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Center for Constitutional Rights and Allies Write to Universities About Problems with Mandating ‘Civility’

Colleges and universities too often attempt to censor or chill expression by calling for “civility,” demanding that speakers exercise restraint in a way that is inconsistent with First Amendment principles. Earlier this month, the Center for Constitutional Rights (CCR) joined Advancing Justice – Asian Law Caucus, Palestine Solidarity Legal Support, the National Lawyers Guild, and the Council on American-Islamic Relations in sending a letter (PDF) to over 140 universities, urging them against restricting speech based on the notion of “civility” or on misunderstandings about what constitutes “harassment.”

CCR wrote in its introduction to the letter about recent controversies involving a focus on civility:

This term has been used recently by university administrators to justify the termination of Professor Steven Salaita’s tenured appointment at the University of Illinois at Urbana-Champaign; to condemn political expression at [Ohio University]; and in remarks by Chancellor Dirks at UC Berkeley attempting to define the boundaries of campus speech – ironically on the anniversary of the Free Speech Movement.

As the letter aptly notes, “There is no ‘civility’ exception to the First Amendment.” The term “civility” is vague and vulnerable to a broad range of subjective interpretations. And the vast majority of speech that might be deemed “uncivil” is nevertheless protected by the First Amendment—which is why speech codes mandating civility have been struck down in courts. A Student Code of Conduct provision at San Francisco State University requiring civility, for example, was ruled unconstitutional in federal court in a case aided by FIRE.

Moreover, history is replete with examples of speech deemed uncivil at the time that are now considered tame under contemporary standards. Imagine, for example, if women’s suffragists had been forced to make their case for the right to vote only in a tone that the early 20th century American powers-that-be deemed civil and appropriate.

Universities also must not punish or suppress the expression of political viewpoints by claiming that it amounts to “harassment.” The letter makes this argument in the context of speech regarding the Israeli/Palestinian conflict:

In recent years, some have alleged that expression criticizing the state of Israel or advocating for Palestinian human rights is identical to “harassment” or “intimidation” that “targets” and creates a “hostile educational environment” for Jewish students on campus on the basis of race or national origin in violation of Title VI of the Civil Rights Act of 1964.

In the context of discussion about Israel and Palestine on campus, however, the U.S. Department of Education’s Office for Civil Rights (OCR) has emphatically rejected complaints conflating protected political speech with actionable harassment.

Acknowledging the pressure on colleges and universities to censor or otherwise punish those who hold particular viewpoints, the letter reminds institutions:

[D]emocratic norms and firm legal principles require upholding the paramount ideals of freedom of speech and academic freedom on your campus, even in the face of great public outcry or pressure about the expression of contentious views by students and faculty.

FIRE hopes the institutions receiving this letter will keep these important points in mind and revise their speech codes as necessary in order to protect freedom of expression on campus. Read the letter in full on CCR’s website.

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