[929] in Discussion of MIT-community interests
Re: What is the cost of academic and political freedom?
daemon@ATHENA.MIT.EDU (Paul D Elbourne)
Sun Oct 7 21:16:58 2001
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Date: Sun, 7 Oct 2001 21:14:58 -0400
Reply-To: "Documentation at http://web.mit.edu/beland/talk/talk.html"
<MIT-Talk@MIT.EDU>, Paul D Elbourne <elbourne@MIT.EDU>
From: Paul D Elbourne <elbourne@MIT.EDU>
To: MIT-Talk@MIT.EDU
In-Reply-To: Your message of "07 Oct 2001 17:05:00 EDT."
<uv6adz3p3er.fsf@suspiria.ai.mit.edu>
jhbrown@ai.mit.edu said:
> The right to free speech expressed in the first ammendment says that
> Congress may not pass laws abridging freedom of speech; it says
> *nothing* about the right of private institutions to hire or fire you
> on the basis of things you say or do. [...]
> don't try to bring the First Ammendment into it, as it simply doesn't
> apply.
Quite right. I did not claim or imply that speech at MIT is protected by the
First Amendment. It isn't. All I said was the following:
> If, like the drafters of the First Amendment, you think that the right to
> freedom of speech is a good thing, you should be keen to defend that right
I mentioned the First Amendment only to situate the ongoing discussion, in a
very obvious way, in the context of the great protections which are placed on
speech in the public arena in this country (at demonstrations, at public
universities, etc.). I think it's ironic and sad that there are more
restrictions placed on speech at some universities (private ones) than there
are in society at large (again, excluding private institutions, which can make
their own rules); and the reason it's ironic and sad, in my opinion, is that
universities, of all places, should be open to the free exchange of ideas
because of the very nature of their mission. That's all.
In case anyone's wondering what 'restrictions' I'm referring to, the recent
incident is one example of what can happen. But the formal restriction (or one
formal restriction) is the harassment code <http://web.mit.edu/communications/h
g/2.html#Heading3>:
> Harassment is any conduct, verbal or physical, on or off campus, that
> has the intent or effect of unreasonably interfering with an
> individual or group's educational or work performance at MIT or that
> creates an intimidating, hostile, or offensive educational, work, or
> living environment
Note first that 'verbal conduct' is just speech by another name, so this is in
effect a speech code. Now note the extreme vagueness as to what counts as
'offensive'. There are some clarifications on the web-page cited, but there is
still a range of behavior whose status is left in doubt, with the strong
implication that it could be counted as harassment. Examples from the official
policy include:
> a second polite request for a date from a peer, comments on clothing,
> compliments about improved appearance, non-destructive practical jokes or > hacking that most people of the same gender or race find reasonable.
> a classroom discussion of views that could be considered racist, posters seen > as sexist, and the like.
Quite a lot really. And the 'intent OR EFFECT' (my emphasis) in the original
definition seems to imply that it is the complaining person who gets to be the
judge, in some circumstances at least.
When speech codes like this have been challenged in the courts in connection
with public universities, they have universally been found to be
unconstitutional, on First Amendment grounds (combined with the Fourteenth
Amendment and the First Amendment jurisprudence that developed last century).
It's a shame, in my opinion, that at MIT we have to have a speech code that
would be illegal in a public university. But there's nothing much we can do
about it, as you accurately point out.
-- Paul
P.S. Note to Wally -- perhaps we agree on more than I thought and my dubious
rhetoric was misplaced. I'm still not sure I understand your simultaneous
exhortations to strive to improve everything but not bother too much about
this particular issue, though.
