Speak No Evil: The Triumph of Hate Speech Regulation

Vol. 15 No.9 (September 2005), pp.857-862

SPEAK NO EVIL: THE TRIUMPH OF HATE SPEECH REGULATION, by Jon B. Gould. Chicago: University of Chicago Press, 2005. 224pp. Cloth. $48.00. ISBN: 0-226-30553-8. Paper. $19.00. ISBN: 0-226-30554-6

Reviewed by Brian Pinaire, Department of Political Science, Lehigh University. Email: bkp2 [at] lehigh.edu

Jon Gould, Assistant Director of the Administration of Justice Program and Assistant Professor in the Department of Public and International Affairs at George Mason University, has written an important and much needed new book. Although previous work on the topic of campus hate speech codes (e.g. Milton Heumann’s and Thomas Church’s excellent HATE SPEECH ON CAMPUS) has addressed the basic contours of the debate and provided intriguing case studies, Gould’s work is the first to systematically address the phenomenon of campus speech codes on a national level, with particular attention to tracing the roots, resilience, and importantly, the resistance of such policies in institutions of American higher education. Readable, balanced, free of jargon, and comprehensive in scope, this book is a must read for scholars of the First Amendment and legal mobilization and is sufficiently accessible for use in upper level undergraduate courses in civil liberties and law and society.

In this work, Gould asks several questions: Why, he wonders, did hate speech regulation emerge in the late 1980s? And why did it arise within those institutions – colleges and universities – most intimately attached to principles of open expression and academic freedom? Moreover, how is it that prohibitions on hate speech have become the norm, rather than an outlier in our society – even in apparent defiance of the putative power of authoritative legal institutions? Finally, what has this process taught us generally about the basis for constitutional law and the place of free expression in our society?

Such questions, and Gould’s empirically rich answers, force us to think beyond what he labels the “conventional story of modern hate speech regulation.” This story, he rightly observes, is the product of anecdote and the hyperbolic accounts of opponents of speech codes (e.g. Dinesh D’Souza or David Horowitz) who “decry a vast movement of political correctness in which a postmodern army of liberal academics arose to advance their political manifesto on as many college campuses as possible.” Indeed, he notes, filling out the account of the conventional wisdom on such regulation,

opponents have largely viewed the speech codes through the rubric of political mobilization. A cohort of liberal academicians—those raised on the civil rights and women’s rights movements—were said to be extending the civil rights laws by punishing discriminatory words as well as deeds. However, because their views had little support in the political or legal processes of the Reagan administration, activists allegedly retreated behind the gates of their ivory towers to enact on campuses what they could not [*858] accomplish in wider society. Indeed, most descriptions of the hate speech “movement” reflect concern that a rising “totalitarian mindset” on campus would spill over into larger society and champion politically correct dogma. (p.3)

And yet the problem with this account, despite the ease with which it might be uttered on talk radio or other such outlets, is that it is, quite simply, wrong. The actual genesis of hate speech regulation is more complex and involves a wider range of motives, actors, and interests than is depicted by such a facile account.

In fact, what Gould finds through his quantitative study at a random sample of 100 colleges and universities and qualitative investigation involving in-depth interviews and archival research, is that there are actually three distinct motives for the speech codes extant in higher education today. First and foremost, Gould demonstrates, while “[i]n each case relativist or multicultural theory spurred the speech policies, . . . the pivotal actors were top collegiate administrators acting on instrumental motives,” motives which often appeared to be symbolic offerings of appeasement in the wake of a racial incident on campus (p.5). A second motive implicates what Gould refers to as “normative isomorphism,” or the “academic version of ‘keeping up with the Joneses,’” whereby codes were crafted as a response to a kind of institutional peer pressure within mainstream higher education. Finally, Gould found that at a smaller number of schools, speech regulations were crafted by student services administrators who genuinely supported the institution of such policies. This final group, he offers, is probably the closest to the traditional explanation put forth by speech code opponents, but it both constitutes a small percentage of schools and more importantly was the function of administrative, not student or faculty-activist, efforts. If anything, Gould notes, “minority groups on campus were largely agitating for more tangible measures, including increased minority hiring and additional funding for scholarships, fellowships, and salaries,” while “[f]ew were outspoken advocates for hate speech policies” (p.5).

