Parody flunks out

By HARVEY SILVERGLATE  |  July 30, 2008

It came as no surprise when, the following year, Clark caved in to pressure and appointed a faculty committee to consider adoption of “sexual harassment guidelines.” The final product was an 11-page speech code that forbade, among other things, “speech . . . or conduct of a sexual nature that (i) is unwelcome; and (ii) is abusive or unreasonably recurring or invasive; and (iii) has the purpose or effect of unreasonably interfering with an individual’s work or academic performance or creating an intimidating, demeaning, degrading, hostile, or otherwise seriously offensive working or educational environment at Harvard Law School” [emphasis added]. This and other provisions in the code seemed directly aimed at any future repetition of humor akin to the Frug parody.

In the law school’s radioactive atmosphere, even faculty members renowned for their advocacy of free speech felt the need to compromise. Professor Laurence H. Tribe, one of the nation’s leading constitutional scholars, voted for the guidelines, even though one could find arguments in his authoritative 1988 treatise, American Constitutional Law, to vote against it. Another vociferous defender of free speech, Professor Alan Dershowitz, announced that he preferred imperfect written guidelines to the otherwise inevitable exercise of “decanal [dean’s] discretion” in deciding when to punish speech transgressions. He was, in other words, voting for the guidelines to avoid far worse and unpredictable forms of censorship. This tells us much about the hurricane winds of censorship that were blowing across the Harvard campus, and just about everywhere in academia, then and now.

The authors of the Frug parody may have escaped punishment, but, with the introduction of these speech guidelines, Harvard sent a clear message: the next student to try such a stunt could be found guilty of serious charges, such as harassment and intimidation — which could prevent him or her from landing a decent job after graduation or that could even endanger obtaining a degree.

Today, the Law Review still puts out a written parody and conducts its annual dinner, while the Harvard Law School Drama Society produces an annual parody stage production. But none of the humor, especially that which is gender-related, has approached the frankness (or brutality, depending upon one’s point of view) of the Frug parody. One can argue, of course, that this is a good thing, depending upon one’s sense of the proper balance between social criticism and the need of some to be comfortable. Harvard Law, though, became undeniably less free than before the adoption of the guidelines.

Despite (or perhaps because of) this conscious effort on the Law Revue’s part to avoid controversy, its annual parody seems to become both less biting and, ironically, equally or more subject to an “insensitivity” attack every year. The same trend has affected the Drama Society. Students harshly criticized the 2006 stage parody, for example, at a tense campus forum in March of that year, citing multiple instances of negative racial stereotypes. According to the independent student-run Harvard Law Record, two suggestions for reform arose repeatedly at the forum, both of which reveal either a disdain for, or fundamental misunderstanding of, parody: “prohibiting the portrayal of actual students (and perhaps professors) altogether and implementing an opt-in/opt-out system whereby students could choose to be parodied or not.” (In other words, you can be criticized only if you want to be!)

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