August 30, 1992
                                                 305 Memorial Drive #607A
                                                 Cambridge, MA 02139

Melissa McWhinney
Intake Attorney
Civil Liberties Union of Massachusetts
19 Temple Place
Boston, MA 02111

Dear Melissa:

I have enclosed a copy of the MIT sexual harassment committee report
as well as a photocopy of the statement provided in the MIT course
catalog.  In the future, I will try to locate and send to you
additional information on the MIT policy.  In addition to the official
information, I am enclosing some articles printed in the campus media
on the policy as evidence that the policy has caused concern among
students.  Articles in the campus press have shown that concern with
the policy has not been limited to members of one race, gender, or
sexual orientation.

Thank you for the copy of the ACLU's suggested policy.  While I
believe that the suggested policy, with its references to "demeaning"
behavior, has some vagueness and should do more to protect freedom of
speech, I agree it would be a great improvement over what currently
exists at MIT and would support its adoption at MIT.

My concern with the MIT policy is part of a larger concern with the
"hostile or offensive environment" speech test in employment,
education, and housing.  It is difficult to specify the difference
between causing offense and creating an offensive environment.  Almost
every public forum is someone's workplace.  In rental housing, some
states have extended agency theory to hold managers responsible for
the behavior of residents.  I spend almost no time outside the
boundaries of schools, rental housing, and workplaces.  If my free
speech rights are to have any meaning at all, the government must not
be allowed to regulate speech through intermediaries like schools,
employers, and landlords.  This breach of freedom of speech goes far
beyond other recent infringements, like the gag rule on abortion or
government curbs on art funding, which have attracted much greater
attention from free speech advocates.

In general, I am worried about the way in which speech codes have been
presented as a protection of "civil rights."  Because "civil rights"
and "civil liberties" have sometimes been seen as the same, civil
liberties organizations seem reluctant to fight speech codes.  But
there is a real tension between the demands of civil rights, which
conventionally mean equality of outcome, and civil liberties, which
establish the right of each person to seek a different outcome
appropriate to himself or herself.  The latter must be the primary
concern of the ACLU.  There are many civil rights organizations, but
very few that focus on civil liberties.  If those few that do focus on
civil liberties try to compromise on this issue while the proponents
of speech restrictions remain intransigent, speech restrictions will
get worse.  There is virtually no form of political speech regarding
race, gender, or sexual orientation that a sufficiently inventive
legal scholar cannot make out as a perceived threat to equality.  The
more articulate, reasoned, and persuasive such speech is, the stronger
the case can be made that it constitutes a threat to someone's
equality.  Creating a civil rights loophole in civil liberties renders
the latter meaningless.

I fear that selective enforcement of the First Amendment is a
possibility.  Given that discussion of "harassment" policies and
speech codes has acquired a partisan tone, with those opposing speech
codes being cast (in many cases falsely) as "right wing" and
presumptively against other aspects of civil liberties, I worry that
there will be little willingness in the ACLU to fight speech codes
that are perceived to be aimed at the "other side."



                                                 Sincerely,


                                                 Lars Bader