To: Jake Szetela, Central Michigan University
From: Azhar Majeed, Associate Director of Legal and Public Advocacy, Foundation for Individual Rights in Education (FIRE)
Date: April 11, 2013
Re: Speech Codes at Central Michigan University
The Foundation for Individual Rights in Education (FIRE; thefire.org) is a nonpartisan, nonprofit organization dedicated to defending student and faculty rights on university campuses, including freedom of speech, academic freedom, and due process. This memorandum is in response to your request for information about how Central Michigan University’s (CMU’s) policies might be revised to better protect students’ right to free speech and expression.
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. CMU currently maintains three red light policies, which we define as policies that clearly and substantially prohibit free speech. It does not, however, maintain any yellow light speech codes, which are ambiguous policies that could too easily be abused to punish speech entitled to protection at a public university such as CMU. Fortunately, all of CMU’s speech codes could easily be revised to protect student discourse and meet the university’s moral and legal obligations under the First Amendment.
FIRE would be thrilled to work with the students and administrators of CMU to make the school a green light institution, and to praise and publicize this change through our extensive national media network. By simply revising the three policies identified in this memorandum, CMU would be able to join a select group of colleges nationwide that have earned FIRE’s most favorable speech code rating.
What follows is a discussion of the First Amendment issues with each of CMU’s speech codes, as well as proposed solutions for remedying those defects.
I. Sexual Harassment Brochure (Red Light)
This policy states, in relevant part:
Sexual harassment is unwanted sexual attention or communication of any kind.
Examples may include:
- Off-color jokes or teasing.
- Comments about body parts or sex life.
- Suggestive pictures, posters, calendars or cartoons.
CMU’s sexual harassment policy badly misapplies the law governing student-on-student (or peer) hostile environment harassment in the educational setting, to the detriment of students’ free speech rights.
First, the policy broadly and vaguely declares that "[s]exual harassment is unwanted sexual attention or communication of any kind." Yet, a great deal of sexually-themed "communication" is protected under the First Amendment, and does not lose its protection merely because it is subjectively "unwanted" by the complaining individual. For example, discussion on topics such as human psychology in sexual interactions, religious doctrine regarding homosexual sexual conduct, and cultural differences in sexual practices are all protected by the First Amendment, regardless of subjective listener reaction. Students should be free to discuss these and other topics relating to human sexuality both inside and outside of the classroom without fear of punishment.
CMU’s speech also code fails to provide students with adequate notice of the speech that is prohibited. After all, how is a student to know beforehand whether particular expression will be subjectively "unwanted" by a fellow student or an administrator? The uncertainty on this point likely renders the policy unconstitutionally vague on its face. 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). Students are understandably likely to self-censor rather than risk punishment under this policy’s amorphous language, creating a harmful chilling effect on campus discourse. This chilling effect is fundamentally at odds with CMU’s obligations under the First Amendment as a public institution.
The third major flaw with CMU’s policy is that it lists instances of protected speech as purported examples of sexual harassment. These include "[o]ff-color jokes or teasing," "[c]omments about body parts or sex life," and "[s]uggestive pictures, posters, calendars or cartoons." The inclusion of these terms makes the policy susceptible to an overbreadth challenge. 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). Here, students may face sanction simply for engaging in "[o]ff-color" banter with their friends about sexual topics, or for having "[s]uggestive" images-again, seemingly judged from the subjective vantage point of a fellow student or a university official-posted on their dorm room wall. This runs afoul of First Amendment principles.
CMU would be well advised to replace its sexual harassment policy with the controlling standard for peer hostile environment harassment established by the Supreme Court of the United States. In Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999), the Court held that peer harassment in the educational setting is only met by conduct that is (1) unwelcome; (2) discriminatory; (3) directed at an individual; and (4) "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities." By definition, this includes only extreme and usually repetitive behavior-behavior so serious that it would prevent a reasonable person from receiving his or her education. The Supreme Court’s standard properly balances universities’ obligations to both uphold student speech rights and prevent true harassment.
As the Court’s only decision to date regarding the substantive standard for peer harassment in education, Davis is controlling on this matter. Therefore, CMU should implement the Davis standard in its Sexual Harassment Brochure and in any other policy addressing peer harassment. CMU should also ensure that any purported examples of peer harassment contained in its policies, such as those included in the Sexual Harassment Brochure, will only constitute actionable harassment at CMU if they rise to the level of the Davis standard.
II. Computing and Network Resources Policy (Red Light)
This policy reads, in pertinent part:
Using foul or obscene language, posting obnoxious or inappropriate announcements, or making defamatory statements.
CMU’s second red light speech code restricts a wide swath of online student expression.
First, the policy prohibits "foul or obscene language," though that term is not explained or illustrated for students’ understanding. Yet most language that one would understand to be "foul or obscene" is entitled to constitutional protection. If the university intends to restrict mere profanity and the like, its policy is unconstitutionally overbroad. In Cohen v. California, 403 U.S. 15 (1971), the Supreme Court famously 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. Under such longstanding precedent, CMU may not, consistent with its constitutional obligations, broadly ban students from using profanity and similar expression online.
