Ever since his days as a graduate student at the University of Wisconsin-Madison, Roger Howard has been combatting efforts at censorship and control. Fresh from a stint in the Peace Corps, bitterly angry over American involvement in Vietnam, committed to the civil rights battle, Howard spent a lot of time in the late 1960s bailing anti-war demonstrators out of jail and fighting for the right of Black Panthers to speak on campus. Later, when he went to work as associate dean of students on the Madison campus, he came to recognize and recoil from a certain type of alarmed phone call, from people all across the political spectrum. Whether it was the screening of X-rated films or "The Birth of a Nation," militant speeches by black Muslim cleric Louis Farrakhan or the late rabbi Meir Kahane, someone was always urging restraints. Over the past two decades, the pressure on Howard has been disagreeably constant from people who feel insulted or injured.
* So, when the call first rose in 1988 for restrictions on racially harassing speech at the University of Wisconsin, the 51-year-old associate dean was appalled. The news media and general public were describing this latest notion as a "hate-speech code," while supporters were insisting it was an "anti-harassment code." The issue remained the same, though, whatever the label. Even to consider the notion of regulating speech was anathema to Howard.
* Then he began listening to the stories minority students were telling. The harassment they described was more subtle than flagrant. One student called it a "drumbeat" of comments--in the hallway, in the library, in the locker room, in the dorms. The more the students talked, the more their situation sounded different to Howard. This was intimidation--a purposeful, repeated effort to drive away minorities. Clearly, Howard concluded, this was an unreported tragedy.
* But what to do? Verbal harassment couldn't be dealt with under existing UW codes. Nor, Howard realized, could students handle it by walking away. They'd just end up losing access to the lab or library.
* At universities with increasingly diverse populations, how to establish a civil atmosphere? Is it possible to outlaw hate? Is setting rules part of what you do?
Yes, Howard eventually decided. Yes, you set rules.
In fact, by the time a public hearing convened on the Madison campus in June, 1989, to consider a proposed hate-speech code, Howard had so embraced the idea that he testified in its favor. And three months later, when the code took effect on UW campuses, he became the primary person responsible for implementing it at Madison.
So began, for Howard and the University of Wisconsin, a pioneering exploration into the character of the First Amendment--and of the UW community. What this exploration eventually yielded was an education. For some, it involved a revelation about human instincts, for others a confirmation. But for just about everyone, it involved a disappointment.
As speech-code complaints started rolling in, Howard soon saw that people wanted the code to be much more inclusive than it actually was. People were perfectly willing to restrict speech when it served their agendas. Howard was aghast. This was the same impulse that had been alarming him since the late '60s--only now it was coming from within the university community. By the time he'd fielded speech code complaints for two years, Howard once again was firmly opposed to the notion of regulating what people said.
The UW Board of Regents changed its mind as well. After debating, drafting and adopting one speech code, then debating, drafting and adopting another when a federal judge rejected the first version, the regents late last year decided to junk the whole deal. On Dec. 11, they officially voted to repeal what is formally known as UWS 17.06(2). The University of Wisconsin, among the first of an estimated 200 U.S. universities to adopt a hate-speech code, was among the first to rescind one.
The end did not come easily. There were objections and policy statements and last-minute resuscitations. On the Madison campus, with its uniquely progressive history and a chancellor--Donna Shalala, now secretary of Health and Human Services--often called the "high priestess of political correctness," there were fiery tugs of war between the PC activists and the First Amendment absolutists. Throughout the UW system there were abundant flashes of rhetoric, posturing and self-promotion. And there were the usual dilemmas.
Which to protect, victims of harassment or the right to voice even the most offensive thoughts? In Madison, as elsewhere across the country, this question has skewed conventional ideological alignments, dividing customary allies and making strange bedfellows. The Wisconsin American Civil Liberties Union found a kindred spirit in the Board of Regents' conservative Republican chairman. The state Legislature's most liberal senator, a longtime champion of underdogs, drew hisses from minority coalitions. A wealthy black Republican regent shared attitudes with militant demonstrators.