In making this argument, the book includes an Introduction, six chapters, and an Appendix detailing the research methods employed. Following an Introduction wherein he outlines his central claims and the significance of his conclusions, Gould offers the reader a history of contemporary hate speech regulation. Chapter 1 begins with an astute conceptual unpacking of both “hate” and “speech,” as they are employed in this discussion, and then reviews the fate of hate speech in the courts and the rise of college hate speech codes. He then proceeds with a helpful overview and reminder of some of the more prominent racial incidents on American campuses in the late 1980s and early 1990s, including a discussion of the backlash by campus conservatives, a review of the larger national political trends fostering resentment by whites and the campaigns that fed their animus (e.g. the Willie Horton ads, David Duke’s candidacy in Louisiana), the increased attention paid to multiculturalism on campuses and the growth of critical race studies as an academic movement, and finally an acknowledgement of the strange bedfellows (e.g. the Left/liberal split and [*859] the ACLU’s ideological alliance with conservative groups) that kept comfort with each other while these battles were being waged in the courts of law and public opinion. Putting this all together and forecasting much of the argument to come, Gould announces that, despite the ostensible setbacks, “[h]ate speech not only lives, it has triumphed” (p.41). That is, despite its apparent defeat and unconstitutional status, colleges have ignored, side-stepped, or resisted judicial opinions. In the process, these policies have “taken on a larger meaning, creating symbolic rights that have filtered out to society as a whole” (p.41), thus surpassing the “wildest fears of its opponents” and becoming “an accepted norm in American society” (p.6).

Chapter 2 addresses the “theoretical implications” of this research and situates the previous chapter’s historical schema within the larger scholarly debate over the nature, distinctions, and interactions between law, legal rules, and social norms. After discussing the “social construction of free speech law,” Gould engages the primary theme of this chapter: the “practical understanding and popular meaning of constitutional norms in civil society” (p.43). An appreciation for such norms – comprising what he generally refers to as “mass constitutionalism” (as distinguished from its counterpart, the “formal Constitution”) – apprises us of the myriad ways that legal concepts, values, and rules are reinterpreted, rearticulated, and reengineered outside the formal mechanisms of the law (i.e., courts). Such an argument, drawing upon the work of Gerald Rosenberg (THE HOLLOW HOPE), Patricia Ewick and Susan Silbey (THE COMMON PLACE OF LAW), and Stuart Scheingold (THE POLITICS OF RIGHTS), among others, does not necessarily disparage courts as agents of social change; rather, it contends, for example, that the broader exercise of constitutional construction “occurs within civil society as a whole, particularly among influential, nongovernmental institutions” (p.51).

An enterprise of “legal meaning-making” of this sort acknowledges the power of courts, but it also looks to social understandings and cultural practices for insight. It takes seriously the realities of noncompliance with court rulings, and it acknowledges that a range of actors and “societal consensus” (p.65) have the power to shape the impact of judicial determinations. Gould concludes the chapter by presenting an intriguing model – a series of concentric circles – portraying the relationship between formal law and social pressure, and he introduces the concept of “extra-judicial legal mobilization” (EJLM), a kind of activism that blends elements of both legal mobilization and traditional political activism, but which addresses itself more to “attitudes and behavior than it does the formal law” (p.71). Such mobilization, which he admits is more of a “mind meld” (“reflecting contemporaneous, collective beliefs and action or advocacy to advance legal change” (p.71)) is well-suited for nascent movements when those dissatisfied with law or social structures are just beginning to organize and connect with one another, as well as efforts within civil society designed to shape public opinion or overcome the power of official institutions.

In Chapter 3 Gould discusses the rise of hate speech codes. Here, he presents in [*860] more detail his research methods and offers his primary response to the critics’ contention that speech codes were the function of organized leftist activism on campus, motivated by identity politics, bent on thought control through speech regulations, and utilizing a version of the mobilization model (EJLM) sketched out in the preceding chapter. Using a random, stratified sample of 100 four-year schools, Gould finds that nearly one-third of American colleges and universities adopted a hate speech code – categorized according to the type of policy instituted – between 1987 and 1992. Pressing further, Gould finds, through various quantitative methods, that two factors are consistently connected to hate speech codes: a school’s prestige and prior anti-apartheid activism (p.86). But, Gould wonders, is this causation or correlation? Does prior activism on campus pertaining to global political injustices constitute a “movement” or “mobilization” for restrictions on speech deemed offensive to groups based on immutable or other characteristics? As a college football guru is wont to say, “Not so fast!”

The real story is to be found in the qualitative research that complements the regressions. In a series of eight case studies (five of which are discussed pseudonymously), Gould looks to archival research and utilizes interviews with officials in administration in order to chart the course of development of such policies at these academic institutions. What he finds, as alluded to above, is that “speech codes were advanced by college administrators, top-level officials at that, who were largely acting on utilitarian or instrumental motives” (p.89), perhaps to diffuse unrest or respond to specific incidents – on their own and, significantly, on other campuses; possibly to ameliorate key alumni; quite often to walk in step with the decisions of other (elite) institutions; and even as a calculated effort to proactively discourage racial problems from developing. Moreover, far from the purported organized efforts at thought control, administrators often did not even necessarily view their policies as “speech” codes (preferring to view them as encouraging “civility” on campus), or they never really intended to enforce the policies – enacting them purely for symbolic purposes.

Chapter 4 takes up the fate of hate speech policies in the courts and offers an enlightening contrast to the fate of sexual harassment policies, ultimately concluding that, while the two domains of law are analogous, the courts’ disjointed treatment of the two is primarily due to the “political, social, and cultural pressures that face judges” (p.123). With an initial overview of the fate of both campus speech codes and sexual harassment claims in the courts, Gould discusses the four traditional theories set forth to explain the disparity (colleges exceeded the reach of their policies in enforcing them; the speech/act distinction in the law; the difference between employment and educational settings; and the heightened importance of speech in academic environments).

