In a case in which FIRE collaborated on appellate strategy, the United States Court of Appeals for the Third Circuit has taken a momentous step in redressing the harm to constitutional liberty done by school and university administrators. The Court ranks just beneath the United States Supreme Court in authority, and it has jurisdiction over Delaware, New Jersey, Pennsylvania, and the Virgin Islands. In Saxe v. State College Area School District, it has stated plainly and forcefully what FIRE and other defenders of liberty and academic freedom have been saying all along: The First Amendment does not disappear merely because those who seek to suppress free speech disguise the true nature of their handiwork by calling it a "harassment code" rather than what it really is, a "speech code." The case is crucial for those who defend constitutional protections of speech from the vagueness, overbreadth, partisanship, and overreach of so-called harassment codes. The decision is of particular importance for colleges and universities either legally or morally bound by constitutional criteria, because the courts allow far greater regulation of speech in elementary, middle school, and secondary school settings than they do in higher education. The case, thus, speaks with particular and urgent force to colleges and universities.
The Third Circuit issued its unanimous three-judge ruling in a lawsuit challenging the constitutionality of a public school district's "anti-harassment" policy. According to the State College Area School District (SCASD), the policy was designed to prohibit "verbal conduct" (that is, speech) on matters of race, religion, gender, sexual orientation, and other characteristics, that "has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment."
SCASD's policy is similar to the anti-harassment speech codes that dominate the nation's public and private institutions of higher education. FIRE's ongoing national survey indicates such codes are in place at almost 90% of America's campuses. Because the constitutionally impermissible SCASD code was applicable to institutions of elementary and secondary education, FIRE is confident that the Court's holding and reasoning about free speech will apply with yet fuller force when the issue is litigated in the context of higher education, that is, of the speech codes found at public college or university campuses.
In light of the Court's opinion, it is now clear that private campuses with "harassment" codes that limit free speech may not hide from the reality that they willfully choose to deprive their students and faculty of the free speech and academic freedom enjoyed on public campuses. If they are going to take advantage of their private status to maintain such controls over student and faculty speech, they will have to do so without claiming that the law made them do it or that such a code would pass constitutional muster. They will have to concede that students on any public campus enjoy a freedom of speech that they deny, by their choice, to their own students. Further, no college or university will be able to defend its speech code any longer by claiming that it fears legal liability for failure to address claimed, perceived, or even actual "sexist, racist, or homophobic speech," much less any serious speech on controversial social, political, philosophical, or scientific issues. Campus administrations often have argued that they fear being sued by an aggrieved student who claims to be disadvantaged as a result of speech that he or she finds personally "offensive." The Court of Appeals has made it clear that campuses are safe havens for even the most offensive or controversial speech, and that individuals will have to deal with such matters by means of the resources available to a free people: debate, moral witness, moral reprobation, logic, and evidence—in short, with further free speech.
No college, under this legal decision, could successfully be sued for failing to prohibit such speech. Indeed, public campuses are subject to legal liability for failing to protect the First Amendment rights of students. Private campuses that claimed that they believed in free speech but were forced, by law, to restrict it, now can honor their commitment. In short, all campuses now have a strong incentive to abolish such codes.
In this specific case, the Court noted, the plaintiffs were students who "openly and sincerely identify themselves as Christians." As such, "they believe, and their religion teaches, that homosexuality is a sin" and they "feel compelled by their religion to speak out" on this and "other topics, especially moral issues." The specific terms of belief, however, were not essential to the Court's ruling. The Court based its decision, of course, upon the state's lack of power to favor one side or the other in any debate or dispute, or, indeed, with respect to any political, religious, or cultural issue. What is essential in terms of the state, the Third Circuit ruled, is "content neutrality." The Court cited a large number of old and recent Supreme Court decisions to this effect. Simply put, the state may not dictate the religious, moral, political, ideological, or cultural views of the free citizens whom it serves. The state may not determine favored opinions and proceed to restrict the speech of those who do not agree.
The Court concluded that the state's characterization of the "verbal conduct" it disfavors as "hate speech" does not deprive speech of its First Amendment shield. Instead, the Court's opinion confirmed clearly and consistently that speech, however unpopular with the government, is entitled to the broadest possible constitutional protection. As the Third Circuit reiterated, the First Amendment applies with full force to the protection of speech that runs contrary to the official orthodoxies of the day. This was true for leftists assailed by McCarthyism in the 1950s and for anti-war activists in the 1960s and 1970s. It is true today for religious Christians who hold unpopular views on homosexuality. It is true for all of the citizens of a free society.
This decision is consistent with the holdings of virtually every other federal appellate court faced with a similar question. The Third Circuit went farther than any other court, however, in drawing the line between legally sanctionable true "harassment" and speech that, because of its unpopularity, is deemed "harassment" by school administrators. Although "non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause," the Court held, "there is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another's race or national origin or that denigrate religious beliefs." Warning school authorities against the use of "harassment" codes to silence speech, the Court noted that "where pure expression is involved, anti-discrimination laws steer into the territory of the First Amendment."
The Court observed that while the Supreme Court has upheld the applicability of restrictions on true harassment in a variety of workplace and academic environments, the high court has never ruled that "harassment, when it takes the form of pure speech, is exempt from First Amendment protection." The Third Circuit went on to note that the expansive interpretation of purported civil rights laws and codes has created a "very real tension between anti-harassment laws and the Constitution's guarantee of freedom of speech." Of course, in any such conflict, the Bill of Rights overrules any statute or regulation.
The Third Circuit did not feel the need to "map the precise boundary between permissible anti-discrimination legislation and impermissible restrictions on First Amendment rights" in this opinion, because, as the Court made clear, the anti-harassment speech policy at issue clearly crossed any conceivable constitutional line. The code, the Court ruled, was invalid "on its face" because of its overbreadth - that is to say, because it outlawed the utterance of a vast range of protected discourse. Indeed, the Court held, the policy would "punish students for simple acts of teasing and name calling." SCASD defined harassment as verbal or physical conduct based on race, sex, national origin, sexual orientation, or other personal characteristics that has the effect of creating an intimidating or hostile environment. As examples of harassment, the policy included jokes, name-calling, graffiti, and innuendo, as well as making fun of a student's clothing, social skills, or surname. Note that this definition mirrors, almost identically, existing speech codes at colleges and universities around the country. In words that college administrators and judicial officers should take to heart, Judge Samuel A. Alito Jr. held that the Court was merely upholding the rulings of previous federal courts that true harassment codes were not violated by epithets that injured someone's feelings or by "discourtesy and rudeness."
The Court made clear that harassment laws purporting to prohibit verbal activity "that objectively denies a student equal access to a school's educational resources"—the purpose claimed by proponents of academic speech codes—are not constitutional when what they actually do is prohibit speech seen as offensive by those who disagree with or are annoyed by it. Furthermore, the claim that the government has the power to curtail speech when it is likely to produce "a specific and significant fear of disruption" cannot justify the banning of offensive speech in a free society that is protected by the First Amendment. As the Court ruled: "The Supreme Court has held time and again, both within and outside the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it."
Administrators at public universities no longer may claim that they have the power to ban "offensive" speech on the grounds that it somehow interferes with the rights or opportunities of other students. One has a right to equal opportunity in our society, but one does not have a right to live without being offended, particularly on a campus of higher education where the exchange of ideas is of primary importance. If the banning of "offense" were applied equally to all, we would be a community of silence. A free society does not exchange liberty for other social values.