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"OFFENSIVE SPEECH
AND THE
FIRST AMENDMENT
IN THE CLASSROOM"



by

James C. Foster
Department of Political Science


May 1993



FACULTY FORUM PAPER
Offensive Speech and the First Amendment in the Classrom
James C. Foster
Department of Political Science


Background

Sometime during Fall Term 1992, the pledge class of Phi Delta Theta fraternity commissioned the printing of a sexually explicit image on a white T-shirt as a fund raising project. Designed for general sale in conjunction with the annual Oregon State University (OSU)/University of Oregon (UO) Civil War November football ritual, the T-shirt's printed image depicts a male beaver in OSU colors sexually forcing himself upon a female duck in UO colors. The posture of the male beaver is aggressive, pulling the duck's hair as he enters her from behind. The female duck is crying, as though she is asking the beaver for mercy. The T-shirt displays the phrase "Fuck the Ducks."

At some point in February, a Phi Delta Theta member wore one of these T-shirts to one of his classes on campus at OSU. The class he attended was a regularly scheduled offering in the OSU College of Liberal Arts. The course also was among those fulfilling one of the Perspectives requirements in OSU's undergraduate baccalaureate core. A female student in this class found the T-shirt so offensive that she wrote a letter of complaint to the OSU Barometer.

Question

What actions might a faculty member take in response to the wearing of such a T-shirt in his or her class, in accordance with the animating values of the First Amendment to the United States Constitution? (2)

Discussion

My view is that expressions such as the Phi Delta Theta T-shirt, which are offensive speech, require an opportune faculty classroom response to maintain an open learning environment. I think the mode that this response should take is for the faculty member to convert such a display of offensive speech into an occasion for students to discuss how to reconcile competing values of free speech and social responsibility within an academic community. Further, I believe that this response is in tune with First Amendment concerns.

Offensive Speech

The Phi Delta Theta T-shirt constitutes "offensive speech" on several grounds.

First, in the ordinary language sense of the term, the portrayal is "[o]ffensive or repulsive to the senses; loathsome." (3)

Second, under federal constitutional standards, the T-shirt may be deemed a form of "fighting words" and as "obscene." In a 1942 decision, the Supreme Court defined fighting words as ". . . those which by their very utterance inflict injury . . . ." (4) In 1973, the Court defined obscenity as a work that "taken as a whole, appeal[s] to the prurient interest in sex, which portray[s] sexual conduct in a patently offensive way, and which, taken as a whole, do[es] not have serious literary, actistic, political, or scientific value." (5)

Third, the T-shirt violates women. The T-shirt portrays a rape experience--the male beaver is having his way with the female duck against her will. He is dominating her via his penis. As such, the portrayal is a manifestation of this society's rape culture, which encourages and condones violations of women. That rape culture is rooted in a "culure of sexual inequality" that "fuses dominance with sexuality." (6)

The T-shirt is not a passing lapse of judgment. Nor is it merely, as The Oregonian dismissively saw it, "the stuff of sick humor...[s]ophomoric humor." (7) The t-shirt is a damaging form of expression. As I wrote in reply to The Oregonian editorial, the T-shirt "is symptomatic of the cultural devaluation and objectification of American women." (8)

Faculty Response

When a member of the teaching faculty is offended by something like the Phi Delta Theta T-shirt, or when a student brings to a faculty member's attention some classroom expression s/he has found offensive, the faculty member should thematize it. In other words, the faculty member should make an issue of it. An issue should be made of offensive speech for several reasons, all related to maintaining an open atmosphere conducive to learning.

First, faculty silence condones offensive speech. By not calling attention to expressions which demean, faculty members tacitly validate them. The faculty member's silence may convey the message that the speech in question is not consequential enough to merit examination. Faculty inaction can be a destructive form of action that undermines learning. In the face of offensive speech, faculty silence can silence students.

Second, faculty silence in the face of offensive speech compromise the integrity of the teaching-learning process. Education entails something of a "social contract." A central feature of his informal, yet crucial, agreement requires that classroom participants are civil towards one another. When female class members view speech like the Phi Delta Theta T-shirt, they may feel marginalized, as though they have been rendered objects of eroticized domination or, at worst, may suffer reliving past violations. male class members may feel categorized, as though rape behavior is the litmus test of "manhood" (or School Spirit?). When a faculty member does not respond to offensive speech, or fails to make an issue of speech a student finds offensive, the classroom contract is breached because incivility prevails.

