To: Andrew Slawson, George Mason University
From: Azhar Majeed, Associate Director of Legal and Public Advocacy, Foundation for Individual Rights in Education (FIRE)
Date: June 25, 2013
Re: Speech Codes at George Mason University
This memorandum is in response to your request for information about how George Mason University’s (GMU’s) policies can be revised to better protect students’ right to free speech and expression under the First Amendment.
FIRE rates a university as a “red light,” “yellow light,” or “green light” institution depending on the extent to which the university’s written policies restrict constitutionally protected speech. GMU currently earns a “yellow light” rating because of five policies that restrict or threaten student expression protected by the First Amendment. Fortunately, all of these policies could easily be revised to protect student speech.
FIRE would be thrilled to work with the students and administrators of GMU to make the school a green light institution, and to praise and publicize this change through our extensive national media network. By revising the five policies identified in this memorandum, GMU would be able to join a select group of colleges nationwide that have earned FIRE’s most favorable speech code rating. Moreover, GMU would join several of its peer institutions within the state of Virginia—specifically, the University of Virginia, The College of William & Mary, and James Madison University—as public universities that have earned FIRE’s green light rating.
What follows is a discussion of the First Amendment issues with each of George Mason’s speech codes, as well as proposed solutions for remedying those defects.
I. Code of Student Conduct: Acts of Misconduct (Yellow Light)
This policy states, in relevant part:
Acts of misconduct include, but are not specifically limited to, the following:
Any unwelcome sexual behavior and/or all forms of sexual misconduct including but not limited to … Conduct of a sexual nature that expressly or implicitly imposes conditions upon, threatens, interferes with, or creates an intimidating, hostile, or demeaning environment for an individual’s participation in any aspect of university life[.]
This policy is aimed at prohibiting hostile environment sexual harassment, but overshoots that mark significantly and threatens a wide swath of constitutionally protected speech.
The U.S. Supreme Court has set forth a specific, narrow legal standard for student-on-student (or peer) harassment in the educational setting, and only a definition that meets that standard is permissible at a public university such as GMU. In Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999), the Court held that peer harassment in the educational context is targeted, discriminatory conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” This standard properly balances universities’ obligations to both uphold student speech rights and prevent true harassment.
As the Court’s only decision to date regarding the substantive standard for peer harassment in education,Davis is controlling on this matter. GMU’s policy, however, uses a less speech-protective standard for sexual harassment: “[c]onduct of a sexual nature that expressly or implicitly … creates an intimidating, hostile, or demeaning environment for an individual’s participation in any aspect of university life.” The use of this standard places student expression that falls short of the Davis standard at risk of punishment, disregarding the university’s duty to protect students’ First Amendment rights. GMU’s definition could very well encompass, for example, a student’s vocal or passionate expression of opinion relating to gay marriage, reproductive choice, use of contraception, and other sexual matters. After all, a student who opposes such a viewpoint may claim under this policy that the speech in question is of a “sexual nature” and creates a subjectively “hostile” or “demeaning” educational environment for him or her, thus making it punishable. Such a result is impermissible at a public university such as GMU.
The policy’s restriction of protected speech renders it unconstitutionally overbroad on its face. A statute or law regulating speech is unconstitutionally overbroad “if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate.” Doe v. University of Michigan, 721 F. Supp. 852, 864 (E.D. Mich. 1989), citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Therefore, GMU would be well advised to revise this problematic policy and to incorporate the Supreme Court’s Davisstandard, with all of its elements, into this and any other policy addressing peer harassment. Implementing the requirements set forth in Davis would be a marked improvement over GMU’s current standard in this policy and would lend far greater protections to student speech.
II. Code of Student Conduct: Acts of Misconduct (Yellow Light)
This policy reads, in pertinent part:
Communicating verbally either directly or indirectly through another party, by telephone, regular or electronic mail, voice mail or any verbal, mechanical, electronic or written communication in a manner likely to cause causes [sic] injury, distress, or emotional or physical discomfort is also prohibited[.]
Like the first speech code, this policy appears aimed at addressing peer harassment but overshoots that purpose, to the detriment of students’ speech rights.
This policy bans a wide range of expressive activity—whether “by telephone, regular or electronic mail, voice mail or any verbal, mechanical, electronic or written” medium, and whether communicated “directly or indirectly through another party”—if it is likely to cause “distress” or “emotional … discomfort.” Yet neither “distress” nor “emotional … discomfort” is defined or illustrated by the policy, leaving students with no notice of what the university means by these amorphous terms.
The policy is thus likely void for vagueness. A policy or regulation is said to be unconstitutionally vague when it does not “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). Here, students are left to guess at what the university may consider to be speech likely to cause “distress” or “emotional … discomfort.” Given that these terms are not self-defining—after all, speech that tends to have such an impact upon one person may be perfectly acceptable, and even tame and innocuous, to another—the policy’s lack of explanation or illustration of its terms renders it unconstitutionally vague. As a result, students’ First Amendment rights are left in an uncertain position.
Rather than utilize this vague formulation to regulate student speech and conduct, GMU would be better served by implementing the Supreme Court’s Davis standard for peer harassment, as discussed previously. In particular, implementation of Davis would ensure that, as the Supreme Court intended, only conduct that denies a student access to educational resources and opportunities will qualify as actionable peer harassment, and that pure speech will not rise to a violation unless it is part of this type of a larger pattern.
