The Volokh Conspiracy - A Culture of Free Speech:

Just a final thought that bears on the context of the recent Dartmouth imbroglio, as well as the possible larger implications of the story. This is the College's recent history of actually punishing students for speech of which the College disapproves. As T.J. Rodgers, my colleague on the Dartmouth Board of Trustees put it, "To be clear: I believe there has been and continues to be a serious free speech problem at Dartmouth." I think this unfortunate history may provide a broader context for understanding this most recent incident and what it says about the perils of campus speech restrictions more generally.

Dartmouth's recent history on matters of free speech is lamentable and well-known. Almost 20 years ago in a series of cases Dartmouth's President James O. Freedman attempted to bully, intimidate, and even expel members of the Dartmouth Review in a effort to destroy the paper's existence (more here). (For the record, I was not a member of the Review at Dartmouth or otherwise affiliated). Freedman's attack rested on vicious distortions, half-truths, and personal attacks. The students were prosecuted and convicted by a ludicrous college disciplinary proceeding of "vexatious oral exchange," a heretofore unknown offense. Later, dorm room deliveries of the Review were banned, in a superficially neutral policy with one clear target.

A few years ago the College permanently derecognized Zeta Psi fraternity again articulating an ex post speech restriction. This punishment and its justification led the Foundation for Individual Rights in Education to downgrade Dartmouth from a "green" to a "yellow" rating for creation of a speech code. Last spring the speech code simply disappeared from the College's website with no warning or explanation--leading FIRE to reinstate its green rating, but failing to clarify the College's policy on free speech. Zeta Psi continues to this day to remain derecognized by the College. Although the fraternity has continued to function, it has been stripped of its ability to legally recruit new members and to allow them to reside in the fraternity, the house itself remains a gloomy reminder of violating Dartmouth's ad hoc speech policy.

The latest instance follows in the context of this history. Given Dartmouth's track record of punishing speech by students with kangaroo-court college disciplinary proceedings, and doing so by ad hoc standards invented and applied retroactively, it may seem more than plausible that a student might feel intimidated by perceiving himself to be in the College's crosshairs.

Things have not always been thus at Dartmouth. Under the leadership of President Ernest Martin Hopkins, in the mid-century Dartmouth was a national leader in exemplifying the value of free speech on campus. Over howls of protest from media, alumni, and faculty (universities were different places then), Hopkins permitted Communists (including CPUSA leader William Z. Foster) to be invited to speak, indeed as Stearns Morse relates it, "more important, the choice of these speakers was generally left ot vaious student organizations." In the 1930s, The Dartmouth (the campus daily) editorialized in favor of a number of controversial causes, including striking miners in a nearby Vermont town. Although this upset a wealthy donor to the College, Hopkins refused to censor the students in order to preserve the potential for the gift (universities were very different places then), but merely observed "[W]e've lived with and shall keep on living with it."

In 1953 Presient Eisenhower chose Dartmouth's Commencement as the site for his famous "Don't Join the Book Burners" speech, calling for freedom of speech rather than censorship of Communist books and ideas on campus.

This is not intended in the slightest as a comment on this case and no one involved here was around for the prior incidents. But I think that there is a larger point here. Institutions can seek to create and cultivate a culture of free speech or they can develop a culture of censorship. President Hopkins left a legacy of tolerance and freedom that persevered for decades after his departure. President Freedman created a legacy of intimidation and prevarication that continues to hang like a dark cloud over Dartmouth today. The College has never renounced its use of disciplinary proceedings in these cases and indeed continued to defend its actions, even when defeated in court. The knowledge that censorship, intimidation, and disciplinary proceedings are available as part of a university's bag of tools for dealing with unpleasant speech undoubtedly chills speech. But more fundamentally it also creates an environment of distrust and mistrust, of background malice and threat, where students know and fear that speech or associations today may be punished according to arbitrary rules and punishments announced tomorrow.

