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DEREK BOK
Derek Bok was born in 1930 in Bryn Mawr, Pennsylvania, and educated at Stanford University and Harvard University, where he received a law degree. From 1971 to 1991 he served as president of Harvard University. The following essay, first published in the Boston Globe in 1991, was prompted by the display of Confederate flags hung from a window of a Harvard dormitory.
Protecting Freedom of Expression on the Campus
For several years, universities have been struggling with the problem of trying to reconcile the rights of free speech with the desire to avoid racial tension. In recent weeks, such a controversy has sprung up at Harvard. Two students hung Confederate flags in public view, upsetting students who equate the Confederacy with slavery. A third student tried to protest the flags by displaying a swastika.
These incidents have provoked much discussion and disagreement. Some students have urged that Harvard require the removal of symbols that offend many members of the community. Others reply that such symbols are a form of free speech and should be protected.
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Different universities have resolved similar conflicts in different ways. Some have enacted codes to protect their communities from forms of speech that are deemed to be insensitive to the feelings of other groups. Some have refused to impose such restrictions.
It is important to distinguish between the appropriateness of such communications and their status under the First Amendment. The fact that speech is protected by the First Amendment does not necessarily mean that it is right, proper, or civil. I am sure that the vast majority of Harvard students believe that hanging a Confederate flag in public view — or displaying a swastika in response — is insensitive and unwise because any satisfaction it gives to the students who display these symbols is far outweighed by the discomfort it causes to many others.
5 I share this view and regret that the students involved saw fit to behave in this fashion. Whether or not they merely wished to manifest their pride in the South — or to demonstrate the insensitivity of hanging Confederate flags, by mounting another offensive symbol in return — they must have known that they would upset many fellow students and ignore the decent regard for the feelings of others so essential to building and preserving a strong and harmonious community.
To disapprove of a particular form of communication, however, is not enough to justify prohibiting it. We are faced with a clear example of the conflict between our commitment to free speech and our desire to foster a community founded on mutual respect. Our society has wrestled with this problem for many years. Interpreting the First Amendment, the Supreme Court has clearly struck the balance in favor of free speech.
While communities do have the right to regulate speech in order to uphold aesthetic standards (avoiding defacement of buildings) or to protect the public from disturbing noise, rules of this kind must be applied across the board and cannot be enforced selectively to prohibit certain kinds of messages but not others.
Under the Supreme Court’s rulings, as I read them, the display of swastikas or Confederate flags clearly falls within the protection of the free-speech clause of the First Amendment and cannot be forbidden simply because it offends the feelings of many members of the community. These rulings apply to all agencies of government, including public universities.
Although it is unclear to what extent the First Amendment is enforceable against private institutions, I have difficulty understanding why a university such as Harvard should have less free speech than the surrounding society — or than a public university.
10 One reason why the power of censorship is so dangerous is that it is extremely difficult to decide when a particular communication is offensive enough to warrant prohibition or to weigh the degree of offensiveness against the potential value of the communication. If we begin to forbid flags, it is only a short step to prohibiting offensive speakers.
I suspect that no community will become humane and caring by restricting what its members can say. The worst offenders will simply find other ways to irritate and insult.
In addition, once we start to declare certain things “offensive,” with all the excitement and attention that will follow, I fear that much ingenuity will be exerted trying to test the limits, much time will be expended trying to draw tenuous distinctions, and the resulting publicity will eventually attract more attention to the offensive material than would ever have occurred otherwise.
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Rather than prohibit such communications, with all the resulting risks, it would be better to ignore them, since students would then have little reason to create such displays and would soon abandon them. If this response is not possible — and one can understand why — the wisest course is to speak with those who perform insensitive acts and try to help them understand the effects of their actions on others.
Appropriate officials and faculty members should take the lead, as the Harvard House Masters have already done in this case. In talking with students, they should seek to educate and persuade, rather than resort to ridicule or intimidation, recognizing that only persuasion is likely to produce a lasting, beneficial effect. Through such efforts, I believe that we act in the manner most consistent with our ideals as an educational institution and most calculated to help us create a truly understanding, supportive community.
