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On the Record: Susan Kruth, an attorney specializing in student freedom of speech

Susan Kruth is an attorney at the Foundation for Individual Rights in Education (FIRE), a nonpartisan organization that defends freedom of expression and due process on college campuses. On April 19, Kruth gave a talk in the Gund Gallery Community Foundation Theater entitled “Free speech, safe spaces and academic freedom,” sponsored by the Center for the Study of American Democracy.

In popular discourse, people tend to perceive a tension between political correctness and freedom of speech. How do you define political correctness and freedom of speech? Why do you believe there’s a tension between the two?

To the extent that political correctness just means trying to be respectful in tone, I think that it’s reasonable to encourage, but when public schools or other government entities try to mandate that certain language be used or certain langage not be used, it can really hinder people’s ability to express themselves the way they want to express themselves. As far as freedom of speech, I think that the Supreme Court does a good job of drawing the line between speech that’s expressive — even if it makes people mad — and speech that really functions as conduct because it really has such an immediate connection with physical harm.

As an attorney at FIRE, you have made statements criticizing the Office of Civil Rights (OCR), the office that enforces Title IX on college campuses. Why are you critical of the OCR?

One thing the OCR has been doing lately is coming down hard on sexual harassment and sexual assault—and the way colleges deal with them—in ways that don’t help schools in actually protecting students and … infringe on student’s rights. One thing the OCR was involved with was telling schools they have to define sexual harassment in this very broad way: “speech or conduct of a sexual nature.” That could include practically any speech about sex. It’s very important that schools respond to the kind of harassment that interferes with students’ educations, but it’s really not the job of a public institution to say, “You can’t say anything about sex that offends anybody.” That’s going to limit a lot of constitutionally protected expression.

Where do we draw the line between censorship and protecting individuals from hate speech?

The law right now does a pretty good job of distinguishing between speech that functions as conduct and speech that, while it’s hurtful, can ultimately, and should be ultimately, fought with words rather than censorship. One example would be “incitement to imminent unlawful action.” That’s a situation where someone is trying to convince people to violate the law — usually with violence — in a way that is likely to encourage someone to commit these acts imminently. Speech that doesn’t have that immediate, concrete effect is protected by the First Amendment.

How can Kenyon students ensure that they are creating an environment in which all people can express themselves freely?

One of the biggest initial steps that all members of a campus community can make is advocating policies that are very clear and very speech-protective. Kenyon already promises its students and professors free speech rights, but make sure that all of the other policies in place are consistent with that. Make sure policies do not prohibit offensive expression because offensive expression is, a lot of the time, part of conversations, and it is certainly part of what is protected under the First Amendment. Protecting speech is something that we do because it actually helps things move forward. I don’t think you can make progress on any issue, no matter how you define it, unless there are open conversations, including open conversations with people who you’re really offended by or disturbed by.

This interview has been edited for length and clarity.

Emily Birnbaum

Emily Birnbaum is News Editor of the Collegian.