As a public institution, Troy University is bound by the First Amendment. But you wouldn’t know that from the way its policies are written.
For example, its student handbook says “insensitive language” or any “manifestation of bigotry” with respect to characteristics like race, gender, and sexual orientation “will not be tolerated.” We’ve made this restrictive policy — ripe for administrative abuse — FIRE’s Speech Code of the Month for January.
The First Amendment doesn’t just protect language with which the most sensitive among us would be comfortable. In Matal v. Tam, the Supreme Court reiterated this principle, finding the First Amendment prohibits the government from denying registration to “disparaging” trademarks — which could certainly include speech that many perceive as insensitive or bigoted.
In his concurring opinion, Justice Anthony Kennedy explained, “[I]t is a fundamental principle of the First Amendment that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys.” He called a law that reflects the government’s disapproval of a subset of messages it finds offensive “the essence of viewpoint discrimination,” warning, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence.”
Administrators at Troy are no better equipped to determine what speech is impermissible than are employees of the U.S. Patent and Trademark Office. After all, pretty much anything can be called insensitive or bigoted by someone.
Take the list of “harmful language” Stanford University planned to remove from its websites this past year. The wide-ranging list included such commonly used terms as “American,” “white paper,” and “gangbusters” — demonstrating the breadth of language a university administrator can deem off-limits.
The university earns an overall “red light” rating from FIRE, with a shocking total of four policies that clearly and substantially restrict free speech.
Troy must remove this unconstitutional ban from its handbook, instead limiting the policy to prohibiting unlawful harassment and discrimination — conduct that isn’t protected by the First Amendment.
Unfortunately, this is not the only policy Troy needs to work on. The university earns an overall “red light” rating from FIRE, with a shocking total of four policies that clearly and substantially restrict free speech.
With FIRE’s help, many public schools have cleared those red light policies off the books in recent years: While 61.6% of public schools earned a red light rating a decade ago, our latest Spotlight on Speech Codes Report found that the figure is now just 13.9%.
Troy should resolve to leave that ignominious group and join the “green light” list this year. FIRE stands ready to recommend revisions for Troy and any other university looking to improve their regulations on expression.