The fact that the Supreme Court reaffirmed the right to hold offensive attitudes, and did so in a case involving the volatile area of virtual child pornography, is what makes Ashcroft v. Free Speech Coalition so important and impressive. As a result of this ruling, would-be social engineers of both the right and the left should be inhibited from seeking to enforce "correct" attitudes. The court recognized the production of child pornographic images directly from one’s imagination as more akin to thinking than to producing or distributing actual child porn. The cultural right, represented by the so-called pro-family forces that have been pushing the federal government to stamp out all sexually explicit material, has essentially taken the position that books or movies involving explicit sex should be banned, with especially heavy punishment meted out to works involving children in even the most mildly erotic depictions. Cultural conservatives ostensibly want to protect children from exploitation, but since they oppose even virtual porn, one suspects that their real agenda includes trying to control the thoughts and emotional processes of adults. As the New York Times reported, the right’s reaction to the ruling "was swift and passionate." Representative Mark Foley, the Florida Republican who co-chairs the Congressional Missing and Exploited Children’s Caucus, said the Court had "sided with pedophiles over children." Similarly, the National Law Center for Children and Families weighed in, as did the Family Research Council. However, the Court’s opinion manifestly had nothing at all to do with pedophiles; it had to do, instead, with the right to think "bad" thoughts.
In addition to stymieing the cultural right, the Supreme Court’s rejection of this effort to control the contents of the human mind has implications for the forthcoming clash between First Amendment supporters and those who wish to coerce changes not only in spoken language, but also in privately held attitudes in the name of making campuses and workplaces "safe" for members of "historically disadvantaged groups," including women, blacks, and gays. The usual "harassment" code, found at virtually every large company and on the vast majority of college and university campuses today, outlaws not only true harassment, but also offensive words that, in the language of the typical code, "creates a hostile working [or educational] environment." Such harassment codes are simply an indirect way of banning offensive speech that would otherwise enjoy First Amendment protection. They are based on regulations conceived by federal bureaucrats years ago, who took the remarkable — and unconstitutional — position that saying things that might offend people is equivalent to violating their civil rights. As a result, employers and educational administrators claim that such codes are required by the government. But in fact harassment codes are not only not required; insofar as they apply to merely offensive speech, they are unconstitutional.
These codes, which began cropping up in the mid 1980s, are especially problematic on campuses of higher education, where sharp debate is a close relative of academic freedom, and where giving and taking offense is supposed to be par for the course rather than prohibited activity. But it is the more recent innovation of "sensitivity training," which seeks to force people to adopt politically correct attitudes, that has caused civil libertarians to sit up and really take notice.
Such a harassment code coupled with "training" is in place, for example, at the University of Massachusetts, which is currently trying to strong-arm its faculty into attending training sessions to become more familiar with the expectations of our new "sensitive" era — when offense can result in lawsuits for "harassment." While UMass has not made attendance at such training sessions mandatory — that would likely spur an immediate court challenge, since UMass is a public campus bound by First Amendment restrictions — it has gone nearly that far by insisting that faculty attend harassment training if they wish to be covered by the university’s liability-insurance policy. If faculty members want the university to pay the costs in the event they are sued for offending a student or staffer, they must attend "harassment" training. Few faculty members are likely to waive such insurance coverage in our litigious age, when so many people feel that they have a right not to be offended and are willing to sue at the drop of a hat.
At the University of Alabama, the administration initially required professors to attend sensitivity training, but backed down and made attendance voluntary after members of the state legislature raised questions. Yet Wyeth W. Holt Jr., chair of the Faculty Life Committee of the UA Faculty Senate, recently asserted without qualification that, in his view, the university had the absolute power to require a faculty member to attend training sessions on issues of "diversity" and related areas that are currently in serious ideological dispute all over the country. Indeed, many campuses already require students to attend such sessions, often as part of freshmen-orientation programs. Sensitivity training is also commonly part of the preparation for dormitory counselors and resident advisers, who in turn are expected to inculcate in students the values thus learned as the only acceptable attitudes. And in the midst of a recent brouhaha at Harvard Law School over an incident of allegedly racist speech by a student, HLS dean Robert Clark has established a "Committee on Healthy Diversity," as well as summer faculty workshops that can "help improve pedagogy regarding sensitive cleavage lines in our society." This appears to be fancy Harvard language for what UMass more honestly dubs "harassment training." Indeed, the point was made even more clearly when, on April 27, Dean Clark, addressing the Harvard Law School Class of 1967 Reunion — my class — stated that it is his goal not only to eradicate offensive racist speech from the campus, but also to make Harvard Law students like one another. It is very difficult to imagine the thought-reform and re-education camps that would have to be established to force HLS students to like one another when the dean cannot even generate affection among his own notoriously fractious faculty.
There can be little doubt that a First Amendment battle over "harassment" codes that encompass prohibitions against speech will be upon us very soon, given how ubiquitous such codes are in the workplace and on college campuses. This is especially likely since those who adopt harassment codes claim, in part, that they do so to comply with governmental statutes and regulations guaranteeing non-discrimination and equal access to jobs and college education. By "creating a hostile environment" on the basis of gender, race, or sexual orientation, goes the theory, employers and universities discourage members of historically disadvantaged groups from participating in work and education. Therefore, civil liberties (free speech) must be sacrificed to promote civil rights (equal access to work and education) — that's the view that has taken hold in many segments of government, industry, and education. The theory is perverse not only because it seeks to promote a notion of equality by enforcing speech and ideological restrictions, but because it assumes that members of historically disadvantaged groups will achieve full equality by being shielded from the harsh realities of other people’s views.
However, it is "mandatory sensitivity training" that likely will trigger the larger court battle, since Americans are, justifiably, even more outraged when they are told not only that they may not say what they believe, but that they must say and even believe ideas that are not theirs. In this battle, Ashcroft v. Free Speech Coalition likely will play an important role. It reveals the First Amendment as an obstacle to the mandatory imposition of any moral and political agenda, whether from the left or right.
Harvey A. Silverglate, co-director of the Foundation for Individual Rights in Education, is also the co-author with Alan Charles Kors of The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial, 1999) and a partner in the law firm of Silverglate & Good.
