College of DuPage Threatens Freedom of Expression and Association

March 19, 2009

Yesterday FIRE wrote the Board of Trustees of the College of DuPage (Illinois) because of several proposed policy changes that would unduly restrict the freedom of expression and association at the college. The Illinois Council of the American Association of University Professors also has written the college against these changes.

For one thing, the proposed changes require faculty members (and all employees of the college, who often include students) to "present a proper and ethical image to the community," which is okay as an aspirational statement but all too easy to abuse as a requirement on faculty members and students to be "proper" in their speech about controversial issues. It is not up to the community to decide whether a public college, like the College of DuPage, should punish a faculty member or student for seeming to be improper or for advocating values that the community sees as unethical. Such terms as "present a proper and ethical image" are far too vague to be employed constitutionally to punish someone on campus who in some way offends "the community."

For another thing, the proposed changes ban "demeaning behavior." All too often such a rule is not actually about demeaning behavior, however, but about speech that someone on campus might subjectively feel is demeaning. For example, one of FIRE’s most recent Speech Codes of the Month is that of Southern Illinois University at Carbondale (SIUC), which redefines speech as conduct and defines "discriminatory harassment" in part as conduct that includes "demeaning depictions." Or as FIRE’s co-founder, Harvey Silverglate, wrote about the term "demeaning" back in the year of FIRE’s founding:

In the case of The UWM Post, Inc. v. Board of Regents of the University of Wisconsin System (hereafter referred to as UWM Post), the University, led by a number of its law faculty members who had drafted and vetted the code and assured the Board of Regents of its constitutionality, argued that the code fell within the category of "fighting words" (UWM Post)…. The court made clear that speech that merely "may demean an individual’s characteristics without tending to incite that individual or others to an immediate breach of the peace" is fully constitutionally protected in light of the evisceration of this aspect of the "fighting words" doctrine over the years.

Judge Warren went even further, concluding that because the very heart of the Wisconsin student speech code was to eliminate "comments, epithets or other expressive behavior [that] demeans their addressees’ race, sex, religion, etc.," while not regulating such expression "which affirms or does not address an individual’s race, sex, religion, etc.," the code failed the test of content-neutrality, which requires that even when the government has a constitutionally valid basis for restricting speech (which Wisconsin did not have), it may not do so on the basis of the content or nature of the speech or the ideas embodied in the speech.. UWM Post at 23-4. Correctly, Judge Warren cited a binding precedent opinion of the United States Court of Appeals for the Seventh Circuit (which covers [Illinois,] Indiana, Wisconsin, and several other states), which places a very heavy — indeed, virtually insurmountable — burden of presumed unconstitutionality on any scheme that restricts speech on the basis of its content. See American Booksellers Association., Inc. v. Hudnut. [Emphasis in original; citation omitted.]

Third, the proposal suggests that the exercise of the rights to freedom of speech and assembly could threaten "the equal rights of others"we have seen plenty of instances where the freedom of speech is limited in the name of not offending others, as though others have their own right not to be offended. They don’t. For more, see this video about FIRE’s case at IUPUI, where a student-employee was found guilty of racial harassment for reading an anti-KKK book because another employee did not want to see pictures of Klansmen with burning crosses on the book’s cover.

Even worse, the president or his representative would be allowed not only to deny requests for public assembly and outside speakers or programs, but also to "control the time, place and manner" of such events. This line is very poorly written. Only narrowly tailored restrictions on time, place and manner of speech and assembly are constitutionally permissibleand only if the restrictions serve a substantial government interest. See Ward v. Rock Against Racism, 491 U.S. 781 (1989).

Furthermore, the proposal gives the president unconstitutional prior review of speakers and programs, for the president is allowed to ban them ahead of time "if it reasonably appears that such speaker or program would advocate … violation of any federal, state or local laws." Yet as FIRE wrote to Virginia Tech in 2003:

It is a settled issue that "mere advocacy" of lawlessnesseven advocating violent overthrow of the governmentis protected speech under the federal constitution.  In the seminal case of Brandenburg v. Ohio (1969), the Supreme Court held that, in order to qualify as punishable incitement, the speech must be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."  The Supreme Court’s stance was further strengthened in both Gooding v. Wilson (1972) and Hess v. Indiana (1973)when the Court found, respectively, that even the words "white son of a bitch, I’ll kill you" and a threat by a student protestor to "take the streets" were protected speech.  These holdings were strengthened yet again in Claiborne Hardware Company v. NAACP (1982).  Even before these decisions, in Sweezy v. New Hampshire (1957), the Supreme Court ruled that a teacher uttered protected speech when he approvingly advocated the eventual violent overthrow of capitalism. [Emphasis in original.]

Fourth, the proposal demands that "Any expense incurred as the result of scheduling a speaker or program on campus will be the responsibility of the sponsoring individual/group." This one is plainly unconstitutional because extra security for controversial speakers may not be charged to the sponsor. See FIRE’s press release from Tuesday of this week on precisely this point. The Supreme Court’s ruling in Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) prohibits increasing a security fee because of a potentially hostile audience: "Listeners’ reaction to speech is not a content-neutral basis for regulation…. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob."

DuPage’s Board of Trustees is expected to vote tonight on the proposal. It is far from constitutional and far from ready for approval.