Newell: Campus "speech codes" continue their losing streak with 6th Circuit ruling

Newell Normand
October 04, 2019 - 10:55 am

One would think college campuses have historically been designed to be a place to talk about the truth, maybe have a little Socratic dialogue, have a difference of opinion, be able to formulate one's moral compass, ideologies and otherwise.. but not so fast! It seems there's a move afoot across the country that is very troubling.

The Sixth Circuit Court of Appeals recently handed down a decision that will have an impact on this troubling trend - David French, a Senior Fellow at the National Review Institute, joined Newell's program this week to talk about what this ruling means for the battle against censorship on campus. French is the author of an article in the National Review titled "The Sixth Circuit Pounds Another Nail in the Coffin of the University Speech Code."

"Beginning the the late 80's and early 90's, universities began passing policies that are blatantly unconstitutional," French began. "They would literally sometimes call them speech codes, they were designed to punish speech that the Constitution protects. It took about 25 years of litigation and public pressure and legislation, but now these formal speech codes are retreating - only about 25% of major universities still have them on the books, and most of those are not enforced. So that's been a great free-speech victory, but what some schools have done is shifted tactics and created something called a bias response team. When they get a report of speech that offends someone, they'll investigate it as an 'educational matter' but it's actually an incredibly intimidating process to be investigated for their speech, even if the bias response team doesn't have the power itself to punish anyone. So what the Sixth Circuit did is say, yes, students can sue to try to eliminate a bias response team - that's a very important decision."

"One of the things that confuses me," Newell said, "Is where did we lose the sense of understanding what is subjective vs objective? It seems like this is the real friction in university campuses today."

"Good point - as campuses became more diverse, ethnically, racially, religiously, etcetera, they wanted ot make the environment more welcoming to people from historically marginalized communities. But they went about it the wrong way as simply pass a series of regulations that says if a person is subjectively offended on the basis of race or sexual orientation, etcetera, that means that a person has violated the speech code. What that meant was that my right to speak was entirely dependent on your feelings. So if you were upset, and I was speaking on matters of race or gender identity, or whatever, then I was in violation. You cannot condition someone's free speech right on someone else's feelings, and that is essentially what these universities were doing.

Later in the program, Newell noted how the frenetic pace of communications today and the way Millennials and younger generations use technology may have changed expectations about how speech actually works in the pursuit of change.

"Do you think there's an underlying influence as it relates to the speech of change? These young people are living for the moment. We push buttons now and get information it would have taken you and I months to research, and it's now so immediate that that might be what's driving this? You affect change one bloody step at a time, but they really just want to be pushing buttons," Newell asked.

"Part of it is the speed in which there's a change in attitude, and also a complete lack of understanding of the opposing point of view. Think for a minute on the issue of gender identity. If five years ago if someone was going to say that a man can be pregnant, that would have at least raised a discussion of how that would be possible. Nowadays, in some communities in the US if you question that, then you're going to be deemed to be insensitive, intolerant, perhaps even hateful. These things happen very quickly. It's one thing to have a quick change in terms of debate - it's another thing entirely to try to close off debate after that change occurred. That's what we're seeing happen, it's not just the change that's happening quickly, it's that once the change happens, we want to close off any debate about it."

Concluding, Newell lamented the decline of lively Socratic dialogues on today's college campuses and intellectual centers.

"If nothing else, that forced you to think, and not only think, but think critically, and that sadly may be something that falls by the wayside."

Hear the entire interview in the audio player below.

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