Should public officials govern our private as well as our public lives? A majority of Americans would probably say "No"; but right and left, while political rhetoric celebrates freedom, political actions restrict it. Put aside for the moment inevitable threats to liberty posed by the war on terrorism. We have long been beset with restrictions on individual choice and privacy imposed for our presumed moral betterment. What unifies many liberals and conservatives in these partisan times is a penchant for authoritarianism. Conservative authoritarians want to protect you from the temptation to use marijuana medicinally, read pornography, or enter into a same-sex marriage, among other supposed sins. Liberal authoritarians want you to make nice.
Speech codes that prohibit people from insulting each other have been widely and rightly ridiculed, but they continue to proliferate, enforcing particular notions of diversity, equality, and tolerance. Consider Colorado State University's speech code, recently derided by the Foundation for Individual Rights in Education (FIRE) as speech code of the month. At Colorado State, "hate incidents" are prohibited and defined as "expressions of hostility against a person or property because of a person's race, color, ancestry, national origin, religion, ability, age, gender, socio-economic status, ethnicity, or sexual orientation. . . . Examples of these incidents can include verbal or written name-calling, slurs, and jokes." So, merely tell a joke that makes fun of someone for some reason (like one's inability to spell), as nearly all jokes do, and you're guilty of committing Colorado State's version of a hate crime. Jokes are no longer laughing matters. Drexel University's harassment poli- cy (another FIRE speech code of the month) includes an outright ban on "inconsiderate jokes" and "inappropriately directed laughter."
I doubt that that many students will be attracted to a version of liberalism that bans laughter, along with speech that offends school authorities. Public high-schools may prohibit students from wearing T-shirts with anti-gay messages, a federal appeals court recently ruled in Harper v. Poway. In an opinion by a leading liberal judge, Stephen Reinhardt, the court explained that a student wearing a T-shirt condemning homosexuality was fundamentally violating the rights of his fellow students. Their right not to be insulted trumped his right to express an opinion, even a religious belief that homosexuality was sinful: the offending T-shirt read, "Be ashamed, our school embraced what God has condemned. Homosexuality is shameful." This was an insult that could and should be prohibited, according to Judge Reinhardt, because it might lead to psychic injury. "Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses."
It's worth noting that the rationale for censorship advanced in this case was essentially the same rationale advanced some twenty-five years ago by antipornography feminists who declared that pornography was not speech but a verbal assault on women. They lost the battle to prohibit pornography but won the war to reframe liberal notions of "hate speech," which is now widely viewed on the Left as not speech but a civil-rights violation.
To appreciate the antilibertarian drift of contemporary liberalism, compare the opinion in Harper v. Poway to the 1969 case of Tinker v. Des Moines School District, on which the Harper opinion is partly and perversely based. The Tinker case was a landmark decision affirming the First Amendment rights of high-school students-in this case, their right to wear black armbands to school to protest the Vietnam War. Judge Reinhardt would, no doubt, uphold the right of students today to wear armbands or T-shirts opposing the Iraq war. I imagine he would also uphold the students' rights to wear T-shirts opposing the exclusion of gays from the military, but I would not trust his tolerance for speech that supported it.
Judge Reinhardt barely pretends to adopt a nondiscriminatory, content-neutral approach to speech, which the Constitution and a commitment to civil liberty require. Tyler Harper wore his offending T-shirt to protest the official designation of a Day of Silence at his school in support of gay and lesbian students. He was engaged in a classic exercise of free speech, offering a different message, arguing with an official point of view. School administrators and, eventually, the federal court silenced him, because they disapproved of his perspective. They engaged in a classic abuse of power, censoring dissent.
"(P)ublic schools may permit, and even encourage, discussion of tolerance, equality and democracy without being required to provide equal time for student or other speech espousing intolerance, bigotry or hatred," Judge Reinhardt noted. In other words, schools may permit the discussion of democracy, but students should not assume the right to practice it.