For students attending Harvard Law School, the prospect of walking into class and speaking your mind without fear of reprisals may disappear. A committee established by Harvard Law School dean Robert Clark has been directed to determine whether or not the law school should enact a ban on offensive speech.
The saga began in early March, when two African-American female students complained about class notes posted by Kiwi Camara, a fellow student. The website repeatedly used the term “nigs” to refer to black people. The website was later removed.
Camara’s remarks were followed by an e-mail from student Matthias Scholl, saying he said the word “nigger” more often because of the incident.
It continued with a remark by student David Rosenberg, who stated that “feminists, Marxists and the blacks” had not contributed anything to the theory of tort law.
Rosenberg said by “blacks” he meant academic proponents of critical race theory and environmental discipline. Torts are civil wrongs recognized by law as grounds for a lawsuit and are created by judges or state legislatures.
As a result of these and a number of other incidents, the Harvard Law School is considering an anti-inflammatory speech policy. This proposed policy is regarded by some as a violation of the First Amendment.
“I would regard speech codes by definition as constituting censorship,” said Lester Hunt, a professor of philosophy at the University of Wisconsin. “It regulates speech based on the content on what you are saying — that is, you are forbidden from expressing certain views or attitudes, and that is incompatible in my opinion with the type of free speech that we should have in a university.”
“The university should have the widest freedoms of speech, or else they can’t conduct their business properly,” he added.
While the Black Law Students Association heavily favors a speech code, a number of others, including the law school dean, are hesitant about enacting such a policy.
“There are many on the faculty, including myself, who have grave reservations about heading in this direction,” said Robert Clarke, dean of the Harvard Law School, in a statement.
Members of the committee have not specified what they are working toward, but they said everything from a general set of goals to definite restrictions on certain aspects of speech could be an end result.
Hunt said any speech code based on the notion of what is offensive is inherently flawed.
“Obviously, we can forbid some forms of speech, but the question is, what is the characteristic on the basis of which things should be forbidden? I think offensiveness is a very bad standard. Offensive means it causes certain emotions in the audience,” Hunt said.
“Well, there all kinds of things wrong with telling me that I can’t do that, and how would I know what is offensive? I can’t know what the wrong is until I have already done it and it is too late,” he continued.
In 1981, UW approved the nation’s first university speech code. In 1999, the Faculty Senate voted to remove certain provisions relating to protected and unprotected expressions in academic settings. The code essentially protected all speech in an academic setting.
