FIRE announces our Speech Code of the Month for August 2017: Case Western Reserve University.
According to Case Western’s Posting Policy, “[p]osting of any derogatory, obscene, or offensive message, either explicitly or implicitly, is strictly prohibited.”
If you haven’t been following FIRE’s work, you may wonder what is wrong with this. After all, no one wants a campus plastered with racial slurs and lewd pictures, right? But the reality is that what people subjectively find “offensive” goes far beyond the kind of harassment, threats, and obscenity that colleges and universities can legitimately regulate. Among other things, flyers that schools have deemed impermissibly “offensive” over the years include:
- Flyers advertising a speech by a controversial opponent of illegal immigration at Central Washington University;
- A recruiting flyer for the Columbia men’s ice hockey team that, in a play on the university’s “Lions” team name, said “stop being a pussy”;
- A Young Conservatives of Texas recruitment flyer that contained a satirical list of “top ten gun safety tips”;
- Brochures distributed by Montclair State University’s chapter of Students for Justice in Palestine that were harshly critical of Israel;
- Flyers reading “Fuck Censorship, Fuck Oppression, Fuck the Draft. Fight for Free Speech and Political Expression at SVSU and Elsewhere,” which were produced to protest a restrictive posting policy at Saginaw Valley State University; and
- A satirical flyer, intended to protest elevator delays in the University of New Hampshire’s residence halls, that urged women to avoid the “Freshman 15” by taking the stairs.
I could go on, but you get the idea. “Offensive” and “derogatory” are terms that mean vastly different things to different people, and if expression can be banned because it subjectively offends someone or hurts their feelings, then no speech is safe. This ban alone would be broad enough, but Case Western adds yet more ambiguity to the policy by banning not only expression that is explicitly offensive or derogatory, but also speech that is implicitly so. If I were part of a student group at Case Western that wanted to post a flyer addressing a controversial topic, I would have absolutely no idea how to do so without risking punishment. This makes the policy not only overly broad (in that it bans speech that would normally be protected) but also vague (in that students of ordinary intelligence will be unable to know what is actually prohibited). At a public university, this regulation would be unconstitutional.
Case Western, of course, is a private university, which means that it is not legally bound by the First Amendment in the way a public university would be. But that doesn’t mean it can just censor its students at will. FIRE has always maintained that if a private institution holds itself out as a place where freedom of speech and expression are valued, its students and faculty have a legitimate expectation that they’ll be able to express themselves the same way they would at a public institution.
And like the vast majority of top institutions, Case Western claims to be committed to the free exchange of ideas and “the right to hold and express opinions different from our own.” But in an environment where students can be punished for expressing opinions that someone else finds offensive — even just implicitly offensive — that right is entirely illusory.
For this reason, Case Western Reserve University is our August 2017 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 faculty members and students dedicated to advancing individual liberties on their campuses.
If you’re a current or former student, faculty, or alumni of Case Western Reserve University, fill out the form below and ask them to revise this policy today!