If I Ran the Zoo XI

Harvey Silverglate

There’s a common misconception that when Shakespeare wrote in King Henry VI, Part 2, “The first thing we do, let’s kill all the lawyers,” it was meant as a hostile gesture to a now widely-reviled profession. In fact, the Bard considered the extinguishment of the lawyer class to be a prerequisite for tyranny. Lawyers were being cast in a favorable light.

As an attorney, I like to agree with Shakespeare’s favorable view of us as safeguards against tyranny. But, truth be told, on college campuses, the misinterpretation of Shakespeare’s quote is actually more appropriate. Lawyers have swarmed like locusts all over higher education, and they are perhaps the single most influential group when it comes to dictating the day-to-day policies and practices on college and university campuses that have helped destroy liberty. It is no mere coincidence that the General Counsel’s office can be found directly neighboring the Harvard President’s office in Massachusetts Hall. The lawyer is the president’s most important single advisor. The head of “development” is a close second. The academic provost is somewhere considerably further down on the pecking order.

Oh, sure, post-modernist intellectuals like Herbert Marcuse have tragically degraded due process and academic freedom in the name of assisting members of historically disadvantaged groups, and careerist higher education administrators who should know better have played along (even though I’ve never known a single one of them willing to relinquish his post to a deserving and talented minority group member). But this history is well known. (There is a full chapter devoted to the pernicious influence of Marcuse’s theories, in Alan Charles Kors and my 1998 book, The Shadow University: The Betrayal of Liberty on America’s Campuses, available in paperback from HarperPerennial.) But what is given too short shrift is that if we can just get rid (metaphorically speaking, of course!) of the lawyers, we can perhaps begin to make some important inroads in restoring free speech and academic freedom to our campuses.

Allow me to explain.

The term “harassment” has fairly clear legal definition that American courts inherited from the English common law. For mere speech to be considered harassment, it must be delivered in a threatening and intimidating manner, or in a manner so repetitive, intense, inappropriate and annoying that it is clearly designed to interfere with a person’s life rather than merely to convey a message of personal dislike (or, one supposes, overly-intense affection). The content of the speech itself is less relevant that the time, place and manner of the delivery of the message. Thus, holding a sign stating “spics go home” is constitutionally protected speech. But calling a Mexican-American household every night at 3 a.m. and saying the same thing is harassment. Similarly, saying something as innocent as “I love your blouse” could become harassment if done repeatedly in a manner that truly begins to interfere with the listener’s daily (or nightly) routines. Holding a “vote for” sign or placard in favor of a candidate for political office is constitutionally protected, but blaring pro-candidate political messages over a loudspeaker in a residential neighborhood in the middle of the night is harassment (or, on the broader societal level, the crime of disturbing the peace).

But on college campuses, postmodernists and their administrative descendants and operatives bandy about the word harassment with no regard for its legal definition and limitations. That definition is now so watered-down as to include all sorts of constitutionally protected speech that has the potential to insult, annoy, or even merely challenge the hyper-sensitive. There is a broad misunderstanding that any speech that upsets another person is, by definition, harassment. Recently, a student at Indiana University-Purdue University at Indianapolis was charged with harassment simply for reading a book about the history of the KKK (available in the library) in a public space where black students might walk by and notice the “offending” cover. At Tufts University, a conservative newspaper was found guilty of harassing Muslim classmates because the editors published an article that made factually true assertions about Islam’s less than admirable history. (The Muslim students could have fought back by distributing an article or two about the less-than-admirable history of the Crusades, but instead they complained about harassing “hate speech.”)

This is where the lawyers come in. Most general counsel are educated enough to realize that, under the law, calling such conduct “harassment” is a joke. But rather than dissuade faculty and administrators from manipulating the term in such a way, the armies of lawyers who populate our campuses (or, in some instances, higher education legal specialists who hold their perches in private law firms retained by college administrations) have encouraged the creation of “harassment codes” (né speech codes). Universities are urged – indeed, ordered – by their lawyers to bend over backwards in banning and punishing any speech that might offend someone and hence be deemed, even by the grossest stretch, to constitute “harassment.”

Lawyers do this because of the school’s bottom line (surprise, surprise). They believe that it is far more costly for the school, in terms of both money and reputation, to be sued by a student who feels that not enough was done to protect him or her from “harassment,” than to be sued by a student who feels that his or her free speech rights were violated, and so they err on the side of more censorship, not more freedom. “Risk reduction” is the name of the game. The lawyer feels that he is doing his job if he can prevent a lawsuit, even if the means of prevention betrays the university’s most fundamental mission – the pursuit of truth via the free marketplace of ideas.

I believe it is time for our colleges and universities to stop listening to their lawyers on issues of transcendent moral, educational, and pedagogical importance. When the lawyers say “don’t take a chance with free speech, because it might constitute harassment, or in any event it might get you a lawsuit,” the academy must simply ignore the advice and proceed to do its historic duty to protect the heart of the academic enterprise – the pursuit of truth and learning. If a few sensibilities and sensitivities get injured in the process, so be it. Over-sensitive individuals who choose to be involved in higher education will simply have to grin and bear it. Universities will have to instruct their lawyers to defend the academic enterprise, even in the face of threats of litigation. My prediction is that a principled defense of such speech would almost invariably prevail in court, since the law under the First Amendment, and the line drawn between free speech and true “harassment,” is actually far more favorable to academic freedom than most university lawyers will admit.

If the education lawyers don’t get the point that they are representing a very special client with a very special mission – the university, after all, is not just another run-of-the-mill manufacturer of widgets – then we’ll have to go back to King Henry VI, Part 2 – won’t we? If I ran the zoo, that’s precisely what I’d do – fire some of the lawyers and then open some of the cages currently housing the beleaguered residents.

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