(Editor’s note: This policy has since been revised. Please visit Dartmouth College’s entry in FIRE’s Spotlight Database for more information.)
FIRE announces our Speech Code of the Month for January 2018: Dartmouth College.
Once a “green light” institution, Dartmouth has adopted more restrictive policies over the past several years. First came a bias-reporting policy that earns a yellow light rating for its potential to chill speech on a variety of political and social issues. Now, FIRE has learned that Dartmouth also maintains an Acceptable Use Policy that prohibits users of Dartmouth’s IT resources from posting or transmitting any “offensive” content. This incredibly broad restriction means that Dartmouth now earns FIRE’s poorest, red light rating — reserved for colleges maintaining policies that both clearly and substantially restrict protected speech.
Although Dartmouth is private, and not legally bound by the First Amendment, it claims that “Freedom of expression and dissent is protected by College regulations.” Ironically, even another policy within the College’s IT department proclaims that “Censorship is not compatible with the goals of Dartmouth.” Any reasonable student reading these regulations would expect to have the same rights of speech and expression as his or her counterparts at, say, the University of Massachusetts. Dartmouth can’t have it both ways, claiming to protect free speech with one hand while explicitly prohibiting it with the other. If Dartmouth wants the respect and credibility that go along with having a reputation as a center for free thought and open debate, it must actually be one, and must afford its students and faculty the same expressive rights they would have at a public institution.
And if First Amendment jurisprudence makes one thing clear, it is that banning speech or expression simply because it is “offensive” is wholly impermissible. See Texas v. Johnson, 491 U.S. 397, 414 (1989)(“If 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.”); Papish v. Bd. of Curators of the Univ. of Mo., 410 U.S. 667, 670 (1973)(“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.’”); Saxe v. State Coll. Area Sch. Dist., 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. Univ. of Mich., 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.”).
Yet Dartmouth’s Acceptable Use Policy does just that, prohibiting users from posting or even simply transmitting any “offensive” material. (Side note: Offensive according to whom? The college administration? The subjective reaction of another user?) With the addition of that one word, Dartmouth has left students and faculty vulnerable to discipline for expressing themselves on any number of important political or social issues. And if you have any doubt that people will be offended by, and seek the punishment of, others’ expressions of opinion on controversial issues, look no further than FIRE’s recent case archives.
For these reasons, Dartmouth College is our January 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 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 the FIRE Student Network, a coalition of college students and faculty members dedicated to advancing individual liberties on their campuses.