FIRE Speech Code Memorandum for Norfolk State University

By May 9, 2013

MEMORANDUM

To: Jonathan Walker, Director, Living-Learning Communities, Norfolk State University
From: Samantha Harris, Director of Speech Code Research, Foundation for Individual Rights in Education (FIRE)
Date: May 9, 2013
Re: Speech Codes at Norfolk State University

Introduction

Thank you very much for contacting the Foundation for Individual Rights in Education (FIRE). FIRE unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, and freedom of conscience on America’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities.

This memorandum is in response to your request for information about how Norfolk State University’s (NSU’s) policies can be revised to better protect students’ right to free speech and expression. As I stated in our email correspondence, I am very pleased to offer assistance.

FIRE rates a university as a “red light,” “yellow light,” or “green light” institution depending on the extent to which the university’s written policies restrict constitutionally protected speech and expression. NSU currently earns a red light rating because of one policy that clearly and substantially restricts student expression protected by the First Amendment. In addition, the university maintains four yellow light policies—policies that, while not as restrictive as red light policies, still infringe on an impermissible amount of student speech. Fortunately, all of these policies could easily be revised to better protect student speech.

FIRE would be thrilled to work with you and the NSU administration to make NSU a green light institution and to publicize this change through our extensive national media network. By simply revising these policies, NSU would join a select group of colleges nationwide—including fellow Virginia public universities James Madison University, The College of William & Mary, and the University of Virginia—that have earned FIRE’s most favorable speech code rating. What follows is a discussion of the specific free speech issues with each of NSU’s problematic policies, as well as proposed solutions for remedying those defects while still preserving the university’s underlying intent.

I. Red Light Policy: Acceptable Use of Technological Resources

“[U]sers must never act in an improper, inappropriate, indecent, or injurious manner when using the technological resources of the University.” 

This policy’s prohibitions on “improper,” “inappropriate,” “indecent,” and “injurious” communications are impermissibly vague. A policy or regulation is said to be unconstitutionally vague when it does not “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). The policy provides no guidance as to what types of speech may be considered by the university to be improper, inappropriate, indecent, or injurious.

Even if the policy defined these terms more clearly, it would be unconstitutionally overbroad, since much speech that others would find “inappropriate” or “improper” is nonetheless constitutionally protected.  A statute or law regulating speech is unconstitutionally overbroad “if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate.” Doe v. University of Michigan, 721 F. Supp. 852, 864 (E.D. Mich. 1989), citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

Proposed solution: Since this is just prefatory language that appears before an enumerated list of prohibited activities, it could be removed altogether without substantively affecting the policy.

“Prohibited activities include, but are not limited to: Using University technological resources for personal gain or to further personal views, religious or political causes, soliciting or marketing of commercial ventures, or performing other non-job related solicitations.”

This provision is problematic for a number of reasons. First, although the university might conceivably be able to prohibit any personal use of its technological resources, the reality is that it is virtually impossible to enforce such a broad provision across the board, opening the door to arbitrary application and double standards. Unless the university truly has the resources to police and punish every use of its technological resources to further “personal views,” the policy will necessarily be applied unevenly, and perhaps in a content- or viewpoint-based manner.

This brings us to the next problem: the ban on the use of university technological resources to further “religious or political causes.” This ban is an impermissible, content- and viewpoint-based restriction on speech. The university cannot legitimately permit people to advocate atheist viewpoints but not Christian or Muslim ones, nor may it permit people to promote, for example, environmental causes while prohibiting others from promoting political causes.

Proposed solution: While the university may technically be able to ban all personal use of its technological resources, consistent enforcement of such a policy is a virtually impossible task. To enforce the policy as written, the university would have to monitor the content of every student email, every Facebook status update, and every tweet posted from an on-campus computer or via the institution’s network to ensure that the messages contain no personal views or political or religious expression.

Assuming the underlying goal of the policy is to prevent the university’s networks from being overwhelmed and compromised by personal use, the policy could be narrowed to address only those personal uses that, by virtue of their scope and/or volume, would materially disrupt the functioning of the university’s networks. Such a provision would need to be free of any content- or viewpoint-based restrictions, such as the ban on the expression of religious or political views. The prohibitions on commercial speech are probably acceptable as long as they are enforced in a content- and viewpoint-neutral manner.

“Prohibited activities include, but are not limited to: Intentionally downloading and/or transmitting fraudulent, threatening, obscene, intimidating, defamatory, harassing, discriminatory, or otherwise unlawful or inappropriate messages or images…”

This provision is both vague and overbroad. By prohibiting the transmission of any subjectively “inappropriate” messages, this provision gives the university virtually unfettered discretion to discriminate against messages with which it disagrees. Unlike the other prohibited categories of messages (fraudulent, obscene, harassing, unlawful), “inappropriate” is not a legal term and the university does not attempt to provide any definition of the term, leaving students with no possible way of knowing what they may or may not say online. Moreover, much speech that most people would deem “inappropriate” is still wholly constitutionally protected.

Proposed solution: The university should eliminate the transmission of “inappropriate messages” from the list of prohibited activities.

Finally, the policy also states, somewhat cryptically, that “the University does try to eliminate access to offensive websites…” It is unclear what this statement means. Who decides which websites are too “offensive” for adult college students to access, and how does the university try to eliminate access to them? With this broad statement, the university administration has impermissibly given itself total discretion to decide what constitutionally protected expression its students may and may not access on campus.

