In some quarters I’m viewed as a lawyer with a professional identity problem: I’ve spent half of my time representing students and professors struggling with administrators over issues like free speech, academic freedom, due process and fair disciplinary procedures. The other half I’ve spent representing individuals (and on occasion organizations and companies) in the criminal justice system.
These two seemingly disparate halves of my professional life are, in fact, quite closely related: The respective cultures of the college campus and of the federal government have each thrived on the notion that language is meant not to express one’s true thoughts, intentions and expectations, but, instead, to cover them up. As a result, the tyrannies that I began to encounter in the mid-1980s in both academia and the federal criminal courts shared this major characteristic: It was impossible to know when one was transgressing the rules, because the rules were suddenly being expressed in language that no one could understand.
In his 1946 linguistic critique, Politics and the English Language, George Orwell wrote that one must "let meaning choose the word, not the other way around." By largely ignoring this truism, administrators and legislators who craft imprecise regulations have given their particular enforcement arms—campus disciplinary staff and federal government prosecutors—enormous and grotesquely unfair power.
In my dual capacities as author and attorney, I have written two books, one on each subject. In 1998, I co-authored (with Professor Alan Charles Kors) The Shadow University: The Betrayal of Liberty on America’s Campuses. In that book, Kors and I detailed the absurd and decidedly anti-intellectual spread of campus speech codes—student guidelines often cloaked in harassment vernacular like "emotional harm" or "demeaning effect"—that essentially conflate words and conduct. These codes, by their own terms, claim to protect "vulnerable" or "historically disadvantaged" students (and even faculty and staff members) from feeling insulted, harassed or marginalized by having to listen to words that, to someone’s sensibilities, wound. (That some college administrator in 2010 sees these measures as the solution, rather than as a part of the problem, is deeply disappointing to one who saw firsthand the drawbacks of a Princeton Class of 1964 with no women and a single American-born black student. I am startled that, so many years after my own graduation from college, such a demeaning attitude toward students in minority groups is so prevalent in higher education, as if they need special protection from words and ideas.)
My most recent book examines an analogous phenomenon in the criminal justice system: vagueness of federal law. The U.S. Department of Justice began prosecuting people, around the mid-1980s, under statutes and regulations that even I could not understand; what’s worse, federal courts seemed not to recognize this obvious unfairness and convicted people of serious crimes carrying harsh sentences. Years ago I told my law firm colleagues, half-serious and half-sarcastic, that an average citizen could commit several federal crimes in any given day without even realizing it. Two decades later, with this problem exponentially worse, my book on the subject is titled Three Felonies a Day: How the Feds Target the Innocent (Encounter Books).
Punishing Student Speech on Campus
First, let me examine how vague provisions that punish student speech threaten a cornerstone of American higher education: the free and uninhibited expression of ideas. Mind you – I would not approve of speech codes on campuses even if they were clear in specifying the language that could get a student tossed out of school, and even if the disciplinary hearings were fair and rational. But at least clear codes would have the benefit of giving students notice of what could get them disciplined or expelled. The combination of outlawing speech, doing so in terms that even an educated person could not understand, and trying the charge before a tribunal worthy of the court of the Queen of Hearts in Alice in Wonderland, is a particularly insidious stew. Consider, for example, some of the speech codes described in Chapter Seven of The Shadow University:
In New England, "harassment" has included, within recent times, jokes and ways of telling stories, "experienced by others as harassing" (Bowdoin College); "verbal behavior" that produces "feelings of impotence," "anger," or "disenfranchisement," whether "intentional or unintentional" (Brown University); speech that causes loss of "self-esteem [or] a vague sense of danger" (Colby College); or even "inappropriately directed laughter," "inconsiderate jokes," and "stereotyping" (University of Connecticut). The student code of the University of Vermont demands that its students not only not offend each other, but that they appreciate each other: "Each of us must assume responsibility for becoming educated about racism, sexism, ageism, homophobia/heterosexism, and other forms of oppression so that we may respond to other community members in an understanding and appreciative manner."
You get the point: With such formulations, it’s likely that every twentieth sentence out of a student"s (or professor’s) mouth—even an untimely chuckle or unfortunate glance—could expose him or her to serious discipline or even expulsion. Campus parodists, in particular, poke fun at their own peril. Kafkaesque campus disciplinary tribunals, devoid of crucially important rights for the accused, make it exceedingly easy to convict any and all of those charged.
Lest the reader think that I’m exaggerating, I urge you to browse the website of the Foundation for Individual Rights in Education (FIRE; www.thefire.org), a non-profit organization co-founded by Professor Kors and me a year after publication of The Shadow University. We were so overwhelmed with students and teachers who sought our aid and advice that we decided to take up the cause in an activist fashion; we simply could not assist so many people without an organization behind us.
