Speech Codes and Other Restrictions on the Content of Speech
Over the past decades, universities across the country have worked to create a comfortable campus atmosphere. It is important that this is a place where everyone who wants to speak, learn, engage and interact can do these things without impediment. To this end, campuses have implemented a number of well-intentioned policies to stop discrimination and harassment, and to encourage an environment where students from all backgrounds are truly welcomed. Unfortunately, in their effort to protect all students, some universities have adopted restrictive language that cuts down on the free exchange of ideas.
While we should obviously work to make sure that campuses are learning environments accessible for all students, restrictions on speech interfere with a student's ability to learn. These policies, often referred to as “Speech Codes”, harm the learning environment by restricting the dialogue between students and faculty. Rather than having an open dialogue on campus, there’s an atmosphere of censorship and sensitivity - students and faculty often feel they have to walk on eggshells to make sure they don’t offend.
This is particularly problematic on a university campus where students should be encouraged to learn through debate, investigation and through exposure to a wide variety of opinions and ideas. Rather than restricting offensive speech, universities should be encouraging students to learn through open debate and study. Moreover, when prejudice and hate are out in the open on campus, students get an opportunity to expose, discuss, and dissect offensive language in a way that encourages communication rather than stifling it.
How Speech Codes Restrict Speech
Classic Speech Codes
Vague Policies
Policies that restrict too much speech: Unconstitutionally Overly-Broad Policies
Prior Review: Opening the Door to Restricting Speech
Classic Speech Codes
The classic speech codes directly restrict speech because of it expresses views that are prejudiced against a particular group of students. For example, at Northern Arizona University (pdf), prohibited harassment is defined as “stereotyping, negative comments or jokes, explicit threats, segregation, and verbal or physical assault when any of these are based upon a person’s race, sex, color, national origin, religion, age, disability, veteran status or sexual orientation.”
These types of policies, regardless of their goals, not only restrict content that should be part of the campus dialogue but are often unconstitutional. The U.S. Supreme Court struck down a similar policy in the City of St. Paul (R.A.V. v. St. Paul, 1992 {pdf}) because it banned speech due to its content:
the remaining, unmodified terms make clear that the ordinance applies only to "fighting words" that insult, or provoke violence, "on the basis of race, color, creed, religion or gender." Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use "fighting words" in connection with other ideas - to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality - are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.
Vague Policies
Many policies are so vague that it is next to impossible for anyone to understand what is off limits. Vague policies invite selective and inconsistent enforcement, often resulting in more controversial speech being stifled. Further, students, not knowing what is off limits, will often self-censor out of fear that their speech will land them in trouble. In either case, the end result is less opportunity for a truly open marketplace of ideas and a poorer learning atmosphere on campus.
For example, at one point the University of Michigan at Ann Arbor had a policy that disciplined people for “any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status…” That policy was found to be unconstitutionally vague by the Eastern District of Michigan in 1989 (Doe v. University of Michigan {pdf}). The Court held that “looking at the plain language of the Policy, it is simply impossible to discern any limitation on its scope or any conceptual distinction between protected and unprotected conduct.”
In another more recent example, the University at Buffalo (aka SUNY Buffalo) Guide to Residence Hall Living states in its community standards that,
Students are expected to act with civility. To be civil means to be courteous and polite or, simply put, to be mannerly. Acts of incivility—whether verbal, written, or physical—will not be tolerated by the Residential Life community…Hostile or inappropriate language or gestures, words that penetrate and hurt, words that destroy relationships rather than sustain them, or physical aggression in any form are not welcome in our university or residence hall community.
Again, it is unclear what speech would be “un-civil,” and thus off limits, under this policy.
Policies that restrict too much speech: Unconstitutionally Overly-Broad Policies
There is some speech—such as truly obscene speech—that is not protected by the First Amendment. But, to be constitutional, policies must be narrowly drawn to only restrict speech that is not protected. Unfortunately, many campus policies are overly broad, restricting not only speech that is not protected by the First Amendment, but other speech that should be a part of the campus dialogue.
For example, the U.S. District Court for the Eastern District of Wisconsin struck down a University of Wisconsin policy that called for a student to be disciplined for
Racist or discriminatory comments, epithets or other expressive behavior directed at an individual or on separate occasions at different individuals, or for physical conduct, if such comments, epithets or other expressive behavior or physical conduct intentionally:
1. Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and…
The US District Court for the Eastern District of Wisconsin held that this policy was unconstitutionally over-broad. While the First Amendment may allow restrictions on “speech [which] by its very utterance, tend[s] to incite violent reaction” in the person to whom it is directed, “the [UW] rule regulates discriminatory speech whether or not it is likely to provoke such a response.” (UWM Post v. Board of Regents, 1991 {pdf})
At the University of Minnesota-Crookston, a punishable bias incident is defined as:
expressions of disrespectful bias, hate, harassment or hostility against an individual, group or their property because of the individual or group’s actual or perceived race, color, creed, religion, national origin, gender, gender identification, age, marital status, disability public assistance status, veteran status and/or sexual orientation can be forms of discrimination. Expressions vary, and can be in the form of language, words, signs, symbols, threats, or actions that could potentially cause alarm, anger, fear, or resentment in others, or that endanger the health, safety, and welfare of a member(s) of the University community, even when presented as a joke…
While genuine harassment and threats can be prohibited, this policy could bar speech that is merely disrespectful or annoying.
Prior Review: Opening the Door to Restricting Speech
On a number of campuses, policies require that posters, flyers and other printed speech receive approval before they can be distributed on campus. While these policies are often intended only to ensure that the materials are appropriate—for example stopping posters that are so large they take up nearly all of the space on a billboard—they often include few if any guidelines for approval. Unfortunately, this invites university staff that are not well versed in students’ free speech rights to deny approval because the content of a poster or flyer is objectionable. Worse yet, some policies explicitly allow student life staff to deny approval to a poster based on its content.
For example, the New Jersey Institute of Technology (pdf) Campus Center website makes it clear that “student groups need to have the content of their advertisements approved before posting” (emphasis in original). At Bridgewater State College (pdf), “the advertisement, posers, flyers, signs or banner must be in good taste and appropriate for [their] intended purpose. The college reserves the right to remove any posting that is obscene, discriminatory, libelous, misleading or offensive in any way.”