Complete Study Guide on the Free Speech Unit of the University of Notre Dame
Course Year: 2023
,Chapter 1
Freedom and Equality
- Advocates of speech codes arguments in favor of their position
- 1. Hate speech can cause fear in the gut, diIiculty in breathing, nightmares,
PTSD, and hypertension among those who experience it
- The seriousness of these harms has led many to believe that hate
speech violates the equal protection clause and the Civil Rights Act
- 2. They see speech codes as a tool to help minorities attain equal access to
and equal opportunities in higher education
- Advocates against speech codes argument defending their position
- 1. Speech codes violate the first Amendment right to free speech; they
acknowledge the damage hate speech can cause but refuse to sacrifice free
speech
- They worry that these codes are too sweeping and that enforces will
abuse their authority
- 2. They also believe that racial and sexual equality are enhanced through free
speech because those who argue for their rights are often minorities whose
speech may not be protected if the government silences those who oIend
the majority (e.g. suIragettes oIending male voters in the 19th century)
- Speech codes raise a few questions such as should universities allow full freedom
of expression? If codes are adopted, what should be forbidden and why?
Some Cautionary Notes
- Caution against the political correctness objection (rejecting speech codes based
on the premise that they are attempts by ideologues to silence their political
opponents)
- 1.First, it is not true that all speech code advocates are ideologues hell bent
on silencing opponents
- The intention of some opponents is to design a policy that is faithful to
free speech and equal opportunity, not censorship
- 2.This political correctness objection also fails b/c it’s an ad hominem
fallacy: it attacks the arguer not the argument
- If a position is to be rejected, it must be because it fails to give
compelling arguments for the position, not because the arguer is
unlikable
, - 3.This objection also fails because is moves the debate down to a purely
political one that largely abandons a conversation based on shared
democratic value
- 4.The danger inherent in this p.c. objection is that it is too often used to try to
prevent reflection about issue by reducing one’s opponent to a caricature
- He also wants to caution against the idea that the speech code debate is over
- One might think that it’s over based on cases like Doe v. University of
Michigan (a court struck down the university’s code when a graduate student
argued that it violated the 1st amendment) and Robert Corry et al. v. Leland
Stanford Junior University (case in which the court struck down Stanford’s
code when it was challenged by 9 students who argued that the code
damaged the quality of education)
- 1.This assumption fails because it ignores the fact that what was once
protected may not be protected in the future what was is unprotected today
may well be in the future
- For example, words the court is unconcerned with in peacetime may
concern it in times of war
- 2.This assumption also fails because it fails to recognize a new argument in
favor of speech codes: the hostile environment argument beginning with
Rogers v. EEOC
- Here courts have been holding employers/schools liable for damages
when students/employees suIer from a hostile environment
- This approach has been upheld by SCOTUS in Meritor Savings Bank,
FSB v. Vinson and Harris v. Forklift Systems
- So, even if courts struck down earlier codes relying on free speech
doctrines, they left open the door for upholding codes using the
hostile environment approach
- Critics maintain this new approach is just as bad an inconsistent with the
first amendment as traditional libel and emotional distress arguments
- Finally, the law is always changing for better or worse in response to social pressure,
political pressure, and technology
- Also, free speech laws vary with place: speech laws in the street and dorm will vary
because of privacy implications
, Chapter 2
Introduction
- University of Michigan Case
- In response to racist incident at UMich, the university drafted a code with three tiers:
tier 1 consisted of student newspapers that were exempt from the code; tier 2
consisted of the public parts of the university and here only regulations on physical
violence and property destruction applied
- Tier 3 consisted of educational and academic centers and here you could be
subject to discipline for:
- Any behavior that stigmatizes or victimizes someone on the basis of race,
ethnicity, religion, etc.
- Behavior that include threats to someone’s participation in university EC’s or
their personal safety
- Creates an intimidating environment for educational pursuits, employment,
or participation
- Sexual advances/requests that stigmatize or victimize an individual on the
basis of sex or orientation
- The code also included an interpretive guide which provided examples of
sanctionable conduct: a flier with racists threats, racists graIiti, male student
leaving porn on the desk of a female student, etc.
