Speech Codes Issues

June 23, 2005

Public and Private: What Is the Difference?

Much discussion about free speech on college campuses revolves around the guarantees of the First Amendment. For this reason, it is important to understand the relevance of the First Amendment to private and public institutions.

As state agents, all public colleges and universities are legally bound to respect the constitutional rights of their students.
Private universities are not directly bound by the First Amendment, which limits only government action. However, universities have traditionally viewed themselves—and sold themselves—as bastions of free thought and expression. Private colleges and universities should be held to the standard that they themselves establish. If a private college advertises itself as a place where free speech is esteemed and protected—as most of them do—then it should be held to the same standard as a public institution.
Furthermore, private colleges and universities are contractually bound to respect the promises they make to students. Many institutions promise a free marketplace of ideas but then deliver selective censorship once the first tuition check is cashed. They may not be bound by the First Amendment, but private institutions still have legal obligations to deliver what they promise. Private institutions may not engage in fraud or breach of contract.
The freedom to associate voluntarily with others around common goals or beliefs is an integral part of a pluralistic and free society, and if a private college wishes to place a particular set of moral, philosophical, or religious teachings above a commitment to free expression, it has every right to do so. If a private university states clearly and publicly that it is devoted to a given orthodoxy, that institution has considerably more leeway in imposing its views on students, who have given their informed consent by choosing to attend.

