After months of debate, the board of the Civil Liberties Union of Massachusetts was finally ready to vote on whether to give its imprimatur to college codes that punish racist, sexist and other forms of offensive and discriminatory speech.
As noted here earlier, the board had been split down the middle. There are those who insist that free speech has always been the core principle of the ACLU and that to approve its weakening would result in the weakening of the union's identity and integrity.
In a debate that has been going on around the country -- not only in the ACLU but among college students, administrators and other interested parties -- the other side argues that in view of the poisonous atmosphere on many campuses, the First Amendment must yield. That's the only way minority students and women can be assured equal protection under the 14th Amendment.
During the final faceoff between the Massachusetts civil libertarians, the Rev. Grayson Ellis-Hagler, who is black, accused some of his opponents of giving free rein to white racism. He claimed the real issue is not speech but white power.
Byron Rushing, who is black and a member of the State House of Representatives, countered by saying that outlawing speech is not the solution, and is certainly not education. Suppressing speech, he emphasized, gets the educational institutions off the hook too easily.
In a dramatic exchange, Geraldine Hines, a black lawyer who is one of Boston's most effective civil rights litigators, said she wondered whether the position of the First Amendment absolutists "has something to do with who the victims of this kind of speech are."
Many of those targets are black.
Charles Baron, a Boston College law professor and president of the board of the Civil Liberties Union of Massachusetts, said that he was hurt by what Hines had said. He and other Jews in the ACLU, he went on, "voted for the First Amendment in the Skokie case" when the ACLU supported the right of Nazis to demonstrate in a town with many Jews -- including Holocaust survivors.
(After the meeting was over, Geraldine Hines embraced Baron, noting that she had had to ask the question that was on her mind or she would have felt like a flower pot at the meeting. He agreed, adding that she had given him a chance to say what he felt.)
At last, the board approved, 16-14, a policy proposal by Baron which stresses that colleges must actually work -- by education -- "to minimize and eliminate attitudes and practices that create a hostile educational environment. . . . But these measures must not include rules which prohibit and punish speech on the basis of its content."
In this regard, civil rights and civil liberties are not at odds: "Civil rights movements have always depended upon speech as their principal weapon. Majorities hating what they were hearing have always tried to prohibit and punish such speech. Thus, the vitality of civil rights movements has always depended upon protection of the principle that any regulation of speech must be content-neutral."
One of the members on the winning side was not celebrating. "I consider it quite ominous," said Harvey Silverglate, a civil liberties and criminal defense lawyer, "when the First Amendment survives in the Civil Liberties Union of Massachusetts by only two votes."
What I find more ominous because it mirrors the attitude of the large Southern and Northern California affiliates of the ACLU -- which have adopted a model restrictive speech code for colleges -- is the argument of a Massachusetts board member during the debate. A compromise with the First Amendment is needed, he said. And ACLU members are the best people to work out such a compromise because they have the best understanding of the First Amendment.
Meanwhile, free speech is being compromised on more campuses. The most recent university to set up a mechanism to detect and punish bad speech is Stanford. One dissenting student there talks of the arrival on campus of the "speech police."
Orwell wrote of the "thought police." All those conferences on college campuses six years ago on Orwell's book of omens apparently left little trace -- on students or faculty.
Relatively few professors, including those in the law schools, have been sounding any loud alarms. But then, speech codes have not applied to the faculty -- yet.