Derek Bok sketches the following argument (paras. 8 and 9): The First Amendment protects free speech in public universities and colleges; Harvard is not a public university; therefore, Harvard does not enjoy the protection of the First Amendment. Bok finds this argument invalid. He clearly rejects the conclusion. “I have difficulty understanding why … Harvard should have less free speech … than a public university.” What would need to be revised in the premises to make the argument valid? Do you think Bok would accept or reject such a revision? Why, or why not?
Bok objects to censorship that simply prevents students from being “offended.” He would not object to the campus police preventing students from being harmed. In an essay of 100 words, explain the difference between conduct that is harmful and conduct that is offensive. (If you think that such a distinction cannot be made, explain why.)
Bok advises campus officials (and students) to “ignore” offensive words, flags, and so forth (para. 13). Do you agree with this advice? Or do you favor a different kind of response? Write a 250-word essay on the theme “How We Ought to Respond to the Offensive Misconduct of Others.”
THINKING FURTHER: FREEDOM OF EXPRESSION AND SOCIAL MEDIA
On February 8, 2009, the New York Times reported that a high school senior, Katherine Evans, believed that her English teacher, Sarah Phelps, behaved offensively in two ways: Evans said that the teacher ignored her requests for help with assignments and, further, that Phelps brusquely reproached her when Evans missed a class because she had attended a blood drive. Evans, an honor student, logged into Facebook and wrote about her teacher:
To those select students who have had the displeasure of having Ms. Sarah Phelps, or simply knowing her and her insane antics: Here is the place to express your feelings of hatred.
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The posting drew several responses, including some that criticized the student and supported the teacher. Here is one, written by a former student of Ms. Phelps, quoted by the Times:
Whatever your reasons for hating her are, they’re probably very immature.
Ms. Evans removed the posting a few days later, but subsequently she was nevertheless reprimanded by the principal and received a three-day suspension for “cyberbullying.” Ms. Evans sued the principal of the high school. She was not asking for money other than legal fees. Moreover, she wanted the suspension removed from her record. (She eventually settled the suit, and the suspension was wiped from her record.)
The issue to consider: Was the suspension an attack on Ms. Evans’s right to free speech? Or did her comment and her invitation to “express feelings of hatred” constitute a verbal assault that crossed the line of freedom of expression? Howard Simon, executive director of the American Civil Liberties Union of Florida, takes the first position. The Times quotes him as saying, “Since when did criticism of a teacher morph into assault? If Katie Evans said what she said over burgers with her friends at the mall, there is no question it would be protected by free speech.”
Construct a definition (three to five sentences) of cyberbullying. If you use sources, cite them.
Find a technical definition of cyberbullying as defined by a law, rule, or code, and compare it to your definition in #1 above. What limits and restrictions are included? (Be sure to cite your source.)
Given the admittedly scanty information that we have on the Evans case, do you think a suspension was reasonable, in light of the definitions of cyberbullying above? If you think it was reasonable, explain why. If you think it was unreasonable, explain why. Indicate also whether you think a different punishment might have been appropriate. Your essay should be about 250 to 300 words in length.
Your college newspaper has published a letter that links a hateful attribute to a group and that clearly displays hatred for the entire group. (For instance, the letter charges that interracial marriages should be made illegal because “African Americans carry a criminal gene” or that “Jews should not be elected to office because their loyalty is to Israel, not the United States” or that “Muslims should not be allowed to enter the country because they are intent on destroying America.”) The letter generates many letters of response; some, supporting the editor’s decision to publish the letter, make these points:
The writer of the offending letter is a student in the college, and she has a right to express her views.
The point of view expressed is probably held only by a few persons, but conceivably it expresses a view held by a significant number of students.
Editors should not act as censors.
The First Amendment guarantees freedom of speech.
Freedom of expression is healthy — that is, society gains.
In contrast, among the letters opposing the editor’s decision to publish, some make points along these lines:
Not every view of every nutty student can be printed; editors must make responsible choices.
The First Amendment, which prohibits the government from controlling the press, has nothing to do with a college newspaper.
Letters of this sort do not foster healthy discussion; they merely heat things up.
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Write a 250- to 500-word letter to the editor expressing your view of the decision to publish the first letter. (If you wish, you can assume that the letter addressed one of the topics we specify in the second sentence of this exercise. In any case, address the general issue of the editor’s decision, not just the specific issue of the charge or charges made in the first letter.)