Types of Speech Codes

Although college administrators are endlessly creative when it comes to devising ways to restrict their students’ free speech rights, we can make some useful groupings. The policies analyzed here are divided into the following categories:
Mission Statements and Advertised Commitments to Freedom of Speech
Many colleges and universities advertise themselves as bastions of free and liberal learning, where all viewpoints, including those that are offensive to others, can be expressed, discussed, and debated. They often express in their very mission statements a dedication to free expression and a commitment to uphold the principles of a genuine liberal arts education. However, the reality of campus life today is a different matter. Far from protecting and cherishing free expression, many colleges and universities limit, restrict, and quarantine free expression—in marked contradiction to their own claims.
In most cases, these statements and policies show that universities are acting in bad faith when they restrict speech. They reveal the truth on which FIRE relies: administrators cannot defend in public what they do in private.
Visitors are invited to compare the glowing tributes to free expression found in many mission and free speech statements with the scandalous revocation of those rights in other policies and statements that rarely are advertised to prospective students.
General Harassment, Sexual Harassment, Protected Group Harassment, and Discriminatory Harassment Policies
The campus policy most commonly abused for the purposes of censorship is the harassment policy. Too many racial, sexual, and general harassment policies extend substantially beyond the limits of genuine harassment.
Recent court decisions have upheld protected group harassment policies that ban the creation of a “hostile environment” in the workplace. With respect to sexual harassment, guidelines from the Equal Employment Opportunity Commission (EEOC) prohibit “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature...when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”
This language has been adopted at many colleges and universities, with occasional variations, for most types of protected group harassment policies. Yet it should come as no surprise that the standards of the workplace are hardly suitable for a university, which should tolerate a great deal more expression, however offensive, than an office. Free speech is not central to the mission of a business but it is essential to the mission of a university. For this reason, the application of workplace standards to the classroom, to the dormitory, and to student life is, in FIRE’s opinion, wholly inappropriate.
Consequently, most harassment policies—taking cues from the EEOC language—ban the creation of an “offensive environment” on campus. These policies are dangerous because of their ambiguity: what constitutes an offensive environment? Clearly, wherever ideas and opinions are freely expressed, some people will be offended, some sensibilities will be insulted, and some worldviews will be challenged. (In fact, students who are never “offended” during their years of college should probably ask for their money back.) If a university does not elaborate on what it means by offensive, or if its regulations do not specifically say that pure, unrepeated speech cannot constitute a violation, then the policy could easily be used to silence protected expression.
The most outrageous harassment policies suffer from the opposite flaw—specificity. The harassment policies that most brazenly assault free speech are those that provide specific examples of pure speech punishable under the policy. Many universities, for example, have banned “slurs,” “derogatory terms,” “negative stereotypes” (though, presumably, not “positive stereotypes”), “requests for dates,” and even “jokes.”
Many university administrators claim that federal law actually requires them to adopt harassment codes that restrict free speech. These codes usually appeal to Title VII of the Civil Rights Act (which bans workplace discrimination) and Title IX of the Civil Rights Act (which bans sex-based discrimination in higher education). While these policies do have limited applicability on campuses (in limiting a university’s actions as an employer, for example), they in no way require universities to ban offensive speech, let alone constitutionally protected offensive speech. Even if there were laws requiring such bans, those laws themselves could not withstand scrutiny in the courts any more than a law mandating religious belief. No statute can trump the First Amendment. (For further guidance, read an official communication from the Department of Education’s Office for Civil Rights).
True harassment or discrimination, of course, cannot be defended by an appeal to free speech and indeed should be prohibited by universities. No one has a right to engage in unwelcome, severe, and persistent behaviors that unlawfully interfere with another person’s rights, and no one has a right to discriminate invidiously and unlawfully. Many university administrators, however, have gone far beyond the requirements of the law and the constraints of common sense. Far from taking true harassment seriously, they make a mockery of it.
Policies on Diversity and Multiculturalism
Most colleges and universities have general statements expressing a commitment to diversity in almost all aspects of campus life. These statements are usually rhetorical, though many do stipulate actual university policy. In these cases, they usually address nondiscrimination, affirmative action, and other policies that govern an institution’s internal affairs.
These policies, even when they touch speech, are not criticized if they bind university administrators (and administrative employees) only. Faculty members, of course, are not administrative employees when they act in their capacity as faculty members. Professors exercising an administrative function generally must play by the university’s rules.
This type of policy, however, might include restrictions on the speech of students and faculty members. Further, some universities require students to “celebrate” multiculturalism, to “embrace” difference, or to “appreciate” diversity. While a university is free to make diversity a core value, no university that claims to respect individual rights and the sanctity of conscience may impose this value on its students. When such policies go beyond the regulation of inappropriate behaviors, they overlap uncomfortably with the Loyalty Oaths and Honor Codes category.
Policies on Tolerance, Respect, Sensitivity, Hate, and Hate Speech