While the language of the speech codes discussed above has morphed in the intervening decade since FIRE’s inception—partly as a result of successful litigation brought by students and test cases engineered by FIRE, and partly because of the discomfort caused to college administrators by widespread exposes in the news media and on blogs—the essence of this mode of campus censorship remains a reality at the vast majority of American colleges and universities. In the February 2010 issue of REASON magazine, FIRE President Greg Lukianoff debunks the popular misconception that the speech code zeitgeist has come and gone. As Lukianoff writes, "P.C. Never Died."
Prosecuting Citizens with Vague Statutes
With FIRE’s continued success at combating the illiberal campus trends detailed in The Shadow University, I’m hoping that Three Felonies a Day can catalyze something similar: A nonpartisan movement that raises awareness to this phenomenon in the federal criminal justice system and actively works to protect citizens from such government abuses. With regulatory agencies promising ramped-up prosecutions in response to the current economic downturn (many of which, I’m sure, will be created out of whole cloth), and a quite visible recent rise in judicial resistance to questionable prosecutorial tactics, now may be perhaps the best time in recent history for such a movement to take root.
Central to this potential movement should be its nonpartisan aims. The abuses described in Three Felonies a Day have been steadily worsening under every administration, Democrat and Republican, since the 1980s. (The current Justice Department shows little hope of reversing course.) While the statute books have expanded, and the statutory language remains hopelessly malleable, every aspect of civil society—doctors, artists, activists, and businessmen, to name a few—has been unfairly targeted. Even the feds’ pursuit of supposedly corrupt politicians, almost always met with applause from the press corps and the political opposition, cuts across ideological bounds.
Take, for instance, the Justice Department’s pursuit of public officials and private businessmen who did not violate any specific law or regulation, state or federal, but whose conduct at some visceral level seemed "wrong" to a federal agent or prosecutor. There is a federal statute that makes it a felony to use the "means of wire, radio, or television communication" in a "scheme or artifice to defraud." (This is known as "wire fraud", the "mail fraud" statute similarly governs such transactions utilizing the mail system.) For a time in the 1980s, the feds would prosecute public officials or private businessmen, under these quite general statutes, for committing fraud by virtue of depriving "another of the intangible right of honest services." When the Supreme Court finally had enough and declared this particular prosecutorial strategy unlawful because the fraud statute did not appear to authorize such prosecutions, the Department of Justice got the ever-pliant Congress in 1988 to add the 28 words that the prosecutors had for years been using in indictments, as if parroting these words suddenly clarified one’s legal obligations and the statutory requirements:
For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.
With this species of "fraud" codified in the criminal law, federal prosecutors continued (and, indeed, still continue) to indict public officials and private businessmen for depriving either their political constituents, or their companies or shareholders, of the "honest services" to which they were entitled. It did not matter if a state senator violated not a single state criminal statute or ethics rule. It did not matter that a business executive did not transgress any state or local law or corporate by-law, or did not enrich himself by even a single penny. It did not matter that no particular federal law or regulation was transgressed. If a federal prosecutor felt in his gut that the individual had somehow deprived the voters or the corporation and shareholders of the "honest services" that were, in the prosecutor’s sole discretion, due, the defendant could end up serving a decades-long prison sentence. To my mind, it was rather like prosecuting, convicting and imprisoning a citizen for being "a bad person," with the government defining badness.
Zealous federal prosecutors pursuing what they subjectively view as morally corrupt (albeit not clearly criminal) activity "may in fact be doing God’s work, but they are not doing Jefferson’s work or Hamilton’s work or Madison’s work or the work of the other founders of our secular nation and Constitution," Harvard Law Professor Alan Dershowitz wrote in the Foreword to Three Felonies a Day. The Fifth Amendment’s guarantee of "due process of law" requires clarity in the criminal law so that citizens are given clear and fair notice, in advance, of what conduct is prohibited on pain of prosecution and punishment. Without such clarity and fair notice, government tyranny becomes dangerously easy: Anyone can be prosecuted for anything that the powers-that-be retroactively announce is a crime.
Fortunately, the Supreme Court heard oral arguments in December 2009 in a case challenging the "honest services" statute as being constitutionally infirm for failure to give clear notice of what conduct was being criminalized, and other related defects. Similar vagueness challenges will be raised in a Supreme Court case, to be argued today, that tests the limits of the federal ban on "material support" to "terrorist" organizations, as designated by the U.S government. Hopefully, these cases are the beginning of a counter-revolution to the trend of citizens being prosecuted and imprisoned for activities that neither they, nor experienced lawyers for that matter, could have predicted would be deemed criminal by a prosecutor and even by a court.
The Give and Take between Campus Codes and Federal Laws
While speech codes and modern laws exist in distinct arenas but share the common trait of vagueness, there are instances where these arenas intersect. Many campus speech codes borrow language from federal "hostile environment" regulations, promulgated for the workplace by the Equal Employment Opportunity Commission (EEOC). Common among these codes are, for example, prohibitions against "offensive environments for working or learning." Even if fitting for a workplace, these types of restrictions are particularly pernicious on a campus because they severely limit the ability of students and faculty to speak their minds.
