FIRE Legal Scholarship on Speech Codes Published in ‘Georgetown Journal of Law & Public Policy’

By November 18, 2009

I am happy to announce the publication of my article, Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes, in the Georgetown Journal of Law & Public Policy. The article appears in the Summer 2009 volume of the Journal (Volume 7, Number 2). You can read my article in its entirety online in FIRE’s journal, The Lantern, or via the Social Science Research Network (SSRN).

The article chronicles the existence of college and university speech codes nationwide and argues that maintaining them is untenable, given that every single court decision on speech codes has struck them down as unconstitutional. The article tracks the full case law on speech codes, ranging from Doe v. University of Michigan in 1989 to Lopez v. Candaele earlier this year. The uniformity of this jurisprudence, which includes ten victories for those challenging speech codes and no defeats, should tell university administrators maintaining speech codes all they need to know about the legality of their actionsand should counsel heavily against continuing the practice.

In furtherance of my argument, the article analyzes the First Amendment and free speech problems presented by speech codes. Most often, as our new publication Correcting Common Mistakes in Campus Speech Policies corroborates, speech codes are unconstitutionally vague or overbroador both. They are often vague in that they fail to provide campus speakers with adequate notice regarding the speech that is prohibited and instead use amorphous language that invites selective enforcement and administrative abuse. Speech codes also are often overbroad in that they restrict much expression that would be constitutionally protected within society at large. Additionally, many speech codes discriminate against particular kinds of expression on the basis of content or viewpoint. This, too, is constitutionally unacceptable.

My article also examines the many harms that speech codes perpetuate on the university campus. In addition to the fact that speech codes are enforced to restrict and punish clearly protected expression, speech codes chill campus speech by their very existence. This detracts from the university’s paramount function as a true "marketplace of ideas." Additionally, speech codes are often used to suppress disfavored topics and viewpoints, and they perpetuate the belief among some students that they have a right not to be offendedwhen in fact a college education necessitates the ability to tolerate some offense. Indeed, the college environment is one where individuals should expect to encounter some offensive expression.

Next, my article responds to various arguments put forth by proponents of speech codes who try to justify their continued existence. I demonstrate that speech codes in fact do not offer the benefits that their proponents claim.

The article further uses available data to show that, contrary to assertions made by some commentators, speech codes remain prevalent at colleges and universities nationwide. This data, of course, comes from FIRE’s most recent annual speech code report, Spotlight on Speech Codes 2009: The State of Free Speech on Our Nation’s Campuses. The 2009 Spotlight report found that approximately 74 percent of institutions surveyed maintain policies that clearly and substantially restrict speech that would otherwise be protected by the First Amendment, thus demonstrating that the concerns expressed in my article remain both valid and urgent.

Finally, the article offers some potential solutions aimed at eradicating speech codes permanently from college campuses. These proposals include further speech code litigation, continued public exposure and advocacy of the sort engaged in by FIRE, and, ultimately, changes in cultural norms so that more people fully appreciate and respect free speech, particularly in the college environment.

I hope that this article marks an informative contribution to the field and helps to make clear the state of the law on speech codes.