Taking on the speech police

A public university in New Jersey recently threatened to punish a doctoral student for using a photo of President Donald Trump as his Zoom background during a virtual class on July 1. Some of Robert Dailyda’s classmates at Stockton University complained that the image made them feel “offended, disrespected, and taunted.” Now embroiled in a lengthy disciplinary process, Dailyda could face suspension, a $50 fine, a community service project, and mandatory social justice or decision-making workshops, according to a letter the Foundation for Individual Rights in Education (FIRE) sent to Stockton President Harvey Kesselman on Friday.

Last week, U.S. Sen. Tom Cotton, R-Ark., introduced legislation to protect students like Dailyda and combat unconstitutional speech codes and so-called free speech zones at public universities. Schools that fail to comply with the Campus Free Speech Restoration Act would lose federal funding if the U.S. Department of Education determined they unconstitutionally restricted free expression. The act requires transparency about speech policies and enforcement in a content-neutral manner. Those affected by the policies would have the right to sue schools and recover penalties, compensatory damages, and attorneys’ fees. The proposed law would not apply to colleges and universities operated by religious institutions.

“This bill fights back against campus censors in order to defend open debate and free speech, which lead us to truth,” Cotton said.

Several schools have confronted the issue in recent months. In June, the University of Wisconsin backed down and revised its restrictive free speech policies to affirm First Amendment rights after facing a possible lawsuit. In July, two conservative groups at New York’s Binghamton University sued the school after it allowed nearly 200 students to disrupt a lecture by economist Arthur Laffer.

Campus speech restrictions have steadily declined for years, but schools that have repealed codes sometimes “still engage in censorship where the rubber meets the road,” said Joe Cohn, FIRE’s legislative and policy director. “So there is still a tremendously big problem with speech codes even though the general movement is in the right direction.”

In some cases, the damage has already been done: Whether because of speech codes or a polarized cultural climate, an increasing number of people self-censor. A new study by researchers at Washington University in St. Louis found 40 percent of people surveyed choose to keep quiet rather than voice an opinion that others might deem hateful or that could alienate them from family and friends.

In an ironic twist, a college education only increases self-censorship, said study co-author James L. Gibson: “Far from becoming more comfortable with how to express their views as they become more educated, Americans who go to college appear to learn that they should shut up if they disagree with their peers.”

Restrictive speech policies could be a benign attempt to tamp down heated talk or a hostile action to screen out conservative views. Cotton’s proposed bill takes the position that free speech, even where disagreeable, is better than no speech.

“We are seeing the damaging effects of cancel culture and ‘group think’ in all aspects of our society, and college campuses are some of the worst offenders,” said Sen. Kelly Loeffler, R-Ga., a co-sponsor of the act. “This bill will ensure students on college campuses will be able to express their beliefs without the fear of censorship or retribution.”

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