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Restore Louis Brandeis' free speech legacy


By Aaron Fried
On August 27, 2012

  • Arielle Schorr

The Brandeis community should be embarrassed. The Foundation for Individual Rights in Education, a nonpartisan organization whose mission includes preserving free speech on college campuses, has placed Brandeis on its list of the "12 Worst Colleges for Free Speech in 2012." Our University has consistently appeared on this list for the past several years.

Given our namesake, this is appalling. As a Supreme Court justice, Louis D. Brandeis had a sterling record of upholding free speech from the bench. Justice Brandeis' concurring opinion in the 1927 Supreme Court case Whitney v. California is regarded as one of the greatest defenses of free speech written by a Supreme Court justice. This precedent was essential in later Court decisions to uphold free speech.

Our university is private, meaning that it is not legally bound to Justice Brandeis' interpretation of the First Amendment and can legally censor its students; however, this does not mean it should. It is evident that our community has held Louis Brandeis and the ideals he espoused in high regard since its founding, and rightly so.

Despite this fact, there seems to be a dichotomy between the free "marketplace of ideas" advocated by Justice Brandeis in his opinions, and the speech-chilling policies that our University upholds, of which the Justice would surely be ashamed. Such a contradiction ought not to exist, and steps must be taken to rectify it.

FIRE's website features a speech code rating system, called Spotlight, which allows users to see an assessment of campus speech policies according to a traffic light motif.

This grading is done by analyzing the harassment policies, speech zones, internet policies, and commitments to free expression in each school's student policies. Each of these categories is given a traffic light of its own, and their aggregate makes up each school's overall rating. After reviewing our Student Rights and Responsibilities Handbook from 2010-2011, FIRE graded our University with a red light.

On the webpage that explains our University's "red light" rating, by category FIRE graded only three areas as green: our mission statement, a section discussing openness to demonstrations and protests and another section that affirms the University's commitment to maintaining the health, safety and rights of its community members.

These three areas represent what I believe to be the community's true attitude towards free speech on campus. I am convinced that Brandeisians, like the man our school is named for, ardently value an atmosphere that cultivates intellectual openness, mutual respect and intelligent inquiry. This is worth more than the lip service in our Handbook.

Unfortunately, other areas of our speech policies run contrary to these ideals, most notably, our harassment policies, which FIRE has red-lighted. These well-intended policies nominally fulfill the goal of promoting a respectful and orderly campus, where students can live without fear of being mistreated.

In reality, some of these policies are incredibly vague and, like any poorly defined set of rules, run the risk of unfair, subjective interpretation.

For example, the Handbook's definition of sexual harassment is ambiguous. One example of sexual harassment is "subtle pressure for sexual activity." Imagine all of innocent situations that fit this bill. Flirting-in nearly any context-can certainly be taken as subtle pressure for sexual activity.

The same section on sexual harassment also prohibits "offensive sexual graffiti or cartoons" (doodlers, beware!), and "whistling, cat-calls [and] obscene gestures."
You might do all of these if you decide to be rowdy at a soccer game on Gordon Field. Are you sexually harassing the visiting team? Probably not, but we couldn't be sure from the way this is written.

Wouldn't it make a little bit of sense to put some clarity and specificity into these rules? Explicitly defined criteria allow rules to be enforced objectively, equivocal rules prevent that.

When rules are written in a way that opens them to loose interpretation, any case that is not clear-cut can only be dealt with in two ways. First, honest people see the rules as impotent, since they do not address anything specific, and do not take them seriously.

The second is that dishonest people see them as omnipotent, since they can be made to address anything, and can potentially use them vindictively. Both are dangerous to the Brandeis community, and must be avoided.

The speech policies in our Handbook must be rewritten. As a community, it is imperative that we cooperate amongst ourselves, as well as with outside organizations like FIRE, to give Brandeis University a proper free speech policy, befitting of its namesake.

When these policies are rewritten, they must be strong enough to protect students from genuine harm, but narrowly tailored to cases of explicitly defined harassment and violence.
While vaguely worded rules may offer us some comfort that no one may slither through a loophole, it is important to remember that these often have the unintended consequence of chilling speech.

To quote Justice Louis D. Brandeis: "Fear of serious injury alone cannot justify oppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears."

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