Many colleges and universities today feel a need to protect students from speech and expression that they might find objectionable or offensive. This is a return to the old notion of a college acting in loco parentis—in the place of the parents. Far from merely being concerned with the education of young men and women, university administrators today intrude into virtually every realm of campus existence—the educational, the political, the social, and that of private conscience. In so doing, they betray the very mission of a liberal education.
The university acting in loco parentis is seen most clearly in policies on “tolerance, respect, sensitivity, hate, and hate speech.” These policies seek to create a particular campus “environment” or “climate,” and they frequently regulate speech to this end. While many of these policies aspire to noble ends—who wants a campus of hate, disrespect, and intolerance?—they must be read closely, because far too often they elevate a supposed right to be free from offense above the foundational right to free expression. Also, and of note, they are usually enforced very selectively, leaving some students free to speak their minds and forcing other students to censor themselves.
Many universities, unwilling actually to ban so-called “hate speech,” have established committees ostensibly designed merely to investigate “bias incidents” or “hate incidents.” These committees usually lack the authority to punish speech, but because of this, they often have no scruples about adopting a dangerously broad mandate. Thus, these committees tend to “investigate” not just harassment or hate crimes, but also general “bias,” “hate speech,” “degrading language,” and even “name calling.”
Students and faculty on any campus with a bias incident commission should be very wary. Like the McCarthy committee of the 1950s, these campus committees claim to pass legal muster by having no enforcement authority—but they still have the ability to trample rights and ruin lives. Again, such committees tend to act very selectively.
These committees usually have a chilling effect on free expression. Some of the policies establishing these committees are so poorly worded that they never distinguish clearly between a hate incident and a hate crime, which might lead some students to believe that hate incidents are just as punishable as actual hate crimes. Even if a committee’s mandate explicitly states that it does not have the power to punish speech, free expression can still be imperiled. Given the choice between remaining silent or speaking out (but facing official investigation, hearings, and the humiliation of a charge of bigotry if they do), only the bravest student will feel comfortable choosing the latter.
Loyalty Oaths and Honor Codes
Loyalty oaths and honor codes are unique among the tools of campus censorship. While most restrictions simply govern what people say, loyalty oaths and honor codes target what people think and believe—they strike at the very heart of individual liberty and dignity. A loyalty oath is a policy that requires students or faculty to adopt a particular orthodoxy on pain of punishment or as a condition of membership in the university community. An honor code, as FIRE defines it, is a policy that stipulates the acceptable parameters of social behavior, potentially including speech and beliefs. Honor codes are usually social honor codes, as distinct from academic honor codes that ban offenses like cheating and plagiarism. In general, academic honor codes are included in FIRE’s Spotlight only if they restrict legitimate expression; social honor codes are always included, even if they do not restrict legitimate expression.
A public university may not require students to adopt or to profess their adherence to an official point of view, be it on politics, philosophy, culture, or any other subject. While universities can often force students to conform their conduct to the requirements of the law, the realms of the mind, the spirit, and the heart are off-limits.
This freedom from officially imposed orthodoxies was clearly articulated in the landmark 1943 Supreme Court case of West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), in which the Court struck down a West Virginia state law compelling all public school students to participate in a daily flag salute. The Supreme Court ruled that the flag salute requirement was unconstitutional because it forced citizens to “declare a belief.” This, it held, runs contrary to the First Amendment, the purpose of which is to protect the “sphere of intellect and spirit” from “official control.” As Justice Robert Jackson famously wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Memorize that, because it is a statement of the limits of power in a free society.
Under Barnette, it is unconstitutional for a public university to adopt a point of view on a particular subject and force its students or faculty to indicate their agreement. This fact has some very clear implications. For example, it would be unconstitutional under Barnette for a public university to impose ideological prerequisites for course admission. Likewise, a public university may not force its students to declare agreement with the official nondiscrimination policy in order to create a student organization or require students to profess belief in the value of diversity in order to live in a university-owned dormitory.
Mandatory “diversity training” and freshman orientation programs that introduce students to a public university’s official viewpoint on the controversial issues of race, gender, ethnicity, and sexual orientation are also contrary to Barnette. Such sessions would most likely be constitutional if they were merely informative—for example, if they merely acquainted students with a university’s policies governing student conduct. If, however, these programs seek to force students to adopt officially sanctioned attitudes, they may cross the line established by Barnette. A university is permitted to advance its own message (universities have free speech rights too) so long as people who disagree or decide they simply do not want to hear the official message can take steps to avoid hearing it. Diversity training may be unconstitutional if the program is set up in such a way that students are strongly pressured to conform or be silent.
The imposition of orthodoxy raises constitutional concerns at public universities and moral concerns at private universities. Private universities, however, are free to define the parameters of accepted truth for their students—as long as they advertise themselves accordingly. They may not simultaneously promote themselves as places where independent thought is encouraged and respected, however, and then force a particular viewpoint on unsuspecting students once they arrive on campus. A decent society believes in the right to informed consent.

