What First Amendment?

By May 23, 2013

by Robert Shibley

The John William Pope Center


It’s official: the federal Departments of Justice and Education have joined together to put an end to free speech on America’s campuses. This is not an exaggeration—those government agencies are trying to grab our most basic freedom under the cover of preventing sexual harassment.

Students across the country will be facing a grim situation for free speech in the fall thanks to the government’s settlement with the University of Montana over the university’s awful mishandling of sexual assaults on its campus. Unfortunately, in the process of addressing Montana’s failures with regard to sexual assault, the Departments of Education and Justice seized on the opportunity to force the school to adopt a policy defining sexual harassment as “any unwelcome conduct of a sexual nature.” This broad definition explicitly includes “verbal conduct”—also known as speech—and is explicitly not limited to what a reasonable person would find offensive.

That’s right—if you are unreasonably offended by hearing (or overhearing) anything having to do with sexual or gender-based topics, you may file a harassment charge against the speaker.

Someone asked you on a date and you didn’t welcome the invitation? Harassment. You overhear comedian Louis CK make a remark about sex on someone’s dorm room TV? Harassment. You express an opinion—any opinion—on sexual morality or gay sex? Harassment.

Why should you care if you don’t go to the University of Montana? Because the findings letter explaining the settlement bills it as a “blueprint” for how the departments will review compliance with federal anti-discrimination statutes at colleges across the country. It’s easy to guess how this is likely to be applied on college campuses. A survey of FIRE’s cases  makes it clear that harassment rationales for censorship are frequently used against conservative, libertarian, and religious students and professors. But this latest attempt is a bipartisan threat to free speech.

It’s no stretch at all to imagine conservative or religious students being offended by segments of The Vagina Monologues (which is performed on dozens or hundreds of campuses annually) or Duke University’s “Sex Week,” in which almost anything and everything is discussed. Are participants in these events harassers too? Under this “blueprint” for censorship they certainly are, if a single student is offended.

And this diktat isn’t just about sex-related speech. Found among the 47 pages of documents about how Montana and other colleges are to handle sexual “harassment” is a passage explaining that the same rules also apply to gender-based harassment, which includes expression that does not explicitly have to do with sex: “non-sexual harassment of a person because of the person’s sex and/or gender, including, but not limited to, harassment based on the person’s nonconformity with gender stereotypes.”

Let’s think about how that will work in practice: you say women should (or should not) work outside the home? That could be harassment to someone who takes offense. Express an opinion on gay marriage? Harassment. Hold a “wage gap bake sale?” Harassment.

Even ordinary coursework and assignments might now be considered harassment. Did you get assignedLolita (sex with a minor) or The Great Gatsby (adultery) or Shakespeare (a wide variety of sexual topics) orThe Canterbury Tales (bawdy comments and sexual themes)? Harassment. Writing a paper on single motherhood? Harassment. Analyzing whether women should serve in front-line military units? Harassment.

Remember: if someone is offended and the topic is sex or gender, that person can charge you with harassment under the rules prescribed here.

The implications are dire for our most basic right as American citizens: our right to free speech. And if there’s one thing that everyone agrees on, it is that the First Amendment was intended to protect the very kind of core political speech that this definition of “harassment” makes punishable. Issues of sex and gender are some of our most frequently debated political issues; by making political speech on campus fraught with danger, ED and DOJ have effectively repealed the First Amendment for college students and faculty members.

There are also questions about what really lies behind this ruling. The Supreme Court has already addressed the issue of sexual harassment in a perfectly serviceable manner—there was no need for the ED and DOJ to adopt such a defective definition. In the 1999 case of Davis v. Monroe County Board of Education, Justice O’Connor’s majority opinion set forth a standard for peer harassment in the educational setting: it is targeted, discriminatory conduct “that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

The Davis standard punishes only real harassment and thus cannot serve as a de facto national speech code. It also bears the Supreme Court’s imprimatur. Why, then, was it not adopted? Unfortunately, the evidence suggests that the Department of Education is in the midst of a massive Title IX power grab, which the absurdly broad standard for harassment in the Montana letter can only help to institutionalize. (Title IX was a section of the Education Act Amendments of 1972 that dealt with sexual discrimination, and has had wide-ranging and controversial unintended consequences.) The Department of Education’s Office for Civil Rights has been riding roughshod over student and faculty rights since 2011, when it issued a letter taking a hatchet to due process rights for students accused of sexual harassment or assault, exposing them to a dangerously low evidence standard and double jeopardy. FIRE’s letters of protest, joined by other organizations including the AAUP, have gone unanswered. Now, two years later, we find out that OCR has now decided to make everyone on campus guilty of the very offense their earlier rulings guaranteed would be heard in kangaroo courts. Is this a coincidence? One wonders.

Indeed, the fact that these new rules make nearly every student a harasser—and therefore subject to punishment—may not be an accident. Boston lawyer (and FIRE co-founder) Harvey Silverglate’s book Three Felonies a Day notes that today’s federal laws and the interpretations of those laws are so broad that everyone is technically a felon. If a federal prosecutor wants to prosecute you, he or she probably can, no matter who you are or what you do. This is an invitation to selective prosecution. Likewise, our nation is currently suffering through a scandal that resulted from the IRS’s wide latitude to decide how to audit people and determine nonprofit status. Predictably, politically motivated decisions to conduct audits or withhold authorization were made that served the interest of the politicians in power. These campus harassment rules will institutionalize yet another government “Catch-22.” Since most students will frequently be engaged in “harassment” under these rules, neither colleges nor the DOJ and ED can possibly enforce all infractions. This means that the government will be able to choose whom to punish—and such punishments will, as always, fall upon the unpopular or politically powerless.

It’s time for more people to start asking pointed questions of the bureaucrats in ED and DOJ who think they can overrule the First Amendment through administrative fiat. The bureaucrats at ED and DOJ seem to lack even a basic understanding of the law. They either have no idea that their mandates conflict with the ability to provide a liberal education or they simply don’t care. It’s time that they were called to account, whether that be through Congressional hearings, lawsuits, pushback from universities, public outcry, or (preferably) all of the above. If the education bureaucrats can make this stick, Americans might as well just admit that from here on out, the marketplace of ideas is closed on our campuses.

View this article at The John William Pope Center.