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Oct.26, 2011

Vol. 112, No. 3

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Essay - Princeton falls short on protecting free speech

By Harvey A. Silverglate ’64 and Samantha Kors Harris ’99
Posted on October 21, 2011

A lot may have changed since 2005; unfortunately for Princeton students, the state of their free speech rights has not.

Many alums may remember the controversy that arose in 2005 when student humor magazines Nassau Weekly and The Princeton Tiger each published articles that offended members of the campus community (a “top-ten list” of “Holocaust movies I’ve never seen but would like to” and a list of “Facebook Groups You Hope to Never See” that included a reference to the KKK. (Jen Albinson, “Debating when humor crosses the line,” Princeton Alumni Weekly, Mar. 23, 2005, available here ). The controversy led to a wide-ranging conversation, in this publication and elsewhere, about the line between free speech and punishable “harassment.” Six years later, however, Princeton and universities across the country are still conflating protected expression with punishable harassment, to the great detriment of their students’ rights.

While the authors of those 2005 articles were not punished for their writings, statements by Princeton administrators during and shortly after the controversy made clear that Princeton students can indeed be disciplined for speech that, outside the bounds of campus, would without any doubt be protected by the First Amendment. In the wake of the controversy, then–Associate Dean of Undergraduate Students Hilary Herbold said that while the articles in question were not punishable, an article containing “offensive language directed toward someone in particular” would be (Diane Krauthamer, “Student editors will not be disciplined for ‘Top 10 Holocaust movies’ list,” Student Press Law Center, Feb. 18, 2005, available here). The following year, in an article about the use of profanity in the classroom, Dean Herbold reiterated her stance, telling The Daily Princetonian that while profanity was not punishable per se, “We do discipline students for using abusive, demeaning, threatening or harassing language toward individuals” (Chip McCorkle, “Prof(anity): Cursing in the Classroom,” The Daily Princetonian, Mar. 31, 2006,available here).

The brouhaha over the controversial articles was — to utilize a ubiquitous phrase — a perfect “teachable moment” for the school. Students and administrators alike had the opportunity to articulate the importance of free speech — even difficult, at times objectionable, speech—to the promotion of a vibrant and vigorous academic and social atmosphere. Unfortunately, an analysis of Princeton’s current speech codes indicates that Princeton is still failing to live up to its stated belief that “free speech and peaceable assembly” represent “basic requirements of the University as a center for free inquiry.” It all seems a variant of the familiar “I believe in free speech, but …” argument so often heard in debates about the limitations to free discourse.

In February of this year, we sent a letter to President Tilghman outlining our concern that, five years after the campus-wide discussion, Princeton’s policies do not live up to the standards of the school’s stated commitment to freedom of expression. The issue initially arose back in 2010 when one of us wrote a protest letter to President Tilghman, accompanying his Annual Giving check. Tilghman wrote back denying that Princeton maintained policies that clearly and substantially restrict students’ freedom of speech.Later, the other of us responded with a detailed analysis of Princeton’s speech codes, prompting yet another presidential response defending those codes. This piece for PAW followed.

Princeton’s policy on “Respect for Others,” for example, prohibits any speech that “demeans, intimidates, threatens, or injures another because of personal characteristics or beliefs” despite the fact that the overwhelming majority of “demeaning” speech is, outside the bounds of campus, considered protected free speech. (It is not difficult to imagine, for example, how a heated debate about religious issues might lead someone to feel “demeaned” on the basis of religion, despite the fact that such discussions and debates are a critical part of the open discourse that should characterize a university like Princeton.)

Also problematic is Princeton’s policy regarding “Information Technology Resources and Internet Access,” which implies that any student accessing the University’s network is an “agent of the University” and must not send any “hostile” or “malicious” messages “regarding another person, via e-mail…by posting to blogs, social networks … or by inclusion in a video produced for broadcast via the campus network or Tiger TV.” In other words, according to this policy, the University reserves the right to punish students for any e-mails, Facebook posts, or tweets deemed hostile or malicious.

Our letter to President Tilghman pointed out the problems with these and other Princeton speech codes and explained how these policies could be revised to better protect the right to free speech that Princeton ostensibly promises its students. We found her reply to be deeply unsatisfactory, as she did not address any of our specific concerns. She simply disagreed that Princeton’s policies are restrictive, despite the fact that they unquestionably restrict speech that a public university could not lawfully suppress under the First Amendment. And she defended Princeton’s policies by noting that no students had ever complained about them, despite the fact that restrictive speech codes produce precisely the kind of chilling effect that hinders people from expressing opinions that might be controversial or unpopular.

