That’s unconstitutional!

January 15, 2006

Two groups that often criticize the University of North Carolina system said in a report last week that most UNC campuses have policies that restrict free speech and violate the Constitution. Here are excerpts from what the Pope Center for Higher Education Policy and the Foundation for Individual Rights in Education said about Triangle campuses.


NCCU’s Guide to On-Campus Living provides that "[s]tatements of intolerance and/or harassment due to race, ethnicity, sex, religion, disability, or sexual preference may be subject to disciplinary action." This policy is unconstitutionally overbroad because it prohibits a great deal of constitutionally protected speech.

A prohibition on "statements of intolerance" is also unduly vague since the university does not define what constitutes a "statement of intolerance." Would a student’s vocal opposition to proselytizing on campus be a "statement of intolerance" due to religion since some religions require their members to proselytize? This student’s opinion is unquestionably protected speech.

However, because it is difficult to know what is prohibited by this policy, students and faculty will likely censor protected speech themselves in order to avoid punishment.

NCCU prohibits "public profanity," in direct violation of established Supreme Court precedent. … NCCU also prohibits employees and students from using the university computer network to "download offensive or derogatory material from the Internet." This is unconstitutionally overbroad. Although this policy clearly covers hardcore pornography, which the university can legitimately
regulate, it also bans a great deal of constitutionally protected speech. As courts have held in cases too numerous to list, the state cannot ban communication simply because someone finds it offensive or derogatory.


NCSU’s policies are, for the most part, consistent with federal
anti-harassment law and thus the First Amendment. It maintains one policy, however, that could too easily be used to restrict protected speech.

NCSU’s racial harassment policy provides that "[r]acial bias or harassment is a form of race discrimination in violation of federal and state law and NCSU policy, and it will not be tolerated."

The university’s definition of racial harassment is acceptable; it provides that racial and other harassment "consists of unwelcome conduct when: 1. such conduct has the effect of unreasonably interfering with an individual’s work or academic performance, or 2. such conduct has the effect of creating an intimidating, hostile or offensive working or learning environment." On the other hand, the prohibition on "racial bias" could be used to suppress protected
speech if the university applied it to expression as well as to discriminatory actions. Leaving this term undefined makes this policy too susceptible to abuse by overzealous administrators.


At first blush, UNC-CH appears to maintain a permissible sexual harassment policy, which provides that sexual conduct constitutes sexual harassment when "such conduct has the purpose or effect of unreasonably interfering with an individual’s work or academic performance or creating an intimidating, hostile, or offensive environment."

Yet, UNC-CH goes on to provide "examples of sexual harassment" that include, among other things, "sexually explicit statements or questions;" "sexually explicit jokes or anecdotes;" "remarks about sexual activity;" and "sexually explicit e-mails, away messages, voice mails." This policy is unconstitutionally overbroad. By stating that these examples are sexual harassment, UNC-CH explicitly bans constitutionally protected speech, since the state cannot ban
sexually explicit expression unless it meets the legal definition of obscenity or harassment.

UNC-CH’s network acceptable-use policy provides that "users shall not harass or stalk others, post, transmit, or originate any unlawful, threatening, abusive, fraudulent, hateful, defamatory, obscene, or pornographic communication " over UNC computers. This is a textbook example of overbreadth. The policy legitimately regulates a number of types of communication, including harassment,
fraud and other illegal activities, defamation, and obscenity. But mixed in with these legitimate regulations are unconstitutional prohibitions on "abusive" and "hateful" communications. "Abusive" or "hateful" communications cannot be regulated unless they rise to the level of physical threats, fighting words, or actual harassment. These provisions are plainly unconstitutional.