Today, Alliance Defending Freedom is launching a new tool with important information and up to date information about your rights on  campus. The Speak Up University Newsletter will cover a range of topics relevant to college students and their parents, as well as faculty and staff, keeping you informed about your constitutional right to Speak Up.

Take a look at the first newsletter here, and sign up to receive the newsletter in your inbox each month.

Universities cannot justify unconstitutional “speech codes” by pointing to crimes like the recent murder of six Sikhs in Wisconsin by a white supremacist who entered their temple during a worship service and opened fire.  University policies that ban “offensive” speech target expression protected by the First Amendment, which is far different than laws punishing criminals who harm others because of their race, religion, etc.

If the gunman had survived the massacre, Wisconsin prosecutors could have charged him with murder and also under the state’s ”hate crime” statute, which imposes enhanced penalties on criminals who harm others because of the victims’ race, religion, etc.   Some question the value of such “hate crime” penalty enhancements, because a murder victim is just as dead by a murderer motivated to steal his money as by one who hates him because of his religion.  Both crimes deserve severe punishment.  But laws that add extra penalties to crimes because of what people think, feel or believe raises significant First Amendment concerns.  See, for example, the Supreme Court’s discussion of these problems in the 1993 case of Wisconsin v. Mitchell.

However, there should be no debate over unconstitutional university speech codes, that punish actual expression.  There is a huge difference between someone committing actual criminal felonies with bias motives and someone giving a speech on campus that others find “offensive” or “discriminatory,” which many campus “speech codes” prohibit.  The Center for Academic Freedom has explained that speech codes penalize student expression, not criminal acts, by defining outlawed speech with vague, broad terms such as ”demeaning” or “intolerant” speech.  That covers a lot of expression.

Also, a student can violate a campus “speech code” and not even know it, because the violation is based on the subjective reaction of the listener to one’s words, not the speaker’s actual intent.  So, if someone on campus says ”you should receive Jesus Christ as your Lord and Savior” or “marriage is defined as one man and one woman,” the speaker could be guilty of “hate speech” if a listener feels offended by such comments.  Therefore, “speech codes” can intimidate people into silence and suppress debate and discussion on campus because of the threat of others filing complaints of “hate speech” with university enforcers against speakers advocating ideas the listeners don’t like.  The First Amendment protects even controversial speech that provokes people to anger.

We cannot allow the horror and evil of the Sikh murders weaken our nation’s protections for freedom of speech.  And the crime was horrible. My family is good friends with a Sikh family.  In years past, we have enjoyed meals together at each others houses.  My wife and I attended the wedding of their daughter at a Sikh temple, although we did not understand the ceremony’s Punjabi words. They had me wear an orange bandana on my head because I did not wear one of the brightly-colored turbans that Sikh men wear.  It is hard to imagine someone pulling out a gun and shooting my friends and their fellow Sikhs at that wedding or other worship service, simply because of their religion or exotic garb.

But the crimes perpetuated against the people at the Sikh temple do not justify campus policies prohibiting speech others find “offensive.”  The First Amendment protects provocative expression. A free society should strongly resist any efforts by university officials to justify “speech codes” by pointing to what happened in Wisconsin.

The ADF Center for Academic Freedom joined a broad coalition of organizations today calling on the U.S. Department of Education to clarify when colleges may and may not investigate and punish student “harassment.”  The letter, written by our friends at FIRE, is available here.

We’ve told you before how to spot a speech code, the majority of which involve anti-harassment policies.  And these unconstitutional policies are nothing new.  So why did FIRE send today’s letter?  FIRE’s president, Greg Lukianoff, explains in today’s Washington Post:

[Last year, the Department of Education Office of Civil Rights] issued a 19-page letter in April dictating to colleges the procedures they must follow in sexual harassment and assault cases. Among its many troubling points, including a requirement that sexual harassment cases be adjudicated using the lowest possible standard of evidence allowable in court, is the fact that the letter makes no mention of the First Amendment or free speech. This ignores the role that vague and broad definitions of harassment have played in justifying campus speech codes and censorship over the past few decades. By mandating so many procedural steps colleges must take to respond to allegations of sexual harassment while simultaneously failing to mandate a consistent, limited and constitutional definition of harassment, the OCR encourages those on campus who are already inclined to use such codes to punish speech they simply dislike.

Rather than proffer shifting rules, the OCR should end the threat of harassment-based campus speech codes once and for all. The Supreme Court offered its only guidance on the thorny issue of student-on-student harassment in the 1999 case Davis v. Monroe County Board of Education. The justices recognized the necessity of carefully defining what constitutes “harassment” in the educational context, lest everyday interactions be rendered a federal offense. The court defined harassment as discriminatory conduct, directed at an individual, that is “so severe, pervasive, and objectively offensive” that “victim-students are effectively denied equal access to an institution’s resources and opportunities.”

