September 14, 1992 305 Memorial Drive #607A Cambridge, MA 02139 John Roberts Executive Director Civil Liberties Union of Massachusetts 19 Temple Place Boston, MA 02111 Dear Mr. Roberts, Thank you for your reply to the letter which I sent to Ms. McWhinney. Because I disagree with your assessment of the MIT policy, I would like to explain why and to clarify my concerns. You state: "The policies now in effect at MIT are not that problematic. They focus on behavior, rather than speech, as actionable." The wording of the MIT policy, however, disproves this assessment, for it specifically states that speech is to be restricted. The policy statement provided in the course bulletin specifically begins, "Harassment is defined as verbal or physical conduct... ." Verbal conduct is precisely the definition of speech; I can think of no speech which does not constitute verbal conduct. Is there, in fact, any action a human being can take which cannot be called "conduct"? I disagree with your division between speech and behavior. Speech is a subset of behavior. I had forwarded to you a statement of the Institute regulations containing the policy statement; I will do so again for your convenience. In addition to copies of the policy statement, I am enclosing a booklet, "Stopping Sexual Harassment," which has been distributed to all students by the administration at MIT. The booklet specifically refers to examples of proscribed speech. It includes "sexist" "remarks or jokes", "unwanted sexual ... questions", "leering", and "public displays of suggestive or sexually demeaning objects, photographs, posters, or cartoons." Of these categories, I do not see that any are ordinarily threatening when occurring between students. [I should note that Catherine MacKinnon and many of her allies would disagree. However, her hateful and bigoted view of men is well-documented.] Leering simply refers to "cast[ing] a sidelong glance," which may but need not be "lascivious, knowing, or malicious." The other activities constitute speech. Constraints on posters and cartoons in particular seem difficult to understand since they do not represent even potentially intimidating person-to-person contact. Who has ever been assaulted by a cartoon? You continue, "Sometimes it is very difficult to draw the line between speech and action as you well know. We would need to look at individual cases to make final determinations." Unfortunately, this is essentially the same claim that the administration makes in defending the vagueness of its policy. It is almost impossible to fight such a policy, since the administration can choose to act against those ignorant of their rights while avoiding punishing those believed to be ready to defend their rights. In practice, case-by-case judgements by the administration mean arbitrary exercise of power. Such arbitrary power is the antithesis of everything the ACLU has fought for. It should not be acceptable to the ACLU. You state, "This is an education and advocacy rather than legal issue... ." I could not disagree more strongly. The issue is legal as well as educational. To begin with, the problem results from the state of the law today. Legal liability is the most important concern in drawing up MIT disciplinary policies. I know this from first-hand experience because as a member of the student council, I participated in drawing up the MIT alcohol policy. MIT wants this policy to prevent any lawsuit against it on the basis of harassment. Because it is more difficult to sue for infringement of free speech rights, there is a natural tendency for MIT and other institutions to lean against free speech. The vague-sounding "hostile, intimidating, or offensive workplace" standard, originally intended to refer to a poisoned workplace, has come to be perceived as almost any environment where an employee or student has at some point felt offended. This dangerous breadth has propelled MIT and many other institutions to draw up vague policies designed to prevent controversial speech and behavior. If there were one thing I could ask the ACLU to do, it would be to ask the courts to define this standard clearly and narrowly so that First Amendment rights are not infringed. In the aftermath of RAV v. St Paul, I believe this is an achievable goal. This is a legal issue also in that the MCRA has been held to provide some protection for speech. Legal concerns apparently were behind MIT's decision this year to end the enforcement of "badmouthing" rules restricting students' rights to criticize other living groups. When convinced of its legal responsibilities, the Institute will obey the law. While the MCRA bans certain narrowly defined forms of harassment, my naive reading of it suggests that what speech it does not ban, it generally requires universities to tolerate. I have not been able to obtain the Abramowitz v. BU case (and would greatly appreciate it if the ACLU could find me a copy, as my searches in Harvard's law library have been unsuccessful), but my understanding is that it did provide significant speech protection. Under the RAV v. St. Paul case, the MCRA must protect speech regardless of content to be constitutional, and I suspect that Massachusetts courts would so find in order to maintain its constitutionality. To make use of the MCRA, the CLUM should take one or both of two measures. The first is educational. If the state of the law is clear, the CLUM should inform university administrations of their legal obligations. In the CLUM communications with universities which you and Ms. McWhinney have forwarded me, no reference is made to these obligations. I believe this is why MIT and other schools have chosen to ignore the mailing. My attempts to argue the state of the law with administrators, specifically Associate Provost Samuel Jay Keyser and Ombudsman Mary Rowe, have proven unsuccessful because as a student without legal training, I cannot have myself accepted as an expert. The CLUM needs to intervene to convince them that students do have free speech rights. At the very least, the CLUM should explain that under the UWM Post decision, students' behavior is not held to the "hostile environment" standard, and that consequently, policies based on that standard are unnecessary and overbroad. The second step involves litigation. If the CLUM does not believe that the state of the law is clear, it should bring legal action in Massachusetts courts against a speech code, and thereby have the courts determine the boundaries of protected speech. If merely being a student at a school with a speech code gives standing, I believe I could recruit a large group of people to join the suit at MIT. Since free speech is the cornerstone of civil liberties, such action would be a worthwhile investment on the part of the ACLU. In the statement by the CLUM which you have enclosed, I find a very perceptive statement. "In the long run, any compromise of principles of free speech works to the detriment of minorities." I believe that in the area of sexual harassment, this circumstance has already arrived. Speech restrictions intended to prevent sexual harassment are cast in the news media, and therefore generally believed, as protective of a majority group, women, since by custom, men are expected to make most overt sexual advances. These rules enjoy much support among another voting majority, married people (and an overwhelming majority of judges, legislators, and other powerful figures are married), who have limited need for the ability to flirt or make sexual advances, since they are already in a sexual relationship. Our society has always had a prudish element, fearful of sexual diversity and freedom. Thus, there is no political counterweight to restrictions on sexual expression. I believe that the people who will bear the brunt of any excesses in sexual harassment law will be young, relatively powerless heterosexual men, along with those gays and lesbians who have the misfortune to express sexual interest in a homophobic or hypersensitive heterosexual. While sexual harassment law makes reference to a "reasonable person" standard, it is doubtful that most people view human sexuality logically, rendering the standard unhelpful. Because our court system has traditionally has given little recognition to sexual expression, sexual harassment law has led to more infringement on speech than provisions against sexist or racist speech, and clearly sweeps within its bounds speech which is not motivated by hate or prejudice. I hope the ACLU will see this problem and devote resources to defending freedom of sexual expression. For your reference, I am enclosing a statement by the American Association of University Professors, expressing support for freedom of speech on campus. It is written in much the same spirit as the CLUM and ACLU statements, but appears to stand more unequivocally for freedom of expression. As our nation relies upon the ACLU to lead the defense of the Bill of Rights, I hope it will take an equally strong position. Thank you for taking the time to read this letter. Sincerely, Lars Bader