Harvard Law School is considering drafting a new speech code, the Boston Globe tells us. More nonsense from the P.C. forces, many say. Haven't people realized that campus speech must remain free? It turns out, though, that the issue is more complex and more interesting than that.
The Harvard discussion is partly about a general speech code, which would control speech throughout campus; there the standard free-speech and academic-freedom objection is indeed sound. But there's also discussion of (in the Boston Globe's words) "ban[ning] harassing, offensive language from the classroom." And in the classroom, speech certainly isn't free.
Students may not talk in class until they're called on, a necessary prior restraint. The instructor may cut them off, even based on their viewpoints, if he thinks their arguments are unsound. (Sometimes you want students to keep talking, so you can explore the error with the class, but sometimes you just need to clearly explain the right answer and move on.) And the instructor may and should reprimand rude students who swear, hiss, or personally insult their classmates. In my classroom, I would surely clamp down on "harassing, offensive language," vague as that concept may be.
Instructor speech in the classroom has traditionally been freer, because law schools are generally run by the faculty, and give professors wide authority over their classes. But I don't think that a professor's academic freedom entitles him to, for instance, personally insult or belittle students, or even gives him unlimited latitude to present material in a way that's needlessly inaccessible or alienating to students. Such behavior generally makes the professor an ineffective teacher, and schools may deny tenure or promotions to ineffective teachers. Students pay good money to schools, and schools pay good money to faculty, for quality teaching. Students and administrators are entitled to get professional, pedagogically effective behavior from teachers in return.
So classroom speech — unlike speech in other parts of campus — has to be controlled. Speech codes, though, are the wrong way to control it.
Under the current system of instructor control, students already realize that if they say something rude, the instructor may reprimand them. The threat of such embarrassment generally prevents rudeness — really offensive classroom speech is rare at law schools (certainly at my own school, UCLA, but also to my knowledge at Harvard).
Likewise, if a teacher gets far enough out of line, his dean and his colleagues will talk to him; no professor likes that. Students will grumble, in hallways, in student newspapers, and on evaluations — most professors don't want that, either. Not a perfect system for deterring genuinely rude behavior by teachers, but a decent one.
"Fighting bad speech with good speech," the civil libertarian's classic remedy, is highly effective in this sort of closed environment, much more so than in society at large. Students pay close attention to what the instructor, the administration, and other students say. If the professor or the dean condemns genuinely offensive speech, this will powerfully deter such speech in the future. And such a public response (which, incidentally, can be used as to gross rudeness outside class, too) should also help make the victim feel vindicated. When we're insulted, what we usually want is for others to speak up to support us, and to condemn the wrongdoer.
Speech codes can do little to improve on this system; and they can do much to worsen it.
To begin with, speech codes risk deterring even reasoned, polite argument. Especially when faced with a vague standard such as "harassing" or "offensive," wise students tend to avoid anything that might get them suspended or expelled, or might lead to a notation on their records. Even the accusation of "harass[ment]," with its echoes of tortious or criminal conduct, may itself be a serious threat. This will interfere with in-class discussion — and with student spontaneity — much more than instructor control alone would.
As to faculty members, a speech code will actually weaken collegial-control mechanisms. Instead of a friendly admonition about poor judgment, there'll be an accusation that the professor violated an official rule, which will require a formal hearing and a legalistic debate about the rule's precise boundaries.
Collegial compromise will become harder. Sincere apologies will become harder, too, since any apology could be used as evidence against the teacher. And many disputes will become intra-faculty battles, which could sour faculty relations and faculty self-government for years.
All this exposes three fundamental flaws in the proposal. The first lies in the implicit assumption that formal law is better than informal social control (Jonathan Rauch's "hidden law"). In some contexts, enforceable rules are better than discretionary judgments and social pressure. Here, they're much worse.
The second flaw is still more dangerous: Speech codes lead people to see offensive speech not just as bad manners, but as a violation of their rights. Legalistic responses, after all, are society's way of responding to rights violations (for instance, to assaults or thefts), not to rude conduct.
Once offensive speech becomes seen as a rights violation, then people experience it as only more offensive -- "not only did that jerk insult me, but he harassed me and discriminated against me." A demand for legalistic action becomes almost compulsory: Ignoring insults is a sign of fortitude, but ignoring injury to one's rights is often seen as a sign of weakness. The zone of "harassing [and] offensive language" grows, since whenever one word is officially condemned as offensive, more words become seen as offensive by analogy. And the result is more felt offense, not less.
Finally, what do young lawyers need? On the one hand, they need a good education, and people generally do learn better in a relatively (though not perfectly) friendly environment; but social controls can supply that.
On the other hand, young lawyers also need education in the habit of equanimity in the face of hostility; in the skill of mustering social pressure to fight those battles for which law is inapt or too expensive; in the decency and courage to speak up on behalf of those who are being treated rudely, and thus to themselves become part of the social-control mechanisms. The most-serious flaw of speech codes is that they undermine this education, rather than supporting it.