Third, faculty silence results in missed opportunity. As teachers, part of what we do involves engaging our students in conversations about their relations with other people. I submit that these sorts of conversations are pertinent to classrooms across the university. Just as writing is a necessary skill more effectively imparted "across the curriculum" instead of being ghettoized in composition courses, our orientations toward other human beings (in the Phi Delta Theta T-shirt situation, women) are as appropriate a subject for science, engineering and business courses as liberal arts courses.

I understand the impulse simply to ignore offensive speech. Why "dignify" it by responding at all? Why open up a messy can of worms? Why take up limited class time with distracting, divisive issues? my reply to these sorts of reservations is this: Being members of a general social community committed to free speech, as well as being members of an academic community committed to free speech, as well as being members of an academic community comitted to pursuing truth, university professors are obligated to facilitate responsible speech. This position is a restatement of the generally held view that our enjoyment of the right to free speech carries with it a corresponding obligation to speak responsibly. (9)

First Amendment Values

In arguing that OSU faculty should respond to offensive speech by making an issue of it, I believe I am advancing core First Amendment norms.

First, challengas are the life-blood of the First Amendment. As civil libertarian Justice William O. Douglas wrote in Terminiello v. Chicago: "[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." (10) Making an issue of gender attitudes such as those on display in the Phi Delta Theta T-shirt vivifies the First Amendment.

Second, under the First Amendment, offensive speech must occasion more speech. The brothers of Phi Delta Theta are free to display their offensive attitudes towards women on T-shirts like the ones on which they "made a killing." Likewise, students and faculty have a First Amendment right to make an issue of those attitudes. University classrooms are ready-made forums for give-and-take over the question of free speech and responsible speech. The First Amendment holds that "debate on public issues should be uninhibited, robust, and wide-open . . . [even thought] it may well include vehement, caustic and sometimes unpleasantly sharp attacks . . . ." (11)

Third, the appropriate First Amendment posture of university officials, such as faculty members, vis-a-vis offensive speech is neither to ban it nor tolerate it, but to harness it to principled pedagogical ends. (12) University professors ought not to set themselves up as censors: "If some ideas are intrinsically false and ought not to be communicated, who should have the authority to censor them?" ask law professors Paul Brest and Sanford Levinson. (13) Tolerance is also unacceptable. University professors ought not to ignore offensive speech: "Laissez-faire might be an adequate theory of the social preconditions for knowwledge in a nonhierarchical society." (14)

In our imperfect, hierarchical society, First amedment values should suffuse education, especially education at a public land-grant institution like OSU. In Short, we should practice the values we preach.

(1) My thanks to Laurel Ramsey and Dave Sterns for their thoughtful reading and helpful suggestions. Thanks to Gary Tiedeman and Vickie Nunnemaker for their editorial assistance.

(2) N.B.: This paper is not a legal memo. It offers no formal legal opinions on the constitutionality of faculty responses under either the federal or Oregon constitutions. Rather, it is a position paper advocating a specific sort of faculty response consonant with the First Amendment to the United States Constitution and, hence, presumable legitimate under it.

(3) American Heritage Dictionary (1971 ed.), defining "obscene."

(4) Chaplinsky v. New Hampshire, 315 U.S. 568.

(5) Miller v. California, 413 U.S. 15.

(6) Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987), pp. 82, 92.

(7) The Oregonian, Wednesday, March 10, 1993, B6.

(8) Unpublished letter on file with author.

(9) This view accords with the institutional commitments underpinning the anti-discriminatory harassment policies promulgated in the 12/91 OSU brochure, "Sticks and Stones Can Break My Bones but Words Can Never Hurt Me."

(10) 337 U.S. 1 (1949)

(11) New York Times v. Sullivan, 376 U.S. 254 (1964).

(12) My position is in contrast to Bethel School District No. 403 v. Fraser, 478 U.S. 675, holding that public high school officials need not tolerate student speech inconsistent with its "basic educational mission, " hence could discipline a student for having delivered a sexually explicit speech at a school assembly.

(13) Paul Brest and Sanford Levinson, Processes of Constitutional Decisionmaking: Cases and Materials (Boston: Little, Brown, 1983), p. 1094.

(14) Catherine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989), p. 205.



Opinions expressed by authors of Faculty Forum articles are not necessarily those of the OSU Faculty or Faculty Senate.