In Speak No Evil, Gould goes beyond politicized and partisan debates concerning hate speech regulation to provide a theoretically rich and empirically driven account of the rise, persistence, and impact of hate speech regulation on U.S. colleges and universities. Gould introduces some puzzling questions at the outset. Why did campus speech regulation arise when it did? And more intriguingly, how did hate speech triumph in academia in the wake of contrary constitutional precedent? As the author discovers, not only did many universities retain hate speech policies following a series of appellate court decisions ruling them unconstitutional, but some actually defied these decisions by adopting new hate speech codes. In related fashion, the author asks how nearly unenforceable hate speech codes became fairly effective? And why have appellate courts validated speech restrictions in the workplace (e.g., hostile work environments) while they have limited restrictions in educational settings? These questions motivate a well-researched and lucidly written book.
Gould positions his theoretical argument against that presented by hate speech critics. In this sense, he partly constructs an intellectual nemesis from a collection of columnists (e.g., George Will) and interest groups, few of which identify as social movement theorists per se. Gould labels this the “traditionalist” explanation, which claims that the creation and diffusion of hate speech policies reflected liberal activism pervading higher education in conjunction with organized advocacy group mobilization from marginalized communities. Gould maintains that the traditionalist argument is plagued by reliance on case studies and limited empirical data. Indeed, prior to his endeavor, little reliable data existed on the prevalence and nature of hate speech regulation.
Gould fills this informational lacuna by collecting data from a stratified random sample of U.S. colleges and universities accompanied by in-depth interviews with administrators and active players in the hate speech movement at strategically selected universities. While the analysis clearly takes us beyond prior work, the data have limitations. The survey data rely heavily on proxy indicators and suffer from thorny collinearity issues, which might have been dealt with more effectively. These limitations aside, the analysis suggests that group mobilization and identity politics had only limited influence on speech code adoption. Gould then turns to the interview data and delivers his theoretical punch. He finds that high-level administrators acting on instrumental, utilitarian concerns instigated hate speech regulation. Administrators sought to diffuse racial unrest on campus and deliver “symbolic, perhaps even cynical” (p. 89) gestures to appease marginalized groups and keep pace with what they perceived as “mainstream” academic administration.
Speech regulation advocates found resistance in the appellate courts, and many policies were subsequently deemed unconstitutional. Gould applies a heavy dose of persuasive logical reasoning to scrutinize the courts' First Amendment jurisprudence. Suggesting an apparent constitutional duplicity, Gould compellingly argues that while the courts have legitimated speech regulation within the workplace, they have simultaneously limited speech regulation on campus. But as the reader soon learns, appellate court rulings may have been impotent. Gould illustrates a counterintuitive consequence where many universities either retained their hate speech policies or even crafted new codes despite countervailing precedent. As with original policy adoption, the interview data again suggest that university administrators either complied or defied the appellate court decisions largely because of utilitarian concerns. Administrators gauged the costs and benefits of compliance, with many desiring to maintain the symbolic benefits associated with speech codes. Rescinding codes, many administrators feared, would make the university appear soft on racial intolerance that could subsequently fuel protest and negative media attention. While this argument is largely convincing, one might question how to falsify it. The quantitative data do not allow an empirical test of Gould's explanation, while the qualitative data do not allow him to convincingly dispel the traditionalist argument. To that end, it remains unclear what actions would indicate that administrators did not act in their self-interest.
Gould's balance of legal reasoning, political and social theory, and empirical rigor will appeal to a wide audience of legal scholars, political scientists, and sociologists. This work also provides theoretical leverage in the study of policy diffusion by emphasizing utility calculus more so than neoinstitutional accounts. To this end, he further underscores the importance of qualitative inquiry in the study of law and social change. This book will also spur critical discussion. Gould's assertion that “adopting a hate speech policy … could have persuasive power even if it were rarely enforced” (p. 175) will spark debate. The data seem more compelling when explaining the striking resilience of speech codes than their persuasive power. Others may criticize Gould's conclusion that renewed free speech norms increasingly proliferate civil society, in line with his idea of “mass constitutionalism.” That speech codes largely remain dormant may challenge the contention that they represent a new norm, particularly when numerous universities have resisted hate speech policies without incident. These issues will likely be debated in the wake of this important book, and they represent but a few of the many intellectually engaging debates motivated by Speak No Evil.
