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The Good Old Days:

A commenter on the thread below writes:

Thankfully, the courts seem to be getting more involved in this sort of stuff.

It is amazing that the nation survived the 200+ years or so before speech codes forced students to be nice to each other.

I've heard this sort of assertion before, but I don't think it's quite right. I'm not a historian of higher education, but my understanding is that until the 1960s, it was commonly assumed that universities had broad power to suppress student speech (whether to speech that was seen as offensive or speech that was seen as dangerous), and universities regularly used such power. To give just a few examples:

  1. Papish v. Board of Curators (1973), in which the Court held unconstitutional a university's expulsion of a student who distributed a newspaper that "on the front cover ... reproduced a political cartoon previously printed in another newspaper depicting policemen raping the Statue of Liberty and the Goddess of Justice [witht he caption] '... With Liberty and Justice for All'" and also "contained an article entitled 'M---f--- Acquitted,' which discussed the trial and acquittal on an assault charge of a New York City youth who was a member of an organization known as 'Up Against the Wall, M---f---.'"

  2. Ratchford v. Gay Lib, in which a university tried to deny recognition to a pro-gay-rights club.

  3. Steier v. New York State Ed. Comm'r, 271 F.2d 13 (2d Cir. 1959), in which a student was suspended under a "courtes[y]" / "good manners" rule for writing "letters to the College President which were obviously bitter and in one of which intemperate language was directed against the office of Student Administration of The College."

The doctrine that students could speak, even in rude or vulgar ways, free of punishment by the university seems to have arisen in the 1960s and 1970s.

More broadly, talk of the "good old days" of liberty -- especially as to free speech -- usually paints too rosy a picture of the past. Free speech in America is on balance more protected now than at any time until about 1970, and probably about as protected as it was in 1970 (though slightly more so in some areas and slightly less so in others). Free speech on campuses is on balance more protected now than at any time until the 1960s; the campus speech code movement of the 1980s onward wasn't something new so much as it was a return in some degree to the control universities tried to exercise over student speech in the past (though often as to different subjects than before).

J. Aldridge:
Question Eugene: Do you believe clothing is a form of speech expression?
9.9.2008 4:57pm
Kazinski:
That is a good point, Universities did have much greater power at one time to regulate student conduct and speech. However since universities and academia have been at the forefront of the First Amendment uber all movement in the last 50 years then it is certainly appropriate for their handiwork to be applied to themselves.
9.9.2008 5:12pm
pauldom:
Thanks for the interesting post. I would have guessed that restrictive speech codes would have become widespread a bit earlier, as post-war college enrollments increased w/GI bill, thereby giving the 60's and 70's generation something to rebel against. But I'm not a historian of higher ed either.
9.9.2008 5:17pm
Should be bar studying:
J. Aldridge: In Cohen v. California a jacket emblazoned with "Fuck The Draft" got First Amendment protection. I don't know if that really answers your question, though.
9.9.2008 5:20pm
Eugene Volokh (www):
J. Aldridge: Words on clothing certainly are. I'm inclined to say that worn items that carry a conventional symbolic message -- black armbands, colored cockades in one's hat in the late 1790s, jewelry that contains religious or other symbols -- are likewise protected by the freedom of speech, both as a matter of doctrine and of original meaning. Ordinary clothing has not generally been seen as covered by the Free Speech Clause, and probably shouldn't be.
9.9.2008 5:25pm
Dilan Esper (mail) (www):
I agree with Professor Volokh that ordinary clothing has not generally been seen as covered by freedom of expression, though I would argue it should be, at least to the same extent that artistic expression is.

Note that things like dress codes and uniform requirements and public nudity laws are supported by significant state interests. But if a jurisdiction wanted to, say, require women to wear bras or ban the low cut top or ban men from wearing baggy pants, there certainly are expressive aspects of clothing that would be affected by such laws, and I would contend that the first amendment should protect such expression.
9.9.2008 5:41pm
David Chesler (mail) (www):
You've said it before, that the good old days weren't as free (as regards speech) as we may think. Fair enough.
But see the Harvey Silverglate piece pointed to by Todd on the death of parody (in the Post-Boomer entry):

On Obama, this gives me an opportunity to direct readers to a neat piece by Harvey Silverglate a little while back on the death of parody.


