The good and the bad news about campus speech codes

By December 9, 2009

The Huffington Post

In the ongoing fight against campus speech codes, I have both good news and bad news. The good news is there has been a notable drop in the percentage of colleges that have speech codes on the books. The bad news is over 70% of surveyed colleges and universities still maintain laughably unconstitutional codes under First Amendment standards.

This is according to the Foundation for Individual Rights in Education (FIRE, where I am president) report on speech codes at 375 top colleges, released yesterday. We have been studying the problem of campus speech codes for 10 years now, and all of the research for our annual report is conducted by FIRE’s constitutionally specialized attorneys. Nonetheless, I find it very interesting how much skepticism I have to overcome when talking to some people about the continuing prevalence of speech codes. So I thought I would simply answer a few of those questions in advance.

Skeptical question # 1: “What exactly do you mean by ‘speech codes’?”

For simplicity’s sake, FIRE defines speech codes as any campus regulation that punishes, forbids, heavily regulates, or restricts a substantial amount of speech normally protected by the First Amendment. Some current examples of active speech codes include:

  • State University of New York – Brockport which bans all uses of e-mail that “inconvenience others,” including “offensive language or graphics (whether or not the receiver objects, since others may come in contact with it).” This one is particularly outrageous because SUNY – Brockport was sued for its speech codes just a few years back and settled out of court. You would think that the university would have learned its lesson the first time around, but then you’d be wrong.
  • New York University explicitly prohibits “insulting,” “teasing,” and even “inappropriate jokes” when they are based on a legally protected status such as race, gender, or religion. Maybe these anemic standards for protecting speech explain why NYU prevented a forum for the discussion of the Mohammed cartoons from showing those cartoons back in 2006.
  • San Jose State University bans “[a]ny form of activity, whether covert or overt, that creates a significantly uncomfortable … environment” in the dorms, which includes making “verbal remarks” and “publicly telling offensive jokes.” Like most speech codes this one is so vague and so broad it could be potentially used against anyone, like the poor student at the University of New Hampshire who was kicked out of the dorms, sentenced to psychological counseling and two years of disciplinary probation, and forced to apologize for joking about the “freshman 15.”

Indeed, speech codes are so common–and so atrocious–that FIRE has been able to highlight a particularly bad speech code as our Speech Code of the Month every month for over four years with no signs of running out of material.

Skeptical question # 2: “Weren’t campus speech codes totally defeated in court way back in the 1990s?”

Actually, it looked that way. Indeed, speech codes were overturned in court no fewer than six times from 1989 to 1998. Yet codes that are almost identical to those overturned in the 1990′s remain on the books at colleges across the country.

Skeptical question #3: “Fine, it’s easy to call something unconstitutional, but what proof do you have that FIRE’s survey is accurate.”

Of the 18 lawsuits that have been brought against speech codes that FIRE has deemed unconstitutional, all of them have resulted in the code either being repealed by the university or overturned by a decisive court opinion. A 100% success rate is a pretty rare thing in litigation and indicates that judges across the spectrum agree that these codes are unconstitutional.

Skeptical question # 4:
“How can it be that speech codes are still around and I haven’t heard about it?”

Well, I wish I knew. When the speech code craze started in the 1980s it was considered a national scandal even though they existed in only a few dozen schools. Now, when the majority of campuses maintain speech codes, it seems to come to as a surprise to many people. I think there are a lot of factors at play, perhaps most notably the polarization of our society and media. For some reason, in the media divorce between right and left, campus speech codes came to be viewed as more or less a niche conservative issue. This is deeply bizarre for a number of reasons including the fact that not only has free speech always been considered a central issue to liberals, but these codes are used against students of all different political backgrounds. Most recently the ongoing case at Southwestern College in California serves as a great example of good old-fashioned budget protesting being stifled by a policy declaring a single “free speech patio” (no joke) to be the sole place on campus to protest. And who could forget the case of Hayden Barnes, who was kicked out of his college for posting a collage? True, you are still far more likely to get in trouble on campus if your speech is dubbed un-PC, but shouldn’t campus free speech be an issue that transcends partisan politics? Yes, I know, in an age where everything seems to have a pick a side in the culture wars, I feel naïve even just writing that.

And if you haven’t heard anything about speech codes in the last 10 years it certainly isn’t due to a lack of effort by me or on the part of FIRE. You can find my writing on the subject in everything from the Chronicle of Higher Education to the L.A. Times to, of course, right here on The Huffington Post. For the best recent law review article on the topic I highly recommend my colleague Azhar Majeed’s article in the Georgetown Journal of Law & Public Policy, entitled “Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes.” Also, I will be addressing this topic in detail in my forthcoming article in Reason Magazine.

Skeptical Question #5:
“So what if colleges maintain speech codes? It’s not like they are actually enforced against student speech, are they?”

There are two answers to this question. First, campus speech codes are harmful by their very existence, whether enforced or not, which I will explain in the next question.

Second, speech codes do in fact get enforced against student speech all the time. Just look at Tufts University, which to this day has not reversed the findings of guilt on charges of harassment against the authors of a student newspaper that published parodies criticizing affirmative action and fundamentalist Islam. Tufts remains unrepentant. Another memorable case took place at the University of Central Florida, which charged a student with harassment through “personal abuse” for online speech in which he committed the heinous crime of calling a student government candidate a “jerk and a fool.” And there’s the case of Kara Spencer at Michigan State University, which I’ve previously written about here. At Michigan State, it seems the administration is comfortable with placing an arbitrary limit on the number of people you can e-mail about a matter of obvious concern to the university community, free speech rights be damned. In light of these and so many other cases (many of which I have written about for The Huffington Post), one would have to stick one’s head in the sand–and keep it there–to not see that speech codes do get enforced against student speech.

Skeptical question #6: “So what? What’s the big deal if campuses have speech codes?”

I get this question more often than I like to admit and every time I get it, it kind of breaks my heart. The most simplistic answer: the big deal is that these things are laughably and egregiously unconstitutional at public campuses, and colleges should not be allowed to flout the law. But beyond that, colleges and universities are very special institutions that rely on open candor and debate in order to function properly. Once people believe that they can get in trouble for having the wrong opinion, making the wrong joke, or just saying something the wrong way, debate is “chilled:” that is, people do not bother arguing or debating if they think there’s even a chance they might get in actual trouble. You can’t really be a marketplace of ideas if you have to be afraid of giving your honest opinion. But worst of all, I think the problem with speech codes on campus is the fact that they teach students terrible lessons about their rights and the rights of others. If someone goes to a college and see these codes that treat “discomfort” or ban speech that causes “a vague sense of danger” or a loss of “self esteem,” how can they be expected to understand that there is nothing strange or wrong about having your feelings hurt in the course of a political debate or an argument over political issues? Indeed, as I’m sure many Huffington Post readers can attest, outrage and offense comes with the territory in a democracy.

Those are the big reasons why speech codes are harmful, but the simplest problem with speech codes is that they are written and enforced by people, and when people have the power to control what can and cannot be said they tend to make really, well, stupid choices. Whether it is Bucknell University, where students were recently told they couldn’t hand out Obama stimulus dollars to poke fun at the TARP, Yale University, just last month, where administrators actually said that it would be “not acceptable” to quote F. Scott Fitzgerald when he called Harvard men “sissies,” or any of the students you can see in our latest video, the ridiculousness of administrators’ attempts to stifle and punish speech should be argument enough for why they shouldn’t have the power in the first place.