Speech code

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A speech code is any rule or regulation that limits, restricts, or bans speech beyond the strict legal limitations upon freedom of speech or press found in the legal definitions of harassment, slander, libel, and fighting words. Such codes are common in the workplace, in universities, [1] and in private organizations. The term may be applied to regulations that do not explicitly prohibit particular words or sentences. Speech codes are often applied for the purpose of suppressing hate speech or forms of social discourse thought to be disagreeable to the implementers.

Contents

Use of the term is in many cases valuable; those opposing a particular regulation may refer to it as a speech code, while supporters will prefer to describe it as, for example and depending on the circumstances, a harassment policy. This is particularly the case in academic contexts. [2]

Banned word

A banned word is one whose use is prohibited by law or culture or organization policy. An example would be the Ban Bossy campaign. Lake Superior State University publishes an annual list of words that are banned because of misuse. Some companies, such as Instagram, allow users to decide for themselves what words to ban from being used on their pages (e.g. in comments sections). Most often, banned words, or entire phrases, relate to Holocaust denial and racist or sexist speech. The most stringent of such policies may include a ban on anything deemed offensive, such as ridicule against another person.[ citation needed ]

United States universities

In the United States, the Supreme Court has not issued a direct ruling on whether speech codes are unconstitutional, but has ruled against their implementation within public universities. [3] However, the United States District Court for the Eastern District of Michigan has struck down a speech code at the University of Michigan, indicating that broad speech codes seeking to prohibit hate speech probably violate the First Amendment ( Doe v. University of Michigan, 1989). Subsequent challenges against such language as part of harassment policies, diversity mandates, and so forth instead of being self-identified as speech codes have generally succeeded to date. Nadine Strossen writes that in the 1980s, when the ACLU sued on the matter, "hate speech" codes were invariably struck down as unduly vague and overbroad (a key constitutional criterion [4] ), and all subsequent codes directed against specific viewpoints would fail under the same standard. [5]

One web site describes behavior that speech codes are meant to prevent:

Discriminatory harassment includes conduct (oral, written, graphic or physical) directed against any person or, group of persons because of their race, color, national origin, religion, sex, sexual orientation, age, disability, or veteran's status and that has the purpose or reasonably foreseeable effect of creating an offensive, demeaning, intimidating, or hostile environment for that person or group of persons. [1]

Today, most talk of speech codes is within institutional contexts and refer to colleges and refers to official lists and rules established by authorities, where speech codes are occasionally used by colleges and universities to suppress speech that others find offensive. Alan Charles Kors and Harvey Silverglate, in their work The Shadow University, published in 1998, refer to a number of cases in which speech codes have been used by public and private universities to suppress academic freedom, as well as the freedom of speech, and deny due process of law (for public institutions), or violate explicit and implicit guarantees of fairness declared or implied in a student's contract of enrollment or a faculty member's contract of employment with the institution of higher education in question (at private institutions [lower-alpha 1] ). [6]

One particular case, the University of Pennsylvania "Water Buffalo" case, highlighted reasons for and against speech codes and is typical of such cases. In the University of Pennsylvania case, a freshman faced expulsion from that private school when he called African-American sorority members who were making substantial amounts of noise and disturbing his sleep during the middle of the night "water buffalo" (the charged student claimed not to intend discrimination, as the individual in question spoke the modern Hebrew language, and the term "water buffalo", or "behema", in modern Hebrew, is slang for a rude or an insulting person; moreover, water buffalo are native to Asia rather than Africa). Some saw the statement as racist while others simply saw it as a general insult. Questions were raised about how far was too far when interpreting and punishing statements like the one in question. The college eventually dropped the charges amid national criticism. [6] [7]

Purposes

There are two distinct reasons given for the implementation of speech codes, most often given in the context of higher education institutions. The first is as follows, "First, to protect vulnerable students from threatening, truly harassing speech that amounts to 'fighting words,' which are not protected by the First Amendment". [7]

The second reason is more abstract, leaving room for argument both for and against the reason. One author states, "Second, [speech codes] are linked to a broader ideological agenda designed to foster an egalitarian vision of social justice". [7] Because many institutions hold such a view in their mission statements, the justification for a policy in line with the views of the institution comes quite naturally. However, opponents of speech codes often maintain that any restriction on speech is a violation of the First Amendment. Because words and phrases typically belonging in the hate speech category could also be used in literature, quoted for socially acceptable purposes or used out loud as examples of what not to say in certain situations, it can be argued that the words and phrases have practical, intrinsic value and therefore should not be banned.