Despite volatile differences, though, it appears that a majority of the UW community now agrees that the hate-speech code just didn't work. "I still think setting rules makes intellectual sense," says Roger Howard. "As a practical matter, though, I consider setting rules a disaster. I absolutely have come to the conclusion that it's better policy not to have a code. The human instinct--or the American instinct--for censorship is just too strong."
THE ROOTS OF UW'S IMPULSE FOR A SPEECH CODE REACH BACK TO THE SPRING of 1986, when Madison administrators found themselves powerless to punish a fraternity for holding an off-campus "Martin Luther Coon" party. Soon afterward, Madison authorities again found no basis to impose substantive sanctions when another fraternity's party included a "Harlem Room," where members in blackface served fried chicken and watermelon.
In May, 1987, a third fraternity's advertisement for a Fiji Islands party featured a caricature of a black man with a bone through his nose. This time an administrator unilaterally issued a six-month suspension. After lawyers raised the issue of due process, however, the campus's acting vice chancellor found it necessary to withdraw the penalty and publicly apologize to the fraternity.
By then, a chorus of voices was rising. One black student told of white students following him down a hall saying, "You're taking up the place of a smarter white student because of quotas. . . . We don't want your kind here." Another black student reported she was driven from a library study room when a white said, "We don't let niggers study here." This "drumbeat" of harassment, various people on campus argued, was depriving students of the free use of university facilities. Worse, it was driving minorities away from UW.
Whether or not the "drumbeat" was the cause, the statistics couldn't be denied: Drawing from a largely homogeneous white Wisconsin population, UW was having trouble fostering ethnic diversity among its students and faculty. In fact, the African-American population was declining.
Just one month after assuming her job on the Madison campus in January, 1988, Chancellor Shalala issued a multi-part program for minority recruitment and retention called the Madison Plan. That spring, the entire university system adopted a similar program, Design for Diversity. These plans included special scholarships for minorities, "upward bound" programs in local Madison high schools, "orientation" programs to educate incoming students about ethnic diversity, an ethnic studies curriculum requirement and a multicultural center to "facilitate cultural growth and awareness." The plans also edged close to, but did not entirely embrace, the notion of a speech code: "This community is firmly committed to the protection of the First Amendment," the Madison Plan read. "Therefore, any effort to discipline students for speech as contrasted with conduct will require careful and extensive deliberation."
That "careful and extensive deliberation" was still under way within the university bureaucracy when the Madison campus erupted in October, 1988. The flash point was a Zeta Beta Tau fraternity "slave auction" in which pledges performed a variety of skits in blackface and Afro wigs, including takeoffs on the Jackson 5 and Oprah Winfrey. Demands, denunciations and expressions of outrage soon followed from throughout the UW-Madison community. So did arrests of eight students demonstrating outside the ZBT frat house, including one who'd chained himself to a bench and started a hunger strike. The climax came at an anti-racism rally in front of the administration building, where about 200 students chanted slogans and pounded on the windows of Shalala's office.
Yet again, no action was taken against the offending fraternity. After investigating for three weeks, a student-controlled committee charged with governing campus conduct announced a unanimous decision. "Some of the skits were exercises in extremely bad taste and showed disrespect for many people," chairman Rana S. Mookherjee told a press conference. "The committee was saddened by the display. However, we know of no university rule that would prohibit the conduct in question. And, if there were such a rule, it would violate the First Amendment to the U.S. Constitution."
Bellicose shouts from the crowd of students in attendance greeted this announcement. Why did a student committee decide instead of the administration? Why won't the administration do something? The administration was "refusing to take the leadership role in dealing with incidents such as these."
There were those who tried to defuse the situation. Roger Howard pointed out that the new student-conduct committee, part of Chancellor Shalala's Madison Plan, existed in response to years of student demand for greater self-governance. The student committee's chairman, Mookherjee, thought it relevant to note that he himself was a member of a minority group. And Shalala herself declared that however odious the fraternity activities, there simply was nothing in the university code or public law that prohibited them.
"The First Amendment is not something that we can honor when we choose and disregard when we do not like what we hear," she reminded her community. "A great university is not a place to play with constitutional rights. University administrators cannot abandon those principles to satisfy the will of a few, or even of many, at the expense of civil rights guaranteed to us all."
