This January, we hope colleges and universities have put policy reform on their New Year’s resolution lists. After all, the vast majority of public and private institutions across the country ban constitutionally protected speech, putting students at risk of punishment, whether they’re on or off campus.
One reason so many colleges maintain restrictive speech codes could be that misconceptions about the First Amendment are pervasive. Indeed, a majority of college students think “hate speech” is not protected by the First Amendment, despite the fact that speech those in authority deem hateful does not lose constitutional protection on that basis alone. Racial or sexual slurs — common examples of “hate speech” — are protected speech when standing alone, but are a common target of campus speech codes.
Northern Vermont University, for example, bans “[r]acial slurs” and “[s]exual slurs” in its student handbook, earning the spot as our first Speech Code of the Month of the new year.
Northern Vermont’s policy starts out by banning “[b]ehavior which threatens or endangers the health or safety of oneself or others’ person or property” — seems reasonable enough! But then the policy goes on to state that examples of such prohibited behavior include racial and sexual slurs.
Slurs could certainly be a part of speech or conduct that is not protected by the First Amendment. For example, using a slur while making a “true threat,” as legally defined, isn’t constitutionally protected. You could also be punished for spray painting a slur on someone’s property, but that’s because the act would constitute vandalism, not because of the word itself.
However, Northern Vermont’s policy sweeps in a great deal of protected speech by banning slurs across the board. Under the policy, a black person who uses the “n-word” when talking to a friend, a woman who calls herself a “bad bitch,” or a gay man who says “cheers queers” could be subject to discipline. Those scenarios are presumably not how the policy was intended to play out, but that’s precisely the problem with overbroad policy language (and the concept of banning the use of words more generally).
Indeed, slurs are often used by the marginalized communities they target in order to reclaim the words and deny them their power. A policy like this puts that practice at risk.
We saw this very issue play out in Matal v. Tam, when Asian-American rock group The Slants tried to register their band name as a trademark and were denied under the so-called “disparagement clause” of the Lanham Act. (The group chose the name “in order to ‘reclaim’ the term and drain its denigrating force as a derogatory term for Asian persons.”) When the case reached the Supreme Court, the justices unanimously struck down the disparagement clause on First Amendment grounds, finding the government cannot limit speech merely because someone has decided it is hateful.
Beyond the use of slurs by marginalized groups themselves, though, the response to slurs when they’re used to target others should be “more speech,” not censorship. Policies that make this censorship possible must be revised so that they address behavior that threatens others without naming examples of speech as prohibited across the board.
Let’s hope Northern Vermont University — as well as the rest of the “red light” and “yellow light” institutions in our Spotlight database — turns over a new leaf this year, and works to ensure all of its speech codes better meet First Amendment standards. As always, FIRE’s policy reform team is ready to assist colleges with those efforts.
If you are a college student or faculty member interested in free speech, consider joining the FIRE Student Network or Faculty Network to connect with a coalition of college students and faculty members dedicated to advancing individual liberties at their institutions.
If you’re concerned about a potential violation of your rights, contact FIRE for more information.