Criticisms of Speech Codes

According to one scholar, hate speech complaints are up on campuses everywhere, pressuring universities to create speech codes of their own. He states:

There were approximately 75 hate speech codes in place at U.S. colleges and universities in 1990; by 1991, the number grew to over 300. School administrators institute codes primarily to foster productive learning environments in the face of rising racially motivated and other offensive incidents on many campuses. According to a recent study, reports of campus harassment increased 400 percent between 1985 and 1990. Moreover, 80 percent of campus harassment incidents go unreported. [1]

Critics of speech codes such as the Foundation for Individual Rights in Education (FIRE) allege that speech codes are often not enforced impartially, but serve as a form of unconstitutional viewpoint discrimination, punishing those "whose speech does not meet their subjective standards of 'political correctness'", [8] and feel that "Progress [towards free speech rights] is endangered when schools attempt to use a charge of disruption as a pretext for censoring speech." [9] Many who argue against speech codes cite former Supreme Court justice Oliver Wendell Holmes Jr., believing that "The very aim and end of our institutions is just this: that we may think what we like and say what we think." [10]

As of 2021, 21.3% of 478 schools surveyed by the Foundation for Individual Rights in Education maintain at least one policy that is considered to substantially restrict freedom of speech. This number is slowly declining however, with 2021 being the thirteenth year in a row that the percentage of schools holding such policies has decreased. On the other end of it, the number of universities that are committed to protecting free speech continues to go up, with 76 universities committing to this belief by 2021. [11]

See also

Bibliography

Notes

  1. ↑ For example, if a private institution declares or implies that their code of conduct will treat those subject to it fairly, then a court will require an institution to uphold their promises of fairness, under the implied covenant of good faith and fair dealing, even if the institution disclaims that it is a contract. Contrary to this, if an institution openly, willingly, and publicly declares their code of conduct is completely arbitrary and capricious, and discipline is carried out at the slightest whim of higher authorities, then no court will inquire as to how they conduct their business.

Related Research Articles

Hate speech is defined by the Cambridge Dictionary as "public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation". Hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, colour, national origin, sex, disability, religion, or sexual orientation". Legal definitions of hate speech vary from country to country.

<span class="mw-page-title-main">Foundation for Individual Rights and Expression</span> American free speech organization

The Foundation for Individual Rights and Expression (FIRE), formerly known as the Foundation for Individual Rights in Education, is a non-profit civil liberties group founded in 1999 with the stated mission of protecting free speech rights on college campuses in the United States. FIRE was renamed in June 2022, with its focus broadened to speech rights in American society in general.

Free speech zones are areas set aside in public places for the purpose of political protesting. The First Amendment to the United States Constitution states that "Congress shall make no law ... abridging ... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The existence of free speech zones is based on U.S. court decisions stipulating that the government may reasonably regulate the time, place, and manner – but not content – of expression.

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), was a landmark decision by the United States Supreme Court that defined First Amendment rights of students in U.S. public schools. The Tinker test, also known as the "substantial disruption" test, is still used by courts today to determine whether a school's interest to prevent disruption infringes upon students' First Amendment rights.

<span class="mw-page-title-main">Nadine Strossen</span> American civil liberties activist (born 1950)

Nadine Strossen is an American civil liberties activist who was president of the American Civil Liberties Union (ACLU) from February 1991 to October 2008. A liberal feminist, she was the first woman to lead the ACLU. A professor at New York Law School, Strossen is a member of the Council on Foreign Relations and other professional organizations.

