Legal Commentary

Virginia?s Worst University Speech Code?

By Ilya Somin

Richmond Times-Dispatch columnist Barton Hinkle has a column surveying speech codes at Virginia public universities {HT: co-blogger Todd Zywicki]. It turns out that George Mason University may have the worst of a bad lot:

Free speech is one of those values to which everyone gives lip service. Nearly no one considers himself pro-censorship. Yet as FIRE has exhaustively documented, institutions of higher learning ? which ought to welcome freewheeling intellectual debate ? often are among the most censorious and oppressive places in America. And unfortunately, a few of the worst offenders are right here in Virginia....

Virginia Tech.... continues to flirt with totalitarian impulses. Witness the attempt earlier this year to shut down the student newspaper because of anonymous comments posted on its website....

Yet when it comes to Orwellian regulation of thoughtcrime, Tech remains a rank amateur next to George Mason University. GMU maintains a speech code that prohibits ?any form of bigotry . . . . whether verbal, written, psychological, direct, or implied....?

GMU also insists that students get permission before chalking a message on a sidewalk. What?s more: ?The sale, distribution, or solicitation of any . . . newspaper by GMU and non-GMU organizations and individuals is subject to prior authorization.? Taken together, such policies give GMU officials a blank slate to control what members of the university community can say and hear on campus.

This, mind you, at a school named after a man who is called ?The Father of the Bill of Rights....?

UVa has taken the right step by relaxing its speech codes. It?s time for the rest of Virginia?s public colleges to do the same.

I would make two points about GMU?s speech code. First, like many such codes, it isn?t enforced very aggressively. In practice, both students and faculty often make public remarks that violate the code, yet escape punishment. Campus life would grind to a halt if the university seriously attempted to crack down on every instance of ?implied? or ?psychological? ?bigotry.? Second, the code was instituted by the central administration, not the Law School. If it were up to the law school faculty, I have no doubt we would vote overwhelmingly to abolish the code. It is also unlikely that GMU?s extremely vague and broad speech restrictions would survive judicial scrutiny.

That said, Hinkle is absolutely right to point out the egregious flaws in the GMU code and to urge George Mason and other schools to repeal their codes without waiting for a legal challenge to arise. It shouldn?t take a lawsuit to force universities to uphold freedom of speech. And the case of UVA shows that repeal is not politically impossible, and won?t draw a massive political backlash.

Full post as published by The Volokh Conspiracy on November 02, 2010 (boomark / email).