Students at Westfield State University in Massachusetts are subject to disciplinary action if their use of university email is deemed to include “derogatory or inflammatory statements and/or idle gossip.”
But what does the university consider derogatory, inflammatory, or idle gossip? The terms aren’t defined in the policy, so users have no way of knowing what might land them in trouble.
For warning its campus to watch their mouths without specifying what, exactly, everyone should be watching for, Westfield State’s email policy is FIRE’s Speech Code of the Month for May 2023.
Speech can’t be limited merely because it’s subjectively derogatory or inflammatory, or because someone thinks it’s idle gossip. These terms are so broad that an administrator applying the policy could deem just about any email a violation.
For example, an impassioned email from the president of the College Democrats to members of her club about a position she thinks they should support could be seen as inflammatory. An email from one grad student to another, critiquing their research methods, could be called derogatory. And an email between student journalists criticizing the administration’s handling of a controversy over expression might be labeled gossip.
All of those hypothetical emails are likely protected speech, but Westfield State’s policy could all too easily be applied to punish those who sent them.
Public institutions like Westfield State can place certain restrictions on the use of university email without running afoul of the First Amendment. For example, they can limit speech that meets one of the narrow exceptions to the First Amendment, including true threats and incitement. They can also regulate the release of confidential information, and place viewpoint-neutral rules on use that overwhelms university email systems (e.g., repeatedly spamming listservs with irrelevant and unsolicited mass mailings).
When the government opens up a public forum for expression, it can’t choose which viewpoints are allowed to be expressed in that forum — Supreme Court precedent on this point is clear.
But banning inflammatory or derogatory speech and gossip calls for viewpoint discrimination, which is impermissible at a public school. When the government opens up a public forum for expression, it can’t choose which viewpoints are allowed to be expressed in that forum — Supreme Court precedent on this point is clear.
In Matal v. Tam, the Supreme Court of the United States found the First Amendment prohibits the government from denying registration to “disparaging” trademarks. In his concurring opinion, Justice Kennedy explained:
At its most basic, the test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed.
Indeed, singling out subjectively derogatory, inflammatory, or gossipy speech for punishment is clearly viewpoint discrimination.
Please join FIRE in urging Westfield State to meet its obligation under the First Amendment as a public institution by revising this policy.