Yesterday, FIRE joined three organizations—the National Coalition Against Censorship, American Association of University Professors, and the Student Press Law Center—in a letter calling upon the Department of Education’s Office for Civil Rights (OCR) to reject calls for OCR to pressure or require institutions to block social media sites that contain offensive messages. In doing so, OCR has an opportunity to draw back from its previously-issued definition of sexual harassment, which is overbroad—as the calls for banning anonymous online content demonstrate.
A number of organizations, led by the Feminist Majority Foundation (FMF), have urged OCR to issue guidance concerning how institutions should address online speech. They also asked OCR to pressure institutions to “[bar] the use of campus wi-fi to view or post to” applications that may used to share offensive speech, including Yik Yak, in order to satisfy the institutions’ legal obligations under Title IX to respond to known instances of sexual harassment.
As I’ve previously discussed at length, it would be—at best—a symbolic action for institutions to ban anonymous social media applications like Yik Yak from their networks, as students would simply continue using cellular connections to access the site. Although FMF’s request seeks guidance as to “anonymous social media applications” which are “like Yik Yak,” there are few arguments for banning Yik Yak, that could not be easily extended to other social media sites, including Twitter and Facebook.
The coalition’s letter makes the argument against requiring or encouraging institutions to ban anonymous social media applications, recounting Supreme Court cases holding that the government cannot regulate speech simply because it is offensive. More importantly, the letter places calls to ban Yik Yak in context, noting that they are part of a broader series of applications of OCR’s October 26, 2010, “Dear Colleague” letter, which provided an overbroad definition of sexual harassment. This definition creates an incentive for institutions to regulate speech that is protected by the First Amendment, contrary to the Supreme Court’s efforts to, as our letter argues, “avoid a potential conflict between civil rights laws and the First Amendment.” In other words, while the Supreme Court has drawn a distinction between offensive speech and unlawful harassment, OCR’s guidance—and calls to expand its scope—sweeps protected speech within its ambit and can chill student and faculty speech.
As the American Association of University Professors (AAUP), a co-signatory to the letter, recently argued in a draft report, OCR’s increased attention to sexual harassment on campus has “led to a frenzy of cases in which administrators’ apparent fears of being targeted by OCR have overridden faculty academic freedom and student free speech rights.” If OCR were to hold institutions liable for constitutionally-protected speech by students or professors, then institutions will continue to have great incentive to punish or restrict student speech.
At the very least, OCR should decline to expand the application of its definition of sexual harassment, if not draw down from its overbroad definition altogether. As the letter argues:
[W]e urge OCR to adopt an approach that will target unlawful conduct without casting a net so wide that it scoops up innocent students and constitutionally protected speech. We agree with the AAUP that “[t]here is no necessary contradiction between effectively addressing problems of sexual harassment (assault, inappropriate conduct and unprotected speech) and fully protecting academic freedom,” and we endorse its recommendation that OCR should “interpret Title IX as protecting students from sex discrimination, while also protecting academic freedom and free speech…[and] should distinguish between allegations of sexual harassment based on conduct and allegations based on speech.” […] [T]his approach will better protect students from unlawful discrimination, not least by preserving their ability to advocate for a more open, inclusive and equitable campus culture, including protecting the right to protest behavior that may be offensive, but not unlawful.
Read the coalition letter here.