This definition, if applied fairly, poses little threat to free speech and effectively prohibits real harassment.

We hope the OCR takes notice and works to protect student free speech on campus.

ADF has just completed its appeal to the U.S. Supreme Court in a case involving the prolife student club, Rock for Life, at the University of Maryland, Baltimore County.  The case demonstrates the problems with campus “speech codes.”  Many universities have these vaguely worded policies that prohibit students from engaging in things like ”incivility”  or “disrespect” or “intolerance.”  Frequently, these speech codes allow the listeners, and not the intent of the speaker, to determine whether the speaker has violated the speech code.  So, such statements as “abortion is wrong, ” or “marriage is a man and a woman,” or “Jesus Christ is Lord,” can violate a campus speech code if the listeners feel harassed, threatened, offended, or disrespected by those words, no matter what the speaker intended with his words.

At UMBC near Baltimore, the prolife students in Rock for Life experienced the harsh application of “speech codes.”  Rock for Life received permission to display graphic photos of aborted children in an area of campus well traveled by students.  They figured it would trigger debate about abortion among the students if they saw actual aborted babies.   At the last minute before Rock for Life was going to begin its display, university police and university officials moved the prolife display to a deserted area of campus infrequently visited by students – when watching the security video of this area, you would expect to see the occasional tumbleweed blowing through this vacant expanse of campus.

How did the university justify its abrupt order to move the display?  Four overlapping policies regulating student speech.  Several of these speech codes prohibited “emotional harassment.”  And a university official – its attorney – said that he feared students might feel “emotionally harassed” by the display.  Later, he explained that he wanted to protect the students’ “emotional well-being” and prevent them from becoming “emotionally distraught.”  Hence, UMBC moved the display at the last minute.

In court, ADF challenged this ideological exile of prolife speech, as well as the broadly written “speech codes” invoked to justify their actions.  Several federal appeals courts have struck down such vague policies as violating the First Amendment because they give unbridled discretion to government officials to silence unpopular viewpoints and allow them to hide their true reasons for doing so under the vague language of the speech code.  The Rock for Life case has become mired down in some technical issues on whether the prolife students have standing to challenge all of the policies.  We hope the U.S. Supreme Court will grant review and rule that the legal challenge to the speech code can go forward.

But the speech codes at many universities threaten student speech, especially the speech of students advocating unpopular views – nowadays, that frequently means students advocating for life, marriage, or the Christian Gospel.  Speech codes also can “chill” student speech by pressuring them to self-censor their views so that they won’t get in trouble.  Policies that “chill” the free exchange of ideas on campus are also unconstitutional.  If you are experiencing any such problems, please contact us at the Alliance Defense Fund.  A university campus should truly be a free marketplace of ideas.

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As USA Today reports, “civility” policies and programs are cropping up at universities across the nation.  Some seem to be bound up with efforts to purge “bullying” from campus (my colleague David Cortman tackles that subject here), other efforts seem to have more affinity with the egg-shell student and the quest to eliminate “offensive” (read, Christian or pro-life) speech from campus.  However, you slice it, the civility police are back. 

On campuses nationwide, civility has become the mantra. The University of Nevada-Las Vegas in January signed off on a Statement of Civility that embraces “the articulation of unpopular and unsettling ideas” and “promotes the rights, safety, dignity, and value of every individual.” At Rutgers, plans for a two-year initiative called Project Civility were already in the works when Clementi jumped to his death from the George Washington Bridge. George Mason University last fall launched an elective called Professionalism and Civility.

While I don’t mind more good manners (I took a great ettique course in college on how to properly butter bread), it’s not the place of government-run universities to impose civility requirements, because they often get out of hand.  As USA Today notes:

Colleges must walk a fine line. A federal court in 2007 ruled that California State University could not impose a requirement that students “be civil to one another” because the term is too vague.

That’s exactly right.  A group of College Republicans held a free speech event at SFSU and suffered through a seven month investigation because onestudent found the event “uncivil.”  (Full disclosure: I was the CR’s lawyer.) 

Despite rulings like this, the civility/anti-bullying/anti-offensive advocates are so persistent that even Congress is considering new anti-harassment legislation that would strip students of their basic First Amendment freedoms on campus.  I would like to think that we, as a society, are better than that and can simply confront incivility with more, civil speech.  As the court in the College Republicans’ case wrote: 

It is important to emphasize here that it is controversial expression that it is the First Amendment’s highest duty to protect. By political definition, popular views need no protection. It is unpopular notions [like the sanctity of life] that are in the greatest peril-and it was primarily to protect their expression that the First Amendment was adopted. The Framers of our Constitution believed that a democracy could remain healthy over time only if its citizens felt free both to invent new ideas and to vent thoughts and feelings that were thoroughly out of fashion. Fashion, it was understood, is an agent of repression-and repression is an agent democracy’s death.

I commend this thinking to university “civility” committees.