<span class="mw-page-title-main">Freedom of speech in the United States</span>

In the United States, freedom of speech and expression is strongly protected from government restrictions by the First Amendment to the U.S. Constitution, many state constitutions, and state and federal laws. Freedom of speech, also called free speech, means the free and public expression of opinions without censorship, interference and restraint by the government. The term "freedom of speech" embedded in the First Amendment encompasses the decision what to say as well as what not to say. The Supreme Court of the United States has recognized several categories of speech that are given lesser or no protection by the First Amendment and has recognized that governments may enact reasonable time, place, or manner restrictions on speech. The First Amendment's constitutional right of free speech, which is applicable to state and local governments under the incorporation doctrine, prevents only government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are acting on behalf of the government. However, It can be restricted by time, place and manner in limited circumstances. Some laws may restrict the ability of private businesses and individuals from restricting the speech of others, such as employment laws that restrict employers' ability to prevent employees from disclosing their salary to coworkers or attempting to organize a labor union.

The marketplace of ideas is a rationale for freedom of expression based on an analogy to the economic concept of a free market. The marketplace of ideas holds that the truth will emerge from the competition of ideas in free, transparent public discourse and concludes that ideas and ideologies will be culled according to their superiority or inferiority and widespread acceptance among the population. The concept is often applied to discussions of patent law as well as freedom of the press and the responsibilities of the media in a liberal democracy.

National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977), arising out of what is sometimes referred to as the Skokie Affair, was a landmark decision of the US Supreme Court dealing with freedom of speech and freedom of assembly. This case is considered a "classic" free speech case in constitutional law classes. Related court decisions are captioned Skokie v. NSPA, Collin v. Smith, and Smith v. Collin. The Supreme Court ruled 5–4, per curiam. The Supreme Court's 1977 ruling granted certiorari and reversed and remanded the Illinois Supreme Court's denial to lift the lower court's injunction on the NSPA's march. In other words: the courts decided a person's assertion that speech is being restrained must be reviewed immediately by the judiciary. By requiring the state court to consider the neo-Nazis' appeal without delay, the U.S. Supreme Court decision opened the door to allowing the National Socialist Party of America to march.

<span class="mw-page-title-main">Legality of Holocaust denial</span> Laws against Holocaust denial

Sixteen European countries, along with Canada and Israel, have laws against Holocaust denial, the denial of the systematic genocidal killing of approximately six million Jews in Europe by Nazi Germany in the 1930s and 1940s. Many countries also have broader laws that criminalize genocide denial. Among the countries that ban Holocaust denial, Austria, Germany, Hungary, Poland and Romania also ban other elements associated with Nazism, such as the display of Nazi symbols.

<span class="mw-page-title-main">Safe space</span> Socially safe zone for communication

The term safe space refers to places "intended to be free of bias, conflict, criticism, or potentially threatening actions, ideas, or conversations". The term originated in LGBT culture, but has since expanded to include any place where a marginalized minority can come together to communicate regarding their shared experiences. Safe spaces are most commonly located on university campuses in the western world, but also are at workplaces, as in the case of Nokia.

<span class="mw-page-title-main">Freedom of speech by country</span>

Freedom of speech is the concept of the inherent human right to voice one's opinion publicly without fear of government censorship or punishment. "Speech" is not limited to public speaking and is generally taken to include other forms of expression. The right is preserved in the United Nations Universal Declaration of Human Rights and is granted formal recognition by the laws of most nations. Nonetheless, the degree to which the right is upheld in practice varies greatly from one nation to another. In many nations, particularly those with authoritarian forms of government, overt government censorship is enforced. Censorship has also been claimed to occur in other forms and there are different approaches to issues such as hate speech, obscenity, and defamation laws.

Speech crimes are certain kinds of speech that are criminalized by promulgated laws or rules. Criminal speech is a direct preemptive restriction on freedom of speech, and the broader concept of freedom of expression.

The hate speech laws in Australia give redress to someone who is the victim of discrimination, vilification, or injury on grounds that differ from one jurisdiction to another. All Australian jurisdictions give redress when a person is victimised on account of colour, ethnicity, national origin, or race. Some jurisdictions give redress when a person is victimised on account of colour, ethnic origin, religion, disability, gender identity, HIV/AIDS status or sexual orientation.

