Political Correctness and Free Speech

2012-08-16 16:10:59

The First Amendment’s guarantee of free speech has long been qualified by the exclusion of protection for ‘‘fighting words’’—expression that constitutes a threat of violence and invites a violent reaction. Spurred by what is often described as a concern with political correctness, many public institutions have sought to extend the fighting words rationale to restrict speech that may be considered offensive or insensitive, especially as perceived by women or minorities.

Borrowing legal terminology from cases involving workplace harassment under Title VII of the Civil Rights Act of 1964, some state-supported universities have adopted speech codes aimed at preventing expression that could create the perception of a hostile environment on the part of members of protected classifications. Such codes are commonly couched in terms of banning ‘‘hate speech’’ and provide for sanctions against violators, up to and including suspension or termination.

The fundamental problem with such codes—irrespective of whether they expressly restrict students’ speech or purport merely to regulate their conduct— is that they necessarily amount to content based restriction of expression, thereby conflicting with core First Amendment values. The Supreme Court has shown little tolerance for such restrictions. Indeed, in its 1992 decision in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Court rejected a traditional ‘‘fighting words’’ rationale in striking down a statute aimed at banning the use of racial epithets, since the law targeted a particular type of expression based on its content. Nevertheless, speech codes have proliferated on college campuses since the 1980s.

No constitutional challenge to a campus speech code has come before the Supreme Court, but such measures have not fared well in the lower courts. Typical is Bair v. Shippensburg University, 280 F. Supp.2d 357 (M.D.Pa., 2003), wherein a federal court in Pennsylvania enjoined the enforcement of a school’s speech code because its vague directives (such as requiring students to communicate their beliefs in a ‘‘nonprovoking manner’’) were unconstitutionally overbroad. The court of appeals reached a similar result in Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir.1995), holding that a ban on ‘‘stigmatiz[ing] or victimiz[ing]’’ individuals was overbroad, despite a provision that the code would not be enforced inconsistently with the First Amendment.

The tension between political correctness and free speech extends into many other realms of public discourse, of which only a small sample can be mentioned here. University faculty members as well as students have run afoul of restrictions on classroom discussion. Although courts normally afford greater latitude to the regulation of student speech in public high schools than in institutions of higher learning, a federal court in West Virginia held, in Bragg v. Swanson, 371 F.Supp.2d 814 (S.D.W.Va., 2005), that a high school’s prohibition of clothing displaying the Confederate flag was overbroad. Absent any evidence of racial animus or disruptive incidents stemming from such displays, the court held that equating display of the flag with racism violated the students’ First Amendment rights. School mascots derived from Native American prototypes have been challenged as offensive, and references to such mascots (in particular, ‘‘redskins’’ and variations thereon) have been banned from personalized license plates in several states.


References and Further Reading

  • Kors, Alan Charles, and Harvey A. Silvergate. The Shadow University: The Betrayal of Liberty on America’s Campuses. New York: Harper Perennial, 1998.
  • Robbins, Wayne Lindsey, Jr., When Two Liberal Values Collide in an Era of ‘‘Political Correctness’’: First Amendment Protection as a Check on Speech-Based Title VII Hostile Environment Claims, Baylor Law Review 47 (1995): 789.

Cases and Statutes Cited

  • Bair v. Shippensburg University, 280 F.Supp.2d 357 (M.D. Pa., 2003)
  • Bragg v. Swanson, 371 F.Supp.2d 814 (S.D.W.Va., 2005)
  • Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir.1995)
  • R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
  • Civil Rights Act of 1964, Pub. L. 88-352 (Title VII), 42 USC } 2000e (1964)