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Free Speech Stops at Harrassment

By Daniel E. Mufson

"I WISH all chinks, niggers, kikes and faggots would go back where they came from."

Under the anti-harassment codes that are being passed at universities across the country, I could be expelled for saying or writing this sentence in a malicious context. Many people are lamenting such a tragic restriction of free speech in academia.

But it's really no great loss. Not only is harassment of minorities a detriment rather than an addition to the "market-place of ideas," it is hardly an abberration to restrict freedom of speech--both on the campus and off.

Harvard has not yet enacted an official anti-harassment code. Next week, however, the full Faculty will consider forming a student-faculty advisory committee on free speech that would discuss limitations on speech at Harvard.

The Faculty should approve the creation of the committee and encourage it to formulate an anti-harassment code. Harvard would do well to emulate the action taken at Emory University to curtail the use of what the Supreme Court has called "fighting" words.

EMORY'S Policy Statement on Discriminatory Harassment aims its restrictions at "objectionable epithets, demeaning depictions or treatment, and threatened or actual abuse or harm," as well as sexual harassment, which it defines at length. Chester E. Finn, a former assistant secretary of education, and James Taranto of the Heritage Foundation are very upset by the restrictions at Emory and other colleges.

Finn was moved to write an article in Commentary in which he pointed to anti-harassment codes as a sign that the college campus was becoming "an island of repression in a sea of freedom." James Taranto complains in the most recent issue of College Voice that the codes "stifle the free exchange of ideas."

What idea is communicated in an epithet? Banning the malicious use of hateful expressions does not limit the free exchange of ideas. The Emory code specifically states, "nothing in this policy statement is intended to limit the scholarly content of written or oral presentations."

The anti-harassment codes are not stifling pluralism or the free exchange of ideas. To foster pluralism is to foster an environment where divergent ideas and cultures can be freely studied. Conduct which stigmatizes or victimizes an individual disrupts the learning environment; it tries to shut people out of the learning process rather than welcome them into it.

Even beyond the ivory tower, people have long been limited in what they can say to each other. The United States Supreme Court decided in Chaplinsky v. New Hampshire that certain "epithets [are] likely to provoke the average person to retaliation, and thereby cause a breach of the peace." The decision goes on to assert:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace...such utterances are no essential part of any exposition of ideas, and are of such slight social value...that any benefit that may be derived from them is clearly out-weighed by the social interest in order and morality.

Chaplinksky applies to language spoken anywhere in the public domain, on public school grounds or off.

In other decisions, such as TLO v. New Jersey and Tinker v. Des Moines School District, the Supreme Court has determined that the educational environment must be preserved, even if it means a slight abridgement of student liberties.

Tinker, which upholds the right to peaceful student demonstration, defends the accused students on the grounds that there is "no evidence whatever of petitioners' inteference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone."

What is important in the phrasing is that it weighs the students' right to free speech against the right of students to study free of harassment, free of discrimination and unfettered by the prejudices of their peers or teachers.

The people who criticize the anti-harassment codes are forgetting another important detail: the reason why the codes have come into vogue. Incidents of racial violence on college campuses--physical violence--have risen sharply in the 1980s. It is in reaction to the increase in violent acts that college administrations are passing the codes. The intent is to deter some of the violence by cutting it off at its source: verbal discriminatory harassment that aims to disrupt rather than contribute to the educational environment.

ANTI-HARASSMENT codes at certain state universities have recently been declared unconstitutional because they were too vague and failed to specify the types of speech to be prohibited.

As a private institution, Harvard does not have to worry about the Supreme Court's approval. Harvard should, however, learn a lesson from the recent Supreme court decisions and create a code which makes a careful distinction between speech that is meant to harass and incite violence.

The University should emulate the Emory code by simultaneously asserting the importance of academic freedom as well as the need for an educational environment in which that freedom can be enjoyed.

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