FIRE announces its Speech Code of the Month for June 2013: Bemidji State University in Minnesota.
Bemidji State’s Student Code of Conduct prohibits:
engaging in any offensive, obscene or abusive language, or in boisterous or noisy conduct reasonably tending to arouse alarm, resentment, or anger in others on University-owned or controlled property or at University sponsored or supervised activities.
At the risk of sounding like a broken record, speech and expression cannot be prohibited simply because others find it offensive. In Texas v. Johnson, 491 U.S. 397, 414 (1989), the U.S. Supreme Court held that "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Notably, the expression protected by the Court in Texas v. Johnson was flag desecration, which certainly seems to fall within the scope of Bemidji State’s policy.
The Supreme Court has also applied this principle directly to the public university campus, writing that "the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’" Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973).
Over the years, many other courts have echoed this holding. See, e.g., Saxe v. State College Area School District, 240 F.3d 200, 206 (3d Cir. 2001) (holding that there is "no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive…"); Doe v. Michigan, 721 F. Supp. 852, 863 (E.D. Mich. 1989) ("Nor could the University proscribe speech simply because it was found to be offensive, even gravely so, by large numbers of people.").
The policy’s prohibition on conduct "tending to arouse alarm, resentment, or anger in others" is also in direct conflict with a decision of the Supreme Court. In Terminiello v. Chicago, 337 U.S. 1, 4 (1949), the Court held:
Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
If there is any meaningful difference between Bemidji State’s policy terms of "alarm, resentment, or anger" and Terminiello‘s discussion of "public inconvenience, annoyance, or unrest," it is certainly not clear to this writer.
For a public university required to protect its students’ First Amendment rights, Bemidji State University seems blissfully unaware of what the law requires of it. For this reason, it is our June 2013 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, consider joining FIRE’s Campus Freedom Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses. You also can add FIRE’s Speech Code of the Month widget to your blog or website and help shed some much-needed sunlight on these repressive policies.