In the end, these efforts just didn't work. By formal letter, the Minority Coalition declined an overture from the chancellor's office and refused even to meet with Shalala unless it was to discuss a "concrete, comprehensive, and substantial" plan of action. "Donna felt they were on the verge of facing a riot," recalled UW law professor Gordon Baldwin, a noted constitutional and First Amendment expert who later was among the architects of the hate-speech code. "She felt there was the possibility of violence."
All through summer and fall, 1988, the vast UW bureaucracy had been lumbering along, drafting and polishing a policy statement against "discriminatory conduct," while individual campuses had been chewing over a proposed speech code drafted on the Madison campus at Shalala's request. Now, in November, just days after the ZBT frat party furor, university administrators picked up the pace.
That month, the UW vice president for academic affairs announced the appointment of a systemwide working group to "consider the institutional comments" that everyone had been offering about the proposed Madison speech code. By March, the group had concluded that the student code of conduct, UWS 17, should be revised to prohibit "racist and discriminatory conduct." By April, the UW regents were debating whether to adopt that revised code on an emergency basis.
All that remained to be seen was whether the University of Wisconsin could regulate speech without shredding the First Amendment.
LEGAL PRECEDENT IS NOT PARTICULARLY ENCOURAGING TO THE NOTION OF controlling speech, particularly if the regulation is "content-based"--that is, dependent on the message of the words spoken. The Supreme Court has recognized only a few narrow exceptions. Among them are "fighting words" that "by their very utterance tend to incite an immediate breach of the peace." To meet that definition, they must be words directed at a particular individual that "naturally tend to provoke violent resentment."
Those on the Madison campus trying to draft a speech code based on this fighting-words exception soon found that it is not at all clear just which words meet the requirements. The truth is, since the Supreme Court first spelled out the fighting-words notion in 1942 while affirming the conviction of Walter Chaplinsky for calling a Rochester, N.H., city marshal "a goddamned racketeer and a damned fascist," the high court has not once upheld another fighting-words conviction. The justices have been much better at saying what is not a fighting word than what is.
It apparently is acceptable to snarl, "you goddamn motherf---ing police" to an officer of the law. It apparently is acceptable to tell someone, "You son of a bitch, I'll choke you to death." Those who object to the Lac du Flambeau Indians fishing the waters of upper Wisconsin can call them "timber niggers" and "wagon burners" or suggest that "Custer had the right idea" or advise others to "spear a pregnant squaw, save two walleye."
Or maybe you can't always say some of these things. The courts' rulings, after all, usually focus not on the offensive words people say but on the overly broad statutes under which they're prosecuted. It's always a matter of context; given a narrow-enough statute and a heated-enough situation, a judge somewhere might decide that "nigger" is by itself a fighting word. This situation, of course, makes it difficult to draw up a list of forbidden words--or to know what utterances will get you into trouble.
Given such limits and uncertainties, it is not surprising to learn that the first advice from UW-Madison legal researchers was to forget the whole notion of crafting a speech code. "Two of Gordon Baldwin's graduate students, after researching the topic, came to our committee and said we shouldn't touch this with a 10-foot pole," is how Roger Howard recalls it.
Then the researchers, and the committee members, started thinking. The era of campus speech codes was just dawning, so there were few models for them to study. A certain degree of legal tap dancing was required. Why not word the code so that it technically banned not speech but rather "conduct resulting from speech"? Sanctions would be applied "for intentional interference with the education" of a university student caused by "persistently directing at that individual . . . explicit comments, epithets, or other expressive behavior." Persistence was the key: Repetition would identify those truly intent on depriving others of equal access to UW facilities. Repetition would transform speech into conduct.
The leadership on the Madison campus thought this construct quite satisfactory--eventually it was heartily approved by the Faculty Senate and Shalala--but others within the UW system scoffed at the speech-conduct distinction and chafed at all of the proposed limitations. Why, for example, define a speaker's intent through his "persistence"? Epithets, argued UW law professors Ted Finman and Richard Delgado, should simply be "presumed to have been uttered with the required intent." A regents' committee eventually dropped this notion after Gordon Baldwin expressed "dismay" at such a "radical embellishment to the First Amendment." But in the end, the type of broader approach particularly urged by Delgado--whose 1982 law journal article, "Words That Wound," pioneered the notion of hate-speech codes--prevailed.