You say (though often as to different subjects than before). Maybe that's the cognitive dissonance: I'm not surprised to find that gentlemen simply did not say things like (whatever) in a time when they wore jackets and ties, and universities had parietal rules, and so forth. A lot of the old rules (especially those having to do with sex and gender, and with them all sorts of rules about propriety) were totally destroyed in the c. 1970 era. Is there a measure of the ratio of restrictions on speech to general restrictions (on behavioral things like grooming or sex or drugs)?
9.9.2008 5:52pm
Dan Hamilton:
It wasn't that freedom of speach was less in the 50's and early 60's, it was that people weren't trying to push the line just to push the line.

That is what started in the mid 60's. Just for FUN, SHOCK the man, push the limits as far as you can and then push them more. All for the fun of it and to see just how far you could push the MAN before he pushed back. AND then you use that push back to push things even farther.

Before yes you had A**holes but the vast majority of student were more intrested in getting an education then pushing limits that they never bumped up against.

But in the mid 60's you had students that were more interested in freaking the MAN then in getting an education. They started to push the limits. When they became lawyers, 0professors, etc they continued to push the limits. Mostly just for fun. Has ANYONE really been served except the prono industry.

In the Schools and such they now are reversing themselves. Now they are the MAN. They want to see how far they ccan take it the other way.

In the 50's and 60's the schools and society wasn't trying to suppress free speach. They couldn't believe that anybody would want to use language like that and say such things.

Today the libs are using speach codes to suppress any speach they don't agree with. They are attacking anybody that doesn't toe the lib line. See Global Warming for good examples. See personal attacks on Palin, who by any reasonable person is an example of femanism triumphant.

Again who was served? Outside of the people just ammusing themselves by freaking the MAN.
9.9.2008 6:23pm
John (mail):
I was the commenter Eugene mentioned, and I think the issue is subtler (of course, my original comment was intended to be somewhat snide). First of all, it depends on what we are talking about. When I was in college in the 60's, you were free to denounce homosexuality, unfamiliar religions, and familiar religions too, for that matter, a woman's "place," and many other topics that have become the subjects of political correctness and social change today. Race was taboo, but discussion of, e.g., genetic differences in intelligence, were not the subject of discipline so much as they were the subject of protests and the cancellation of proponents' speaking engagements.

Second, there is simply no question in my mind that universities have changed in their approach to "uncomfortable" or politically incorrect speech. Administrators have become more afraid of some of their constituents, or are just stupider, or both (witness the dopes at Duke).

Third, I agree that private universities are pretty free to do what they want in this area--they are limited mostly by their express or implied contract with their students--but public universities, subject to the First Amendment are not so free. This seems to be where the courts are coming into play, which is a good thing. (I don't think that point is disputed here.)
9.9.2008 6:56pm
JohnJ (mail):
Minor quibble: protected speech does not always equal free speech.
9.9.2008 7:29pm
nicestrategy (mail):

Today the libs are using speach codes to suppress any speach they don't agree with. They are attacking anybody that doesn't toe the lib line.


Troll.

Disclaimer: the above comment in no way excuses PC silliness. What started out as a well intentioned effort to protect some students from the demagoguery of others, and to build awareness of the great variance in individual sensibilities, has gone off the rails, if it was even on them. I believe that PC has increased the overall level of civility and that has been a good thing in an increasingly diverse society. An excess of righteousness has undermined the original goals. Yet, the original goals were worthy ones, unless one equates the good old days with the days when one could taunt the fags and there wasn't anything they could do about it.
9.9.2008 7:40pm
Kazinski:
The fact that the two most famous speeches ever delivered on college campuses were both delivered in the early 60's and both passionate defenses of the right of free expression isn't a coincidence. Mario Savio:


