This article appeared in The Volokh Conspiracy.
For those of us who defend free speech on campus, the story of campus speech codes is one of good news and bad news. Most recently, the good news is that campus speech codes have been consistently and overwhelmingly (both quantitatively and qualitatively) defeated in court. The bad news, which we will discuss by example tomorrow, is that courts are increasingly dismissing speech code lawsuits for reasons that have nothing to do with the constitutionality of a particular speech code, and that could spell a reversal in the judicial trend against campus speech codes.
First, we should clarify some terms. FIRE defines a speech code as “any university regulation or policy that prohibits expression that would be protected by the First Amendment in society at large.” When we talk about the campus “speech codes movement,” we begin with the proliferation of speech codes in the 1980s, which followed the apparent victory of free speech on campus both in the culture and in the courts in the 1960s and 70s. (None of us assume there was ever a perfect golden age for free speech on campus, or that there weren’t different kinds of codes on campus before the free speech movement.) For simplicity’s sake, we are going to mainly be talking about public colleges, which are bound by the First Amendment; you can read more about our stance on private colleges here and on religious colleges here. Lastly, when we write “good news,” we mean for free speech on public college campuses. If you think there is much too much free speech on campus, you probably see what we call good news as bad news, and vice versa.
Let’s start with two pieces of good news/bad that set up the last 60 years of campus free speech debate and litigation. The first good news was that, starting in the late 1950s, Supreme Court (and lower court) rulings applying the First Amendment to campus were highly protective of the freedom of speech of both faculty and students. From Sweezy v. New Hampshire, 354 U.S. 234 (1957), to Keyishian v. Board of Regents, 385 U.S. 589 (1967), and up through Healy v. James, 408 U.S. 169 (1972), the Supreme Court recognized the existence of an important (if hazy) notion of academic freedom. The Court also vindicated the free speech rights of students, even when they engaged in highly offensive speech or formed groups affiliated with organizations that had committed acts of violence elsewhere. Meanwhile, the first bad news was that, by the mid-1980s, some students and professors were increasingly looking for rationales to limit free speech rather than expand it. Their goal was to curtail speech they deemed racist, sexist, homophobic, or otherwise bigoted or intolerant.
This was followed by the second bit of good news: these newfangled speech codes were roundly defeated in court, leading former president of the University of Virginia Robert O’Neil to declare that speech codes were essentially dead on campus after the mid ’90s, having been “either given a decent burial by formal action or… allowed to expire quietly and unnoticed.” Among the pallbearers: Doe v. Univ. of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989); UWM Post v. Board of Regents of U. of Wis., 774 F. Supp. 1163 (E.D. Wis. 1991); Dambrot v. Central Mich. Univ., 839 F. Supp. 477 (E.D. Mich. 1993); Corry v. Stanford, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.) (a case involving a private university in California, where state law prohibits private schools from making or enforcing rules that would violate the First Amendment rights of students).
The bad news is that O’Neil was wrong—from our early preliminary investigations of campus codes starting almost as soon as we were founded in 1999, it was clear that campus speech codes were alive and well. While challenged codes were struck down, more codes existed than challenges. By 2006, FIRE had grown enough that we had the staff capacity to refine and systematize our approach to evaluating speech codes on campus; we started publishing annual reports. In that first report, in 2006, roughly 75% of the 334 universities we evaluated maintained “red light” speech codes. By “red light,” we meant the institution maintained at least one policy that both clearly and substantially restricted freedom of speech.
Fortunately, there’s more good news, again. In a new set of lawsuits starting in 2003, some of which were coordinated by FIRE and many others by the Alliance Defending Freedom (originally known at the Alliance Defense Fund, which made some of those litigation decisions based on our speech code ratings), there has been a nearly unbroken chain of defeats for campus speech codes. Of the 61 cases filed since 2003 (that we’re aware of), 36 were settled after filing but before any court decision; three were settled after non-final court decisions (such as injunctions); 11 resulted in judgments that were at least partial victories (e.g., see Doe v. Rector and Visitors of George Mason, 149 F.Supp.3d 602 (2016), where the code was not struck down but was limited to restricting fighting words, true threats, and other unprotected speech); and 11 are still pending.
FIRE has only recently begun doing any litigation in-house. So our primary weapon has always been public awareness, and public awareness campaigns also played a crucial role in reducing the number of campuses that have speech codes. Perhaps the most successful of these public awareness programs is our Speech Code of the Month feature, in which we highlight particularly ridiculous speech codes on campuses across the country.
For example, a since-revised 2016 version of the University of Missouri’s publications policy required prior written consent before handing out literature on campus. This August, the highlighted code was from Ohio’s Shawnee State University, which prohibited disseminating “racial” (not racist, racial) or “offensive” material — at least, it did, until the school revised it shortly after our publication. Speech Code of the Month policies are revised after we highlight them slightly more than half of the time.
As of this writing, the percentage of red light schools (colleges and universities with, as we put it colloquially “laughably unconstitutional” speech codes) is down from 75% to about 33%, and the number of “green light” schools (colleges and universities that where their “policies do not seriously imperil speech”) is up from eight to an all-time high of 42. While there should be precisely zero public colleges with unconstitutional speech codes, this is real progress.
So what is the bad news? As we will discuss in the next blog post, some subtle shifts in legal decisions over the years are creating a formula for those who would like to reverse this trend. One case in particular presents the greatest immediate risk.