In its final form, the UW speech code no longer bothered to draw distinctions between speech and conduct. No longer were there references to "intentional interference" or "persistence" or "denial of equal access." Now words themselves, uttered once, could draw sanctions: "Racist or discriminatory comments, epithets or other expressive behavior" directed at individuals that "intentionally demean" or "create an intimidating or hostile environment for education." Intent "shall be determined by consideration of all relevant circumstances."
By the time they received this code in March, 1989, the UW regents felt so compelled to act they almost adopted it on an emergency basis. "The time has come for the regents to take action," Regent Lawrence Weinstein urged. Not enough regents were persuaded--the emergency declaration narrowly failed. But minutes later the regents agreed, by a vote of 8 to 7, to submit the proposed code to the university's regular rule-making process. So began a tumultuous cascade of passionate oratory.
The most alarming moment may have come at a June 8, 1989, public hearing on the Madison campus, when one student--perhaps unaware he was echoing the rationalization of countless repressive regimes across history--suggested that "the national interest" should "supersede constitutional rights." Or it may have come when another speaker at the hearing rose to justify encroachments on the First Amendment by declaring that the Constitution was "faulty at its inception." Most likely, though, it came one day later at a Board of Regents meeting, where speaker after speaker acknowledged that the code was really meant much more as symbol than as enforceable law.
It is intended only for the rarest of instances, for that "2% of cases" that involve the "vilest, meanest conduct," explained Regent Paul R. Schilling.
It "sends the right signal at the right time," said Regent Weinstein.
There were those who objected to compromising the First Amendment for the sake of sending a signal. There were those who thought the risk of creating a chilling effect and a slippery slope far outweighed the value of invoking a symbol. There were those who thought a code would enfeeble rather than empower those it was meant to help. There were those who thought that adopting a rule you did not intend to enforce bordered on the cynical. In the end, though, marketers of such sentiments were solidly outnumbered by those such as Regent Erroll B. Davis Jr., who had little patience for "liberal odes to purity of speech."
During his college years at Carnegie Mellon University in the early 1960s, Davis--the widely respected 47-year-old black CEO of Wisconsin Power & Light and its parent holding company--had silently endured slurs that made him abundantly aware he "was in somebody else's house." Now, to his dismay, his son was planning to attend a black college rather than suffer such indignities. So he held strong feelings indeed about the proposed speech code.
"The crux of the issue is whether you accept that words wound," Davis regularly instructs interviewers and audiences. "That 'sticks and stones' routine is a crock. You have to draw the line when behavior affects others. We have free speech as much as we have pure milk. You can't go to the airport and joke about bombs. You can't harass people in the workplace. It's labeled sexual harassment if my son whispers lascivious comments to your daughter behind the counter at work. But if you whisper racist epithets to my son in front of the counter, it's exalted speech meriting constitutional protection. You say it's the 'price we pay.' The price who pays? You're not paying any price."
Along with passion, Davis had assorted student organizations, UW President Kenneth Shaw and--despite the considerable revision of her proposed Madison code--Chancellor Shalala on his side. On June 9, 1989, the speech-code resolution passed by a 12-to-5 vote. On Sept. 1, revised UWS 17--a hate-speech code to some, an anti-harassment code to others--became law at the University of Wisconsin.
Administrators finally had the tool they felt they needed, along with an ideally arranged empirical laboratory. No longer was the speech-code issue an abstract debate. Now UW could see how a hate-speech code actually worked.
PERHAPS IT WAS WHEN ONE STUDENT FILED A COMPLAINT AGAINST A PUBLICLY displayed painting of the Pope with a condom pinned to his lapel that Roger Howard first realized those "vilest, meanest" cases were going to include some unexpected grievances. Or perhaps this realization came when a second student filed a complaint against a campus newspaper cartoon featuring a cross made of coat hangers. Whatever the beginning, Howard soon had a file thick with such charges.
A black student leader filed a complaint against a student newspaper's cartoonist, editor and editorial board for two negative cartoons about him that he felt "created a hostile educational environment."
One student filed a complaint against another for calling him and others "primitive dinosaurs" during a student meeting--a term that was, he claimed, "demeaning on the basis of age."