Cyberstalking and cyberbullying are relatively new phenomena, but that does not mean that crimes committed through the network are not punishable under legislation drafted for that purpose. Although there are often existing laws that prohibit stalking or harassment in a general sense, legislators sometimes believe that such laws are inadequate or do not go far enough, and thus bring forward new legislation to address this perceived shortcoming. In the United States, for example, nearly every state has laws that address cyberstalking, cyberbullying, or both.

<span class="mw-page-title-main">Freedom of expression in Canada</span>

Freedom of expression in Canada is protected as a "fundamental freedom" by section 2 of the Canadian Charter of Rights and Freedoms, however, in practice the Charter permits the government to enforce "reasonable" limits censoring speech. Hate speech, obscenity, and defamation are common categories of restricted speech in Canada. During the 1970 October Crisis, the War Measures Act was used to limit speech from the militant political opposition.

United States obscenity law deals with the regulation or suppression of what is considered obscenity and therefore not protected speech under the First Amendment to the United States Constitution. In the United States, discussion of obscenity typically relates to defining what pornography is obscene, as well as to issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. State laws operate only within the jurisdiction of each state, and there are differences among such laws. Federal statutes ban obscenity and child pornography produced with real children. Federal law also bans broadcasting of "indecent" material during specified hours.

Hate speech in the United States cannot be directly regulated by the government due to the fundamental right to freedom of speech protected by the Constitution. While "hate speech" is not a legal term in the United States, the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment. In a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment and that the U.S. government may not discriminate against speech on the basis of the speaker's viewpoint.

Online hate speech is a type of speech that takes place online with the purpose of attacking a person or a group based on their race, religion, ethnic origin, sexual orientation, disability, and/or gender. Online hate speech is not easily defined, but can be recognized by the degrading or dehumanizing function it serves.

<span class="mw-page-title-main">Deplatforming</span> Administrative or political action to deny access to a platform to express opinions

Deplatforming, also known as no-platforming, has been defined as an "attempt to boycott a group or individual through removing the platforms used to share information or ideas", or "the action or practice of preventing someone holding views regarded as unacceptable or offensive from contributing to a forum or debate, especially by blocking them on a particular website."

Hate speech is public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation. Hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, colour, national origin, sex, disability, religion, or sexual orientation".

References

  1. 1 2 3 Uelmen, Gerald (1992). The Price of Free Speech: Campus Hate Speech Codes. *Issues in Ethics - V. 5, N. 2, Summer 1992. Murkkula Center For Applied Ethics.
  2. ↑ "Free speech on campus", Speak Freely, Princeton: Princeton University Press, pp. 51–160, 2018-12-31, doi:10.23943/9781400889884-005, ISBN   978-1-4008-8988-4, S2CID   239434908 , retrieved 2020-12-06
  3. ↑ University, Santa Clara. "Campus Hate Speech Codes". www.scu.edu. Retrieved 2021-09-21.
  4. ↑ "Modern Tests and Standards: Vagueness, Overbreadth, Strict Scrutiny, Intermediate Scrutiny, and Effectiveness of Speech Restrictions". LII / Legal Information Institute. Retrieved 2021-04-19.
  5. ↑ Strossen, Nadine (2018). Hate: why we should resist it with free speech, not censorship. New York, NY. ISBN   978-0-19-085912-1. OL   26883438M.
  6. 1 2 Kors, Alan Charles; Silverglate, Harvey A. (October 2, 1998). The SHADOW UNIVERSITY: The Betrayal of Liberty on America's Campuses. Free Press. ISBN   9780684853215.
  7. 1 2 3 Downs, Donald (1993). Codes say darnedest things. Quill; Vol. 81 Issue 8, p19, October.
  8. ↑ "FIRE Letter to California Polytechnic State University President Warren J. Baker". 6 May 2009.
  9. ↑ "Major Victory for Free Speech at Cal Poly". 6 May 2004.
  10. ↑ University, Santa Clara. "Campus Hate Speech Codes". www.scu.edu. Retrieved 2021-09-21.
  11. ↑ "Spotlight on Speech Codes 2021". FIRE. Retrieved 2021-09-21.
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