Definition and framing
In a 2015 episode, Bob Zadek offered an informal definition of hate speech as offensive and abusive speech insulting usually a minority group or smaller segment of society, designed to diminish and demean them. He said the United States is maybe the only country in the world — certainly the only first-world country — which does not prohibit hate speech as such, and that most of Europe, Canada and most of the free world prohibits it, while in America it is permitted under all applicable state and federal laws. Jonathan Rauch on the New Attacks on Free Thought (2015)
Zadek described the American limits on speech as narrow. He said the Supreme Court about 40 years ago struggled to define obscenity, and that obscenity is a limitation of free speech, with a very hard standard to enforce. He said there are civil penalties for slander and penalties for lying, but not prior restraint: the government cannot say ab initio that you cannot say it, and that this is the difference between America and the rest of the free world. Jonathan Rauch on the New Attacks on Free Thought (2015)
Harassment codes and the perversion of language
Harvey Silverglate, described as founder and chairman of the Foundation for Individual Rights in Education, told Zadek that the overall tool used against campus dissent is to torture the English language, citing a classic essay by George Orwell called Politics and the English Language about how to use the English language to say nothing, or to say the opposite of what you mean. Is Your Alma Mater a Soviet Gulag? (2011)
Silverglate gave the example of campuses that designate a “free speech area” to which all public discussion, public speeches and organizing rallies by students on political or philosophical issues are limited. He said this is not really a free speech area but a censorship area, because the free speech area frequently comprises less than 1% of the geographic area of the college campus, and is almost invariably way distant from the center of activity. By calling it a free speech area, he said, administrators make it sound like they are protecting free speech when in fact they are censoring speech. Is Your Alma Mater a Soviet Gulag? (2011)
Silverglate said the same is true of campus speech codes. When FIRE first began, well over 90% of American college and university campuses had very restrictive speech codes; FIRE battled them back to somewhat fewer than the 90% figure, probably down to 75% or 80%. But now, he said, they are not called speech codes — FIRE calls them that because it tells it like it is — they are called “harassment codes.” He described administrators saying they are not limiting free speech but limiting speech that reaches the level of harassment, and said that by calling them harassment codes, liberal arts universities that claim to protect academic freedom routinely prosecute students in campus disciplinary tribunals for saying politically incorrect things about hot-button issues such as gender and race and sexual identity. Is Your Alma Mater a Soviet Gulag? (2011)
Silverglate said this perversion of the English language allows these things to go on without being noticed — not by parents who pay the outrageous tuitions, not even by members of the boards of trustees who know nothing about what is going on on the campuses that in theory they are directing, and it also hides the truth from the media. He described FIRE’s website, thefire.org, as a cornucopia of information accessed thousands of times a day by the news media who want to find out what is really going on and cannot find it on the college websites. Is Your Alma Mater a Soviet Gulag? (2011)
The Steve Hinkle case at Cal Poly
Zadek raised a case at Cal Poly involving a lawsuit and a man named Steve Hinkle, which he said involved the Plantation book. Silverglate recalled it as the fellow who was reading a book and was charged with harassment. Is Your Alma Mater a Soviet Gulag? (2011)
Zadek described the facts as he remembered them: Steve Hinkle was a Republican who went to the multicultural center at Cal Poly, which is in California, and put up flyers advertising a discussion of a book called OK to Leave the Plantation. Zadek said the book was written by a black who was encouraging blacks to become more independent, that it was pretty mainstream stuff, and that the author cautioned blacks about becoming too docile. Hinkle was a member of a campus Republican club, and all he did was put up a flyer promoting the book with the book’s name on it. Zadek said the university cops visited him and accused him of disruption of a campus meeting because a few blacks were meeting in the multicultural center at the time, although all he did was put up a flyer. Hinkle went through a year and a half of litigation, and FIRE threatened to sue the university, at which time the university withdrew the charges and through FIRE’s help paid all of his legal expenses. Zadek called it one example in California of how the university came down so hard on somebody for the sin of putting a flyer up in a public campus meeting room promoting a discussion by a mainstream author who had published. Is Your Alma Mater a Soviet Gulag? (2011)
Zadek also described using thefire.org to look up Syracuse University, which he said won an award one year for the worst free speech code, and said he would not give the university another dime of his money until it changed its ways. Is Your Alma Mater a Soviet Gulag? (2011)
Hate speech and the gay rights experience
Jonathan Rauch, described as a senior fellow at the Brookings Institution and author of The Kindly Inquisitors, told Zadek that allowing hate speech is good for America, and that he is a personal beneficiary of it because he is a gay American born in a country saturated in hatred and hate speech against gay people — some intended as hateful, but most of it actually well-intentioned. He said the way to get rid of that and change a society’s mind is by identifying the hate, confronting the fears that underlie it, and contrasting the truth against it, and that this is how gay people in America made the progress they did: by putting themselves up against the hate speech and looking better by comparison with it. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch told his friends in minority communities who support hate speech laws that minorities are in the long term always safer in a society that protects hate speech than in a society that protects them from hate speech, because these protections will be administered by political majorities to their own ends. He said that in the 1950s the people targeted by speech codes against offensive and hateful speech were gay people, and that in 1953 the US Postmaster General censored the first openly gay intellectual magazine, which in the issue he censored was criticizing the Postmaster General’s censorship rules. Rauch said the greatest single breakthrough in gay rights history, until gay marriage came along, was in 1958 when the Supreme Court, in a two-sentence decision, overturned that government censorship and allowed gay people to speak. He added that when gay people began speaking in the ’50s, it was they who were hateful, they who were obscene, a threat to children, a threat to society, intolerable, and that those laws are used against minorities again and again. Jonathan Rauch on the New Attacks on Free Thought (2015)