A white student filed a complaint against a black woman for calling him a "redneck" during a debate before the student senate.
In all, Howard investigated 10 formal complaints and found no violations of the speech code. Most complaints failed because they weren't directed at an individual, and some--including an epithet believed to have been heard during a drunken exchange--were found not to have been uttered at all.
Howard was left feeling dismayed. "In spite of efforts at publicity regarding what the rule was and was not, I believe there remained a widespread misunderstanding," he says. "People expected the law to cover a much broader range of life's ordinary insults than it did. I'm alarmed that people were so willing to use rules to censor objectionable speech. People instinctively felt they knew what 'hate speech' was. That the law had high hurdles was missed."
Among those missing the high hurdles were administrators on other UW campuses. It is true that certain complaints elsewhere were dismissed as readily as in Madison--for example, the man in the elevator who told a Jewish woman student that the Libyans were going to "destroy the Zionists" received no punishment. Across the UW system, though, nine complaints did draw disciplinary sanctions, including four probations of varying duration, one suspension and assorted orders to undergo counseling or perform community service.
At UW-Parkside, a student was sanctioned for calling another student "shakazulu;" Shaka was the founder of the Zulu empire in the early 19th Century, and "Shaka Zulu" is also the title of a popular record album by the South African singing group Ladysmith Black Mombazo. The accused student insisted the term was not intended to be offensive, but the campus director of student life decided neither intent nor literal meaning mattered--"the term was perceived by the (listening) student as very rude and offensive, and, therefore, I find that the student conduct code was breached."
At UW-Oshkosh, a student received eight months' disciplinary probation for angrily telling an Asian-American, "It's people like you that's the reason this country is screwed up. . . . Whites are always getting screwed by minorities, and some day the whites will take over."
At UW-Stevens Point, a student was sanctioned for stealing the automatic bank teller card and access number from his Japanese dorm roommate. The student had violated the code not by uttering discriminatory comments, a campus official explained, but for being "motivated by resentment" that his roommate was from Japan and did not speak English well.
At UW-Oshkosh, a white female was sanctioned for referring to a black female student as a "fat-ass nigger" during an argument.
At UW-River Falls, a male student was placed on probation for yelling at a female student in public, "You've got nice tits."
Clearly, many of those charged were far from admirable characters. Just about everyone, though, was able to agree that the UW hate-speech code had been disastrously applied. Invoked arbitrarily, without consistency or logic, it had made First Amendment martyrs out of drunken yahoos. And for no purpose--most of those sanctioned could just as easily have been punished under other student regulations that govern such offenses as physical assault, theft and obstruction of university programs.
Effectively defining hate speech had proven no easier than defining pornography. By necessity, the code had invested substantial discretion in those who enforced it. "Could we have explained the code better and set up an accurate standard?" asks Roger Howard. "Maybe. But to do so, we would have to have the legal issues settled. No one knew what the code covered. I've heard of students saying 'Shhh--don't say anything about affirmative action, the university will punish you.' There was a McCarthy-esque venue. I think there was a chilling effect."
Patricia Hodulik, a senior legal counsel for the university who was instrumental in drafting and defending the code, does not entirely disagree: "The biggest problem is that it's very hard to implement if you're not a lawyer. There's a certain amount of line drawing required. Did it work? In terms of implementation, no, it did not work."
Such assessments only came much later, however. For a long time, because of privacy requirements, few on UW campuses knew what types of complaints were being handled. A year after the rule's adoption, one high-level administrator even went so far as to suggest that no one had been punished under the code.
So lawyers for the Wisconsin ACLU, which had filed a lawsuit challenging the speech code in spring, 1990, were surprised that summer when they began to study the fruits of their pretrial discovery requests. "When the ACLU found those dozen or so outrageous applications," recalls Gordon Baldwin, "they went nuts."
FROM THE START, THE ACLU'S TARGET WAS THE CODE'S VERY EXISTENCE, NOT just how it was implemented. Representing a mix of plaintiffs--among them a student newspaper and a communications instructor--volunteer Madison attorneys Jeff Kassel and Brady Williamson argued that the code was an unconstitutionally broad, vague, content-based rule that didn't fit within the "fighting words" exception.
