A Bit More on the William & Mary Speech Code:

On reflection, I think I should have faulted William & Mary more for what sounds like an unconstitutional speech code (quite independently of whether it is to be enforced using confidential complaints).

The college's "What is Bias?" Web page defines as a "bias incident" all "hostile behavior", including "verbal (whether spoken or written) [behavior]," "that is directed at a member of the William and Mary community because of that person's race, sex (including pregnancy), age, color, disability, national or ethnic origin, political affiliation, religion, sexual orientation, or veteran status." The "Bias Reporting" page acknowledges that expression of even offensive ideas is generally protected, but concludes that "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities" is not protected — this seems to suggest that all the statements that are labeled "bias incidents" are indeed punishable.

Thus, for instance, condemning a particular student's or professor's religious or political views in any way that is "hostile" — even if it isn't threatening or "fighting words" — would seemingly be punishable, if it's "aimed at" or "directed at" the person. This might be limited to statements said to a particular person; but it might also be read as covering statements said to the public at large in a newspaper or a Web post about a particular person (depending on how "directed at" and "aimed at" is read). The Statement of Rights and Responsibilities seems considerably more speech-protective, and the "Bias Reporting" page restricts its statement about unprotected speech to speech that violates the Statement of Rights and Responsibilities. But the Statement is not crystal clear about what is protected, and the "Bias Reporting" page may be seen as an elaboration on the Statement that makes certain speech punishable.

So William & Mary should, I think, be faulted for seemingly instituting a speech code that potentially forbids a wide range of protected and important speech — or, at best, leaving students unclear about what speech is allowed. I continue to think that the William & Mary initiative's solicitation of confidential complaints is sound, and I'll try to elaborate a little more on this shortly; investigating properly punishable conduct (such as physical attacks, vandalism, and threats) often requires considering confidential complaints. But constitutionally protected speech ought not be punished whether based on confidential complaints or otherwise.

Note also Stanley Kurtz at the National Review Online has some interesting posts in response to my earlier post on this matter, here, here, and here; they're much worth reading. Kurtz also argues that the current William & Mary administration is untrustworthy in other (but related) contexts; I agree that if this is so (I don't know enough about it to be sure), then observers might justifiably be skeptical about how the college's policies are likely to be implemented.