Speak No Evil: The Triumph of Hate Speech Regulation (review)

Speech code policies are neither a novel concept in higher education nor are they without controversy. These policies were designed and implemented to suppress hate speech at colleges and universities but are difficult to characterize, given that no two policies are alike. Opponents of speech codes view such policies as a product of liberal activists who are apt to place limits on free speech using the claims of political correctness. Proponents see them as a mechanism that creates a safe environment for learning, free from ethnic, racial, and other potentially hostile speech.

In Speak No Evil: The Triumph of Hate Speech Regulation, Jon B. Gould, assistant professor in the Department of Public and International Affairs at George Mason University, provides a provocative look into the development of speech code regulations and the motivations behind them. He highlights the complex interaction between legal precedents and society's interpretation of the law suggesting that "the ultimate power of constitutional decisions and norms is found not in court rulings but in the response, acceptance, and interpretations of those holdings in civil society" (p. 152).

Gould challenges readers to reflect on how formal laws, such as the First Amendment, and the public's informal or practical understanding of them work together to formulate how society makes meaning of the law. Rather than taking a conventional approach to the topic of hate speech regulation (by examining campus speech codes and the legal precedents that nullified them), Gould emphasizes the contradiction that exists between higher education's view of speech code policies and that of the courts.

He contrasts a number of court rulings on speech codes with speech code policies developed at a number of universities. Although the courts consistently struck down restrictions of free speech on college campuses, higher education institutions frequently disregarded court rulings and developed hate speech policies that did not comply with legal precedent. Consequently, the author asserts, "Hate speech regulation has quietly surpassed the wildest fears of its opponents to become an accepted norm in American society" (p. 8).

The book is divided into six chapters and, according to the author, contains two major themes: the first is an analysis of the social and legal controversy surrounding speech codes in higher education and the second is an examination of the social construction of law as a reflection of society's altering of legal norms. After a short introduction, Chapter 1 traces the development of college speech codes from the first wave in the 1960s and '70s to the second and most recent wave beginning in the late 1980s and early '90s.

Gould demonstrates how speech codes were created using standards and language similar to sexual harassment policies—specifically the language of the "hostile workplace environment." He argues that speech codes came about due to a perceived increase in racial harassment and violence across college campuses.

Chapter 2 explores the notion of constitutional construction to show that informal knowledge of speech laws has as much influence in shaping "acceptable" speech as court rulings. The author traces the roots of free speech laws, beginning with the First Amendment. He maintains that because society has extended the reach of First Amendment law to determine the norms for private behavior, "the ultimate power of constitutional construction [rests] outside the courts" in society (p. 43).

In Chapter 3, Gould, with a wealth of empirical data, shows, among other things, that contrary to popular belief only a small minority of four-year colleges created speech codes that transgressed the First Amendment. His data show that speech codes were advanced primarily by "top-level administrators acting on utilitarian or instrumental motives" (p. 89).

Chapter 4 summarizes several court cases dealing with speech code regulation and compares court rulings on sexual harassment with rulings on hate speech. Chapter 5 details how colleges and universities surprisingly adopted more restrictive speech codes despite prior court rulings that found such policies constitutionally suspect.

The final...