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More on Speech Codes at SMSU

When Southwest Minnesota State University (SMSU) removed an unconstitutional ban on “cultural intolerance” from its website after being named FIRE’s November 2015 Speech Code of the Month, FIRE quickly updated SMSU’s Spotlight entry and upgraded the university’s rating from “red light” to “yellow light” to reflect the improvement. That should have been the end of the story. But SMSU’s student newspaper, The Spur, is angry that FIRE highlighted the policy in the first place. Because while the policy FIRE highlighted was prominently displayed on the university’s Judicial Affairs’ website in the fall of 2015, an updated version of the policy—not containing the offending language—was apparently available elsewhere on SMSU’s website.

The fact that the university may have been maintaining two conflicting policies at once does nothing to change the fact that students who accessed the university’s policies from its Judicial Affairs website had every reason to believe that they were reading a fully operative policy—and to self-censor accordingly. After all, you’d expect the official website of SMSU’s Judicial Affairs department to post current policies! I sure did, and I’m a First Amendment lawyer whose job is to review university policies.

Students aren’t lawyers, and any reasonable student who wanted to check out SMSU’s policies would have thought the Judicial Affairs website would be the right place to do so. As a federal judge wrote in striking down a speech code at San Francisco State University, “We must assess regulatory language in the real world context in which the persons being regulated will encounter that language. The persons being regulated here are college students, not scholars of First Amendment law.”

And speaking of not being scholars of First Amendment law, SMSU’s reporters might want to brush up on their understanding of the Constitution. Because it sounds a lot like their anger is motivated in part by a desire to bring back the old, unconstitutional policy:

[B]y enrolling in the university, students have to agree to abide by the standards of conduct set by the university.  … The language FIRE objected to does a great deal to protect the ideals in these statements that SMSU’s administration, faculty, and staff have pledged to reach. The Spur believes that the student body should have a voice regarding the policies of the student Code of Conduct, especially free speech. Yet, despite our reporters’ best efforts, we cannot get a solid answer on who decides to make changes to the policy as it is right now.

But of course, students cannot agree to give up their First Amendment rights when enrolling at a public university, because a public university is legally obligated to respect those rights. That’s why speech codes like SMSU’s former policy have been struck down by courts around the country. We would think that student reporters, whose work depends heavily on First Amendment protections, would be happy that an SMSU speech code is entirely off the books.

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