- Three complaints were filed:
- Grad student for stating his belief that homosexuality is a disorder for
treatment may be given; for reading a limerick making fun of an athlete’s
orientation, and something else
- University of Wisconsin Case
- The code stated that for speech to be sanctioned under it, the expression had to be
racist, discriminatory, demeaning to race, sex, religion, color, etc. and create an
intimidating, hostile or demeaning environment for education, work, or EC’s
- According to one members of the UW system (Hodulik), the low number of
complaints filed under the code, the high number of dismissals, and the egregious
nature of the sanctioned speech indicates that there was no widespread hindering
of the first amendment
Argument 1 in Favor of Codes: Deterrence Argument
- Campus hate speech causes serious harms that constitute a violation of the
Fourteenth Amendment's equal rights protections
Course Year: 2023
,Chapter 1
Freedom and Equality
- Advocates of speech codes arguments in favor of their position
- 1. Hate speech can cause fear in the gut, diIiculty in breathing, nightmares,
PTSD, and hypertension among those who experience it
- The seriousness of these harms has led many to believe that hate
speech violates the equal protection clause and the Civil Rights Act
- 2. They see speech codes as a tool to help minorities attain equal access to
and equal opportunities in higher education
- Advocates against speech codes argument defending their position
- 1. Speech codes violate the first Amendment right to free speech; they
acknowledge the damage hate speech can cause but refuse to sacrifice free
speech
- They worry that these codes are too sweeping and that enforces will
abuse their authority
- 2. They also believe that racial and sexual equality are enhanced through free
speech because those who argue for their rights are often minorities whose
speech may not be protected if the government silences those who oIend
the majority (e.g. suIragettes oIending male voters in the 19th century)
- Speech codes raise a few questions such as should universities allow full freedom
of expression? If codes are adopted, what should be forbidden and why?
Some Cautionary Notes
- Caution against the political correctness objection (rejecting speech codes based
on the premise that they are attempts by ideologues to silence their political
opponents)
- 1.First, it is not true that all speech code advocates are ideologues hell bent
on silencing opponents
- The intention of some opponents is to design a policy that is faithful to
free speech and equal opportunity, not censorship
- 2.This political correctness objection also fails b/c it’s an ad hominem
fallacy: it attacks the arguer not the argument
- If a position is to be rejected, it must be because it fails to give
compelling arguments for the position, not because the arguer is
unlikable
, - 3.This objection also fails because is moves the debate down to a purely
political one that largely abandons a conversation based on shared
democratic value
- 4.The danger inherent in this p.c. objection is that it is too often used to try to
prevent reflection about issue by reducing one’s opponent to a caricature
- He also wants to caution against the idea that the speech code debate is over
- One might think that it’s over based on cases like Doe v. University of
Michigan (a court struck down the university’s code when a graduate student
argued that it violated the 1st amendment) and Robert Corry et al. v. Leland
Stanford Junior University (case in which the court struck down Stanford’s
code when it was challenged by 9 students who argued that the code
damaged the quality of education)
- 1.This assumption fails because it ignores the fact that what was once
protected may not be protected in the future what was is unprotected today
may well be in the future
- For example, words the court is unconcerned with in peacetime may
concern it in times of war
- 2.This assumption also fails because it fails to recognize a new argument in
favor of speech codes: the hostile environment argument beginning with
Rogers v. EEOC
- Here courts have been holding employers/schools liable for damages
when students/employees suIer from a hostile environment
- This approach has been upheld by SCOTUS in Meritor Savings Bank,
FSB v. Vinson and Harris v. Forklift Systems
- So, even if courts struck down earlier codes relying on free speech
doctrines, they left open the door for upholding codes using the
hostile environment approach
- Critics maintain this new approach is just as bad an inconsistent with the
first amendment as traditional libel and emotional distress arguments
- Finally, the law is always changing for better or worse in response to social pressure,
political pressure, and technology
- Also, free speech laws vary with place: speech laws in the street and dorm will vary
because of privacy implications
, Chapter 2
Introduction
- University of Michigan Case
- In response to racist incident at UMich, the university drafted a code with three tiers:
tier 1 consisted of student newspapers that were exempt from the code; tier 2
consisted of the public parts of the university and here only regulations on physical
violence and property destruction applied
- Tier 3 consisted of educational and academic centers and here you could be
subject to discipline for:
- Any behavior that stigmatizes or victimizes someone on the basis of race,
ethnicity, religion, etc.
- Behavior that include threats to someone’s participation in university EC’s or
their personal safety
- Creates an intimidating environment for educational pursuits, employment,
or participation
- Sexual advances/requests that stigmatize or victimize an individual on the
basis of sex or orientation
- The code also included an interpretive guide which provided examples of
sanctionable conduct: a flier with racists threats, racists graIiti, male student
leaving porn on the desk of a female student, etc.
- Three complaints were filed:
- Grad student for stating his belief that homosexuality is a disorder for
treatment may be given; for reading a limerick making fun of an athlete’s
orientation, and something else
- University of Wisconsin Case
- The code stated that for speech to be sanctioned under it, the expression had to be
racist, discriminatory, demeaning to race, sex, religion, color, etc. and create an
intimidating, hostile or demeaning environment for education, work, or EC’s
- According to one members of the UW system (Hodulik), the low number of
complaints filed under the code, the high number of dismissals, and the egregious
nature of the sanctioned speech indicates that there was no widespread hindering
of the first amendment
Argument 1 in Favor of Codes: Deterrence Argument
- Campus hate speech causes serious harms that constitute a violation of the
Fourteenth Amendment's equal rights protections