III. Vending Sales and Solicitation Procedures: Leafleting (Yellow Light)
This policy states, in pertinent part:
Commercial and Non-Commercial leafleting is only permitted in designated areas and requires a leafleting permit, which can be acquired at Student Centers (JC, Room 324, Monday – Friday, 8:30am-5pm). A copy of any materials to be distributed must be tendered to Student Centers during regular operating hours at least 24 hours prior to the leafleting activity and must bear the name of the sponsoring organization or individual(s). All leafleting participants must carry a copy of the permit on their person and be able to present the permit if requested by a University official.
This policy restricts students’ speech and expressive activity, in violation of the First Amendment, in a number of respects.
First, the policy appears to limit the areas on campus where students can engage in “Non-Commercial leafleting.” It states that such expressive activity is “only permitted in designated areas,” but does not specify what these areas are or provide any indication of how students may be able to ascertain them. This is unacceptable. At a large public institution such as GMU, the vast majority of the open and public areas of campus should be made available to free speech. This is especially so when the student speech in question is silent and peaceful leafleting, which does not create the possibility of disruption that a large demonstration or protest arguably might. Leafleting is a time-honored practice under our country’s First Amendment tradition, and should be fully protected by GMU.
Second, the policy states that even to leaflet in these unspecified “designated areas,” students must acquire a permit, and that “[a] copy of any materials to be distributed must be tendered to Student Centers during regular operating hours at least 24 hours prior to the leafleting activity and must bear the name of the sponsoring organization or individual(s).” This type of prior review is impermissible under the First Amendment—all the more so when, as here, the policy or regulation at issue does not specify the basis upon which permits will be granted. GMU’s policy does not set forth any criteria by which applications for a leafleting permit will be considered, apparently vesting full discretion in the university officials charged with enforcing this policy. This too is flatly unacceptable under the First Amendment. Indeed, the Supreme Court has made clear that “a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.” Shuttlesworth v. Birmingham, 394 U.S. 147, 150–151 (1969) (emphasis added).
GMU’s policies should make clear that traditionally public, outdoor areas of campus are open for students and student groups to engage in spontaneous expressive activities so long as they do not interfere with pedestrian or vehicular traffic or otherwise impede others from enjoying access to the same area.
IV. University Policies: Poster Posting Policy (Yellow Light)
This policy states, in relevant part:
The policy applies to the posting of information and advertising materials in the buildings and on the grounds of George Mason University.
No information or advertising will be posted that is inconsistent with the educational mission of the University or that has not received prior authorization in accordance with this policy.
GMU’s regulation of students’ campus postings contains two major flaws.
First, the policy prohibits students from posting any flyers or materials on campus that are “inconsistent with the educational mission of the University.” Yet what precisely could be deemed to be “inconsistent with the educational mission of the University” is not at all explained or illustrated in the policy. This creates an obviously vague regulation of student speech. Could a student organization’s poster advertising a campus meeting to discuss university budget shortfalls be considered “inconsistent with the educational mission of the University,” and thus subject to censorship and disciplinary action under this policy? Likewise, could flyers criticizing the university’s leadership or policy on a particular matter fall under this regulation? These and other instances of protected speech—even when they are critical of the university or its leadership—should be encouraged on a public university campus, not made punishable.
Due to the policy’s vague regulation of student postings—which, critically, applies broadly to all postings “in the buildings and on the grounds of George Mason University”—students are likely to self-censor rather than risk disciplinary action for any speech deemed by the administration to be “inconsistent with the educational mission of the University.” As the Supreme Court has observed, “[W]here a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.” Grayned, 408 U.S. at 109 (internal citations omitted). This chilling effect does grave harm to the marketplace of ideas that a public university campus is meant to be, and is fundamentally at odds with the university’s obligations under the First Amendment.
Second, GMU’s policy bans students from posting any material that “has not received prior authorization” from the university. As with the leafleting policy discussed previously, this impermissibly requires prior review and, moreover, fails to provide the basis upon which authorization will be granted for student postings. Once again, the policy appears to afford unbridled discretion to university administrators to approve or reject students’ flyers and similar materials as they see fit. This includes the potential for selective and content- and viewpoint-based enforcement, which are pernicious forms of censorship prohibited by the First Amendment. For similar reasons as the leafleting policy, then, this policy’s requirement is constitutionally defective.
GMU would be well advised to remove the provision stating that “[n]o information or advertising will be posted that is inconsistent with the educational mission of the University or that has not received prior authorization in accordance with this policy.” Students’ First Amendment rights will be far better served by rescinding this entire requirement.
V. Residential Student Handbook: Posting Policies (Yellow Light)
This policy reads, in relevant part:
In order to ensure that materials meet the established criteria for posting, they must be submitted to the Assistant Director of Residence Life in a particular neighborhood, or the Office of Housing and Residence Life….
Once again, this policy institutes a requirement of prior review, this time for student postings in GMU’s residence halls. The policy requires that students who wish to post flyers and similar materials in the residence halls submit them to the Assistant Director of Residence Life or the Office of Housing and Residence Life. For similar reasons as discussed previously with respect to GMU’s policies regarding leafleting and campus postings, this policy violates GMU students’ First Amendment rights. As the Supreme Court has explained, “It is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.”Watchtower Bible and Tract Society of NY, Inc. v. Village of Stratton, 536 U.S. 150, 165–66 (2002).
GMU would be better served removing this requirement and allowing students to post materials without prior authorization. If a student posting happens to fall outside of the protections of the First Amendment, GMU may then take action to remove the material and pursue any necessary disciplinary action against the student.
FIRE hopes this memorandum is helpful in your efforts to revise the speech codes currently maintained by George Mason University. Once again, each of these policies could easily be revised to better protect student speech. FIRE would be very pleased to work with the students and administrators of GMU to help the university meet its obligations under the First Amendment.