In response to Pennsylvania State University being named FIRE’s Speech Code of the Month for September 2008, Penn State President Graham Spanier agreed to change the preamble to the Penn State Principles to clarify that protected expression will not be prohibited, investigated, or punished on campus.
We wrote President Spanier to inform him of Penn State’s designation as our Speech Code of the Month for September 2008 this past December. In our letter, I discussed the constitutional problems presented by the Penn State Principles, which required Penn State students to state that they "will respect the dignity of all individuals within the Penn State community." The letter also read, in pertinent part:
Actions motivated by hate, prejudice, or intolerance violate this principle. I will not engage in any behaviors that compromise or demean the dignity of individuals or groups, including intimidation, stalking, harassment, discrimination, taunting, ridiculing, insulting, or acts of violence. [Emphasis added.]
While such a requirement may seem innocuous at first blush, I explained the problems with the Principles in our letter. First, I pointed out that the Penn State Principles require students to regulate their expressive activity on campus in accordance with "impermissibly vague terms—namely, to ‘compromise’ or ‘demean’ the ‘dignity’ of others, and ‘taunting,’ ‘ridiculing’ and ‘insulting’—that could, in application, mean virtually anything." That’s a problem, because Penn State is a public school and thus obligated to uphold the First Amendment on campus. Making students refrain from something as subjective as "insulting" speech means that students are forced to guess at what expressive activity is and is not allowed at Penn State—and such guessing results in self-censorship and a chilling effect on student speech.
Further, I pointed out that not only were the Principles unconstitutionally vague, but they were overbroad, too. In other words, they prohibited students from engaging in protected speech. (The vast majority of "insulting" speech is protected by the First Amendment.) I wrote:
Moreover, even assuming that a student was able to figure out which speech is and is not "compromising" or "insulting," the fact that a student seemingly may be punished for "demeaning the dignity" of others means that engaging in wide swaths of constitutionally protected expression may serve as grounds for punishment.
After establishing the basis of our concerns about the Principles, I concluded our letter by asking President Spanier to "clarify to students and administrators at the university that protected expression may never and will never be prohibited, investigated, or punished."
And guess what? That’s exactly what President Spanier has done.
In a letter sent earlier this month to FIRE, Spanier first defends the Principles—which he drafted himself nearly a decade ago, shortly after his arrival at PSU—by stating that they "reflect values of mine, and I am pleased that we will find them in abundance at Penn State." Spanier writes, however, that FIRE "take[s] great license in interpreting how the Principles are used…. Students are not required to affirm the Principles." Rather, Spanier writes, the Principles are "intended to be an expression of University values that we hope our students, faculty, staff and administration possess." In sum, he argues that the Principles are "indeed aspirational but decidedly not statements of policy."
Fair enough; public universities are certainly well within their rights to endorse aspirational statements. But again, our problem with the Penn State Principles was that incoming students would have a very difficult time determining that the Principles have been merely aspirational—after all, they are written as affirmative statements in the first person, in the style of an oath or a promise. At any rate, freshmen arriving at Penn State last fall could scarcely be blamed for thinking that violating the Principles might incur discipline. They sure don’t come across as "optional" or "just a suggestion."
That’s why we were very pleased to see that Spanier’s letter concludes by substantively addressing FIRE’s concerns about the Principles. Indeed, it’s worth quoting in full. Spanier writes:
In order to eliminate the possibility that someone might incorrectly construe the Principles as University policy, we have decided to change the preamble. Your request that we "clarify to student and administrators at the University that protected expression may never and will never be prohibited, investigated, or punished" is appropriate, and I thank you for writing to me about it.
True to President Spanier’s word, the Principles have been changed. Here’s the new language:
The Pennsylvania State University is a community dedicated to personal and academic excellence. The Penn State Principles were developed to embody the values that we hope our students, faculty, staff, administration, and alumni possess. At the same time, the University is strongly committed to freedom of expression. Consequently, these Principles do not constitute University policy and are not intended to interfere in any way with an individual’s academic or personal freedoms. We hope, however, that individuals will voluntarily endorse these common principles, thereby contributing to the traditions and scholarly heritage left by those who preceded them, and will thus leave Penn State a better place for those who follow.
As is readily apparent, the changes leave absolutely no doubt that the Principles, however admirable, are aspirational. We thank President Spanier for acting decisively to ensure the primacy of the First Amendment at Penn State. As I wrote to him recently in a letter:
FIRE very much appreciates the commitment to individual liberties on campus demonstrated by your decision to clarify the purely aspirational nature of the Penn State Principles. It is our strong belief that doing so allows for the happy coexistence of both the admirable values expressed by the Principles and the constitutional freedoms Penn State must guarantee to all students. Your leadership here sets a sterling example, one that we at FIRE can only hope will be emulated at public universities across the country in 2009.