ADF’s David Hacker on Civility Codes as Speech Codes

August 12, 2010

Last week in The Christian Post, Alliance Defense Fund (ADF) Legal Counsel David J. Hacker took aim at an August 5, 2010, article titled "Rude Democracy" in Inside Higher Ed, written by Susan Herbst. Herbst discusses the perceived lack of civility in contemporary American discourse, both in the larger society and on university campuses, and argues that one solution to the problem as presented on campus is to maintain and enforce civility policies regulating student expression. Herbst writes that civility policies should play a major role in how universities counsel their students to behave on campus and should be used more prominently as part of students’ extracurricular education. In the Christian Post article, Hacker responds well by highlighting the threat that civility policies pose to freedom of speech, echoing important points that FIRE has made many times.

Hacker first disagrees with Herbst’s assertion that colleges have largely moved away from "hate speech" codes:

One of the problems is that she starts off on the wrong foot: "We have moved away from ‘hate speech’ codes because they are difficult to get right; they do have a tendency to trample on forms of free speech that really aren’t dangerous at all." Speech codes and so-called ‘hate’ speech policies do trample free speech, but about 70% of public colleges and university still have one (or more) on the books. I don’t know who has ‘moved away’ from them, but most colleges have not.

Indeed, Hacker is likely relying on FIRE’s speech code research for that statistic. Our most recent annual speech code report, Spotlight on Speech Codes 2010: The State of Free Speech on Our Nation’s Campuses, found that 71 percent of colleges and universities surveyed nationwide maintained at least one policy that unconstitutionally restricted student speech by "clearly and substantially" banning expression that would be entitled to protection outside of campus. The report also found that among public colleges and universities, that same 71 percent figure held steady despite the fact that those institutions are legally bound to follow the requirements of the First Amendment.

Next, Hacker turns to the meat of the matterHerbst’s advocacy of civility policies.

Civility codes are not constitutional. San Francisco State University required students to ‘be civil’ on campus. A student used that policy to file a complaint about the College Republicans and force a university investigation. SFSU eventually revised the policy, but only after a federal court struck down the policy as facially overbroad. The problem with civility codes is that they have a chilling effect on student speech and can be applied in a discriminatory mannerallowing some to speak, but not others.

Very well put. The federal court decision to which Hacker refers, College Republicans v. Reed, is excellent on this point, as Magistrate Judge Wayne Brazil thoroughly explained the First Amendment difficulties presented by civility requirements such as the one in force at SFSU. The portion of Judge Brazil’s opinion dealing with SFSU’s civility policy is worth reading in its entirety, so I won’t quote from it here.

In short, Judge Brazil recognized that while it is perfectly laudable for a college to want its  students to be civil to one another, to be tolerant and respectful, such a desire cannot be mandated by university policy or enforced by the threat of official investigation or punishment. Judge Brazil understood, as FIRE has often argued, that much speech that does not fall into the category of civil, respectful, or tolerant expression is nonetheless entitled to constitutional protection, and that prohibiting campus speakers from engaging in such speech can sometimes diminish the effectiveness of communication by removing a crucial emotive, passionate component. While I may prefer that more people behave civilly towards each other, if I am an administrator on a public university campus, I cannot, consistent with my legal obligation to uphold the First Amendment, make this a requirement under pain of punishment or investigation. Moreover, what is "civil" to one person may not be civil to another, and the vagueness of such a standard for regulating speech poses the risk of selective enforcement, to say nothing of the chilling effect it places on campus speech.

For a useful illustration of these principles in play, look no further than Pennsylvania State University, which Hacker writes about in his article. In September 2008, FIRE named Penn State as our Speech Code of the Month for its "Penn State Principles." One of these principles stated that "I will respect the dignity of all individuals within the Penn State community" and provided that

Actions motivated by hate, prejudice, or intolerance violate this principle. I will not engage in any behaviors that compromise or demean the dignity of individuals or groups, including intimidation, stalking, harassment, discrimination, taunting, ridiculing, insulting, or acts of violence. [Emphases added.]

We wrote to Penn State President Graham Spanier about the policy, making the point that the Principles restricted a significant amount of constitutionally protected speech, and further that the vague language provided Penn State students with insufficient notice of the speech that was prohibited.

To his credit, President Spanier responded by making important changes to the Penn State Principles. (You can see the revised version here.) He added the following language to their preamble:

At the same time, the University is strongly committed to freedom of expression. Consequently, these Principles do not constitute University policy and are not intended to interfere in any way with an individual’s academic or personal freedoms. We hope, however, that individuals will voluntarily endorse these common principles, thereby contributing to the traditions and scholarly heritage left by those who preceded them, and will thus leave Penn State a better place for those who follow.

Critically, this addition makes clear that the Principles, however admirable one may find them to be, are aspirational in nature and do not carry the threat of punishment. They do not even imply a risk of investigation. That’s the way to encourage civility on one’s campus: extol its virtues, attempt to persuade students that "civil" discourse is best, but don’t threaten students with investigation and punishment for not conforming to this declared moral value all the time. We hope that more schools in the future will heed David Hacker’s words and follow Penn State’s example when it comes to their own civility policies.

Schools:  Pennsylvania State University – University Park San Francisco State University

Cases:  San Francisco State University: Speech Code Litigation Project