FIRE announces its Speech Code of the Month for February 2015: Lyndon State College (LSC) in Vermont.
LSC’s “Civility Policy” prohibits “uncivil, disrespectful, or disruptive expressions of opinions including obscenities.” As someone at LSC surely must know, most “obscenities” (commonly understood as curse words) and disrespectful or uncivil language are wholly protected by the First Amendment, which LSC—as a public college—may not violate.
Regarding profanity, the Supreme Court of the United States has explicitly held that the state, of which the LSC administration is a part, may not ban the use of curse words. The Court noted that while the question of the constitutional permissibility of profanity may initially seem “inconsequential,” in reality, “the issue it presents is of no small constitutional significance.” In upholding the freedom of a Vietnam War protester to enter a county courthouse wearing a jacket emblazoned with the words “Fuck the Draft,” the Court wrote:
To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why “wholly neutral futilities … come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons,” and why “so long as the means are peaceful, the communication need not meet standards of acceptability.”
Cohen v. California, 403 U.S. 15, 24–25 (1971) (internal citations omitted).
Similarly, the Court has repeatedly upheld the First Amendment right of individuals to engage in profoundly disrespectful expression. As the Court observed in Boos v. Barry, 485 U.S. 312, 322 (1988): “[I]n public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.” (Emphasis added, internal quotes omitted.) It is for this reason that the Court has upheld constitutional protection for some of the most deeply disrespectful speech imaginable, including the right of the Westboro Baptist Church to picket military funerals holding signs such as “Thank God for Dead Soldiers.” In Snyder v. Phelps, 131 S. Ct. 1207, 1220 (2011), the Court eloquently explained why such speech must be allowable:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.
Against this legal backdrop, it is absolutely clear that a public institution such as LSC may not constitutionally prohibit “disrespectful” speech and “obscenities,” and it must revise its policy immediately. For this reason, Lyndon State College is our February 2015 Speech Code of the Month.
If you believe that your college’s or university’s policy should be a Speech Code of the Month, please email 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 free speech, join the FIRE Student Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses.