FIRE announces its Speech Code of the Month for June 2009: New York University.
NYU’s Anti-Harassment Policy explicitly prohibits “insulting,” “teasing,” and even “inappropriate jokes” when they are based on a legally protected status such as race, gender, or religion. Specifically, the policy provides that
Examples of such prohibited conduct when based upon a legally protected status include, but are not limited to:
- Verbal abuse or hostile behavior such as insulting, teasing, mocking, degrading or ridiculing another person or group;
- Unwelcome or inappropriate physical contact, comments, questions, advances, jokes, epithets or demands; …
- Displays or electronic transmission of derogatory, demeaning or hostile materials…. [Emphasis added.]
NYU’s policy is a particularly egregious example of a typical problem we see with university harassment policies. The policy’s definition of harassment (conduct that “creates an intimidating, hostile or offensive work, academic or residential environment”), while far from perfect, at least makes an effort to track the language of harassment law. But the policy then goes on to provide specific examples of prohibited conduct that explicitly include protected speech. Although it is a private university, NYU advertises itself as a place that protects the right to free speech. The University Policy on Student Conduct states that
The University is a community where the means of seeking to establish truth are open discussion and free discourse. It thrives on debate and dissent. Free inquiry, free expression, and free association are indispensable to the purposes of the University, and must be protected as a matter of academic freedom within the University, quite apart from the question of constitutional rights. [Emphasis added.]
But how is “open discussion and free discourse” possible when students face punishment for any speech perceived by another as insulting, degrading, or even merely inappropriate? There are many important conversations to be had on matters such as race, religion and gender that will likely—in a truly open debate—lead to feelings of insult or hurt. Such conversations are precisely what the First Amendment—and promises of unfettered free speech such as NYU’s—exist to protect. To quote the U.S. Supreme Court, “[s]peech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
It is deeply troubling that a major institution of higher learning such as NYU, which holds itself out as a bastion of “open, vigorous debate and speech,” prohibits such wide swaths of speech that would be entitled to constitutional protection at any of New York’s public colleges or universities. NYU students deserve far better than this. For this reason, NYU is our June 2009 Speech Code of the Month.
If you believe that your college or university should be a Speech Code of the Month, please e-mail firstname.lastname@example.org [mailto:email@example.com] with a link to the policy and a brief description of why you think attention should be drawn to this code. If you are a current college student or faculty member interested in these issues, consider joining FIRE’s Campus Freedom Network, a loose coalition of college faculty members and students dedicated to advancing individual liberties on their campuses. And if you would like to help fight abuses at universities nationwide, add FIRE’s Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.