My colleague David Hacker has written a series of blog posts recently instructing students on the constitutional basics of student fee policies. Too often, these policies are unconstitutional because they empower university officials or student representatives to allocate funds based on the viewpoint of the group applying for funds. Obviously, this violates First Amendment 101. Well, his posts have inspired me to provide some basic guidance on other constitutional repeat-offenders.
Perhaps the head of the pack is the university “speech code.” At its essence, a speech code is any policy that allows a university to regulate the content of speech—or what is said. Over 75% of America’s public colleges and universities have an unconstitutional speech code. They are usually located in the Student Handbook or the Code of Student Conduct. A garden variety speech code will be labeled as a “harassment,” “discrimination,” “civility,” or “bias” policy. But I am always amazed at the other creative labels university’s use to mask their speech codes.
One of the key indicators of a speech code is that it regulates speech based on its subjective effects on others. So if your university has a policy that punishes speech because of how it makes someone feel, it’s probably a speech code. The classic example of this is the policy prohibiting “unwelcome,” “demeaning,” or “discriminatory” “verbal comments or statements” that create an “intimidating,” “hostile,” or “offensive” academic environment based on some protected category (i.e. race, religion, sex, sexual orientation, gender identity, etc.). The ADF Center for Academic Freedom successfully struck down such a policy at Temple University and pressured Shippensburg University to change a similar policy.
Universities wield such policies purportedly to create an “inclusive” and “tolerant” environment, but they are unconstitutional just the same. If one thing is clear in the First Amendment, it is that the government cannot prohibit speech simply because it offends someone. In fact, the courts have repeatedly held that speech is often most effective when it arouses a strong response from its audience, and as such, is worthy of special First Amendment protection.
Another key indicator that your university has a speech code is if you have no idea what speech is prohibited. For example, Penn State University had a policy declaring, that “Acts of intolerance will not be tolerated.” Huh? Besides being ridiculous, the courts refer to this as “vagueness.” The problem with vague speech policies is that students are likely to censor themselves completely in order to avoid being punished. Additionally, vague policies allow university officials to selectively decide who will speak and who will be silenced. But the First Amendment is supposed to create an environment where speech is “robust and uninhibited,” not chilled. This is especially true on the college campus, which the Supreme Court has repeatedly recognized as the “marketplace of ideas.”
Chances are, your school has a speech code. If it does, and you want to say something that might be prohibited by your school’s policy, give us a call. There are few things we enjoy around here as much as protecting your freedom of speech.