by Azhar Majeed
Students at our nation’s colleges and universities won a number of important victories for freedom of speech and the First Amendment over the past year. They vindicated their core expressive rights, fought back against repressive university practices, and taught us all valuable lessons about living in a free society.
The victories on campus weren’t limited to instances where student speech was censored or punished in application, however. At a number of institutions, the Foundation for Individual Rights in Education (FIRE, where I work) convinced the administration to proactively protect free speech by reforming illiberal and unconstitutional policies before they resulted in cases of censorship. These policies are what FIRE refers to as speech codes— university policies prohibiting expression that is actually legally protected by the First Amendment in society at large (and at public universities as well, although they often ignore the law). It’s essential that universities scrap these vague and broad codes, because each day that they remain official policy is a continued violation of students’ free speech rights. Speech codes misinform students about their expressive rights and chill campus discourse, preventing many views from ever reaching the marketplace of ideas.
Fortunately, in 2012, schools like the University of Southern California (USC) and the University of North Carolina at Chapel Hill (UNC) heeded our advice and eliminated clearly unconstitutional speech codes, thereby moving towards greater respect for student expression on their campuses.
USC formerly prohibited the posting or distribution of any printed materials containing “derogatory language or material that is aimed at harming a specific person or an organization’s reputation.” FIRE named this policy as our “Speech Code of the Month” for January 2012. (Each month, we highlight a particularly egregious campus speech code on our website.) After all, much “derogatory” speech aimed at harming an individual or group’s “reputation” is constitutionally protected — think about the mud-slinging and vitriol that characterizes much of election season, for instance. In attempting to reach voters, political candidates will often point out the flaws and weaknesses of their opponents. Students on a college campus should have the same right to contend with opposing viewpoints and to criticize those who disagree with them, without having to fear disciplinary action as a result. Happily, in keeping with its institutional commitment to free speech, USC removed this speech code from its materials in time for the 2012-13 academic year.
UNC, similarly, maintained a policy listing “sexually explicit jokes” and “[i]nappropriate exposure to sexually oriented graffiti, pictures, posters, cartoons, or other such materials” as examples of campus sexual harassment. Like USC’s speech code, this policy earned FIRE’s worst, “red light” rating (meaning it both clearly and substantially restricted protected speech), as well as our Speech Code of the Month designation for February 2012.
Thanks in large part to campus activism by the UNC student group Young Americans for Liberty — including bringing in FIRE Senior Vice President Robert Shibley for a Constitution Day speech in September, as well as hosting a taping of the Fox Business Network show Stossel to discuss UNC’s speech codes — we were able to convince the university administration to scrap several of its restrictive policies, including this one.
UNC is not just a good example of an institution removing several questionable policies at once (though it still maintains two other speech codes), it is an illustration of what can happen when passionate students work alongside us to reform their campuses. I hope that in 2013, UNC will finish the job it has started and revise its remaining speech codes, thus earning FIRE’s most favorable “green light” rating. For now, though, we can celebrate its removal of a former Speech Code of the Month, a major step in itself.
Still other important policy revisions took place in 2012.
Indiana University, Southeast got rid of a policy that severely limited the ability of students to organize and carry out expressive activities on campus. IU Southeast formerly required students wishing to “express their opinions, distribute materials or assemble on campus” to submit an “Application to Schedule Facilities form” at least five days prior to the event and to gain approval from the administration before engaging in such activity. This prohibited students from engaging in anything from spontaneous protests or rallies to even silent leafletting. In addition, the university broadly asserted that it had “the right to determine time, place and manner” of student speech and identified a single area, McCullough Plaza, as “[t]he free speech area on campus.”
IU Southeast’s restrictions were enough to earn it our Speech Code of the Month designation for July 2012. This speech code also reminded us of the University of Cincinnati’s own “free speech zone,” a policy that suffered an embarrassing defeat in federal court in June. Cincinnati’s policy similarly limited all “demonstrations, pickets, and rallies” to a single area comprising 0.1% of its campus, and required that expressive activity even in this free speech zone be registered with the university ten working days in advance.
Cincinnati’s policy was doomed from the start, and we told the university as much by naming it our Speech Code of the Month back in December of 2007 and writing to the school in 2008 to warn of its constitutional deficiencies. When Cincinnati decided to ignore our concerns for the past several years, and then chose to squelch the free speech and political activity of the student organization Young Americans for Liberty in February of this year, its fate was sealed. The student group filed suit in federal district court, and ultimately had its First Amendment rights vindicated when the court issued a permanent injunction against Cincinnati’s enforcement of the policy.
Thankfully, IU Southeast did not have to go nearly that far to understand its obligations under the First Amendment. It simply revised its own Speech Code of the Month in time for the 2012-13 academic year. The policy is now an exemplary model in terms of allowing unfettered discourse on campus, stating that “no reservation is required to use” McCollough Plaza and that “[t]he designation of McCullough Plaza as an assembly location should not be interpreted as limiting the rights of free expression elsewhere on campus. Other outdoor locations may be used as long as no disruptions of University functions occur.”
Framingham State University in Massachusetts, to its own credit, reformed a Speech Code of the Month as well (this one from May 2012). Framingham State’s erstwhile policy stated: “Recognized student clubs or organizations desiring to sponsor a religious display must consider the following: such displays may not promote or hinder one religion over another, must be secular in purpose, and may not intertwine University affairs with religious promotion.” As we wrote at the time, this policy seemed to confuse the university’s own obligations with respect to religious neutrality with the private speech and expressive activity of its student groups. Not only was this a misapplication of Establishment Clause doctrine, it resulted in the restriction of religious student speech on the basis of its viewpoint, a fundamental First Amendment problem.
Happily, a look at Framingham State’s current policies reveals that it has removed this misguided policy from its materials for the 2012-13 academic year — and that, like the University of North Carolina at Chapel Hill, it has just two speech codes keeping it from earning our highest “green light” rating. To truly meet its obligations as a public institution, Framingham State should look to revise these policies as well in the coming year.
While much work remains to be done in defending First Amendment rights on college and university campuses, in terms of policy as well as practice, the policy changes we achieved in 2012 serve as a reminder of what is possible, and hopefully serve as examples for other schools to follow as well. Looking back on the work that we did at FIRE in 2012, I am proud of all we were able to accomplish, and I look forward to what is in store for 2013.