NKU under FIRE: Red-light for speech code

By October 11, 2006

The right to free speech is guaranteed by the First Amendment of the U.S. Constitution, but outside agencies believe this right for students at Northern Kentucky University is being compromised.

The Foundation for Individual Rights in Education (FIRE), an organization whose mission, according to its Web site, is to stand up for individual rights of college students, rated NKU as a "red-light university."

On FIRE’s site, it says a red-light university is one that has codes that "both clearly and substantially restricts freedom of speech."

In NKU’s Code of Student Rights and Responsibilities, under the "Disciplinary Regulations" section, it states students can be held accountable to civil and criminal authorities and to the university for violating the code.

Under this same section, the code prohibits "intentionally or recklessly causing physical or emotional harm to any person, including self."

But according to John K. Wilson, founder of www.collegefreedom.org a Web site about academic freedom, using the phrase "emotional harm" is problematic because it is hard to pinpoint an exact definition. In numerous cases, including R.A.V. v. City of St. Paul, the Supreme Court ruled it is unconstitutional for a code regulating speech to be either overbroad or too vague. Wilson said the problem with these types of codes is that people can interpret the same code in different ways.

Being overbroad or too vague "has a chilling effect on free speech" according to Greg Lukianoff, president of FIRE. He said students who don’t know how to interpret the code don’t practice free speech because they don’t know what effected may occur.

Wilson said one interpretation of "emotional harm" could mean hurting someone’s feelings, which is something that cannot be banned.

"In the grown-up world of a university, sometimes a person’s feelings are hurt. Should a student be punished if they call someone a racist? That might hurt someone’s feelings. In fact, so can almost any controversial statement," Wilson said.

Also, banning emotional harm to self, according to Wilson, "is just plain weird."

"What will they say, ‘stop hurting your own feelings or we’ll expel you’?" he said.

Another issue FIRE considered red-light worthy in NKU’s code is under the same section, banning "disorderly conduct or lewd, indecent or obscene conduct" on university property. FIRE also considers this too open to interpretation. Merriam-Webster dictionary defines indecent as "offensive to good taste; unseemly. Offensive to public moral values; immodest."

"This covers a lot of constitutionally-protected speech," Wilson said.

In the case of Texas v. Johnson, the Supreme Court ruled, "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 offensive or disagreeable."

NKU’s code also states "bigotry will not go unchallenged within this community," but does not explain exactly what it considers a bigot. The Merriam-Webster dictionary defines a bigot as "a person who is obstinately or intolerantly devoted to his or her own opinions and prejudice."

According to Adam Goldstein, attorney advocate for the Student Press Law Center (SPLC), a national advocate for student free-press rights, this part of the code is a form of viewpoint discrimination. "While we need not share, and are indeed free to condemn, people who hold viewpoints we individually believe are intolerant, that does not strip those people of First Amendment protection. It is therefore legally problematic for a government institution like NKU to declare that they are, essentially, ‘intolerant of the intolerant,’" Goldstein said.

Dr. Mark Shanley, NKU vice president of student affairs, said Goldstein poses a "rational argument."

"But because we are an educational community we are committed to higher standards of behavior. We look to practice integrity and respect the rights and property of others and to discourage behaviors that violate that," Shanley said.

According to Sarah Sidebottom, general counsel and vice president of Legal Affairs, "It’s impossible to define (the code) with any particularity, because as soon as we define it, something is going to occur that we haven’t defined. Then the defendant will say, ‘You can’t charge me with that because it’s not in your list.’

"We use generic words that a community can interpret based upon their own understanding and standards," Sidebottom said.

Sidebottom said even though FIRE may have interpreted parts of the code as being overbroad or too vague, the university does not feel that is true.

Shanley said he is "very proud of the code, and it achieves what we are trying to do," and he is pleased FIRE only disagrees with a couple words in the 33-page code.

While the downloadable PDF version of the Student Code was updated, the online version of the code on the dean of students Web site under FAQs, up until at least Sept. 29, still contained parts of the old version of the code. In the previous code, the university prohibited "harassing, annoying or alarming another person … ." While this has been resolved, it posed a problem for a couple reasons. According to Wilson, it is unconstitutional to ban annoying speech and because the code said two different things in two different places, which could confuse students.

In NKU’s posting policy, it states, "All posters, fliers, handbills and banners must be authorized and stamped by the dean of students designate."

According to Goldstein, this practice constitutes what is known as prior review, where all speech must be pre-approved, which he said "is clearly illegal."

In the case of Shuttlesworth v. Birmingham, the Supreme Court ruled prior review to be unconstitutional and said, "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective and definite standards to guide licensing authority, is unconstitutional."

In regards to the posting policy, Sidebottom said, "The university has a right to determine how they want the physical appearance of the campus to look."

Sidebottom said although the university does not regulate constitutionally protected speech, it does have the authority to regulate the time, place and manner.

In the case of Linmark Associates, Inc. v. Township of Willingboro, the Supreme Court said, "laws regulating the time, place or manner of speech stand on a different footing than laws prohibiting speech altogether." Time, place and manner restrictions are constitutional as long as they are content neutral, are narrowly tailored to serve a government interest and leave open, ample alternative means of expression.

President James Votruba directed questions regarding this topic to Shanley and Sidebottom, but said, "As a general principle, the university recognizes and encourages free speech and the free exchange of ideas."

Dean of Students Dr. Kent Kelso declined to comment to The Northerner on the issues with the student code, which he co-wrote. He said he was not familiar with the issues raised by FIRE, then said he would be out of town for several days and directed all questions to Shanley.

Shanley said due to the heightened importance of the issue raised, he wanted to be the spokesperson, as opposed to Kelso.

According to Shanley, "We (university officials) do not go out implementing the very minutia or specifics of particular words. We are dealing with situations that arise because of an active controversy."

However, Lukianoff said even though a university may state they don’t implement parts of the code, it is still unconstitutional to have overbroad or vague terms written in the code.

According to Alex Kindell, student editor of NKU’s Lost Cause Review, after she approached Kelso last semester with the issues FIRE raised about the code, he asked her to put together a committee of students to look at the code and find ways to amend it.

Through her work with the Lost Cause Review and her involvement with the committee, Kindell is taking an active role in changing NKU’s code.

"If I can change anything about NKU, it would be nullifying the free speech zone and opening up campus," Kindell said.

Kindell said at last semester’s new Student Union groundbreaking, members of STAR (Student Together Against Racism) were distributing fliers with information about free speech on campus and increasing diversity studies but university officials told them to stop because they were not in the free speech zone.

The current free speech zone is the area between the University Center and Louie B. Nunn Hall and is covered by construction for the new Student Union.

According to Sidebottom, people misunderstand the free speech zone. She said the entire campus is a free speech zone and the designated area is what is set aside for large group demonstrations. Designating a space for large groups ensures the demonstration does not interfere with people’s ability to walk through campus.

Because FIRE was founded by conservatives and is funded by conservative foundations, some may believe that FIRE is only making these criticisms to protect conservative speech.

In response, Lukianoff said, "In these hyper-polarized times, it seems as though many want everything to be labeled as either belonging to the right or the left of the political spectrum. FIRE is uniquely non-partisan, some people just have a hard time accepting that."

Goldstein found in his work with FIRE he has "never found them to be particularly ideological in practice. FIRE has never, to the best of my knowledge, taken a stance that was inconsistent with the best interests of student journalists."

While Wilson believes FIRE is a conservative group, when it comes to what it says about NKU, he said, "FIRE is completely right to criticize NKU’s lousy speech code. In fact FIRE does not go far enough in condemning the code."

Schools: Northern Kentucky University