Posted by Eugene Volokh:
Anonymous Complaints:
http://volokh.com/archives/archive_2007_10_21-2007_10_27.shtml#1193425274
[1]Stanley Kurtz (National Review Online's The Corner) writes:
East Germany Hits Virginia]
I�ve heard of speech codes, but I�ve never heard of anything quite
like [2]this: a mechanism to anonymously report "bias related to
race, gender, sexual orientation, religion, or other protected
conditions" to the university administration, for possible action
against the perpetrator. This system has been set up at William and
Mary, and a website protesting it can be found [3]here. Is this
something new, or at least rare, or is it perhaps more common than
I realize?
InstaPundit seems to [4]echo this concern, as have some readers who
have e-mailed me.
It seems to me that these concerns are somewhat overstated, at least
absent more facts about how the system is being used. Let me briefly
explain why.
1. The College is certainly free to punish biased conduct, such as
beatings or vandalism, and even a narrow zone of speech, such as
threats. In fact, it should punish such behavior, though I'm not one
of those who thinks that bias-motivated beatings, vandalism, or
threats should generally be punished more than other beatings,
vandalism, and threats. What's more, the College's Web page
acknowledges that "because the expression of an idea or point of view
may be offensive or inflammatory to some, it is not necessarily a
bias-related incident. William and Mary values freedom of expression
and the open exchange of ideas and, in particular, the expression of
controversial ideas and differing views that is a vital part of civil
discourse."
2. The Web page does go on to say, "While this value of openness
protects controversial ideas, it does not protect harassment or
expressions of bias or hate aimed at individuals that violate the
college's statement of rights and responsibilities." This leaves open
the possibility that the College will punish protected speech as
"harassment or expressions of bias or hate aimed at individuals that
violate the college's statement of rights and responsibilities"; but
it also leaves open the possibility that only unprotected speech (such
as threats) would be covered.
On first reading, the [5]statement of rights and responsibilities
didn't strike me as particularly troubling -- the most clearly
relevant responsibility there seems to be the duty to obey "the
general law," which I take it means no vandalism, assault, threats,
and the like. If William & Mary starts punishing protected speech,
then it should be condemned for that. And, more broadly, I would
condemn it for not being more precise about what exactly constitutes,
in its view, punishment "harassment or expressions of bias or hate
aimed at individuals that violate the college's statement of rights
and responsibilities." But on balance the College's Web page and the
statement of rights and responsibilities -- which do provide pretty
broad and specifically worded assurances of speech protection -- don't
seem extremely troubling.
3. This then gets us to what seems to have triggered the "East
Germany" reference: The encouragement of anonymous complaints. I know
many of my friends are very troubled by such complaints, and I can see
their possible costs. But they also have substantial benefits, and I
would not roundly condemn institutions that encourage them, at least
until I see the institutions misusing them.
In fact, we almost always allow and often encourage confidential
reporting of alleged misconduct -- poor performance by a company's or
government agency's employees, street crime, corporate crime, and so
on. We do this because we realize that without the promise of
anonymity, people will often be chilled from speaking about
misconduct.
Of course if a school or a police department acts badly based on an
anonymous complaint -- restricts speech, or punishes someone based on
the anonymous allegations -- then that's bad. But anonymous tips are
often useful for investigation, even if they can't be used in the
actual adjudication.
Say, for instance that a student (1) sees evidence that a classmate is
cheating, (2) hears a professor say in class "If you express an
anti-abortion view on the exam, you'll get an F," or (3) hears some
acquaintances brag about how they've beaten up a gay student (or, if
you prefer, a Muslim student, a white student, and so on). In any of
these cases, the student might well want to alert the authorities
without revealing his name, and opening himself up to retaliation. And
the anonymous tip may well lead to the discovery of credible evidence
(whether tangible evidence or nonanonymous testimony).
It seems to me we should indeed allow and even encourage such
anonymous tips, while of course remaining suitably skeptical about
such tips, insisting that actual punishment not turn on such tips, and
insisting that protected speech (as opposed to violence, vandalism, or
threats) not be punished at all, whether based on anonymous tips or on
nonanonymous ones.
References
1.
http://corner.nationalreview.com/post/?q=Mzg4NzEwZmY2NDIyNWNmMTQ0Nzk5ZDJmOTE5OGFiMTI=
2. http://www.wm.edu/diversity/reportbias/index.php
3. http://www.freeamericasalmamater.org/
4. http://instapundit.com/archives2/010933.php
5. http://www.wm.edu/deanofstudents/judicial/RightsandResponsibilities.pdf
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