The University Record, November 9, 1992


Coverage of Clinton rally found lacking

When a presidential candidate addresses 13,000 people on campus, shouldn’t that generate more of a news story than just the boring details of the litter left by the crowd?

Ursula Freimarck, staff retiree

Policy language silences expression, chills speech

Editor’s Note: The following letter was sent to Provost Gilbert R. Whitaker Jr., with copies to President James J. Duderstadt, members of the Senate Advisory Committee on University Affairs, members of the Board of Regents and, for publication, to the Record.

Cordial greetings. You ask that the Interim Policy on Discriminatory Harassment, as published in The University Record on 26 October 1992, be treated as a “working draft,” with an eye to recommending final policy language. I write to urge you to change the wording of this draft so as to make it very clear that the expression of opinions and attitudes is never to be subject to discipline in our University.

The interim definition of “discriminatory harassment” includes “verbal or physical conduct” based upon race, color, etc., that “has the purpose or effect of creating an intimidating, hostile, or offensive environment” for University activities. Once again I submit, respectfully, that this wording makes punishable the expression of opinions that some persons find offensive, and has the result of silencing expression, and chilling speech in ways that are in conflict with our highest ideals and in conflict with the principles of the U.S. Constitution. For the sake of the University of Michigan, and all its members now and to come, I urge you to abandon such efforts to police speech.

The sensitive nature of remarks about race, color, gender, national origin and the like is now almost universally appreciated. Of course we all want a University in which all behave with civility, thoughtfulness, and good spirit. We join in detesting expressions of group hatred—from whatever source, at whatever target—that create anxiety and stir anger. But we are not permitted to achieve our objective by punishing those who speak in ways that we find vicious and wrong-headed. The decency of our ends cannot justify the means adopted in the interim policy on harassment. The reason for this is simply put: in this country, speech on matters of public concern—certainly including antagonistic expression about race and the like—is protected absolutely.

We must learn that the freedom to speak includes the freedom to say things, openly and vigorously, that many of us will find hateful and hostile and offensive. That is absolutely inevitable, if speech is to be free. We protect not merely the freedom to say nice things; we protect, by law and by national policy, the freedom to say things that are very nasty and even disgusting. And, if we seek to hold those who are charged with “discriminatory harassment” punishable for such “verbal conduct,” we will again be forced to defend ourselves in the federal courts, and we will lose again in those courts, casting ourselves in the role of suppressors. I urge you to think carefully about what we are letting ourselves in for.

You may answer: “We don’t seek to silence opinions; this policy seeks only to forbid the verbal role that is assaultive, that hurts others and that makes learning and teaching impossible; we seek to punish only harassing speech.” But the words of the policy are widely encompassing. If speech is found (by some hearing officer or board) to have the “effect” of “creating an intimidating, hostile or offensive environment” that speech may here be disciplined. Who can know with confidence what speech the hearing agency will find satisfies that description? And even if one were confident that one’s political speech would not be found so, we certainly could not be confident that, participating in robust and vigorous debate, we would not be charged with that offense, and be forced to defend ourselves in some University proceeding for the things that we said. The chill upon speech that such a policy creates is so palpable, so evident, and so real, that no honest person or honest judge could deny that the effect, and possibly the aim, of this policy is to silence unpopular opinions.

Please realize that the fears I express are not hypothetical; our University policies are used right now to silence speech. A very recent concrete example, on our campus, will be in order. In an undergraduate course in political science this term, a student making a very reasonable point about the inadequacy of telephone calling, used as an example a hypothetical “knowledgeable businessperson” he called Dave Stud, who refrains from responding to the pollster because he is “entertaining three beautiful ladies in his penthouse when the phone rings.” That was the whole of the student’s sin. His use of that hypothetical (though his language was in no way abusive or snide) may be viewed as reinforcing inappropriate sex stereotypes. But that was not the reproof of the teaching assistant who graded his paper, or of his professor. They threatened him in no uncertain language, with punishment. For what? For sexual harassment! You will say, perhaps, that their threats were out of order; but they were made, and such threats will always be made by those who do not like what others are saying, and who have the disciplinary tools to make them pay dearly for saying it. Here are the exact words of that teaching assistant; I report them because you may surely expect to hear them again, or words just like them, coming from others under the policy of “discriminatory harassment” now in effect. She wrote on his paper:

“Professor ... has encouraged me to interpret this comment as an example of sexual harassment and to take the appropriate formal steps. I have chosen not to do so in this instance. However, any future comments, in a paper, in a class or in any dealings w/me will be interpreted as sexual harassment and formal steps will be taken. Professor ... is aware of these comments—and is prepared to intervene. You are forewarned!”

I will leave you to judge whether that student’s remarks may be reasonably treated as sexual harassment. But that he was threatened with discipline under that heading is not in doubt. How is a prudent person to respond to such threats? The student dropped the course. Would you have recommended that he suffer the agonies of contesting the repressive conduct of his teachers?

Every member of an academic community like ours knows that in these days merely the accusation of discriminatory harassment would be fearfully damaging. No matter what the outcome, or how just the ultimate disposition of the case, the power to threaten speech and writing in this way is the power to silence it, and that power will be used, repeatedly and deliberately, to achieve precisely the end we, as a national community, abhor.

And that is why, when such a case, or another like it and perhaps more grave, comes before a federal magistrate, we will once again be humiliated before the nation. When will we learn? The speech that we do not like may not be silenced; the rules may not be formulated in ways likely to result in the chilling of the speech that we do not like. Our good intentions do not justify policy that we have been told, and that we ought to know, is not permitted in this country. Do not doubt that we will be sued; and do not doubt that—even if we win that suit, and manage to escape another shameful scolding—our reputation as a stronghold of open debate and free discourse will have suffered irreparable damage. If you love this University as much as I love it, you will not let this happen. Get rid of those words. Stop, once and for all, the effort to police what people say and write. Confess our total inability to do so, and turn to the task of creating, positively, the more thoughtful and considerate environment that will make the language of hate so evidently self-defeating that there will be little motivation for its use.

That, in any event, is the only way in which we will be permitted to proceed. With all the persuasive power at my command, I urge you to change course in this matter, and to re-think the role of a great university when controversial speech is at issue.

Carl Cohen,

professor of philosophy