Perhaps we should not be surprised by this response. After the 2005 controversies, one of us relayed our concerns about Princeton’s speech codes to a Princeton administrator. There was a polite back-and-forth, followed by an invitation to give an interview that would be publishedin the Princeton Alumni Weekly about campus speech codes. While large segments of the interview ran in the magazine, no specific mention of these censorship problems at Princeton found their way into the PAW’s pages. A criticism of Harvard’s speech codes was fine; Princeton’s, however, did not merit discussion (“A Moment with Harvey Silverglate ’64,” Princeton Alumni Weekly, May 11, 2005, available here).

President Tilghman’s response reminds us of the earlier omission because, in both cases, there was an apparently genuine desire for engagement, followed shortly with a deeper and more profound decision to avoid the problem.

Sadly, Princeton is far from alone in restricting students’ right to free speech in the name of, to use President Tilghman’s words, the protection “of dignity and respect.” What remains deeply disappointing is that at a sterling institution such as Princeton, there is no recognition that both dignity and respect are rendered meaningless when they are “protected and promoted” by censorship imposed by a third party. Respect is something earned from without, dignity something felt from within. Both lose all meaning when “protected” by the imposition of official power.

Samantha Kors Harris '99 is the director of speech code research at the Foundation for Individual Rights in Education (FIRE). At Princeton, she majored in politics and was a member of Campus Club and the Roaring 20. She is a 2002 graduate of the University of Pennsylvania Law School.

Harvey A. Silverglate ’64 practices law in Boston. A graduate of Harvard Law School, he is the co-author (with Alan Charles Kors ’64) of The Shadow University: The Betrayal of Liberty on America’s Campuses (The Free Press 1998; paperback currently in print from HarperPerennial) and the co-founder (with Kors) of the Foundation for Individual Rights in Education, which he currently chairs. His most recent book is Three Felonies a Day: How the Feds Target the Innocent (Encounter Books 2009).

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3 Responses to Essay - Princeton falls short on protecting free speech

Peter S. Paine III '85 Says:

2011-10-27 18:16:00

Thanks to Samantha and Harvey for bringing this up. It is an important issue which Princeton seems content to politely evade, hoping it will simply go away in the face of bureaucratic indifference and inertia. There is no question that, were Princeton a public institution, its vaguely worded "respect" policy would be flatly unconstitutional. It is not even a close call. I find it ironic that a Princeton student has more liberty on the Nassau Street side of FitzRandolph Gate (or anywhere at Rutgers, for that matter), than three short steps to the east on the Nassau Hall side. This is unworthy of a great institution that counts among its alumni signers of the Declaration of Independence and the architect of our Constitution. I hope President Tilghman will remedy the "unconstitutional" parts of Princeton's policy and recommit the University to the freest possible exchange of ideas.

Mike Murburg '77 Says:

2011-10-28 09:45:06

Regulating speech outside of that which equates to yelling fire in a crowded theatre or words that lead to an immediate and reasonable fear of bodily harm is useless. It is a very sad day in which we have lived to see the denigration of our cultural values of decency and respect of our fellow man decline to a place where one might think it reasonable to try and censor or regulate speech because so much of it has begun to run out of bounds. We don't need to regulate such speech but individually and cumulatively stand up and respectfully admonish and chastise the flagrant offenders for their lack of humanity and sensitivity and take a stand, show our stones and assert that such offenses are neither tolerated nor condoned. Having grown up among the wild tribes of ruffians in the bowels of northern New Jersey, I had no idea that the English language could be so well spoken without expletive deleteds. Yes, Princeton gave me a new lease on new and interesting sixty-four-dollar words, and an understanding that if one cannot bring his cussing up from the gutter so as to create a new form of art, he should just refrain. The same may be said about regulating speech. When we do, we make free speech an oxymoron and fools of ourselves.

Isaiah Cox '94 Says:

2012-01-06 15:06:16

In a nutshell: "Free speech" only matters when it *does* offend someone. After all, why do we need a right to do something that nobody objects to? I don't want to infringe someone else's right to offend me. I think that *all* points of view must all be free to debate in clear view: Truth is only found when falsehood can be openly found wanting. Open discourse is essential to a liberal university. I say this without reservation. If we care about truth, then we even discuss things that surely will make people uncomfortable. I am a Jew who believes Nazis must be equally free to express their opinions. When I was a student, I engaged in active debates. I wanted to test my opinions against those held by others. Certainly people sometimes *felt* offended, whether I intended it or not. But under this policy, I would have been disciplined for what is, essentially, not even a thought crime. After all, people do not need much cause in order to feel offended. "Respect for others" really respects no one enough to even let them say what they think. Please go back to basics: If the First Amendment is good enough for the oldest constitutional government in the history of the world, it is good enough even for Old Nassau.
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