Would colleges really take action to prohibit or punish speech alleged to be subconsciously insulting? Unfortunately, speech codes at some colleges and universities are already almost there—a quick look at FIRE’s Speech Codes of the Month demonstrates that. This month’s “winner,” the University of West Alabama, prohibits “harsh text messages or emails,” and December’s stand-out policy at Virginia State University says that students may not “offend … a member of the campus community.” Colleges routinely punish students for speech others have found offensive, and speech that might make listeners uncomfortable. With schools already restricting speech beyond what the First Amendment permits, it wouldn’t be a huge step to censor speech that might negatively affect students over time.
Troublingly, an October report (PDF) on bias and discrimination at UCLA seems to encourage the school to chill speech that it may not punish directly—an initiative that would plainly conflict with decades of First Amendment jurisprudence. The report says (emphasis added):
We recognize that not all of the incidents of perceived discrimination of which faculty members complain will be actionable. Several faculty members referenced the notion of “microaggressions,” which researchers have defined as “subtle verbal and nonverbal insults directed toward non-Whites, often done automatically and unconsciously. … Some enhanced recordkeeping would allow the university to monitor the number of complaints regarding such incidents, and therefore to better understand the campus climate for faculty (and students) of color. And finally, investigations might deter those who would engage in such conduct, even if their actions would likely not constitute a violation of university policy.In other words, the report states that “microaggressions” protected under the First Amendment may be deterred by subjecting speakers to investigations. The statement alone is absolutely true—and it should be treated as a warning. Chilling speech on campus is not some kind of benign side-effect, nor is investigating protected speech a permissible means of influencing student or faculty dialogue. As Torchreaders already know, intimidating students into self-censorship is no more constitutional than punishing them directly for their speech. In White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000), the Ninth Circuit Court of Appeals held that an investigation into protected speech chilled expression and was therefore a violation of the First Amendment in and of itself. Similarly, in Levin v. Harleston, 966 F.2d 85 (2nd Cir. 1992), the Second Circuit Court of Appeals upheld a trial court’s finding that a university president’s creation of a committee to investigate protected speech by the professor implied the possibility of disciplinary action, and thus violated the First Amendment. The report’s implication that chilling protected speech is an acceptable strategy is alarming and dangerous.
The idea of microaggressions is not new, but it is gaining attention, and developments at UCLA illustrate that many expect microaggressions to be dealt with administratively, not through open debate. But whether the perceived verbal insult is “macro” or “micro,” the correct answer to insulting or offensive speech must be more speech—not censorship, not the threat of unwarranted investigation, and not disruption of class."