	[Todd Zywicki, August 19, 2006 at 8:40am] Trackbacks A Culture of Free Speech: Just a final thought that bears on the context of the recent Dartmouth imbroglio, as well as the possible larger implications of the story. This is the College's recent history of actually punishing students for speech of which the College disapproves. As T.J. Rodgers, my colleague on the Dartmouth Board of Trustees put it, "To be clear: I believe there has been and continues to be a serious free speech problem at Dartmouth." I think this unfortunate history may provide a broader context for understanding this most recent incident and what it says about the perils of campus speech restrictions more generally. Dartmouth's recent history on matters of free speech is lamentable and well-known. Almost 20 years ago in a series of cases Dartmouth's President James O. Freedman attempted to bully, intimidate, and even expel members of the Dartmouth Review in a effort to destroy the paper's existence (more here). (For the record, I was not a member of the Review at Dartmouth or otherwise affiliated). Freedman's attack rested on vicious distortions, half-truths, and personal attacks. The students were prosecuted and convicted by a ludicrous college disciplinary proceeding of "vexatious oral exchange," a heretofore unknown offense. Later, dorm room deliveries of the Review were banned, in a superficially neutral policy with one clear target. A few years ago the College permanently derecognized Zeta Psi fraternity again articulating an ex post speech restriction. This punishment and its justification led the Foundation for Individual Rights in Education to downgrade Dartmouth from a "green" to a "yellow" rating for creation of a speech code. Last spring the speech code simply disappeared from the College's website with no warning or explanation--leading FIRE to reinstate its green rating, but failing to clarify the College's policy on free speech. Zeta Psi continues to this day to remain derecognized by the College. Although the fraternity has continued to function, it has been stripped of its ability to legally recruit new members and to allow them to reside in the fraternity, the house itself remains a gloomy reminder of violating Dartmouth's ad hoc speech policy. The latest instance follows in the context of this history. Given Dartmouth's track record of punishing speech by students with kangaroo-court college disciplinary proceedings, and doing so by ad hoc standards invented and applied retroactively, it may seem more than plausible that a student might feel intimidated by perceiving himself to be in the College's crosshairs. Things have not always been thus at Dartmouth. Under the leadership of President Ernest Martin Hopkins, in the mid-century Dartmouth was a national leader in exemplifying the value of free speech on campus. Over howls of protest from media, alumni, and faculty (universities were different places then), Hopkins permitted Communists (including CPUSA leader William Z. Foster) to be invited to speak, indeed as Stearns Morse relates it, "more important, the choice of these speakers was generally left ot vaious student organizations." In the 1930s, The Dartmouth (the campus daily) editorialized in favor of a number of controversial causes, including striking miners in a nearby Vermont town. Although this upset a wealthy donor to the College, Hopkins refused to censor the students in order to preserve the potential for the gift (universities were very different places then), but merely observed "[W]e've lived with and shall keep on living with it." In 1953 Presient Eisenhower chose Dartmouth's Commencement as the site for his famous "Don't Join the Book Burners" speech, calling for freedom of speech rather than censorship of Communist books and ideas on campus. This is not intended in the slightest as a comment on this case and no one involved here was around for the prior incidents. But I think that there is a larger point here. Institutions can seek to create and cultivate a culture of free speech or they can develop a culture of censorship. President Hopkins left a legacy of tolerance and freedom that persevered for decades after his departure. President Freedman created a legacy of intimidation and prevarication that continues to hang like a dark cloud over Dartmouth today. The College has never renounced its use of disciplinary proceedings in these cases and indeed continued to defend its actions, even when defeated in court. The knowledge that censorship, intimidation, and disciplinary proceedings are available as part of a university's bag of tools for dealing with unpleasant speech undoubtedly chills speech. But more fundamentally it also creates an environment of distrust and mistrust, of background malice and threat, where students know and fear that speech or associations today may be punished according to arbitrary rules and punishments announced tomorrow.