FIRE announces its Speech Code of the Month for November 2005: Lincoln University.
Lincoln, a public university in Pennsylvania, defines sexual harassment as “unwelcome and unsolicited sexual advances, request for sexual favors or other verbal, visual or physical conduct or communication with sexual overtones that the victim deems offensive” (emphasis added). This policy shamelessly violates clearly established Supreme Court precedent regarding harassment. Remember that, as a public institution, Lincoln is bound by the Constitution, and Supreme Court decisions are authoritative interpretations of what the Constitution means. And the Supreme Court has held that for conduct to constitute constitutionally unprotected harassment, it must create “an environment that a reasonable person would find hostile or abusive.” Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993) (emphasis added).
Courts across the country have made clear time and again that the government (and its agencies, like Lincoln) cannot ban speech simply because someone finds it offensive. The U.S. Court of Appeals for the Third Circuit, which includes Pennsylvania, recently reiterated this, holding that “it is certainly not enough that the speech is merely offensive to some listener.” Saxe v. State College Area School District, 240 F.3d 200, 217 (3d Cir. 2001). See also Bair v. Shippensburg Univ., 280 F. Supp. 2d 357, 369 (M.D. Pa. 2003) (“regulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in the public high school and university settings”).
Perhaps more importantly, however, this policy is a moral outrage. Think about the real consequences of a ban on speech “that the victim deems offensive.” Imagine if your right to speak freely were subject to the whim of every oversensitive person out there. That is the reality of life for students living and learning at Lincoln University, and it is shameful. This is an arm of the Commonwealth of Pennsylvania telling its adult citizens that they are subject to punishment for saying something simply because someone else deems it offensive. Based on the strong legal precedent in this state, this policy could not withstand a constitutional challenge, and it cannot withstand a moral challenge either.
For these reasons, Lincoln University is our November 2005 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.