An editorial in Rice University’s student newspaper, The Rice Thresher, recently took FIRE to task for giving Rice a "red-light" rating for maintaining policies that censor student speech. As FIRE explained in the blog post that drew the Thresher‘s attention, Rice’s red-light rating is because of its policy on Appropriate Use of Information Technology Resources. That policy prohibits, among other things, "[t]ransmitting unsolicited … material which explicitly or implicitly refers to sexual conduct" and "[t]ransmitting … unsolicited information that contains profane language or panders to bigotry, sexism, or other forms of prohibited discrimination."
FIRE noted that such a policy could be applied, for example, to "An e-mail from an LGBT student organization advertising a ‘coming out’ event (which could be perceived by a student receiving the message as ‘implicitly referring to sexual conduct’)" or to "An e-mail from a conservative student organization advertising a speech by an opponent of illegal immigration (which could be perceived by a student receiving the message as ‘pandering to bigotry’)."
In a March 20 staff editorial, the Thresher argues that Rice’s red-light rating is laughable because the university in fact allows free speech, "consistently overriding a rule that, yes, could be interpreted as silencing LGBT groups." In other words, the staff of the Thresher acknowledges that the policy could be applied to punish important categories of protected speech, but seems to believe that because this particular administration has chosen not to consistently enforce the rule, Rice is a haven for free expression. While we certainly hope the Rice administration does not betray the tremendous amount of trust these students have placed in it, the fact is that so long as written rules allowing for the punishment of legitimate expression exist, the right to free speech at Rice is not safe.
In an article that also appeared in the March 20 Thresher, Dean of Undergraduates Robin Forman echoed the Thresher‘s opinion, stating that "FIRE takes a very narrow approach to the issue of free speech … In their view, if the policy allows one to imagine an abuse by an administrator that would inappropriately limit free speech, then that policy is as bad as an actual abuse." Contrary to what Forman says, this is not a "narrow approach" to the issue of free speech; in fact, it is the law of free speech. All across the country, courts have struck down university speech codes as facially unconstitutional (meaning the unconstitutionality lies in what is written, not in how the policy is applied), and for good reason—policies prohibiting protected expression have a "chilling effect" on free speech, wherein students reading the policy will simply refrain from legitimate expression because they fear punishment. Therefore, even if a university chooses never to enforce a speech code, a substantial amount of speech is still suppressed.
What’s more, so long as a policy allowing punishment for protected speech exists, you never know when a university will exercise its discretion and enforce it. As Adam wrote in a Letter to the Editor of the Thresher, and as I know after four years at FIRE to be all too true, "In FIRE’s experience, such discretion results in oppression of views administrators dislike."
Obviously, it is a good thing that Rice students feel they can speak freely on campus, and it speaks well of the current Rice administration. However, it categorically does not make it okay for the university—which, although private, promises students freedom of speech—to maintain policies that, on their face, prohibit protected expression. The fact that the university isn’t currently punishing protected speech cannot legitimize policies that allow it to do so.