“Stanford Deeply Values Free Speech”

In a powerful column on the Charlie Hebdo murders, the New York Times’ David Brooks wrote:

“The journalists at Charlie Hebdo are now rightly being celebrated as martyrs on behalf of freedom of expression, but let’s face it: If they had tried to publish their satirical newspaper on any American university campus over the last two decades it wouldn’t have lasted 30 seconds. Student and faculty groups would have accused them of hate speech. The administration would have cut financing and shut them down.”

Stanford’s administration is in the process of proving Brooks’ point, albeit with much less sympathetic victims than the courageous Charlie Hebdo journalists. The blasphemers at Stanford are not subversive left-wing cartoonists, but the raunchy frat brothers of Sigma Alpha Epsilon. The content of their blasphemy is not offensive depictions of the prophet Mohammed, but offensive jokes about women.

Stanford’s press release (which we can assume presents the facts in the light most favorable to the University) gives the following reason for its action against SAE:

“Members of a campus sorority attending an event at the SAE house in May 2014 were subjected to highly offensive material during the fraternity-sanctioned program. The material contained graphic sexual content, as well as offensive commentary regarding the domestic physical abuse of women.”

According to people who were present at the May 2014 social event, a number of SAE pledges were encouraged to go in front of the assembled frat brothers and sorority sisters and tell jokes, some of which were deeply misogynistic, if highly unoriginal. The most disturbing joke, according to one female attendee, was, (roughly) “What do you tell a woman with two black eyes? Nothing; she’s already been told twice.” A number of women, rightfully disgusted, walked out of the party.

The social cost the fraternity paid for its idiocy was not enough for the Stanford administration, which decided to impose official punishment — a two-year suspension and eviction of the frat brothers from their on-campus house. The administration, apparently conscious that there are free speech issues associated with punishing students for telling jokes, asserted in its press release that “Stanford deeply values free speech.”

I wish it weren’t necessary, but I should make the usual clarification that supporting a right to free speech is not the same as supporting the content of the speech or the speaker. The type of humor on display at the SAE party was clearly grotesque and unfunny. Regular readers know that I am no fan of fraternities.

But in a free society, the authorities do not police the contents of the jokes adults tell each other at parties. Official suppression of offensive ideas doesn’t make them go away, but it does deaden public discourse by making people afraid to question taboos and speak to people they disagree with. As Ross Douthat has written, “the right to blaspheme (and otherwise give offense) is essential to the liberal order.”

The SAE debacle is in some ways an old story. From the speech codes of the 1990s to the trigger warnings of the 2010s, U.S. campuses have been attempting to shield their students from certain offensive ideas for decades. But this case is especially worrisome because it could indicate a newfound willingness on the part of Stanford’s administration to push the limits of California’s Leonard Law. Based on the available facts, Stanford’s action against SAE is almost certainly unlawful under the 1992 statute, which makes it illegal for private universities in California to punish students for constitutionally protected speech:

“No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech and that, when engaged in outside the campus or facility of a private institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.”

In this case, Stanford subjected dozens of students to the loss of housing on the basis of jokes that are clearly protected under the same First Amendment that protects animal cruelty videos, virtual child pornography, and anti-gay protests at military funerals.

Stanford’s press release claims that the offensive jokes constituted “harassment” — the typical justification universities give for punishing offensive speech. This characterization — once again, based on the available information — seems almost entirely implausible. The Supreme Court has stated that speech only reaches the level of sexual harassment under Title IX when it is “so severe, pervasive, and objectively offensive, that it effectively bars the victim’s access to an educational opportunity or benefit.” It is hard to see how a handful of jokes at a single party — no matter how wildly offensive — could be considered sufficiently pervasive, or sufficiently damaging to attendees’ educational opportunities, to meet this high threshold.

The SAE case is, in my opinion, the second time Stanford has violated the Leonard Law in less than a year. Just last Spring, the student government revoked a group’s funding because of the political views of one of the speakers it invited to campus. But while that case was fraught with a number of technical nuances, this case couldn’t be more straightforward: The administration disciplining students for telling jokes that are protected by the First Amendment.

Like (I suspect) most other Stanford students, I won’t shed a tear for the SAE brothers. But if the Leonard Law’s protections — and Stanford’s stated commitment to freedom of speech — don’t apply to SAE, they don’t apply to any of us. After last week’s events in Paris, that should be a very troubling notion indeed.