It’s official now. You can rejoice if you are a student attending a public college or university in Pennsylvania, New Jersey, Delaware or the Virgin Islands. (You are probably already rejoicing if you are a student in the Virgin Islands for other obvious reasons.) Give your friends a high five, chest bump, fist pound, jumping hip-bump or whatever form of celebratory expression you choose. Why? Because you have the freedom to speak your mind on campus.
Last week, the U.S. Court of Appeals for the Third Circuit issued a resounding decision in favor of free speech by invalidating several unconstitutional speech codes. In McCauley v. University of the Virgin Islands, the Court struck down campus policies banning expression that is “offensive,” “unauthorized,” or which causes “emotional distress.” The Court reasoned that such prohibitions were so “hopelessly ambiguous and subjective” that they could be used by university officials to arbitrarily silence protected speech, a danger the First Amendment does not permit. The decision reaffirms what the Supreme Court has been saying for decades: state officials cannot prohibit expression simply because it angers or offends someone. Period. And this is especially true on campus—the proverbial “marketplace of ideas.” Having now stricken three school speech codes this decade, the Court of Appeals has sent a clear message that students’ First Amendment rights are alive and well in the Third Circuit.
So what’s the big deal? All students have free speech rights. Right? While true in theory, some recent court decisions threaten to dilute the traditionally vigorous protection for campus expression. Take for example the recent ruling against Julea Ward. The district court there upheld Eastern Michigan University’s speech code that banned “condon[ing] … discrimination” and “fail[ing] to tolerate different points of view” even though these policies applied to negative thoughts and remaining silent in response to a discriminatory idea. It is difficult to conceive of a more unconstitutional set of regulations, but the district court found them to be permissible provisions of the school’s “curriculum” and the counseling profession’s “code of ethics.” So now, Michigan state officials can silence student speech simply by cloaking speech codes as curricular or ethics policies. ADF is appealing this troubling ruling, but until it is overturned, student speech in the Great Lake State has been dealt a serious blow.
Decisions like Ward not only remind us that the price of freedom is eternal vigilance, but they help us cherish rulings like McCauley that actually recognize and vindicate our most fundamental liberties. So go ahead and celebrate your freedom! We’ll keep fighting to protect it.