There is a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part; you can't even passively take part, and you've got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, to the people who own it, that unless you're free, the machine will be prevented from working at all!

and of course:

Ladies and gentlemen, I'll be brief. The issue here is not whether we broke a few rules, or took a few liberties with our female party guests - we did. But you can't hold a whole fraternity responsible for the behavior of a few, sick twisted individuals. For if you do, then shouldn't we blame the whole fraternity system? And if the whole fraternity system is guilty, then isn't this an indictment of our educational institutions in general? I put it to you, Greg - isn't this an indictment of our entire American society? Well, you can do whatever you want to us, but we're not going to sit here and listen to you badmouth the United States of America. Gentlemen!
9.9.2008 8:14pm
Splunge:
I dunno, Professor Volt, I think you're eliding some important differences over time in the role of government and private authority. Were students more constrained by "authority" (of whatever) type in what they said in 1825 than in 1970? Certainly. But the government was far less involved in this kind of authority, either abetting or circumscribing it. Rather, it was seen as a legitimate loco parentis operation of the university, the same kind of extralegal authority the master of the household would exert on his property generally.

I don't think you can compare these apples and oranges unless you take careful note of the substantial changes in the nature, rationale, and locations of authority and social restraint across the centuries.

Furthermore, then as now, and evermore, the most powerful and effective restraint on speech is the opinion of your peers. I doubt very much your generic Young Republican on campus feels less fear of negative consequences, should he express himself openly, now than in 1955, speech codes notwithstanding. It's the reaction of his classmates and teachers that really concern him, not the university-wide disciplinary committee. I suggest "free speech" in general is, or is not, a social custom far more than a right amenable to precise and effective legal definition. As such, the attitudes prevalent on campus have more influence on the constraint one feels than the exact letter of the campus law.

After all, the Soviet constitution contained an explicit guarantee of free speech, while the Australian does not. How'd that work out?
9.9.2008 8:58pm
Oren:

Has ANYONE really been served except the prono industry.
I have most certainly. I've been told by my parents that from a very young age I had a fairly sizable disdain for taboo and other purely symbolic relics of 'polite society' (which I find are quite distinct from substantive politeness). Being able to act naturally with my colleagues with minimal self-censorship is a large part of my sense of comfort.

Social* situations in which I have to restrain myself from dropping f-bombs and sexual references are quite irritating in this respect. Having to apologize (or feeling that it is expected) for the natural expression of one's thoughts is a totally alien concept.

*It's not a problem in professional situations as much, since the subject matters tends to be described in technical language to begin with. Even still, I've often unwittingly peppered technical matters with curses -- most people don't really seem to mind terribly.
9.9.2008 9:16pm
Archon (mail):
Before the 1960's, student bodies used to police themselves and did not rely on administrative fiat to discipline students. There was no state action since students were policing their own community, so there was simply no constitutional violation.

It wasn't until the student radicals took over campuses and destroyed the institutions that student relied upon to self-regulate that administrations stepped in and and used state authority to suppress student speech. This created the free speech cases of the 1970's and the current body of jurisprudience we have on the issue today.
9.9.2008 9:18pm
Oren:
Archon, I don't understand. If students in the 1960's wanted to change their institutions for self-regulation, isn't that evidence enough that the old institution was no longer viable? Or do you believe that students in the 50's had the right to bind all future students to their particular preferred form of the institutions?
9.9.2008 9:21pm
Archon (mail):
I simply stated the way students regulated conduct before the institutions of self regulations were dissolved in the late 1950's and 1960's. I did not indicate a preference toward either system.

The students of the 1960's demanded their "rights" and largely got them. In doing so, they effectively transfered regulatory power from themselves to the university administration. Hence the problems we have today on college campuses with heavy handed administrations.
9.9.2008 9:26pm
Oren:

The students of the 1960's demanded their "rights" and largely got them. In doing so, they effectively transfered regulatory power from themselves to the university administration.
Can you explain how the latter follows from the former? To me, it seems quite the opposite. Students felt that their free expression was being limited by student institutions, so they decided to remake those institutions in a way that better suited them. Administrations decided that student speech codes were a good policy, regardless of whether the students wanted them.