If their target was the code, however, their ammunition was the manner in which it had been applied. The ACLU did not need to rely solely on abstract legal arguments; the ACLU could talk about shakazulu and rednecks and ATM cards.
"In terms of the code's application, they had a hell of a case," acknowledges law professor Ted Finman, himself an architect of the code. "Any court reading those applications would conclude that the law was no good."
That is precisely what U.S. District Judge Robert Warren did in a declaratory judgment on Oct. 11, 1991. Warren, a former Republican state attorney general, was no First Amendment devotee; in 1979, he'd issued a historic restraining order preventing Progressive magazine from publishing a story about how to build a hydrogen bomb. But he couldn't buy the speech code. On its face, Judge Warren ruled, "the UW rule . . . clearly reaches beyond the narrow confines of the fighting words doctrine. . . . Content-based prohibitions such as that in the UW rule, however well intended, simply cannot survive the screening which our Constitution demands."
At first, everyone assumed the university would appeal the ruling. Early news accounts quoted lawyers on both sides as saying the case would be fought "all the way to the U.S. Supreme Court." Then came a mix of competing opinion.
The law professors were discouraging. "We'll get killed," advised Gordon Baldwin. "Even if we didn't lose on the face of the law, we would lose on the cases. Drop it."
Wisconsin legislators were no more supportive. "We are writing to ask you not to appeal the recent federal court decision," began a letter to the regents signed by 29 of 33 state senators. "Judge Robert Warren's thoughtful decision vindicated the First Amendment."
Others, arguing adamantly against a retreat, talked of the code's value even if implemented poorly or not at all. "The code gave a sense among minority students that the university cares," said Mario Mendoza, then the racial/ethnic-affairs director for the Wisconsin Student Assn. Because he had stepped from a largely homogeneous Puerto Rican culture to a Madison campus where he and his companions were sometimes called "spic" and urged to "go home," Mendoza "liked the idea of having a process. Just that it was in place was valued. Even if it's not implemented at all, it's there."
A good number still insisted they weren't trying to control speech. "This is an anti-harassment code, not a speech code," declared Donna Shalala.
Amid this tug and pull of opinion, the university apparently listened to everyone. In early November, 1991, the UW regents decided they would not appeal. But they also decided not to back down. Once more, they announced, they were going to try to draft a hate-speech code compatible with the First Amendment.
BY THE TIME THE UW community last spring began a second round of debate over the merits of a hate-speech code, moods had changed from the tumultuous months of 1988. Now there was a conclusive court case and a disastrous history attached to the speech code. Now newspaper editorialists were clearing their throats in defense of the First Amendment. Now some were venturing to question not just the code's value but also the motivations of its creators.
Few doubted that good intentions and a genuine concern drove those still championing a hate-speech code. But beyond the good intentions, surely there was also political calculation and the impulse to accommodate certain outspoken segments in the community. Beyond the admirable empathy, surely there was also a failure to remain autonomous from political pressures of the moment. Beyond the desired diversity of color and gender, surely there was also an enforced orthodoxy of thought and expression.
UW-Madison, after all, is an axis of the politically correct movement. Shalala's tenure there helped burnish her reputation--most often invoked negatively by conservatives, but also heard in other quarters--as an advocate of political correctness. It was understandable when UW leaders said they feared it would look like a "retreat" if they didn't keep insisting upon a speech code. It was also understandable when Dean of Students Mary Rouse reported with obvious satisfaction that African-Americans now spoke to her as she walked by, where once there'd been no communication. But amid all this talk of the code's value as symbol, it was a bit unclear just whom the symbol was most meant to protect--minority students from harassment by racists or UW leadership from denunciation by minorities.
Here is where the argument over a hate-speech code in Madison gets particularly loaded with internal conflict. Here is where progressives of all sorts must choose between their commitments to free expression and racial equality. Here is where crusty Republicans proclaim their enthusiasm for the First Amendment. Here is where disenfranchised dissidents embrace the notion of institutional power. Here is where nothing is simple. Rising with shaky voice to plead for the code's rejection, David Hirsch, a Jewish student regent, tells of swastikas painted on his sidewalk on Yom Kippur. Rising with tear-filled eyes to urge the code's adoption, the left-leaning law professor Ted Finman tells of a black colleague's harassment at the hands of Madison police.