Other Speech Codes

Campus administrators employ great ingenuity in censoring student speech. This section briefly outlines some policies that do not fit into the designated categories.
Policies on Religious and Political Speech
Unfortunately, many colleges and universities have erroneously assumed that they must treat religious and political expression differently from other forms of expression. Few categories of speech have more direct relevance to the life of the mind than political and religious expression.
Any infringement on the right to engage in such speech constitutes a very grave offense against moral principles and the constitution at public universities, and against moral principles at private universities.
Free Speech Zones
Many colleges and universities quarantine free speech to remote areas of campus. While the ostensible purpose of most “free speech zone” policies is usually to limit disruption, they have a striking tendency to limit free expression as well, thus becoming “censorship zone” policies. Many such policies permit rallies, speechmaking, demonstrations, or even pamphleteering in designated areas only. This means that those who wish to engage in expressive activities often cannot direct their message toward their intended audience. For example, students wishing to protest administrative policies might not be allowed to demonstrate outside the administrative building.
Universities often defend free speech zones as permissible restrictions on speech because they do not address the content or viewpoint of speech and are simply reasonable “time, place, and manner” restrictions, as allowed by Supreme Court decisions. This defense often misinterprets the law. In a “public forum”—such as a sidewalk, park, or plaza—on a public campus, the law only permits time, place, and manner restrictions when they are “narrowly tailored to serve a significant governmental interest.” To quarantine free expression to remote areas of campus is no more reasonable or narrowly tailored than to limit free speech to the time of 2:00 p.m. to 2:10 p.m.
While the constraints with respect to a public forum are legally applicable to public universities only, they are morally applicable to private universities as well. This does not mean that private universities necessarily have no legal obligation to respect public expression on their campuses. In State of New Jersey v. Schmid, 84 N.J. 535 (1980), the New Jersey Supreme Court ruled that a private citizen was not guilty of trespassing when he distributed leaflets on the campus of Princeton University, even though he had no affiliation with Princeton. The Court cited the university’s own claims to be an “open campus” for the free exchange of ideas. The ruling was controversial, but it shows clearly how states might hold private institutions to the promises they make with respect to public expression.
Some policies fall short of such outright quarantines but still hamper free expression. Many colleges and universities designate a handful of areas where students can engage in spontaneous expression, requiring that any expression outside of those areas be approved or registered in advance. Such campuses allow free speech, but they fear, regulate, and control it. A college campus—as the ultimate free speech zone—should be the last place where expression is regarded with suspicion.
Lewd or Indecent Conduct
Many codes of student conduct ban behavior that is “lewd” or “indecent.” Ordinarily, these terms are assumed to refer to actions such as streaking, flashing, or public nudity. However, if a policy bans lewd or indecent expression, it then encroaches upon constitutionally protected expression. It should be noted that lewd and indecent expression are different from obscene expression, which does not enjoy constitutional protection. Obscenity is discussed later in this guide.
Distribution Policies
Many universities regulate the manner in which written materials may be distributed on campus. Distribution policies can illustrate just how sincere a university actually is in its commitment to free expression. For example, an institution that bans the distribution of student journals or newspapers in dormitories may be acting within its right to employ reasonable and narrowly tailored time, place, and manner restrictions. Such a restriction shows the university does not encourage a climate in which its students are challenged by new, provocative ideas expressed by their peers.
Posting Policies
Most posting policies employ reasonable and narrowly tailored time, place, and manner restrictions and, in this sense, are acceptable. For example, a university may require that posters or fliers be no larger than a certain size or that only one copy of a poster be allowed on a bulletin board.
However, some posting policies go beyond reasonable limits. Some universities require that postings be approved in advance by an administrative office. Such a rule constitutes a prior restraint on speech—that is, a rule that silences speech before it can be uttered—and would raise serious constitutional problems at a public university. Other policies violate the essential principle of viewpoint neutrality—that is, they ban one viewpoint on a topic but not other viewpoints on that same topic. Some policies, for example, ban posters that depict “negative stereotypes” or posters that someone might deem offensive. These policies all constitute viewpoint discrimination.
Speakers and Events
Students frequently host controversial events or invite provocative speakers to campus, activities that should be strongly encouraged in an academic community. Unfortunately, many colleges and universities—often sincerely motivated by a desire to ensure order on campus—regulate these events in ways that hinder rather than enhance free speech.
