The Spectator, the student newspaper of the University of Wisconsin–Eau Claire (UWEC), ran an article today on how UWEC’s policies fared in FIRE’s recent speech codes report. As I told the student reporter with whom I spoke, UWEC’s sexual harassment policy is overbroad because it prohibits certain types of speech—including “humor or jokes about sex” and “pejorative comments about females/males”—regardless of whether the speech is repeated and regardless of whether it is objectively offensive (as opposed to simply being perceived as offensive by a particularly sensitive individual).
In response to FIRE’s analysis, Steve Tallant, UWEC’s interim provost and vice chancellor for Academic Affairs, told the Spectator:
“They say our policies are unconstitutional. If (the policies) were unconstitutional, they would be in court right now.”
Mr. Tallant is incorrect. The reason that UWEC’s and hundreds of other schools’ policies are not in court is not because they are constitutional, but simply because no one has come forward to challenge them. To bring a lawsuit against a college or university over an unconstitutional speech code, there must be a student or faculty member at that university who wants to act as a plaintiff in the lawsuit. That individual need not have actually been punished under the school’s policies—in First Amendment law, merely being forced to live under a policy that unlawfully restricts your freedom of speech is an injury that gives you the right to bring suit.
If you are a student or faculty member at a public university who is interested in challenging your school’s speech code, FIRE wants to help. Through our Legal Network, we have already coordinated lawsuits at several universities that have led to the demise of unconstitutional speech codes (for example, take a look at the 2003 suit against Shippensburg University of Pennsylvania). We would like nothing more than to help bring down unlawful speech codes at other colleges and universities, but we need students and faculty at those schools who are willing to stand up for their rights. If you fit the bill, please get in touch with us and help us show misguided administrators like Mr. Tallant the error of their ways.