Defining Free Speech

The Columbia Spectator.
By Greg Lukianoff
February 18, 2005

Four months after The David Project released Columbia Unbecoming, Columbia is embroiled in a public fight over allegations against the Middle East and Asian Languages and Cultures department. The latest, longer version of the film includes more examples of what it sees as “bias,” “intimidation,” and “harassment.” While The David Project and its supporters have every right to protest and expose perceived abuses at Columbia, it is essential for all involved to understand that nothing described in the film constitutes either harassment or intimidation in any formal sense.

Harassment is a badly abused term in higher education. For decades now, many college faculty, administrators, and students have advocated definitions of harassment that could be (and often are) used to punish merely “offensive” speech. These abuses have been so rampant that in July 2003, the Office of Civil Rights of the Department of Education issued a letter explaining clearly that federal anti-harassment laws that apply to higher education could not be used to punish speech that would be protected under the First Amendment. Much of the speech referred to in Columbia Unbecoming is political speech, which enjoys the core protections under the First Amendment no matter how objectionably it may be expressed. While there are certainly allegations in Columbia Unbecoming that some professors may have acted unprofessionally or unethically, nothing described in the documentary reaches the level of harassment.

Furthermore, not even the worst allegations in Columbia Unbecoming fit the textbook definition of intimidation. As the Supreme Court stated in Virginia v. Black, intimidation means “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Subjectively feeling “intimidated” is not the same thing as intimidation under the law.

Of course there is the argument that, perhaps, Columbia intended to impose more expansive definitions of harassment and intimidation than the First Amendment would tolerate. After all, as a private school, Columbia is not bound by the First Amendment. If this were the case, however, Columbia would need to be very clear about how its definitions of “harassment” and “intimidation” depart from the standard legal definitions of those terms, since students attending the school would naturally assume their speech to be no less protected at Columbia than at any public college.

Students at Columbia have every right to protest what they see as unprofessional behavior by professors and to demand the right to dissent in the classroom. It is also fully within their rights to ask Columbia to hire more professors with differing perspectives (and Columbia would be within its rights to hire a more ideologically diverse faculty), but when students accuse professors of serious offenses like intimidation or harassment, they are on shaky ground.

Free speech is The David Project’s friend in this controversy, and any action it takes that appears to put it on the wrong side of free speech will not only jeopardize its mission, but could lead to an ongoing struggle in which allegations of “harassment” and “intimidation” are used as political weapons by both sides of the debate to silence the other. The solution is not to expand the definition of harassment or intimidation, but rather to make sure those terms are not used to hamper free expression, and then to let the students and groups slug it out in the realm of classroom debate, campus activism, and public scrutiny.

The author is an attorney and the Director of Legal and Public Advocacy for the Foundation for Individual Rights in Education

http://www.columbiaspectator.com/vnews/display.v/ART/2005/02/18/4215750a77534