FIRE announces our Speech Code of the Month for July 2018: Carleton College in Northfield, Minnesota.
Carleton is private, and thus not legally bound by the First Amendment, but college policy states that “[t]he President and the Dean consider the protection of the right of individuals to express their views freely and without risk of repercussions to be among our most important responsibilities.” You would expect, then, that Carleton’s policies would protect “the right of individuals to express their views freely and without risk of repercussions” … but you would be wrong. Rather, Carleton maintains a range of policies that significantly restrict the right of free expression, earning the college FIRE’s poorest, red light speech code rating.
Among the most restrictive policies is Carleton’s ban on “sexually inappropriate conduct” — speech that does not rise to the level of unprotected sexual harassment, but that the college has nonetheless decided to prohibit:
Sexually inappropriate conduct includes unwelcome sexual conduct that may not rise to the level of sexual harassment. Conduct that may be considered sexually inappropriate may be isolated behavior not sufficiently serious to be sexual harassment under this policy.
Sexually inappropriate conduct may include, but is not limited to, crude, obscene, or sexually offensive gestures or behavior, or unwelcome sexual comments or communication. For purposes of this definition, communication may be oral, written, or electronically transmitted.
Under this policy, virtually any sexually oriented speech that another person finds subjectively offensive can be punished. Often, people seem untroubled by such prohibitions because they perceive them to apply only to speech that is of seemingly low social value. But when one considers the wisdom of a policy that applies to broad categories of speech, one must consider all of the ways that policy could be applied — not just how people you agree with would apply it.
As one might expect at a place that is home to a large number of 18-to-22-year-olds, there is a lot of discussion of sex at Carleton. For example:
- Carleton is home to an annual, student-produced monologue series called Stripped, which “addresses topics such as sexual violence, genitalia, drugs, alcohol, sexual content, slurs, and microaggressions.”
- Carleton’s Gender and Sexuality Center offers peer-led programs on both male and female sexuality, both of which address not only issues of sexual health, but also sexual pleasure.
- In January 2018, Carleton hosted a sexuality workshop, including a discussion of sex toys, presented by the sex-toy shop Smitten Kitten. Other workshops offered in 2018 included “Pleasurably Positive: Sex with STIs.”
You may not consider these programs to be crude or sexually offensive, but I can guarantee you that some people would. Attitudes towards sex and sexuality vary dramatically depending on one’s cultural and religious background, individual sensibilities, age, etc. Speech that one person might consider informative and socially valuable might be viewed as shocking or depraved by another person; as the Supreme Court has put it, “one man’s vulgarity is another’s lyric.” This is why the legal definition of sexual harassment — which, unlike merely offensive expression, is not protected by the First Amendment — includes an objective standard. To constitute sexual harassment, conduct must not only be sexually offensive, it must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999).
The requirement that sexual harassment be severe, pervasive, and objectively offensive prevents important and difficult discussions from being limited by people’s subjective and widely varying sensibilities around issues of sex and sexuality. A broad policy like Carleton’s, while undoubtedly well-intentioned, holds such discussions hostage to those sensibilities. For this reason, Carleton’s ban on “sexually inappropriate conduct” is our July 2018 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 email@example.com 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 the FIRE Student Network, a coalition of college students and faculty members dedicated to advancing individual liberties on their campuses.
Ask Carleton College to revise this policy