Our Speech Code: The Right End, The Wrong Means


Lester H. Hunt and Donald A. Downs

We did not want to let (Lack of) Diversity Week go by without commenting on an entrenched U. W. institution that discourages two of the most valuable kinds of diversity: diversity of thought and diversity of expression. Many people do not realize this, but the University of Wisconsin - Madison does have a speech code. Our code prohibits, and subjects to unspecified punishments, "demeaning verbal and other expressive behavior," including "epithets, comments or gestures that explicitly demean gender, race, cultural background, ethnicity, sexual orientation, or disability condition." It enables any student who feels that a professor's lectures make "the instructional setting hostile or intimidating" to lodge a complaint that will drag the professor, even if completely innocent, through an embarrassing procedure, during which many of her or his colleagues will only know that they are being investigated on some very serious charges.

The code applies only to faculty behavior, but we think that it is time for everybody, not only the faculty, to do something about it. We are not arguing at present that our code merits any particular remedial response - whether it should be amended and restricted, or whether it should be taken out behind the barn and killed with an ax - but we do say that it should not be allowed to stand in its present form.

We do not question the basic motive behind the code which, presumably, is to promote decent treatment of students by faculty. Courtesy is essential to good teaching and, in fact, to all civilized life. Society must use all sorts of means to promote it, if we are to live together in peace. What we have here, though, is a very bad means to this noble end.

The main problem is that, in effect, the code criminalizes problems that can be better dealt with in other ways. We know of applications of the code that have been very heavy-handed and destructive of academic freedom and the morale of individual faculty members. Students who are seriously offended by things a professor says should bring the problem to the attention of the professor. If they are not happy with the results, they can go to the professor's chair and, if need be, the departmental grievance committee. The vast majority of Madison professors do not mean to offend anyone and, even if they do, they are human beings who can be reasoned with and do not need to be threatened with administrative investigations and punishments for their in-class speech. We have never heard one shred of evidence that this is not true. Before November, 1989, when the code went into effect, was our racist, sexist, homophobic faculty running uncontrollably amok in the lecture room? We don't think so.

Second, while the code is aimed at the tiny minority of real offenders, it creates a chilling effect on the free flow of ideas in all classrooms. This effect is most acute in those classes that deal with the hot-button issues of race, gender, ethnicity, freedom of expression, and social justice that the code addresses. There is a paradox here: those issues that are most likely to cause offense, and thus most likely to provoke a punitive response under this code, are the most likely to be subject of controversy. The code attacks controversy precisely where it is most likely to occur, and to be needed.

Third, the code rests on a deep and damaging confusion. It attempts to advance the value of social justice at the expense of the value of free speech. This assumes a dichotomy between these two values which is utterly false. In the long run, real justice has always been achieved by use of free discussion. For example: The first nation on earth to make slavery completely illegal was England, in the early nineteenth century. England was also at that time a world leader in preserving freedom of speech. This is no coincidence. The antislavery forces took full advantage of this freedom, igniting a fierce national debate that burned and scorched for decades, until they won. Now ask yourself: What would have happened if the English of those days had had the power to legally punish one another for linguistic insensitivity, for saying things that offended them and made them feel bad? There would have been relatively little discussion, and no action. Censorship is always good for the status quo. Silence is stagnation.

The best way to empower students in the long run is educate them well, to enable them to think critically and rigorously, rather than come to preordained conclusions on issues of social justice. For this they need teachers who are free. That is perhaps the worst thing about the code: it diminishes the quality of the education students are getting, and thus damages our best hope of achieving justice in the end.

For these reasons, we are asking everyone, not only faculty but students as well, to think seriously about revising or eliminating our broad, vague, and oppressive code. At the very least, we should consider adopting a "reasonable student" test for determining whether a professor has done wrong, or limiting punishable offenses to the use of epithets, or comments intended to give offense.

Donald Downs is Professor of Political Science at U. W. - Madison and has written extensively on legal issues, especially those relating to the First Amendment. Lester H. Hunt is Professor of Philosophy at U. W. - Madison and has written extensively on ethics and political philosophy.