In his article Returning Fire in the April 20 issue of The Chronicle of Higher Education (which Robert extensively discussed earlier), Professor Jon Gould levels a number of serious accusations against FIRE, one of which is that FIRE grossly exaggerates the number of colleges and universities that maintain policies prohibiting “speech that, outside the borders of campus, is protected by the First Amendment to the U.S. Constitution.” On this subject, Gould writes:
Where FIRE’s estimates are exaggerated, the reason can often be traced to the group’s categorization of sexual-harassment policies as “speech codes.” FIRE apparently fails to recognize that American constitutional law has changed in the last 20 years to prohibit, as discrimination, sexually harassing speech.
First of all, FIRE stands behind its research and adamantly denies that our claims—all of which are carefully vetted by attorneys with expertise in constitutional law—are exaggerated.
Second, FIRE has always acknowledged universities’ right to regulate sexual harassment consistent with federal law. In the very report of which Professor Gould is so critical, FIRE wrote that:
Actual harassment is not protected by the First Amendment. In the educational context, the Supreme Court has defined harassment as conduct “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”… Colleges and universities are obligated by federal law to maintain policies and practices aimed at preventing this type of genuine harassment from happening on their campuses.
The problem is that a large number of colleges and universities define sexual harassment to include speech that categorically does not meet the stringent legal definition of harassment and that is, by contrast, constitutionally protected speech. As Professor Gould must know, a university cannot prohibit otherwise constitutionally protected speech simply by defining it as harassment. But that is precisely what many universities do. Professor Gould acknowledges the “severe, pervasive, and objectively offensive” standard in his article, but at the same time seems to take issue with FIRE’s criticism of any university policy labeled as a “sexual harassment policy.” Keeping in mind the legal definition of sexual harassment in the educational context, consider now the following university definitions of sexual harassment:
- “Sexual harassment encompasses any sexual attention that is unwanted.” (William Paterson University of New Jersey)
- “Sexual harassment is unwelcome or unwanted attention of a sexual nature.” (California Polytechnic State University)
- “Definition of Sexual Misconduct: A. Peer Sexual Harassments [sic] includes intentional persistent, malicious, lewd or other verbal or physical behavior with sexist or sexual connotations which annoys, bothers, disconcerts or embarrasses another by communication via media, telephone or printed material.” (Emphasis added.) (East Stroudsburg University of Pennsylvania)
- “Sexual harassment is any repeated or unwanted verbal or physical sexual advance, sexually explicit derogatory statement, or sexually discriminatory remark made by someone in the workplace or educational setting.” (Emphasis added.) (State University of New York–Fredonia)
Does Professor Gould genuinely believe that these policies are acceptable simply because they are entitled “sexual harassment” policies? His article implies that he does, but this is incredibly circular reasoning. Universities cannot simply make protected speech unprotected by deeming it “sexual harassment.” Sexual harassment has a legal definition which the above policies do not even come close to meeting.
Professor Gould also accuses FIRE of “confusing examples with definitions.” It is FIRE’s position that—regardless of a university’s definition of harassment—when a university provides a list of prohibited conduct that includes constitutionally protected speech, that policy is unconstitutional. Gould inexplicably assumes that if a university’s examples of prohibited conduct are inconsistent with its definition of prohibited conduct, that the definition prevails. But the fact is that if you tell students that they cannot say specific things without risking punishment, they will not say those things. And when those things include constitutionally protected speech, this has an impermissible “chilling effect” on campus speech. Take, for example, the sexual harassment policy at Kansas State University, which provides as follows:
Hostile environment sexual harassment can include unwelcome sexual advances, requests for sexual favors or other conduct of a sexual nature or disparaging comments that is sufficiently severe, persistent or pervasive to have the purpose or effect of unreasonably interfering with an individual’s work or learning or creating an intimidating, hostile, abusive or offensive work or learning environment. This includes:
a. Gender harassment: generalized sexist statements and behavior that convey insulting or degrading attitudes about women. Examples include insulting remarks, offensive graffiti, whistling at someone, cat calls, obscene jokes or humor about sex or women in general.….e. Sex-related comments or gestures: comments or gestures with sexual content or sexual implications: Examples include sexual teasing, jokes, remarks or questions, personal questions about sexual life, kissing sounds, howling and smacking lips, simulating sexual acts, facial expressions, winking, throwing kisses or licking lips, spreading rumors or telling lies about a person’s personal sex life or performance; touching oneself sexually or talking about one’s sexual activity in front of others; turning discussions to sexual topics, asking about sexual fantasies, preferences or history, making sexual gestures with hands or through body movements, staring, looking a person up and down (elevator eyes).
The first sentence of the policy is fine. But then the policy says that this includes “generalized sexist statements and behavior that convey insulting or degrading attitudes about women.” To us, this policy is both unconstitutionally overbroad and vague, because it both contains contradictory statements and it explicitly bans constitutionally protected speech. Even read in the light absolutely most favorable to the university, it is unconstitutionally vague, because its contradictory statements make it unclear—even to a trained constitutional lawyer like myself—whether the policy prohibits only those “generalized sexist statements” that are severe, persistent, and pervasive, or whether it assumes all “generalized sexist statements” to meet the definition of harassment and thus prohibits them across the board. To the lay reader, it certainly appears to prohibit them across the board, and thus will lead students to refrain from constitutionally protected expression for fear of punishment. This is textbook vagueness.
Certainly, reasonable people can disagree about the intricacies of constitutional law; this is why, for example, the U.S. Supreme Court must often resolve what are called “circuit splits”—differences in constitutional interpretation between federal appellate courts. But such high-level intellectual disagreements cannot be resolved through the type of all-out attack that Professor Gould mounted against FIRE in the pages of the Chronicle. And they certainly do not merit a call for the abolition of an organization with which one disagrees. We would have expected better.