You seems to say that options for students was limited to self censorship or administration censorship when they clearly stated a preferences for free expression entirely. They did not "transfer regulatory power" -- they sought to unmake it. The fact that some people thought that such censorship was/is necessary and think they ought to impose that judgment is irrelevant.
9.9.2008 10:21pm
A. Zarkov (mail):
In the good old days how often was purely political speech regulated? If memory serves me correctly, Texas Tech banned any discussion critical of affirmative action or abortion. With a little hunting through the FIRE website I'm sure I can up with more examples of speech codes that are designed to chill or ban certain kinds of political speech. This is a far cry from telling students not to use obscene speech or speech that patently rude. Recently a worker-student was disciplined for reading a book on his own time on the KKK. It was even critical of the KKK, but that didn't seem to matter.

I have to disagree with you professor, in this context, they were the good old days, and I was there and your weren't. I also know what goes is happening on college campuses today and things are much different.
9.10.2008 12:00am
Oren:
Zarkov, I think the Prof's point is that, before such cases as he cited, the majority of students would not have felt free to express some political views on campus. Self censorship could be just as chilling as an overt speech code. Certainly there was volumes of expression that was off-limits, no matter how that limit was imposed.

Incidentally (and I have been on college campuses since fall 2002), I can say that the incidents pulled up by FIRE, while totally egregious and absolutely wrong, are the exception rather than the rule. On both campuses I've studied at (incredibly liberal places), there were no shortage of conservatives, libertarians and objectivists and none of them were particularly shy about their views. We've had abortion protesters (complete with huge photos), Green-peace types and everything in between. I don't know what experience you claim to have about the state of college campuses today, but they seem a far sight better than what I've read about in the past (although, if my sources are biased or misleading, that impression could be wrong).
9.10.2008 12:47am
subpatre (mail):
Does anyone know where there is original artwork (ie copies of the original) The Rape of Lady Liberty cited from Papish?
9.10.2008 12:54am
A. Zarkov (mail):
"I think the Prof's point is that, before such cases as he cited, the majority of students would not have felt free to express some political views on campus."

Not at my school. We had plenty of political discussions, both public and private. Not only that, the liberals, conservative and socialists actually worked together hand in hand to bring speakers of all opinions from Norman Thomas to William Buckley. Absolutely nobody I knew had any problem expressing themselves on anything. As for other schools, no one I knew ever told me about anything like speech codes, whether implicit or explicit. I never heard of such a thing.

"... while totally egregious and absolutely wrong, are the exception rather than the rule."


I don't think so. Speech codes are common even at state schools, and especially the ivy league schools.

"... there were no shortage of conservatives, libertarians and objectivists and none of them were particularly shy about their views."

How often did anyone discuss race and IQ? Did anyone oppose Brown v. Board of Education?
9.10.2008 1:14am
Oren:

Absolutely nobody I knew had any problem expressing themselves on anything. As for other schools, no one I knew ever told me about anything like speech codes, whether implicit or explicit. I never heard of such a thing.


At least in Illinois, there were specific legislative prohibitions on advocacy of "subversive" political views (The Clabaugh Act) and at least one profess was fired (Leo Koch) for his social views as expressed in the campus newspaper. Perhaps those were exceptions but they seem fairly endemic to me.

I don't think so. Speech codes are common even at state schools, and especially the ivy league schools.
There are, no doubt but I would advocate they be redrawn (and interpreted) narrowly and predictably than abolished altogether. Even as a hardcore advocate of free speech, I acknowledge that we all know the difference between patently abusive speech directed at individuals and political discourse when we hear it. How to draw that line programmatically is a bit tougher. The existence of a speech code that clearly delineates the difference is a considerable asset towards free expression.

