Numerous Unconstitutional Speech Codes Place Marshall University on Our List of ’12 Worst Colleges for Free Speech’

By February 3, 2011

Marshall University stands out from the other institutions on Greg’s list of the "12 Worst Colleges for Free Speech" in The Huffington Post in that its policies alone, rather than specific cases of First Amendment violations, put it on the list. This distinction has not gone unnoticed, with the writers of an editorial in The Parthenon, Marshall’s student newspaper, as well as the Charleston Daily Mail, wondering why Marshall was placed on the same list as blatant free speech abusers like Syracuse University (which wisely dropped its investigation of alleged SUCOLitis blogger Len Audaer this week) and Michigan State University.

As we often emphasize at FIRE, we are concerned not just with instances of censorship, but also with the underlying policies that permit such censorship to occur. In fact, our Spotlight ratings are solely based on the extent to which an institution’s written policies restrict protected speech. While administrators today might enforce the unconstitutional policies only to punish truly unprotected expression, students under a new administration might not be so lucky. FIRE has seen plenty of administrators stretch conduct codes in order to punish protected speech. Furthermore, we will never know how many students have censored themselves in order to avoid being punished under the published restrictions.

Speech codes miseducate students about their rights, which undermines a school’s claim to be educating students to understand their rights in our democracy. Speech codes imbue students with the idea that they should accept over-regulation of their lives. Speech codes also create the expectation that offense should be officially banished and punished rather than addressed with discussion and debate.

To put it simply, how would our journalistic critics feel if Marshall had a racial segregation policy on the books but simply chose not to enforce it? If that would not be acceptable (and we would hope it would not be), why is it acceptable to have policies on the books that abridge the fundamental rights found in the First Amendment?

Thus, Marshall University made Greg’s "dirty dozen" because it has numerous policies prohibiting broad categories of protected expression.

The most onerous restrictions can be found in Standard 3 of Marshall’s Code of Student Rights and Responsibilities, which calls upon students and student groups to "respect and honor the human rights and dignity of other persons, groups and organizations." This appears to be a noble pursuituntil one considers what Marshall counts as violations of Standard 3. Such violations include:

  • "Committing, conspiring to commit, or causing to be committed any act directed toward a specific person or persons with the intent and/or effect of causing physical or mental harm, injury, fear, stigma, disgrace, degradation, or embarrassment."
  • "[A]cts exhibiting prejudice and/or racism."
  • "Committing, conspiring to commit, or causing to be committed any act directed toward a specific person or persons with the intent and/or effect of stigmatizing, frightening, coercing, or demeaning that person."
  • "Incivility or disrespect of persons."
  • "Lewd, indecent, or obscene conduct or expression."

Besides, does this mean that students must respect the dignity of, for example, a terrorist organization? Rather, it seems that Marshall only wants students to honor certain approved kinds of groups and organizations.

If students and employees were to abide by Standard 3 at all times, conversations at Marshall would be incredibly simple and dull, as there would be very little they could say without running afoul of Marshall’s speech code. In fact, Standard 3 is so chillingly unconstitutional that it was designated as our January 2011 Speech Code of the Month (SCOTM).

Samantha sums up the dangerous implications of this policy best in her SCOTM blog post:

I truly cannot think of another speech code that prohibits such a staggering amount of constitutionally protected speech. You can be punished for embarrassing someone. You can be punished for disrespecting someone. You can be punished for exhibiting prejudice, even perhaps in the form of an unpopular opinion on a controversial political or social issue. You can be punished for telling crude jokes. This policy covers so much speech that it seems there is very little speech for which Marshall University can’t punish you.

Other problematic policies at Marshall include its "Acts of Intolerance" policy, which states that "[i]ncidents based, for example, on racial or sexual prejudice are inconsistent with our educational mission and will not be tolerated," despite the fact that, like it or not, the vast majority of speech based on racial or sexual prejudice is protected by the First Amendment. Also troubling is Marshall’s "Internet Usage Policy," which prohibits viewing any "objectionable" material in public areas without defining what "objectionable" means, leading to a significant potential for abuse by administrators.

The fact that Marshall has so many policies in place granting administrators almost unbridled discretion to punish protected speech should be enough to send shivers down the spine of anyone within the Marshall community, as well as any free speech advocate. Again, FIRE knows all too well how such policies can be used to punish students with unpopular or dissenting viewpoints, and we would not want anyone at Marshall to find out the hard way.

However, the news going forward is promising. According to an article on WSAZ.com (Huntington, W.Va.), Dean of Student Affairs Steve Hensley said that the Department of Student Affairs is meeting with the Student Conduct and Welfare Board to talk about revising the code.

Furthermore, according to a column in The Parthenon, Director of Judicial Affairs Lisa Martin is attending the Association for Student Conduct Administration conference in Florida this week to learn about what other institutions are doing to ameliorate outdated speech codes. FIRE’s Will Creeley and Azhar Majeed will also be attending the conference, and will be delivering a presentation to attendees on Saturday.

Whether it’s due to the recent media scrutiny or out of a true desire to protect free speech, FIRE applauds Marshall for its newfound desire to consider amending its outdated, unconstitutional speech policies. Although we often criticize institutions for their speech codes, we greatly prefer to praise schools for doing away with repressive policies.

Just this week, Arizona State University became the 14th institution of higher education to earn our coveted "green light" rating. Will Marshall University make the great leap from being one of the 12 worst colleges for free speech to being the 15th school on the "best" list? We hope so, and we stand ready to help.

Schools: Marshall University