FIRE announces its Speech Code of the Month for August 2015: Boston University (BU).
While BU is private, and thus not legally bound by the First Amendment’s guarantees of free speech and expression, the university has committed itself to upholding the expressive rights of students and faculty. Among other things, BU’s Student Responsibilities policy explicitly states that “[w]hen they enter the University, students retain their rights under the laws of society.” Moreover, the university’s Academic Freedom policy refers to BU as “an atmosphere of unfettered free inquiry and exposition.” Given these commitments, students at BU should reasonably be able to expect the same expressive rights that they would enjoy at any of Massachusetts’ public colleges and universities.
Unfortunately, BU’s policies take away the very rights the university guarantees that students will retain. For example, BU’s policy on Tolerance and Religion provides, in relevant part:
In displaying or distributing expressions of opinion, students are expected to show respect for the aesthetic, social, moral, and religious feelings of others upon whom their views may be imposed.
This is a deeply distressing speech code that directly impacts students’ ability to engage in political and social commentary at the university. While respectful discourse may sound like an innocuous requirement, in reality speakers often seek to generate controversy to draw attention to the issues they care about—think, for example, of animal rights activists who hand out literature containing graphic descriptions of slaughterhouses, or pro-life activists who display photos of aborted fetuses. Consider how many student protests on abortion, animal rights, affirmative action, Israeli/Palestinian relations, and many other topics can be silenced when a university regulates expression based on whether it offends the subjective sensibilities of others. This is particularly true in this age of the increasing corporatization of American universities, when schools are very concerned with how controversial expression—and the unrest it sometimes engenders—might affect their image.
BU’s policy also relies on the mistaken belief that holding signs or distributing literature on campus creates a captive audience—“others upon whom [students’] views may be imposed”—that gives the university greater leeway to regulate such expression. In reality, the “captive audience” doctrine is quite narrow. As the Supreme Court reaffirmed in Snyder v. Phelps, 562 U.S. 443, 459 (2011), the ability “to shut off discourse solely to protect others from hearing it is … dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” The Court further explains, “the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.” Thus, BU cannot reasonably claim that its students are a captive audience simply because they might encounter a sign or be handed a pamphlet that they would rather not see.
For these reasons, BU’s Tolerance and Religion policy is our August 2015 Speech Code of the Month. If you believe 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.