Listening to such exchanges, caught in this caldron of competing values, it's unfortunate that a good number of old-fashioned liberals wavered. But their fear of sounding reactionary or racist, their reluctance to swing a club at their allies on the left, was understandable. Shalala's progressive credentials, after all, include a tour of duty in the Peace Corps and a stint as chair of the Children's Defense Fund. When her cabinet nomination drew opposition from arch-conservative North Carolina Sen. Jesse Helms, Shalala called it "a badge of honor." She is not the customary enemy of liberals. Even ACLU lawyer Jeff Kassel felt conflicted in challenging the speech code--"I wasn't sure I wanted to be its adversary."
Some of those liberals who did take on the speech code ended up with regrets. Raised in a Bible Belt reach of North Carolina where she watched Helms fight the National Endowment for the Arts over definitions of pornography, Kathy Evans, co-president of the Wisconsin Student Assn., came to fear any kind of indoctrination, any attempt at control, from any quarter. But when she tried to explain this during a WSA committee debate over the speech code, she found her customary allies, women and persons of color, telling her she was "full of white liberal bullshit." Even her WSA co-president Victor DeJesus, with whom she shared an office and most political enthusiasms, from gay rights to abortion rights, stood toe to toe insisting that she "just didn't understand."
"It was very unsettling," Evans recalls. "I wanted to come up with common ground, but people had deeply personal, preset ideas. It was almost as if not supporting the code meant you were sanctioning the hatred and discrimination. It made me question my own convictions and motivations."
So in the end, it was largely left to a rumpled, unpolished Wisconsin state senator named Lynn Adelman to carry the banner for those who object to dogmatic despots from both the left and the right. Adelman is chairman of the Senate Judiciary Committee and about as liberal as a Wisconsin legislator gets. He is of the opinion that free speech should never be restricted because such restriction inevitably punishes insurgents and those at the bottom of society. He is also of the opinion that his liberal credentials give him the ability to say whatever he thinks about the speech code. This he has done, regularly and passionately.
"The whole administration is caving in, fearing they'll be called racists," he told all who would listen. "There's lots of defensiveness and a lack of self-confidence. It's sort of a sad thing. This is part of the poverty of social thought in this country in the last 15 years. By trying to redraft this code, the regents are showing disrespect for the Constitution. I find it unbelievable that instead of being chastened by the court's decision, they're trying it again. This is a tawdry spectacle that has drawn ridicule throughout the nation."
It is typical of hate-speech-code debates that when Adelman said much of this at a public hearing last spring, his words managed to alienate traditional supporters and please customary adversaries. "I never thought I'd see you and Adelman in the same bed," one observer commented to George K. Steil Sr., the conservative Republican chairman of the UW Board of Regents.
What Adelman's words did not do was carry the day. At their May 8, 1992, meeting, the UW Board of Regents voted 9 to 6 to adopt a redrafted speech code.
This new version vested control in a central university figure and prohibited only epithets that "would tend to provoke an immediate violent response." Although still some distance from the Supreme Court's definition of fighting words, it clearly was more respectful of the Constitution than the first version. But for that reason it also was useless. "It has no teeth," Gordon Baldwin pointed out. "It's not worth it. It will be very hard to find cases that fit. This is pure symbol."
The UW leadership, of course, was not particularly disturbed by this analysis. "The board has a responsibility to address the problem proactively," explained Regent Erroll Davis. "I'd rather the board make a mistake trying to solve a problem than to make the mistake of doing nothing."
ON JUNE 22, ONE MONTH after UW adopted its redrafted speech code, the U.S. Supreme Court struck down a St. Paul hate-crimes law that prohibited display of symbols such as burning crosses and Nazi swastikas "which . . . arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender." This looked like a classic First Amendment ruling, but the unanimous decision in R.A.V. vs. St. Paul was actually forged out of two quite different convictions.