Finding none of these to be compelling, he offers his own alternatives to explain the inconsistency between racist and sexist speech, suggesting first that the more energetic and organized support for sexual harassment policies may have influenced their outcomes in court. Second, he proposes that the framing of [*861] these codes as issues implicating “freedom of speech” (as opposed to “antidiscrimination” or “equality”) may have sealed their fate. Moreover, and regarding the third alternative explanation, there is a long history of restrictions against sexuality in American culture and thus this frame trumps what might plausibly have been a counterclaim of “free expression” by alleged offenders.

In Chapter 5, Gould reminds us of an all-too-often-forgotten reality: court rulings are not self-enacting or enforcing and social and political actors are often noncompliant or even, as is the case here, outright subversive, as in the decision by colleges and universities to make their policies more – not less – restrictive in the wake of court rulings finding them offensive of the First Amendment. In fact, by 1997 nearly one-half of American institutions of higher education had hate speech policies – an increase of nearly 30% since 1992 when the Supreme Court addressed the issue, while only 2% removed offending policies during this period. Moreover, the number of schools that outright banned offensive speech – the most constitutionally suspect policy – tripled during this period, a phenomenon observable in both public and private institutions. Noncompliance might have taken a more passive form – wherein officials kept the policies in place for utilitarian reasons (ease, symbolism, unlikely potential for court challenge) – or a more active form, wherein college officials either attempted to maneuver around court opinions or endeavored to redefine the meaning of the very constitutional norm invoked to prohibit the speech policies.

Chapter 6 concludes with a broader look at how the debates on college campuses have extended to civil society generally. For Gould, this demonstrates the power of informal law and the effects of mass constitutionalism, as public opinion has come to support such policies and other institutions (e.g. the news media and internet service providers) have now also subscribed to the tenets and precepts animating speech codes – meaning in the end that “[t]he triumph of hate speech regulation . . . is the success of a competing legal system in the face of formal law” (p.187).

Such a thought-provoking and insightful account raises a few questions in closing. First, while I too rely on interviewing as a research method, it is always possible that your subjects are telling you what you seem to want to hear. Gould did triangulate his approach with various methods in order to confirm interview findings, but in talking to university officials, one would not necessarily expect them to admit to being steamrolled into speech policies by activist pressure groups on campus. Any college administrator with a sizable ego – which, by my count, would be approximately all of them – would likely insist that they were in charge of events and were channeling energies on campus at all times. College presidents, in other words, are likely the same as American presidents and would be expected to claim credit for anything that could potentially be construed as responsible, courageous, visionary, trail-blazing, or even sensitive – after the fact.

Second, I wondered about the exact nature of the critics’ claims of organized activist pressure. To be sure, there is some rhetorical value to imprecision in [*862] such accusations of “bias,” “thought control,” and the like; but I wonder whether those sounding such a call really envision localized, tangible pressure groups on individual campuses, or whether they actually have in mind some kind of amorphous national conspiracy of politically correct energies that finds university codes of conduct as its only outlet. Throughout the book, Gould rightly wonders who these activists are to which critics attribute this mobilized energy for speech codes. This makes me wonder, as well – who do they really think is responsible for these policies? Do they actually believe that campus radicals pressed for such policies, or does that just make for a compelling sound-bite (like the “liberal media”) that is not easily subject to disconfirmation?

Finally, I was left curious as to the process for how the conventional (mis)understanding of the origins of hate speech codes came to be, at least, the temporarily dominant narrative. Gould does a fantastic job of debunking such assertions – and yet they are hard to dislodge. Why? Are the critics so adept at manipulating the media or controlling outlets of communication? (Here a link might be made to William Haltom and Michael McCann’s excellent analysis in DISTORTING THE LAW.) Is there some ironic twist on Gould’s theory of “mass constitutionalism” that allows the critics to persuade the public to accept myths, rumors, and canards over facts? Hate speech regulation may have triumphed, as Gould persuasively argues, but why is it that the critics’ account of the origins of such regulations has triumphed? Such questions may not be answerable, but at least SPEAK NO EVIL provides a place to start this important discussion.

REFERENCES:

Ewick, Patricia, and Susan Silbey. 1998. THE COMMON PLACE OF LAW. Chicago: University of Chicago Press.

Haltom, William, and Michael McCann. 2004. DISTORTING THE LAW. Chicago: University of Chicago Press.

Heumann, Milton, and Thomas Church, with David Redlawsk (eds). 1997. HATE SPEECH ON CAMPUS. Boston: Northeastern University Press.

Rosenberg, Gerald. 1991. THE HOLLOW HOPE. Chicago: University of Chicago Press.

Scheingold, Stuart. 1974. THE POLITICS OF RIGHTS. New Haven: Yale University Press.

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