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Speech Codes Don’t Get Enforced?

As Will discussed earlier, Florida International University professor Stanley Fish argues in his latest “Think Again” column for The New York Times that campus speech codes do not present as much of a problem for students as one might think. In the process of reviewing filmmaker Evan Coyne Maloney’s Indoctrinate U, Fish argues that any negative effects that speech codes may have on the state of free speech on campus is overblown because colleges will rarely, if ever, actually enforce their speech codes. Pointing to the fact that every speech code that has been litigated in the courts has ultimately been struck down, Fish states that college students “don’t have to worry about speech codes,” because “enforcing them will never hold up.” In other words, Fish seems to believe that the past victories achieved by campus speech advocates will completely deter university administrations from ever making use of the policies that are still on their books.

FIRE can only wish that Fish’s intuitions were right and that speech codes were indeed a problem of the past. Unfortunately, the reality is quite different. Having recently worked with Greg on a chapter for an upcoming book, in which Greg discusses the history and origins of speech codes, I can attest to the fact that speech codes are still utilized frequently to suppress all kinds of protected speech.

Will has already pointed to the example of San Francisco State University (SFSU), where the SFSU College Republicans were charged with “harassment” for holding an anti-terrorism rally at which participants stepped on pieces of paper made to resemble the Hamas and Hezbollah flags. The student group was engaged in constitutionally protected expression at a public university, and indeed core political expression at that, entitling them to the utmost protection offered by the First Amendment. Instead of respecting the students’ rights, however, the administration at SFSU capitulated to the demands of offended students, in a blatant attempt to restrict expression because of its controversial and provocative nature.

Unfortunately, the SFSU episode is by no means an isolated incident. In a memorable 2005 case, the University of Central Florida charged a student with harassment through “personal abuse” merely for creating a group on the popular website in which he called a candidate for student government “a jerk and a fool.” Put simply, you can’t make this stuff up. I’m not sure what harassment through “personal abuse” is, but surely it cannot encompass such a petty, harmless comment

In another instructive case, the University of New Hampshire in 2004 charged a student with, among other things, violation of its harassment policy and “conduct which is disorderly, lewd” for putting up flyers in his residence hall encouraging female residents to use the stairs rather than the elevators. Not only were the flyers intended as a joke, they do not come close to constituting harassment under the proper legal definition: the Supreme Court has defined harassment in the educational context as conduct “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Nor can the flyers possibly be labeled as disorderly or lewd. Once again, however, a university administration attempted to utilize its speech code to suppress unpopular speech.

Finally, there is the obvious viewpoint discrimination seen in a 2005 episode at Northeastern Illinois University (NEIU). The NEIU administration sought to prevent the College Republicans from holding an “affirmative action bake sale,” indicating that it would violate the school’s “nondiscrimination” policy. Flying in the face of both past precedent and common sense, the university simply ignored the bake sale’s objective of sparking student debate about affirmative action, and focused instead on the potential hurt feelings of a few students. To make matters worse, the university had previously allowed another student group to hold a “pay equity bake sale” protesting the “wage gap” between men and women. Despite the obvious similarities between the two protest events, the university only invoked its speech code when faced with an unpopular viewpoint.

Examples of cases like those seen at SFSU, Central Florida, New Hampshire, and NEIU abound. The point to be drawn from all of them is that as long as speech codes remain on the books, they present a grave danger of suppression of student speech. Even worse, these and other cases point to the potential for selective enforcement; university administrators often will tolerate speech that they agree with, while at the same time applying their speech codes against speech that they characterize as offensive, controversial, or provocative. If these concepts are to be the basis upon which we as a society protect (or fail to protect) speech, then the First Amendment will have been rendered meaningless.

Moreover, as I will discuss in greater detail in an upcoming entry, speech codes do enough damage even where they are not applied—they “chill” campus speech, as potential speakers refrain from expressing their views out of fear of being maligned and prosecuted, and thereby distort the marketplace of ideas. Thus, the sad reality is that speech codes not only remain alive and well at far too many colleges and universities, but they have had, and continue to have, a profound impact on the dissemination of ideas on campuses across the nation.

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