FIRE announces its Speech Code of the Month for August 2009: Northern Illinois University (NIU).
In the NIU Student Code of Conduct, "harassment" is defined as the "Intentional and wrongful use of words, gestures and actions to annoy, alarm, abuse, embarrass, coerce, intimidate or threaten another person." (Emphasis added.) NIU is a public university, which means it is legally obligated to protect its students' First Amendment rights. Someone over at NIU clearly needs a First Amendment refresher course, because this policy fails miserably, prohibiting large swaths of constitutionally protected expression. While the university may legitimately prevent students from threatening and intimidating one another, it most certainly cannot prohibit students from annoying and embarrassing one another, even intentionally. In fact, satire and parody-which are entitled to particularly strong constitutional protection-are frequently profoundly embarrassing and annoying to their targets. For example, I am sure that the Rev. Jerry Falwell was more than a bit annoyed, and likely quite embarrassed, at Hustler's fake advertisement in which he was depicted as having lost his virginity in a drunken encounter with his own mother. Despite the annoying, embarrassing nature of the parody, however, the U.S. Supreme Court held that it was wholly constitutionally protected. Hustler v. Falwell, 485 U.S. 46 (1988).
NIU's policy is a perfect example of the culture that prevails on so many college campuses nowadays, in which there is a presumed right to be free not only from truly disruptive harassment, but also from anything that causes annoyance, discomfort, or offense. Universities' attempts to protect this fictitious "right not to be offended" are harmful on several fronts. First, they undermine the whole notion of the American university as a "marketplace of ideas," where students learn not by rote but by exposure to a variety of different opinions expressed in a variety of different ways-including opinions and forms of expression that may be offensive. Second, they leave students ill-prepared for life after college, when one cannot simply run crying to the nearest dean over every perceived slight or embarrassment.
So it's not just that NIU, as a public university, cannot maintain a policy like this-although that is, of course, very important, and the university leaves itself vulnerable to a First Amendment lawsuit by doing so. It's also that NIU, as a university that claims to value the rights of free speech and expression, shouldn't maintain a policy like this, because in addition to the legal wrong, it is doing its students a grave disservice. For this reason, NIU is our August 2009 Speech Code of the Month.
If you believe that your college or university should be a Speech Code of the Month, please e-mail firstname.lastname@example.org with a link to the policy and a brief description of why you think attention should be drawn to this code. If you are a current college student or faculty member interested in these issues, consider joining FIRE's Campus Freedom Network, a loose coalition of college faculty members and students dedicated to advancing individual liberties on their campuses. And if you would like to help fight abuses at universities nationwide, add FIRE's Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.