Snuff Campus Speech Codes

July 8, 2015

By Editorial at Las Vegas Review-Journal

Summer is generally a pretty quiet time on college campuses, but the Foundation for Individual Rights in Education is certainly trying to keep the heat on public universities that stifle the First Amendment. Last July, FIRE launched its Stand Up For Speech Litigation Project, which has been a certifiable success so far.

In a Huffington Post commentary last week, Will Creeley, FIRE’s vice president of legal and public advocacy, wrote that his organization has coordinated First Amendment lawsuits challenging speech codes at 10 institutions. Of the five suits settled so far, FIRE has won all of them, securing more than $270,000 in settlements. More importantly, Mr. Creeley noted, the victories have effected policy changes to restore the free speech rights of more than 150,000 students.

Equally noteworthy, FIRE isn’t satisfied, with Mr. Creeley stating that unconstitutional restrictions on campus speech will be challenged at colleges in every federal circuit. “When one suit ends, another will be filed,” he wrote. With that in mind, Nevada’s two public universities — the University of Nevada, Las Vegas and the University of Nevada, Reno — would be wise to get ahead of FIRE’s lawsuit curve by cleaning up their speech codes.

At the moment, UNR is the bigger problem. FIRE rates university speech codes using a red light-yellow light-green light system — imagine a traffic signal regulating expression — and the Reno campus has held a red-light rating for several years. FIRE stated late last year that UNR’s student conduct regulations and policies are most problematic, specifically a section that includes a ban on acts of unwelcome verbal conduct that is sexual in nature. “It’s so broad — an off-color joke, asking for a date,” said Samantha Harris, director of policy research for FIRE. She noted the Supreme Court’s definition of harassment. “It has to be severe, pervasive and objectively offensive. The mere fact that this is isolated speech does not strip it of constitutional protection.”

UNLV, to its credit, improved from a red-light rating to a yellow-light rating this year by amending its statement on diversity, which had prohibited disrespect — a highly subjective measure that ostensibly prohibits core political speech. But like UNR, UNLV still has work to do.

Both schools should work toward doing what Purdue University, George Mason University and the University of Florida have done in just the past year: scrap their speech codes altogether. Go for the green-light rating now. Or risk a lawsuit the schools will lose later.

Cases: FIRE’s Stand Up For Speech Litigation Project