Back in October, Northern Arizona University “won” the distinction of being named FIRE’s Speech Code of the Month. Not surprisingly, that earned the university some bad publicity, including a newspaper editorial appropriately titled “NAU’s restrictive speech code is an unconstitutional disgrace.” And it turns out NAU’s time in the hot seat isn’t over. Its deplorable speech code was denounced just yesterday in the Arizona Daily Star. Here is a snippet of Jim Kiser’s excellent editorial:
NAU's nine-page “Safe Working and Learning Environment Policy” states: “Prohibited harassment includes, but is not limited to, stereotyping, negative comments or jokes, explicit threats, segregation, and verbal or physical assault when any of these are based upon a person’s race, sex, color, national origin, religion, age, disability, veteran status, or sexual orientation.”
NAU is right to prohibit some of those behaviors, such as segregation or physical assault. They are illegal.
But stereotyping, negative comments or jokes—as offensive as they may be—are protected speech under the First Amendment. And as a state university, NAU is obligated to respect the First Amendment.
Universities often have run afoul of free-speech protections in their efforts to create campus atmospheres that encourage discussion and learning.
In its case, NAU’s policy asserts, “Academic freedom can exist only when all are free to pursue ideas in a non-threatening, non-coercive atmosphere of mutual respect.”
That statement, however, is naive and inaccurate. Public universities have the right—more likely an obligation—to encourage an atmosphere of mutual respect. But they cannot require it.
“We will defend and protect speech,” Lisa Nelson, NAU’s director of public affairs, said when I talked with her on the telephone. “But we will also defend the right of students and faculty to be free of prohibited harassment and discrimination.”
She added, “It’s an obvious balance.... It depends on the circumstances.”
That is the point. It is not a balancing act. Constitutionally protected speech cannot be prohibited, even by university administrators with the best of intentions.
The proper response to offensive speech is not proscription, but more speech. University leaders can help create the climate they want by vigorously condemning speech they think is inappropriate.