FIRE announces its Speech Code of the Month for January 2010: the University of Northern Colorado.
The University of Northern Colorado’s (UNCO’s) Residence Handbook prohibits “Bias Motivated Incidents,” which include any “inappropriate jokes” that are motivated by bias. The policy also provides that
Any discriminatory act is a violation of the Housing & Residence Life Student Code of Conduct, including, but not limited to racism, ageism, sexism, and/or homophobia. This includes intentionally, recklessly or negligently causing physical, emotional, or mental harm to any person. (Emphasis added.)
It is a fundamental legal—and moral—principle that laws must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). UNCO’s policy completely fails to meet this standard. It is impossible to know what might cause another person “emotional” or “mental” harm, and the policy does not even require that the speaker intend to cause such harm; a violation can occur if the harm is merely caused negligently. In other words, if you speak carelessly or without the appropriate amount of concern for others’ feelings, and someone’s feelings are hurt, you can be punished. It doesn’t even matter if the hurt feelings are reasonable. By the plain language of this policy, the mere fact that someone feels “emotionally harmed” by your speech is enough to merit disciplinary action, regardless of whether the hurt individual is reasonable or horribly oversensitive.
Beyond that, the fact that speech might cause another person “emotional harm” (even if the harm is caused intentionally and the aggrieved person is reasonable) does not strip that speech of constitutional protection. It seems that many college administrators think that calling speech racist, sexist, homophobic, or “hate speech” somehow makes it okay to punish that speech. In fact, unless the speech is so severe and persistent as to constitute harassment, the fact that it expresses prejudice does not in any way alter its protected status.
This vague and overbroad policy—part of a “bias reporting” trend that FIRE has discussed on numerous occasions—leaves students vulnerable to punishment for telling jokes as well as for a broad, undefined range of other speech that some on campus might find offensive. At a public university like UNCO, or at any university that claims to value the rights of free speech and expression, this is totally unacceptable. For these reasons, the University of Northern Colorado is our January 2010 Speech Code of the Month.
If you believe that your college or university should be a Speech Code of the Month, please e-mail 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 these issues, consider joining FIRE’s Campus Freedom Network, a loose affiliation of college faculty members and students dedicated to advancing individual liberties on their campuses. And if you would like to help fight abuses at universities nationwide, add FIRE’s Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.