Some rules governing events are perfectly acceptable, such as a prohibition on seriously disruptive behavior during a speech. Preventing a speaker from delivering his or her message is not a legitimate form of disagreement. Also, universities sometimes ask students to inform campus police when a controversial speaker is coming to campus, so that they can take whatever security measures are needed. This is simply prudence.
Policies that give a great deal of leeway to administrators in determining when an event can be cancelled are more troublesome. Allowing the dean of students to cancel an event at his discretion grants too much power to one individual and practically invites abuse, especially if guidelines for the exercise of this power are not included.
Universities sometimes use the power of the purse in order to censor events or activities that do not enjoy administrative favor. Two recent Supreme Court decisions established that public universities may not withhold funds from activities for the express purpose of repressing protected speech. In the first case, Rosenberger v. University of Virginia, 515 U.S. 819 (1995), the Court ruled that any policy banning religious student groups from equal participation drawn from mandatory student fees discriminates on the basis of viewpoint and is unconstitutional. In the second case, University of Wisconsin v. Southworth, 529 U.S. 217 (2000), the Court declared that mandatory student fees are constitutional as long as the university forbids its officials or agents from considering a group’s viewpoint when deciding whether or not to fund it. In short, no public institution that collects student fees may discriminate on the basis of viewpoint in the distribution of those funds. While these rulings have definite legal force only at public institutions, the principles behind them have moral force at all liberal arts institutions.
One type of speech restriction that merits special attention is what is known as the “heckler’s veto.” A heckler’s veto occurs when a speech is terminated or prevented due to the actual or anticipated hostile or violent reactions of others. If a university were to restrict speech on the basis of how others reacted to it, then those who disagreed with a speaker would have an incentive to react violently (or at least to threaten to do so). This would grant a veto over speech to the least tolerant, most dangerous, and most illiberal members of the university community.
Fighting Words
One category of expression that may not be constitutionally protected is so-called “fighting words”-- speech that by its very utterance tends to provoke a violent response from the individual to whom it is addressed. Therefore, many universities cite “fighting words” as an example of impermissible speech. This doctrine is old and is deeply contradicted by a number of Supreme Court cases, to such an extent that many observers consider the doctrine essentially dead. However, the Supreme Court continues to play lip service to the doctrine, despite the fact that the Court has not upheld a single fighting words decision since the creation of the doctrine.
The confusion over the fighting words doctrine has its origins in the 1942 case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). In that case, the Supreme Court held that words that provoke an individual to fight do not deserve constitutional protection.
Even this definition of fighting words has been narrowed by state and federal courts over the years. In subsequent decisions, the Supreme Court has stated that in order to be exempt from First Amendment protections, fighting words must be directed at an individual and that individual must be someone who might actually fight. Addressing vicious words to a policeman, for example, is constitutionally protected, since a policeman is assumed to have enough professionalism and self-control not to respond violently. This clearly shows a major shift from the opinion in Chaplinsky, in which a protestor was punished for calling a police officer a “fascist.” Universities that cite fighting words should recall that the punished word was “fascist,” an epithet that is often used on today’s campuses.
Proponents of campus speech codes have used a deliberately distorted interpretation of fighting words to justify restrictions on speech that is obviously constitutionally protected. When universities refer to fighting words, they usually mean vile racial or sexual epithets and vulgar personal insults. In so doing, they interpret the category far more broadly than the First Amendment allows.
Emotional Distress, Parody, and Satire
Protections of parody, satire, and political speech remain profoundly strong. In a lawsuit by the Reverend Jerry Falwell against Hustler Magazine and its publisher Larry Flynt, the Supreme Court refused to punish even the most biting and insulting parodies. According to the Court, such parodies are meant to inflict emotional distress on their targets, and they are fully protected by the First Amendment. The Court’s decision was unanimous. Even the most painful speech is constitutionally protected if it plays a socially useful purpose. For speech to count as the “intentional infliction of emotional distress,” it must be in some sense gratuitous and have no valid social purpose.
Hazing
Hazing is often prohibited by state law. As such, universities that have policies banning hazing are often following the law as it is written—indeed, many universities simply quote the relevant law.
FIRE does not take a position on hazing laws. However, no law may require that the usual banned provisions—”mental duress,” “ridicule,” “embarrassment,” and so on—can be applied to the student body at large or can be applied unreasonably to student organizations. Hazing laws are only relevant to requirements for admission to or continued membership in an organization. Students have the right to ridicule views that they find absurd.