Campus codes and the hostile environment doctrine
Zadek told Rauch that speech codes on college campuses are a notable exception to the tendency against speech restrictions, and that because it is not the government doing the prohibiting but rather a private institution — Brandeis University — the universities are free to do what they want. He said college campuses go out of their way to prevent their students, with their tender sensitivities, from being exposed to points of view they may find offensive. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch said he would not quite agree that this is entirely a private problem. At places like Brandeis there are also speech codes at public universities, which are government-funded and subject to the First Amendment, and as Greg Lukianoff of the Foundation for Individual Rights and Expression has said, the courts in some cases will strike down these speech codes as unconstitutional, but that does not stop the universities from having them. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch also described a source of government pressure on universities and employers to regulate speech in the form of the “hostile environment” doctrine, which says that if a college or an employer is creating an environment seen as pervasively hostile either to workers or to students, they cannot do that. Those rules, which come with federal money and sometimes federal civil penalties attached, pressure institutions to adopt codes that create a friendly environment — and a friendly environment means people are not saying stuff that is offensive — so colleges wind up in a balancing act where sometimes the First Amendment gets lost in the mix. Jonathan Rauch on the New Attacks on Free Thought (2015)
Zadek said employers are not regulated by the First Amendment because it is not government, and that what goes on in the employment area is looked at through the prism of workplace equality, with a whole different standard than would be applied to government. Rauch said that with private employers, a lot of government pressure is being brought to bear to police the speech of their workers, so that in effect the government is requiring employers to do in the workplace what the government could not itself do: regulate speech. He said there is a body of legal thinking that says the courts need to get active on this and cannot let the government force employers to do what the government cannot do. Jonathan Rauch on the New Attacks on Free Thought (2015)
Zadek characterized this as government deputizing large segments of the commercial and academic communities to do its work and to do for the government what the government cannot do directly, and said employers have become agents of the federal government to some degree. Jonathan Rauch on the New Attacks on Free Thought (2015)
The coddling thesis
Jonathan Haidt, discussing The Coddling of the American Mind, told Zadek that in about 2014, the 2013 to 2014 academic year, Greg Lukianoff — his co-author and the president and CEO of the Foundation for Individual Rights in Education — had been working since around the year 2000 pushing back against speech codes and all the restrictions on speech that universities often put on students. Haidt said Lukianoff was used to the problem being administrators who were overprotective and treated students as though they were fragile and had to be protected. [[episodes/jonathan_haidt_on__the_coddling_of_the_american_mi|Jonathan Haidt on The Coddling of the American Mind (2018)]]
Haidt said that suddenly in 2013 to 2014, Lukianoff noticed for the first time students saying, “Protect us from this,” and treating an idea, a book or a speaker as not just wrong but dangerous — if this person speaks on campus, people will be traumatized. Haidt said what was new was the medicalization of it: the idea that students are fragile and that adults have to protect the students from these threats. [[episodes/jonathan_haidt_on__the_coddling_of_the_american_mi|Jonathan Haidt on The Coddling of the American Mind (2018)]]
Haidt said he and Lukianoff wrote about this in their Atlantic article in 2015, whose official title was “The Coddling of the American Mind,” and that at the time it was the fourth or fifth most widely circulated article in The Atlantic’s history, at least online. He said that in the article they analyzed what was going on but did not have the space or time to go into where it came from, because it could not have just appeared from out of nowhere. [[episodes/jonathan_haidt_on__the_coddling_of_the_american_mi|Jonathan Haidt on The Coddling of the American Mind (2018)]]
Haidt said their book, also called The Coddling of the American Mind, has a subtitle — “How Good Intentions and Bad Ideas are Setting Up a Generation for Failure” — and that the book shows six different trends or causal threads stretching back to the 1980s in how children were raised, which meant that the kids born after 1995, often called iGen or Gen Z, arrived on campus beginning around 2013 with new ideas. He said those of us working on college campuses thought we had finally come to understand the millennials and then were hit by a new generation with very different thoughts and needs. [[episodes/jonathan_haidt_on__the_coddling_of_the_american_mi|Jonathan Haidt on The Coddling of the American Mind (2018)]]
Across episodes
The topic is treated in four episodes spanning 2011 to 2018. Silverglate in 2011 describes speech codes as a present and widespread administrative practice, quantified at 75% to 80% of campuses and illustrated by the Hinkle case; Rauch in 2015 shifts the emphasis to the legal machinery — the hostile environment doctrine and government pressure on private employers — and to the historical argument from gay rights; Haidt in 2018 reframes the same campus phenomenon as a generational change beginning in 2013–2014, with Lukianoff as the through-line figure across the later two episodes. The excerpts show a change in emphasis from naming and counting codes to explaining the legal and psychological mechanisms behind them, but no episode reports a reversal or resolution of the underlying dispute.
What the sources do not cover
The excerpts do not state the outcome of any court challenge to a campus speech code beyond Rauch’s general remark that courts in some cases will strike them down. They do not give the text of any code, the name of any statute or bill, or the procedural posture of the Hinkle litigation beyond the withdrawal of charges and payment of legal expenses. The 1958 Supreme Court decision Rauch describes is not named, and the excerpts do not identify the amendment on which it turned. The 2011 episode’s section on “The Coddling of the American Student” and the 2015 episode’s section on the global landscape of free expression both break off before any content appears.