This policy also prohibits "posting obnoxious or inappropriate announcements," though these terms are not explained or illustrated, either. Once again, this leaves students to guess at what expression may subject them to censorship or punishment. After all, what is "obnoxious" or "inappropriate" speech to one person may be perfectly acceptable, and even tame and innocuous, to another. The vagueness of this provision is likely to result in a harmful chilling effect on students’ discourse and dialogue in online venues. As the Supreme Court has observed, "[W]here a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked." Grayned, 408 U.S. at 109 (internal citations omitted).
CMU would be well advised to entirely remove its prohibitions on "[u]sing foul or obscene language" and on "posting obnoxious or inappropriate announcements." At present, these provisions encompass a wide swath of online student speech. After all, the Computing and Network Resources Policy states, under "Scope," that the policy is "applicable to all campus units as well as all users who operate or use any of the computing systems and networks of the university." If the university wishes to address actual obscenity, it is of course free to do so consistent with its obligations under the First Amendment. Thus, for example, it may ban "obscenity, as defined under applicable federal and state law."
III. Bias Incident Response Team (Red Light)
This policy states, in pertinent part:
Bias incidents take many forms-words, signs, symbols, threats or actions-in electronic or real-time. They include intimidation, vandalism, destruction of property, harassment, and expressions of hate or hostility.
Anytime anyone in the CMU community feels belittled, disrespected, threatened, or unsafe because of who they are, the entire university community is diminished. That’s why it’s important to report all bias incidents-even those intended as jokes. If you have observed or experienced a bias incident, it should be reported as soon as possible.
CMU’s third and final red light policy conflates protected speech with unlawful conduct under "bias incidents," thereby threatening students’ First Amendment rights.
First, this speech code defines "bias incidents" to include "expressions of hate or hostility." While the university is of course free to address and prevent such unlawful conduct as "vandalism" and "destruction of property," it must take care not to sweep in constitutionally protected expression in the same definition. Yet the threat to protected speech is clear on the face of the policy, which encompasses "words," "signs," and "symbols" in addition to "threats" and "actions." Much speech that expresses "hate or hostility" (whether to another individual, to a group of people, or to an idea or set of beliefs) is entitled to constitutional protection. While some of this expression may be offensive to some individuals, a public university may not on that basis alone make the speech punishable. As the Supreme Court has repeatedly made clear, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989). Even more centrally to the public university campus, the Court has declared 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.’" Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973).
Furthermore, CMU’s policy errs by suggesting that bias incidents include "[a]nytime anyone in the CMU community feels belittled [or] disrespected … because of who they are." The policy goes on to advise that students should "report all bias incidents-even those intended as jokes." The threat to expression that merely "belittle[s]" or "disrespect[s]" another individual runs afoul of the Supreme Court’s pronouncement that "[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminiello v. Chicago, 337 U.S. 1, 4 (1949). Consider, for instance, robust student debate about any of the important social or political issues of the day. As a public institution of higher education, CMU should be encouraging such discussion, not shutting it down because one party to the conversation (or even a third party who overhears the conversation) subjectively claims to feel "belittled" or "disrespected."
Likewise, CMU’s provision regarding speech "intended as jokes" threatens a great deal of protected satire, parody, and other humor. These are time-honored forms of expression under the First Amendment, and are often vital to making salient points regarding social and political matters. Under CMU’s policy, students may face a bias incident allegation simply for engaging in satire or other humor relating to such contentious issues as affirmative action, immigration, the gender wage gap, religious doctrine, gay marriage, and more. This is clearly contrary to First Amendment principles, particularly at a public institution of higher education.
CMU would be well advised to replace its current definition and statements regarding campus bias incidents with the aforementioned Davis standard for peer harassment in the educational context. Again, the standard set forth by the Supreme Court in Davis appropriately balances students’ free speech rights with an institution’s obligation to prevent truly harassing conduct. Moreover, peer harassment, properly defined, encompasses the types of behaviors the university seeks to address through its current bias incident policy.
If the university still wishes to address campus bias incidents through this policy, it would be well advised to make the policy aspirational, and to make clear to students that they will not face punishment for failing to abide by its terms. In this manner, the university can impart its preferred values to the student body and encourage them to adopt those values themselves without infringing upon their First Amendment rights. A good model to follow here is the University of Virginia’s "Bias Reporting Web Site," which makes clear that the university’s definition of a bias incident "is used for reporting and statistical purposes only. It carries no independent sanctioning weight or authority." The policy goes on to state, in relevant part:
Some bias-motivated or otherwise disrespectful acts may be constitutionally protected speech and thus not subject to University disciplinary action or formal investigation. Indeed, as our founder Thomas Jefferson once wrote, "For here we are not afraid … to tolerate error so long as reason is free to combat it." However, we should do all that we can to foster a good dialogue on what is appropriate in our community of peers.
By adopting similar aspirational language, CMU can encourage its students to follow those values that the institution prefers, while at the same time respecting students’ freedom of speech.
FIRE hopes this memorandum is helpful in your efforts to promote speech code reform at Central Michigan University. Once again, each of these policies could easily be revised to better protect student speech. FIRE would be very pleased to work with the students and administrators of CMU to help the university meet its obligations under the First Amendment.