Washington and Lafayette at Mount Vernon, 1784 by Rossiter and Mignot

Speech Code of the Month: Lafayette College

By October 4, 2018

After meeting the Marquis de Lafayette during his tour of America in 1824, an Easton, Pennsylvania lawyer was inspired to name his town’s new college after the general, as “a testimony of respect for [his] talents, virtues, and signal services … in the great cause of freedom.”

Indeed, Lafayette had been a key proponent of individual rights both at home in France and in America. As the principal author of the Declaration of the Rights of Man and of the Citizen of 1789, he proclaimed: “The free communication of thoughts and of opinions is one of the most precious rights of man.”

Today, despite its namesake, Lafayette College maintains several policies that restrict freedom of expression and is FIRE’s October 2018 Speech Code of the Month recipient.

The introduction to the “Code of Conduct” of Lafayette’s Student Handbook states:

[S]tudents and student organizations are expected to so conduct themselves that they cause no physical, emotional, or mental harm to others; that they neither break laws nor contribute to the delinquency of others; and that they do not destroy property. Participation in any activity that harms or demeans others may lead to dismissal of individuals and dissolution of groups.

At first blush, it may seem reasonable for a college to ban conduct that causes harm to others. But broad terms like “emotional” and “mental harm” and “any activity that harms or demeans others” don’t have legal definitions and include speech that is protected under First Amendment standards. After all, who gets to decide what the threshold for emotional harm is, or what speech has demeaned others?

In 2010, the United States Court of Appeals for the Third Circuit struck down similar language in a speech code maintained by the University of the Virgin Islands on First Amendment grounds. In finding a ban on “emotional distress” to be unconstitutionally overbroad, the court explained that the term “is driven by the subjective experience of the individual,” and that “[t]he scenarios in which this prong may be implicated are endless”:

[A] religious student organization inviting an atheist to attend a group prayer meeting on campus could prompt him to seek assistance in dealing with the distress of being invited to the event; minority students may feel emotional distress when other students protest against affirmative action; a pro-life student may feel emotional distress when a pro-choice student distributes Planned Parenthood pamphlets on campus; even simple name-calling could be punished. The reason all these scenarios are plausible applications of Paragraph H is that the paragraph is not based on the speech at all. It is based on a listener’s reaction to the speech.

In distinguishing a ban on emotional distress from the tort of intentional infliction of emotional distress, the court further explained that “the tort … requires intent” on the part of the speaker, and that “[n]o such intent element is required under Paragraph H.” Similarly, Lafayette’s ban on emotional harm includes no intent element, and could be applied against anyone for any subjectively harmful or demeaning speech.

Lafayette is a private college, but it clearly promises its students free speech in the tradition of its namesake. Its Student Handbook, for instance, states: “As citizens [students] enjoy the same rights—for example, freedom of speech, peaceful assembly, and right of petition—and obligations that other citizens enjoy,” and that “[f]reedom of inquiry and freedom of expression are indispensable to the attainment of the goals of Lafayette College.”

If Lafayette College intends to live up to this commitment to freedom of expression, it must revise all of its regulations on campus expression to meet First Amendment standards, including this policy, FIRE’s October 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 speechcodes@thefire.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 FIRE’s Student Network or Faculty Network to connect with a coalition of college students and faculty members dedicated to advancing individual liberties on their campuses.

Ask Lafayette to revise this policy

Schools: Lafayette College