Yet some administrators have gone so far as to claim that they would be breaking the law if they didn’t enact such guidelines. This rests on two very misguided notions: (1) that federal guidelines for workplace discrimination by employers are applicable, in their entirety, to college and university students and faculty, and (2) that the words of students and faculty can be considered harassment and equated, essentially, with physical misconduct. With that rationale, administrators assert that if they do not act on allegations of verbal harassment or discrimination, they could lose federal funds under provisions of Title IX. This couldn’t be further from the truth. Well-established Supreme Court jurisprudence makes clear that campuses of higher education must have a much higher deference for First Amendment freedoms than is the case in workplace environments. Nonetheless, this thinking pervades the risk-averse mindset of American higher education.
As federal guidelines shape speech restrictions, a related trend—that of campus groupthink spreading to the real world—has developed. It goes without saying that tomorrow’s leaders are molded on today’s campuses, so it should come as no surprise that political leaders, many of whom were educated in the 1980s when speech codes began to become all the rage, show little compunction about enacting and enforcing dangerously malleable laws. Perhaps this explains the current disrepute into which the idea of clarity of legal requirements, an important aspect of "due process of law," has fallen: Students have been taught by example that precision of language is best to be avoided. Vagueness, after all, can serve a number of purposes—none of them salutary.
The demise of the Arthur Andersen accounting firm is one of the clearest examples of prosecutors twisting vague federal obstruction of justice statutes to achieve their ends well before the case had closed. The government believed that the Andersen firm enabled its client, Enron Corporation, to report financial transactions in a way that would incorrectly inflate earnings. In a case where reasonable and intelligent accountants might differ over the correct treatment and reporting of a transaction, the government nonetheless viewed Andersen’s conduct as intentional criminal activity. But the Department of Justice did not prosecute Andersen for certifying Enron’s financial statements. Rather, Andersen was prosecuted for following its own routine procedures for handling internal documents. This was because a raft of federal obstruction of justice statutes makes it very dangerous for accountants to operate normally; in the Andersen case, the firm stumbled when it proceeded to obey its own long-standing and unremarkable (and, indeed, quite widespread) policy governing the destruction of old and obsolete documents generated during the course of a client audit. The Andersen firm, in other words, got indicted and convicted even though it acted in a manner common for the industry and seemingly not in violation of any discernable law.
So it was that one of the "Big Five" national accounting firms collapsed without so much as an adjudication that it had illegally destroyed documents, much less that it had helped its client cook the books. In June 2005, after Andersen had been destroyed by the indictment and conviction, the Supreme Court unanimously knocked down the feds’ use of vague obstruction charges to prosecute the giant accounting firm. The high court recognized that even though the mere prosecution of Arthur Andersen brought about its downfall, no criminal conduct had taken place. But it was too late to save the firm; it had been intentionally destroyed by the Department of Justice in order to prevent the firm from testifying at the criminal trials of Enron officers and providing them with a defense of reliance upon the reasonable professional advice of the company’s auditors. KPMG, another large accounting firm, having learned the lesson of the Arthur Andersen debacle, admitted wrongdoing (regarding tax shelters developed and sold by the firm’s client) in an attempt to ensure that the mere charges that had destroyed Arthur Andersen wouldn’t be levied against KPMG as a firm. In all of this, the matter of factual truth played a decidedly secondary role.
For the Justice Department, the ruins of Arthur Andersen served as instruction: Rather than resisting vague fraud and obstruction of justice allegations from federal authorities, KPMG quickly capitulated to the DOJ’s demands in order to save itself from certain destruction. It’s not all that different, really, than the "chilling effect" instilled on student speech by vaguely worded campus speech codes. And the fairness of both campus disciplinary tribunals and federal courts leaves much to be desired. On our campuses, inquiring minds, taught that discretion is the better part of valor, learn to self-censor rather than face charges of "verbal harassment." Outside in the "real world," citizens and corporations learn that, when accused, it’s better to turn on former colleagues as a cooperating witness and—in the words of Professor Dershowitz—to learn from the feds not only how to sing, but, alas, also how to compose.
The corruption of the campuses as well as that of the federal criminal justice system must both be addressed urgently, for the lessons learned in today’s college classrooms and quads are quickly becoming our nation’s values and even its laws.
"One ought to recognize," Orwell wrote, "that the present political chaos is connected with the decay of language, and that one can probably bring about some improvement by starting at the verbal end." It is for this reason that some of us who are battling to end the tyranny of speech codes and kangaroo courts in American higher education are also working in the cause of reforming the federal criminal justice system. Orwell would be horrified, but not terribly surprised, by the corruption that has beset both.
Harvey A. Silverglate, is a criminal defense and civil liberties lawyer in Boston. He wishes to acknowledge with gratitude his research assistants, Kyle Smeallie and Maria Romero, for their help in the preparation of this essay.