The president of Northern Kentucky University has acted commendably in response to a serious threat to the free speech rights of students. Last week, NKU professor Sally Jacobsen encouraged a group of her students to destroy an anti-abortion display erected by the university’s right-to-life student organization. Photographs published by local media indicate that Professor Jacobsen actually took part in the destruction as well.

 

In a public statement, university president James Votruba announced today that “Professor Jacobsen has been removed from her remaining classes and placed on leave from the University.” He stated that Jacobsen’s “actions were inconsistent with Northern Kentucky University's commitment to free and open debate and the opportunity for all sides to be heard without threat of censorship or reprisal,” and reaffirmed “a commitment to the importance of free speech and inquiry as a hallmark of our University.” FIRE commends President Votruba and the university for acting so quickly, decisively and publicly in support of its students’ right to free speech. Such actions are sadly in short supply at today’s universities, and NKU deserves praise for demonstrating a commitment to the freedoms of speech and expression that are so crucial to university life.

 

Unfortunately, as ACTA pointed out yesterday, NKU has several speech codes that are inconsistent with its demonstrated commitment to free speech, codes that earn NKU a “red light” rating on FIRE’s Spotlight.

 

NKU’s disciplinary regulations prohibit “making an offensive coarse utterance, gesture or display,” as well as “annoying” another person. As has been explained in cases too numerous to mention, however, it is unconstitutional for a public university such as NKU to suppress free speech on the grounds that it is subjectively offensive to some listener. As one federal appellate court recently put it, there is “no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive….” Saxe v. State College Area School District, 240 F.3d 200, 206 (3d Cir. 2001). The U.S. Department of Education even wrote to colleges and universities in 2003 specifically to clarify that harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.”

 

NKU also maintains a Posting Policy that provides that “[a]ll posters, flyers, handbills and banners must be authorized and stamped by the Dean of Students designate.” This regulation is an impermissible prior restraint on free speech, because it gives administrators unfettered discretion to refuse permission to students who wish to engage in expression through the distribution of leaflets, handbills, or flyers. According to the U.S. Supreme Court, “a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.” Shuttlesworth v. Birmingham, 394 U.S. 147, 150–151 (1969). NKU’s posting policy, which requires a “license” from the university in that it prohibits the distribution of flyers or handbills without the university’s prior approval, includes none of these “narrow, objective, and definite standards,” and is therefore unconstitutional.

 

NKU’s response to the Jacobsen affair clearly demonstrates that the university values free speech and takes its First Amendment obligations seriously. It is our hope, therefore, that NKU will stand behind its commitment to free speech by removing these noxious policies from its books.