Charles McElwee: Beware of Campus ‘Speech Codes’

March 29, 2015

By Charles McElwee at The Charleston Gazette

The mission of FIRE, an acronym of Foundation for Individual Rights in Education, is to defend and sustain individual rights at America’s colleges and universities. It “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.”

FIRE has a Speech Code Rating System which expresses the degree to which free speech is curtailed at a particular institution. The system uses traffic light colors — red, yellow and green.

A “‘red light’ institution has at least one policy that both clearly and substantially restricts freedom of speech.

A “‘yellow light’ institution is one whose policies restrict speech somewhat or, by virtue of their vague wording, could too easily be used to restrict protected expression.

FIRE labels WVU as a “yellow light” institution because its Electronic Mail Policy allows students the use of the University’s electronic mail services “for incidental personal purposes provided that such use … [does not advance a] political agenda.”

It is possible that the vagueness of the term “political agenda” would render the WVU deterrence unenforceable. Even if the proscription were a clear restriction of speech, it may be upheld as a reasonable “place” or “manner” limitation.

FIRE labels Marshall University as a “red light” institution because violations of its standard respecting the dignity of others includes “[I]ncivility or disrespect of persons.”

Marshall University’s ban on “incivility or disrespect of persons” is likely too vague to be enforceable and may also violate the First Amendment in its application.

Would a Charlie Hebdo cartoon of the Prophet Mohammed, if circulated by a student on Marshall’s campus, be regarded as “incivil” and “disrespectful” of the followers of the Prophet and, therefore, punishable as provided in Marshall University’s speech code? A plausible answer is that it would.

An ideal campus speech code protecting freedom of speech is that included in the report of the University of Chicago’s “Committee on Freedom of Expression,” chaired by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, released the day before the terrorists’ attack on Charlie Hebdo. It provides:

“The University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission.

“As a corollary to the University’s commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression. Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.” (Emphasis added.)

Pope Francis is quoted as having recently said that freedom of expression should be limited by respect for religion, that freedom of expression must be exercised “without giving offense,” and that we “cannot insult other people’s faith [or]make fun of faith.”

I quite agree that the Pope may speak freely in endeavoring to persuade others as a matter of conscience that in their expressions they should show respect for religions, not give offense, and should not insult other people’s faith. It would also be entirely proper to make those standards a part of church doctrine.

However, it would be a violation of the First Amendment of the U.S. Constitution for governments in the United States and administrators of public colleges and universities to prohibit or limit the expressions described by Pope Francis unless the limitations constituted reasonable time (when), place (where), or manner (mode) restrictions as interpreted by the U.S. Supreme Court.

The part of the report of the University of Chicago’s Committee of Freedom of Expression quoted above would prohibit a college or university from denying the members of its community the freedom to express what Pope Francis would limit, and would even go further in declaring that its members “may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe.”

The Economist, in its Jan. 24-30 issue, got it right, in my opinion, when it stated “the right of free speech should be almost absolute”; that “[a]ny censorship scheme that exempts Islam or other religions from searching commentary is perverse”; that “speech should be curtailed only when it is likely to cause serious harm — not including the emotional kind”; and that “words and images — that are neither prudent nor tasteful … should be matters of conscience, not for the law.”

Charles McElwee is a Charleston lawyer with the firm Robinson & McElwee, PLLC.

Schools: Marshall University University of Chicago