserve the right to tell my friends that they are full of s**t when I think they are. And Hiram, whoever he is, remains my friend.
But, secondly, Hiram systemically understates the problem of speech codes because -- like all codes -- being on the books leaves open the likelihood that administration will ignore them when it chooses and invoke them when it chooses. It becomes, then, yet one more club in the hands of administration to use on those who are unpopular or its critics.
Thirdly, Hiram and others on the academic left speak for a generation that hates to admit that it has been in error. Speech codes came into play on our watch. We did them to ourselves. We don't get the usual gratification of blaming others for them. We allowed administrators to put these things on the books and we ought to have the courage, finally, to rise up and strike them down.
Fourthly, Hiram simply ignores the fact that the federal courts have found these things to be _unconstitutional_ in public institutions. I do not understand why their defenders continue to support restrictions of speech on our public institutions that is constitutionally protected speech off campus.
Finally, Hiram likes to link FIRE in a spectrum of "rightwing" threats to academic freedom with Horowitz, et al. He's entirely wrong about that. FIRE has come to the defense of academics on the left as quickly as it has to the defense of academics on the right. If the left hadn't been asleep at the switch on this one, it would not continue to embarrass itself with apologias for unconstitutional restrictions on freedom of speech.

Nonpartisan - 12/18/2006

...And we're actually having a really thoughtful discussion about the whole issue here. Turns out most of my posters and commenters agree with Hiram, and they're beginning to sway me.

I'm still far from decided, though. Which, again, matters not at all, because I can't vote at AHA.

Nonpartisan - 12/18/2006

Hiram, to clarify -- I'm interested in your words for their light, not the heat they generated. I went back and read your original post on the matter as well as several subsequent ones, and I read the FIRE report Ralph alluded to. So my comments are based on the information I gleaned from that cursory investigation, not simply the heated discussion in the comment thread.

As one who is admittedly very young and also very unskilled in the ways of the AHA, I'm genuinely trying to understand the situation. Ralph's position seems clear to me -- he feels that speech codes are a threat to academic freedom, and that the academy should therefore formally oppose them. But I still can't comprehend where you're going with your argument. Is your point that speech codes don't threaten free speech as much as FIRE thinks they do, or that they don't threaten it at all? If the latter, why don't you just come out and say so? If the former, why do the exaggerations of FIRE make this resolution any less necessary?

At this point whether or not speech codes or ABOR are more dangerous to free speech is a moot question, since the AHA has formally opposed ABOR. But why should the severity, or lack thereof, of the attack on free speech have any bearing on the muscularity of the response from the venerable Association? Even if the sky isn't falling in toto, shouldn't the AHA act decisively to shore it up if even one chink appears?

In any case, I'm presenting the issue to my readers with you on one side and Ralph on the other. It's not because I'm trying to draw out any animosity between the two of you; rather, it's because you and he have provided in my opinion the most cogent arguments on either side, even though I'm still trying to understand yours.

Thanks for your comments.

Hiram Hover - 12/18/2006

Nonpartisan - I wish you'd left me out of this, as that dispute a few months ago produced much heat and no discernable light.

Without rehashing, I'll just say that FIRE's latest report exemplifies what I said back then about their Chicken Littlish tendencies. There are indeed occasions when universities wrongly restrict free speech on campus, but the folks at FIRE are determined to misidentify the nature of the problem and wildly exaggerate its severity. In this report, they'd have you believe that free speech is in grave peril at something like 2/3 of all colleges and universities surveyed, and in only slightly less danger at most of the rest. How do they conclude that? They comb a disparate body of regulations at each university and pretend that a single potentially restrictive policy is proof of a coherent and totalitarian "speech code." It's easy enough to poke fun at the Univ. of Mississippi's telephone policy and Jacksonville State Univ.'s "personal abuse" policy, but there's simply no evidence that they've ever been applied in ways that actually chill freedom of expression-much less academic freedom.

There are many critical things that you can legitimately say about such regulations-they're unnecessary, they're unartful, and yes, sometimes they're downright silly. But frankly, pretending that they constitute a "head-on assault on free speech" is pretty silly too.

Nonpartisan - 12/18/2006

to the FIRE report. That "Free Speech Gazebo" is absolutely ridiculous.

I also read your dispute with Hiram Hover of a couple of months ago, which I'd missed the first time around. I find his position frankly astonishing.

I'm one of the most avowedly liberal members of the historical blogging community and am on record as supporting big, restrictive government, and even I can't see where he's coming from. Is he really arguing that a head-on assault on free speech shouldn't be opposed by any and every organization in a position to refute it? That's like standing next to a budding brush fire with a hose and saying, "I can't put this out because you haven't gone through the proper channels. Why not call the fire department in the next county?" If the AHA can have an impact on speech codes, it should, as should all free-speech-loving organizations, regardless of mandate.

I think you're doing really important work here, and I wholeheartedly support your AHA resolution. (Unfortunately, I'm not a member of the AHA, so it doesn't matter what I think!)

Charles Lee Geshekter - 12/18/2006

For the very same reasons cited by Mr. Luker, I refuse to renew my AHA membership but strongly support The Historical Society.

If the AHA approves Luker's sensible resolution at its convention next month, I will happily revive my membership.

Ralph E. Luker - 12/18/2006

er -- I meant to ask if you favor the ABA and the AMA being "neutral" on public policy issues that impinge on their professional work.

Ralph E. Luker - 12/18/2006

Mr. Sauerwein, Your position -- that the AHA should not be taking positions on public issues -- is a legitimate one. It is a position taken by the founders of The Historical Society, which you may want to join, as an alternative to the AHA. On the other hand, are you also opposed to the American Bar Association or the American Medical Association also being "neutral" on all issues that impinge on their professional work? Do you really support ABOR's invitation to state legislators to regulate classroom speech? Are you aware that the Florida legislator who introduced ABOR in that state cited the need to teach creationism in order to give students a "balanced" introduction to biology?

Daniel Sauerwein - 12/18/2006

The AHA's position on ABOR as well as its overly political tone on many issues, where I feel neutrality is in order is one reason why I will not be renewing my membership.