Proposed solution: This language should be eliminated.

II. Yellow Light Policies

A. Code of Conduct

“Physical abuse, violent verbal abuse, or profanity by any student on property owned or controlled by the University, or at functions sponsored or supervised by the University.”

Simply put, an across-the-board prohibition on “profanity” is unconstitutional. The Supreme Court has held on numerous occasions that language cannot be prohibited simply because it is profane. In Cohen v. California, 403 U.S. 15 (1971), the Supreme Court overturned the conviction of a man who wore a jacket bearing the words “Fuck the Draft” into a county courthouse. In holding that his expression was entitled to constitutional protection, the Court wrote that “one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” Id. at 25. In Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), the Court held that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency,’” while upholding the First Amendment right of a college student newspaper to publish an article with the headline “Motherfucker Acquitted.”

An additional problem with this prohibition is that the term “violent verbal abuse” is impermissibly vague. Unlike terms that have precise legal definitions (like threats, intimidation, and harassment), there is no way for students to know what types of communications might constitute “violent verbal abuse.” While abuse might refer to unprotected speech such as true threats and harassment, it could also be applied to harshly worded expressions of opinion that, while offensive to some, would be entitled to constitutional protection. Indeed, the Supreme Court held that a Georgia statute prohibiting “opprobrious words or abusive language” was unconstitutional because those terms, as commonly understood, encompassed speech and expression protected by the First Amendment. Gooding v. Wilson, 405 U.S. 518 (1972).

Proposed solution: The ban on profanity should be eliminated. The ban on “violent verbal abuse,” meanwhile, should be revised to reflect the actual unprotected conduct that it contemplates. “Intimidation” and “true threats,” for example, are two types of speech that—because of their immediate connection to physical violence—are unprotected by the First Amendment, and either or both of those terms would make a suitable replacement here.

“Lewd, indecent, or obscene displays or conduct on property owned or controlled by the University or at functions sponsored or supervised by the University or University-related organizations.”

A narrow prohibition on “obscene” expression has a specific legal definition that does not include protected speech; unprotected obscenity has been defined by the Supreme Court as only those depictions of sexual conduct that “taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24 (1973). However, “lewd” and “indecent” expression may well be protected. On a college campus, a prohibition on “lewd” or “indecent” displays has the potential to infringe on students’ artistic and political expression. For example, some might find a production of Eve Ensler’s The Vagina Monologues to be lewd, but banning an important work of social and political commentary would be wholly inappropriate at an institution that promises the right to free expression.

Proposed solution: Currently, the policy’s applicability to “displays” has the potential to reach protected expression such as artwork, protest signs, etc. Assuming that the intent of the policy is actually to prohibit behaviors such as indecent exposure, public urination, and public sexual activity, the scope of the policy should be limited to conduct rather than pure speech, thereby narrowing its applicability.

B. Office of Student Rights and Responsibilities: Code of Ethics

“Offensive or profane language is not allowed in any academic setting.”

As discussed in greater detail above, a blanket ban on profanity or on “offensive” speech is unconstitutional. While the university may have greater leeway to place restrictions on an individual’s comportment in an academic setting in order to prevent disruption to the educational process, a blanket restriction on the content of students’ speech overshoots that aim. Moreover, it has the potential to chill student speech on controversial topics for fear that it will be deemed offensive and thus punishable.

Proposed solution: This provision could be narrowed to focus on prohibiting truly disruptive behavior in an academic setting, without reference to the content of the speech.

C. Office of Student Activities and Leadership: Use of Campus Facilities

“Registered student organizations, faculty, and staff desirous of using campus facilities for meetings and/or activities are required to complete a General Activity Requisition Form (GARF). … The GARF is required be submitted ten (10) working days prior to the activity date to allow processing by the student organization’s advisor and university department officials for approval.”

There are two problems with this provision, which seems (since the phrase “meetings and/or activities” is extremely broad) to encompass expressive activities such as rallies and demonstrations. First, students and student organizations must be able to engage in spontaneous expressive activity on campus, which is precluded here by the ten-day prior approval requirement for all activities. Although it is understandable that universities will want prior notice of student demonstrations when possible, there must always be some allowance for unscheduled expressive activities. This is because demonstrations and protests are often spontaneous responses to very recent or still-unfolding events (for instance, the Sandy Hook shootings or the September 11 attacks). Requiring students to wait any meaningful amount of time to hold a protest can significantly diminish, if not altogether eliminate, the impact of their message.

Moreover, requiring prior administrative approval of student expressive activities is almost certainly an unconstitutional prior restraint on speech. As the Supreme Court has stated: “It is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.” Watchtower Bible and Tract Society of NY, Inc. v. Village of Stratton, 536 U.S. 150, 165–66 (2002).

Proposed solution: NSU’s policies should make clear that traditionally public, outdoor areas of campus are open for students and student groups to engage in spontaneous expressive activities so long as they do not interfere with pedestrian and vehicular traffic or otherwise impede others from enjoying access to the same public area.

Conclusion

We hope this memorandum is helpful in your efforts to promote speech code reform at Norfolk State University. Once again, each of these policies could readily be revised to better protect student speech. FIRE would be very happy to help with your efforts, so we ask that you please keep us updated.

Download file "FIRE Speech Code Memorandum for Norfolk State University"

Schools: Norfolk State University