In the latest installment in Cato Unbound’s “Free Speech on College Campuses” debate series, FIRE President and CEO Greg Lukianoff takes on University of Chicago Law School professor Eric Posner’s confused interpretation of First Amendment jurisprudence that equates policing student manners with permissible—and content-neutral—restrictions under the “time, place, and manner” doctrine.
Posner asserted in his response to Greg’s lead essay earlier this month that administrative policing of students’ manners (a.k.a. their politeness) is “in the spirit of time, place, and manner regulations that governments are permitted to impose even under the strict doctrines of First Amendment law.”
As Greg points out, [tweetable]Posner seems to have completely missed the manner-versus-manners distinction.[/tweetable] Policing student “manners” is certainly not content-neutral. To the contrary, it’s entirely about content:
The “manner” in “time, place, and manner” refers to whether the method of communication—completely disregarding the content of the speech—is inherently disruptive, like using a megaphone outside someone’s dorm window. As Catherine Ross aptly points out, “The first requirement for a time, place, and manner regulation is that it cannot differentiate among speakers or speech based on the content or viewpoint of the expression.” If a university punishes a student for his “manners” in the sense of conforming to social norms, the institution is absolutely making a distinction based on the content or viewpoint of that student’s speech. The Supreme Court has been unambiguous about this, stating in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” “Conventions of decency”—in other words, manners.
Greg also notes that the Supreme Court has specifically warned against policing so-called “politeness,” because such a designation evades objective definition:
It is one of the most clearly established precepts in First Amendment law that official power may not be used to impose Eric Posner’s or anyone else’s definition of politeness. The Supreme Court said as much in the seminal 1989 flag-burning case Texas v. Johnson, 491 U.S. 397, 414 (1989): “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Greg also discusses why speech codes purporting to punish bad manners skirt due process, and takes a more philosophical look at why encountering bad manners might not be so bad after all.
— Greg Lukianoff (@glukianoff) January 27, 2016