Four of the more moderate justices thought the law unconstitutional because it reached beyond the "fighting words" exception to the First Amendment. A more conservative five-justice majority led by Justice Antonin Scalia, however, objected because the law selectively banned only particular categories of fighting words, such as racial or religious or sexual insults. Since the St. Paul law didn't bar other categories of fighting words--insults, for example, hurled at a person's political affiliation or union membership or homosexuality--Scalia's majority found that it improperly discriminated on the basis of the insult's content.
Here was a tricky decision indeed. First Amendment advocates and the four justices in the minority found themselves agreeing with the outcome while vigorously disputing the reasoning by which it was reached. Scalia, they suspected, was harboring a broader, unstated agenda. Scalia's rationale, they pointed out, could cast doubt on all sorts of historic civil rights laws. "I fear that the Court has been distracted . . . by the temptation to decide the issue over 'politically correct speech' and 'cultural diversity,' " wrote Justice Harry A. Blackmun. Hidden agenda or not, R.A.V. vs. St. Paul virtually demolished the legal foundation for campus hate-speech codes. It no longer mattered how ingeniously law professors bent their phrases to fit the "fighting words" category. Any code that targeted particular categories of speech now looked impermissible. When the Wisconsin Supreme Court followed the U.S. Supreme Court by one day with a decision declaring the state's hate-crimes law unconstitutional, the coffin had its final nail. "Another ACLU lawsuit is coming if we charge any student," warned Regent Steil, who is an attorney. "They would have a good case, and I don't believe in taking on cases I can't win."
Because of procedural reasons, the code technically became law Sept. 1. Steil now had the votes, though: On Sept. 11, the regents voted 10 to 6 to initiate the procedure to repeal. After a required public hearing in December, the UW hate-speech code was finally laid to rest.
Contacted by reporters for comment, Robert M. O'Neil, a former UW president, now founding director of the Thomas Jefferson Center for the Protection of Free Expression in Virginia, said: "The heyday of campus speech codes is over."
Evidence for this assessment can be seen across the country. Federal courts have thrown out the University of Michigan's code and sharply curtailed the University of Connecticut's, while Tufts University has rescinded its code voluntarily. "I have not talked with anyone recently who has any enthusiasm or optimism for the codes' survival," says O'Neil. "I suspect that only a handful of institutions are actually repealing them. A much larger number are modifying or backing off or simply letting it be known they won't be enforced."
There are those in Madison who regret this prospect and still wish to defend the UW speech code. Erroll Davis, for example, points out that "the rule had its symbolic effect--offenses are not seen now." Although there's some truth to this, many others in Madison have come to believe that focusing on a symbol served mainly to distract attention from the more important remedies contained in the Madison Plan and Design for Diversity. Assessments such as Roger Howard's--"If your goal is to help create a welcoming environment for minorities, there are better ways than a speech code. You set standards, you lead, you educate, you report, you offer support, you count numbers, you confront aggressors"--are now fairly commonplace.
Most striking and telling is how many architects and advocates of the code have backpedaled.
The Wisconsin Student Assn., after originally endorsing the notion of redrafting the speech code, ended up lobbying vigorously against it last summer.
Gordon Baldwin, after helping craft the code, ended up ambivalent: "I was a hired gun. I have no special insight into the wisdom of the code. . . . A university is not a place entirely without silliness."
Victor DeJesus, after ardently urging the code upon his WSA co-president Kathy Evans, now says: "It's not that important. To tell the truth, I don't care that it was repealed. The regents have placed too much emphasis on this code instead of on important things. I think Donna Shalala and the regents acted because of pressure. It looked like a commitment. But it was easy--there was no cost."
Former WSA ethnic affairs director Mario Mendoza, after vigorously campaigning for a redrafted code, now reports: "The repeal won't mean the crumbling of society. Not having it is not going to greatly harm the university."
Whatever one thinks of campus speech codes' value, whatever one thinks of campus speech codes' rationale, this last point surely is true in Madison. The repeal of the code deprived the UW community of a symbol. But it did not strip away much real protection, because the code never provided much real protection--not from the actual world, or even from fraternity parties that feature slave auctions and Fijian caricatures. The code, after all, only applied to speech directed at an individual.
There is a moment these days in Madison, during almost every conversation about the university's defunct code, when someone offers that undeniable reminder: The UW hate-speech code would never have prohibited or punished any of the racist incidents that led to its creation.