How often did anyone discuss race and IQ? Did anyone oppose Brown v. Board of Education?
Pretty often the former (and the meaning for public policy) but the latter is a bit loony -- what sort of serious person actually thinks that segregated schools comport with the 14A? You might as well ask how often we discussed the theory of flat earth in physics class.
9.10.2008 2:00am
A. Zarkov (mail):
" ... what sort of serious person actually thinks that segregated schools comport with the 14A?"

The US Congress segregated the DC school system in 1862, but also proposed the 14A in 1866 giving rise to the controversy as to whether the decision in Brown is possible under originalism. If fact originalism is often attacked on the very grounds that since you can't get the result in Brown under originalism, it must be invalid because Brown is axiomatically correct. So this is is a serious topic.

"You might as well ask how often we discussed the theory of flat earth in physics class."


That you should think a question in legal reasoning is like a question in physics shows how much PC thinking addles the mind.
9.10.2008 4:13am
krac@live.co.uk (mail):
Honky Dori
krac@live.co.uk
9.10.2008 8:46am
Oren:
Well Zarkov, I've never heard that theory of Brown before and, as a non-lawyer and a non-orginalist I'm uniquely unqualified to discuss that particular matter. To me, anyway, any argument that originalism precludes Brown is just another nail in the coffin of originalism (unless you want to claim that Brown was morally wrong, in addition to being wrong under your favorite theory of Constitutional interpretation -- as I recall, the court in Brown did not justify their opinion on originalist grounds).

Back on topic, I've spoken with a few professors over on the matter, and they all say that without a doubt the room for free expression on campus, especially in the sexual realm, is enormously increased during their tenure. The general opinion on speech codes is, that while they are indeed an unmitigated evil, you have to be pretty daft to ensnare yourself in one.
9.10.2008 9:38am
A. Zarkov (mail):
Oren:

"To me, anyway, any argument that originalism precludes Brown is just another nail in the coffin of originalism (unless you want to claim that Brown was morally wrong,..."

That's the argument some anti-originalists make. But that requires the assumption that Brown must be correct no matter what. In other words, all methods of constitutional reasoning that do not support Brown, become inadmissible-- a kind of Pauli exclusion principle applied in the legal world. But that requires an almost theological belief in the correctness of Brown. Note that "correctness" does not mean wise or unwise social policy-- it pertains to legal reasoning.

"The general opinion on speech codes is, that while they are indeed an unmitigated evil, you have to be pretty daft to ensnare yourself in one."

Go read a sampling of cases at the FIRE website, and see if "draft" applies to most of the plaintiffs. If the restriction of free speech were as rare as you contend, then FIRE should be out of business.
9.10.2008 1:01pm
Oren:
Zarkov, the statute of Justice in front of the Supreme Court is not merely for show. If you seriously think that segregation can be sustained under any notion of justice, than I have to respectfully say that we have no possible common ground.
9.10.2008 1:09pm
Oren:

Go read a sampling of cases at the FIRE website, and see if "draft" applies to most of the plaintiffs.

Already did a while ago, and of course it doesn't. Perhaps those cases that FIRE publicizes have some selection bias?

I very much appreciate the work that FIRE does in policing school speech codes but that doesn't say anything about the prevalence of the problem. I also very much appreciate the local fire dept but I don't think it follows that fires are endemic in our town.
9.10.2008 1:12pm
A. Zarkov (mail):
Oren:

"... the statute of Justice in front of the Supreme Court is not merely for show. If you seriously think that segregation can be sustained under any notion of justice,..."


I'm not writing about justice. I'm discussing legal reasoning behind Brown as a topic of discourse. One can believe that Brown was wrongly decided but still be in favor of justice and integrated schools. I thought I was careful to make that distinction. BTW Brown failed to integrate American schools. Today they are as segregated as they were in 1954. If this was the goal of the decision in Brown, then it certainly comes up short.
9.11.2008 3:21am