FIRE announces its Speech Code of the Month for April 2015: Florida A&M University (FAMU).
According to FAMU’s Student Code of Conduct, “disorderly conduct” includes not only things like public drunkenness, but also the “use of profanity in public” and the use of “insulting” language. This policy is a clear violation of FAMU students’ First Amendment rights.
The Supreme Court has made clear that a blanket ban on the public use of profanity is unconstitutional. In Cohen v. California, 403 U.S. 15 (1971), Paul Robert Cohen, a Vietnam War protester, walked into a county courthouse wearing a jacket emblazoned with the phrase “Fuck the Draft.” He was convicted of violating a provision of the California Penal Code that bore a striking similarity to FAMU’s policy, prohibiting the use of “any vulgar, profane, or indecent language within the presence or hearing of women or children.” The Supreme Court overturned his conviction, holding that “the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.” As the Court wrote,
We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why “wholly neutral futilities … come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons,” and why “so long as the means are peaceful, the communication need not meet standards of acceptability.”
Cohen, 403 U.S. at 25 (internal citations omitted).
Similarly, in a decision directly pertaining to public universities, the Court held that a student journalist could not be expelled from a public university for publishing an article entitled “Motherfucker Acquitted,” which reported on the acquittal of the leader of an organization called “Up Against the Wall, Motherfucker.” In so holding, the Court wrote 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).
These holdings leave no doubt that FAMU, as a public institution, may not prohibit the “use of profanity in public” without running afoul of the First Amendment.
The university’s prohibition on “insulting” language is similarly unconstitutional. In Terminiello v. Chicago, 337 U.S. 1 (1949), Arthur Terminiello was found guilty of disorderly conduct after a speech in which he “vigorously, if not viciously, criticized various political and racial groups whose activities he denounced as inimical to the nation’s welfare.” In overturning his conviction on First Amendment grounds, the Supreme Court wrote:
[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. 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. There is no room under our Constitution for a more restrictive view.
Terminiello, 337 U.S. at 4 (internal citations omitted). Similarly, in upholding the right to burn the American flag in political protest, the 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.” Texas v. Johnson, 491 U.S. 397, 414 (1989).
The constitutionality of FAMU’s disorderly conduct policy is not even a close call. It violates the First Amendment rights of FAMU students and must be revised immediately. For this reason, Florida A&M University is our April 2015 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, join the FIRE Student Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses.