Tolerance now means symbolic rules that cannot be enforced

Our very own Laura Beth Nielsen provided lots of useful information for my Daily column this week on NU’s speech codes. (This quarter, I’ll be in The Daily every Monday.) I would be interested to hear your feedback on the piece.

I’ve worked at The Daily before, back in spring and fall of 2006, when I served as public editor (more commonly known as ombudsman). In that position, I was allotted 650 words for biweekly columns on The Daily’s practices and ethics. Now I can write about whatever I want, but I’ve been cut down to 450 words, making nuance very difficult to include. In retrospect, I fear I bit off a bit more than I could chew with this piece, but the columnist opportunity will definitely provide a good exercise in brevity if there ever was one. 

Oh, also: Please don’t mind the mediocre headline. My editors and I will try to improve on that next week.

If the issue of campus speech codes interests you, Prof. Nielsen and I would recommend Jon B. Gould‘s “Speak No Evil: The Triumph of Hate Speech Regulation.” I found it fair, insightful and poignant, unlike a lot of the so-called analysis on this topic. I’ve taken out the NU library copy (muaha), but I’ll return it posthaste if you’d like to borrow it.


7 Responses to Tolerance now means symbolic rules that cannot be enforced

  1. laurabethnielsen says:

    Professor Nielsen really should get tenure before she goes around declaring NWU’s policies unconstitutional. Where is Jon Gould when you need him?

  2. laurabethnielsen says:

    OK, I have been asked OB (off-blog) why I think this policy is unconstitutional.

    First, ask me on the blog, JEFF!!

    Second, my official position is that, if challenged, I think the policy likely would be ruled unconstitutional both as a matter of current law and as a political matter regarding the compisition of the court.

    This is not to be confused with “do I think it is good to have this policy?” which is a different matter.

    Given Virginia v. Black, it would be easy to bring the policy into compliance by adding “when done with the intent to intimidate” to the language of the policy. David would still probably not like it (David?) but it would be more arguably constitutional.

    Also, the feds have found creative ways of inserting themselves onto private campuses even where there is no Leonard’s Law – in the area of human subjects for example. Also known as Institutional Review boards. Why do we (a private university) have to follow federal law in that area? because we accept federal grants. This is why Bob Jones University accepts nothing from the feds.

  3. jeffaregularworkinglawyer says:

    OK, LB, I’ll ASK YOU ON THE BLOG. Sheesh. And by the way, getting a user name from WordPress is a real pain in the ass. My password isn’t secure enough? Well, screw you.

    The learned California state court judge in the Corry v. Stanford case (which struck down the Stanford speech code strictly as a matter of state law — a state law that in effect said “a private university can’t regulate speech in a manner that would violate the First Amendment if done by a public university”) noted:

    The Supreme Court has declined to characterize private

    universities as state actors even though the “universities were

    publicly funded, publicly regulated, and performed a public function,

    and even though other nexus existed between the state and the

    university.” [Vince Herron, “Increasing the Speech: Diversity, Campus

    Speech Codes, and the Pursuit of Truth,” 67 S.Cal. Law Review, 407,

    citing Rendell-Baker v. Kohn (1982) 457 U.S. 830].

    Yup. Federal courts have enough to worry about with real state actors; no way would one stretch to find that Northwestern was acting under color of law if it enforced its speech code. The feds sometimes make federal funding or other benefits contingent on certain federal mandates — e.g., if you want federal cash for your state’s highways, you gotta set your speed limit at 55 (that got revoked). If you want your university to qualify as a tax-exempt organization, you can’t ban your students from dating a member of a different race (that’s what they got BJU for). And there’s this whole No Child stuff you may have read about. And I suppose, in some alternate universe, the feds could make federal funding for a university contingent upon it adopting a speech code (although it would have to be a code that did not violate First Amendment rights). But unless Illinois has a Leonard Law like California, Northwestern doesn’t have to worry about getting Corryed. So my question to you was not Why do you think Northwestern’s code is unconstitutional? My question was Does Illinois have a Leonard Law, or something like it, as you suggested? I’m too busy/lazy to look it up myself.

  4. jeffaregularworkinglawyer says:

    And by the way, young David, I agree with you that regulating intimidating effect is problematic. I can find a lot of stuff offensive, and I don’t have to work very hard these days to do it. Now ask yourself who would be looking into the souls of you or your fellow student to decide whether you intended to offend me. Are you confident that they would get the answer right? And if they didn’t, what appeal rights, if any, should you have?

  5. dspett says:

    I certainly have concerns about the state basing punishments on thoughts, motives or intentions. This method seems highly subjective, and I worry about regulating thoughts.

    That said, I certainly see a compelling interest in regulating intimidating speech at universities — and it does seem to make more sense to regulate the intent than the effect. People become offended, hurt and “intimidated” at the most absurd things. And going out with the purpose of intimidating others seems certain to harm others’ learning.

    Hypocritical, you say? Perhaps. I’m wrestling with this issue. I do wonder, though, if there might be a better way than any we’ve considered.

  6. laurabethnielsen says:

    I think Jeffaregularworkinglawyer (who I have NEVER heard say, “screw you” in real life) and David are in heated agreement on the merits. David doesn’t like the existence of it for precisely the reason you elaborate — who would decide “offense.”

    If NWU is a state actor it surely is unconstitutional, right? I mean, we all agree on that – right?. So this is all a state actor question? Jon?

  7. dspett says:

    According to the Student Press Law Center (, California is the only state that has a law extending the First Amendment to private institutions.

    Jon B. Gould’s book, “Speak No Evil: The Triumph of Hate Speech Regulation,” states the following: “As a matter of strict constitutional doctrine, of course, the cases are applicable only to public bodies (and, under the Leonard Law, to private schools in California as well) … I suppose there will even be those who claim that each of the lower court decisions applies only to its judicial district … These constructions, however, are overly narrow.”

    The ensuing sentences do not, however, elaborate on this point other than to say that RAV and Corry have relevance outside their jurisdictions. The book does, however, quote a few administrators who say they wouldn’t enforce their own school’s rules for fear of being sued.

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