Unprotected Speech

Although the First Amendment covers a very wide range of communicative acts, not all expression is protected by the Constitution. Some limited categories of speech receive very little or no constitutional protection. “Incitement” and “obscenity,” for example, are unprotected categories of speech, while commercial speech explicitly enjoys less protection. Because college administrators will sometimes invoke these extremely limited categories of expression to justify bans on controversial (or even just inconvenient) speech, it is important to understand the true boundaries of the few categories of unprotected speech.
It should be noted that these terms—”obscenity,” “incitement,” and “commercial speech”—do not, simply by their use, inoculate a university from criticism on free speech grounds. Consider a hypothetical “obscenity policy” that bans “any speech or expression of a sexual nature that is offensive.” Although obscenity does not enjoy First Amendment protection, offensive speech does. Since many of these terms have specific and complex meanings, it is important to look at how they are defined.
One final point: obscenity and incitement do not have constitutional protection. This is quite different from saying that they are against the law. States and state agents may not grant citizens fewer rights than they have under the Constitution, but they may, of course, grant more.
Incitement
One form of constitutionally unprotected speech is “incitement”—speech that provokes imminent unlawful action. An example of unprotected incitement would be urging a violent mob in front of the city hall to burn it down.While administrators may try to paint certain kinds of student speech or advocacy as illegal incitement, it takes very extreme and specific speech, combined with serious actions, to meet this standard. In other words, unless a student has actually incited a riot, it is likely that his or her speech was not incitement in any legal sense. In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court held that, in order to qualify as punishable incitement, speech must be “directed to inciting or producing imminent lawless action” and it must be “likely to incite or produce such action.” That case involved a Ku Klux Klan rally at which speakers suggested that violence against blacks and Jews might be appropriate in order to protect white society. The Court held that the speakers’ arguments were constitutionally protected. Thus, the mere advocacy of violence was protected, as long as the speaker took no steps to match that speech with actual violence.
The Court’s reconfirmed its stance on incitement in Hess v. Indiana, 414 U.S. 105 (1973). Hess involved a Vietnam War protestor who allegedly threatened, after authorities broke up a demonstration: “we’ll take the fucking street later,” or “we’ll take the fucking street again.” The Court overturned Hess’s conviction, stating that his “threat...amounted to nothing more than advocacy of illegal action at some indefinite future time.”
Commercial Speech
Many campuses strictly regulate so-called “commercial speech,” by which they usually mean advertising or speech with the purpose of initiating or engaging in a business transaction of some kind. Commercial speech has a unique status in constitutional law. While not entirely unprotected, it explicitly enjoys less protection than other forms of speech. Therefore, even a public university has an increased—but certainly not unlimited—power to regulate commercial speech.
Obscenity, Indecency, and Pornography
Obscene expression—loosely defined as “hard-core” depictions of sexual acts—is not protected by the Constitution. A student at a public institution does not have the right to produce, transmit, or even, in many situations, possess obscene material on campus or anywhere else. (The Supreme Court has made one exception: A citizen has a First Amendment right to possess obscene materials in the privacy of his or her home.) In contrast, material that is pornographic (designed to cause sexual excitement but that is not so hard-core as to be obscene) or indecent (offensive or tasteless) enjoys substantially the same free speech protections available to all other speech, both in non-university society and on campus.
In the 1973 case of Miller v. California, 413 U.S. 15 (1973), the Supreme Court outlined three questions that must be answered to determine whether or not particular material should be classified as obscene:
  • whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
  • whether the work depicts or describes, in a patently offensive way, sexual conduct; and
  • whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
If the answer to each of these questions is yes, then the material enjoys no free speech protections, and a university may choose to regulate its transportation, communication, or sale.
If the sale or communication of obscene materials is prohibited by the criminal law in a given state or locality, it is also prohibited on campus in that jurisdiction. However, public universities are obliged to treat indecent or pornographic speech just as they would other expressive activity. This principle derives from the 1972 Supreme Court case of Papish v. University of Missouri, 410 U.S. 667 (1972), which concerned the expulsion of a journalism student from a state university for distributing a newspaper that contained indecent but non-obscene speech. Among other things, the newspaper reproduced a political cartoon that depicted policemen raping the Statue of Liberty. The Court held that the Constitution’s protection of indecent speech applied to college campuses, and that the student therefore could not be disciplined: “[t]he 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.’“

A Word on “Savings Clauses”

In order to avoid criticism for restricting free speech, some universities include “savings clauses” in their speech codes, stating that the policy’s provisions do not apply to speech protected by the First Amendment. A speech code at the University of Michigan, for example, once contained an exemption for protected speech, stating that the general counsel’s office would rule on any claims by a student that the speech for which he or she was being punished was constitutionally protected. As Harvard Law Professor Laurence Tribe has pointed out, the problem with such savings clauses is that while they save policies from being overbroad (that is, from clearly intruding on protected expression), they make them terribly vague. What could be more vague (indeed, self-contradictory) than a policy prohibiting all sorts of protected speech that then claims not to prohibit anything that is protected by the Constitution?
A policy banning “jokes of a sexual nature,” for example, does not suddenly become constitutional simply because the designers of the policy add that “speech protected by the First Amendment is not punishable under this policy.” (If anything, such a scenario would show that the designers of the policy have no idea what kind of speech the First Amendment protects.)

Selected Cases on Free Speech in Education

Supreme Court


Other
  • State of New Jersey v. Schmid, 84 N.J. 535 (1980)
  • Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989)
  • UWM Post v. Board of Regents of the University of Wisconsin, 774 F. Supp. 1163 (E.D. Wis. 1991)
  • Dambrot v. Central Michigan University, 839 F. Supp. 477 (E.D. Mich. 1993)
  • Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993)
  • Robert J. Corry v. The Leland Stanford Junior University (Cal. Super. Ct. 1995) (unpublished)
  • Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001)

Selected Cases and Readings on Free Speech in General

Supreme Court

Other Documents