Category: Legalia
Heckler’s Veto
The pre-emptive Heckler’s Veto, the college “speech code,” lives:
Alabama’s Troy University, a public institution, is one of two schools that earned the dubious honor of having promulgated Fire’s 2013 “Speech Codes of the Year.” (The other is Virginia State University.) Troy’s code of conduct prohibits “any comments or conduct consisting of words or actions that are unwelcome or offensive to a person in relation to sex, race, age, religion, national origin, color, marital status, pregnancy, or disability or veteran’s status.”
Note how this definition of offensiveness hinges solely on an accuser’s subjective feeling, though the First Amendment doesn’t distinguish between offensive and inoffensive speech.
(Wall Street Journal, Censors on Campus) “Fire,” by the way, is the Foundation for Individual Rights in Education, which has the image of a “conservative” group only because speech codes as applied are, inevitably, left-leaning, and FIRE is the bane especially of speech codes, which it’s own graphics show as being mercifully waning.
There’s been a lot of questioning of the dollar value of horrifically expensive college educations of late. If I were weighing that question today, this sort of thing would be relevant:
Some schools even make it difficult for students to learn what their speech-related policies are … At Connecticut College, prospective parents and students wishing to learn how the school handles so-called bias incidents will have to wait until enrollment, since the school’s “Bias Incident Protocol” is hidden behind a login page—as is the Student Handbook.
My local Undue Purversity, has its speech code issues, according to FIRE, as does the University Bobby Knight built. The third major University in the State (no offense, Valparaiso) ironically is the worst of the three. Private schools overall are marginally worse than public. FIRE has some interesting and somewhat surprising graphics.
Undue Purversity’s “Yellow light” rating per FIRE: “Yellow light colleges and universities are those institutions with at least one ambiguous policy that too easily encourages administrative abuse and arbitrary application.” “Ambiguous” and “arbitrary” sums up my views of how that August Institution treats free speech. Arbitrary application occurs (under the speech code or otherwise), it seems to me, when someone who can claim Certified Categorical Victimhood Status complains of “offensiveness” or when someone associated with the University mightily ticks off politicians who vote on University budgets and are capable of calling for “traffic studies” on their critics.
N.B. I had a non-speech code case on behalf of grad students in education at Undue roughly two decades ago. An aging professor of the Unitarian-Universalist persuasion fancied himself responsible for denuding the Public Square (of which he considered a grad-level seminar a part), forbidding a group of students from doing any more group projects on values education from their Evangelical perspective. The University’s Grievance Committee acquitted itself well on that matter. I have no idea why, except that its primary attorney at the time was an actual human being instead of a caricature of an obnoxious lawyer whose conduct stirs up strife rather than ending it.
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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)
Cognitive Dissonance supplement 1/16/14
Thursday, 1/16/14
Conscripted Concelebrants
Friday 1/10/14
Thursday 1/9/14
Wednesday 1/8/14
Tuesday 1/7/14
More on Definition versus Rights
I was starting to feel like I was pushing the limit of fair use in block-quoting Peter Sprigg Saturday, but I really am reminded how outrageous was the majority opinion and how impressive the dissenters in Massachusetts Goodrich case.
The most offensive aspect of the majority opinion was its slap in the face (I don’t say that lightly, as it’s inflammatory) of the legislature:
Discussing the proper standard for review, she found that the Court did not need to consider whether the plaintiffs’ claims merited strict scrutiny, a more thorough than usual standard of review, because the state’s marriage policy did not meet the most basic standard of review, rational basis.
(Wikipedia) Not. Even. Rational. That’s a whopper of a lie and an insult. It’s insouciant liberal bigotry writ large.
The dissenters were having none of it. Sprigg:
Justice Francis X. Spina pointed out that individual rights were not even at stake: “There is no restriction on the right of any plaintiff to enter into marriage. Each is free to marry a willing partner of the opposite sex.”
Justice Robert J. Cordy described succinctly the “rational basis” for limiting marriage to opposite-sex couples, noting that “an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.”
The late Justice Martha B. Sosman (herself a liberal—a former Planned Parenthood board member) made the important distinction between what the law permits and what it requires. The fact that there are exceptions to the rule of marital procreation, she wrote, “does not mean that the State is required to provide identical forms of encouragement, endorsement, and support to all of the infinite variety of household structures that a free society permits.” Justice Cordy also identified what the Court was actually doing—“using the liberty and due process clauses as vehicles merely to enforce its own views regarding better social policies.”
…
Justice Sosman (the liberal dissenter) was equally clear in her explanation of one “rational basis” for keeping marriage as the union of a man and a woman:
It is rational for the Legislature to postpone any redefinition of marriage that would include same-sex couples until such time as it is certain that that redefinition will not have unintended and undesirable social consequences.
It’s most disheartening that the people of Massachusetts took the majority’s insult “lying down.” I guess I assume way too much heedfulness by voters. If the price of liberty is eternal vigilance, liberty’s in for some really rough times.
But Sprigg sort of holds out a ray of hope. If only the issue is framed correctly, public opinion (that increasingly anachronistic consideration as our betters tell us we’re not even rational) is still supportive of the traditional conception of marriage:
Why does this matter? It matters because it directly contradicts the way advocates of gay marriage, ten years later, almost always try to frame the issue at stake. They would have us believe that the issue is the “right” to marry, or access to the institution of marriage—a right or access which homosexuals are arbitrarily denied because of “who they are.”
The framing of the issue—as a matter of definition, or as a matter of “equality” of rights or access to marriage—is important for another reason. It makes a huge difference in the results of public opinion polls on the issue. The media has largely accepted the line that “a majority of Americans now support same-sex marriage.” That is true, however, only if one looks at polls which frame the issue in terms of “rights,” “equality,” and “participation” in marriage.
Polls that frame the issue more honestly, as a question of the definition of marriage, produce a very different result. No less than seven national polls taken from 2011 through 2013 have shown that clear majorities of Americans oppose changing the definition of marriage. For example, when asked a question in the abstract, Americans support the traditional, one-man one-woman definition of marriage by almost two-to-one. A poll in April 2013 asked, “Do you support or oppose a measure defining marriage as between one man and one woman?” 60 percent said they would support such a measure, while only 32 percent said they would oppose it.
Even when the impact on same-sex couples is expressly mentioned, opposition to changing the definition of marriage remains strong. A June 2013 poll asked, “Would you approve or disapprove of changing the definition of the word marriage to also include same-sex couples?” Only 39 percent said they would approve of such a redefinition, while 56 percent said they would oppose it.
(Peter Sprigg, Marriage is a Matter of Definition)
(I add that although HJR 6 is much in the news, I was not thinking of it, pro or con, when writing this. I’m not endorsing HJR 6 as a suitable definition of marriage, nor am I here repudiating it.)
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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)
Tipsy Teetotaler ن 