FIRE announces its Speech Code of the Month for January 2006: Massachusetts College of Liberal Arts.
The Student Handbook at Massachusetts College for Liberal Arts (MCLA), a public institution bound by the First Amendment, contains a Picketing Policy that provides as follows: “There shall be no interference with a demonstration on the grounds of content of speech, except for any speech or demonstration, which…victimizes others because the speech contains offensive language and/or is motivated by hate or bias.” That’s right: MCLA will not interfere with a student demonstration unless it offends somebody. This policy is both absurd and unconstitutional.
The policy could easily be used to suppress almost any student demonstration. People ordinarily picket and demonstrate to express their strongly held opinions on controversial matters. Demonstrators frequently use strongly worded signs and slogans to get their point across. This is the very nature of a demonstration, and it will often, if not always, offend people who hold opposing beliefs. Therefore, to permit interference with a demonstration because it contains “offensive language” is to permit interference with almost any demonstration imaginable. To cite just a few examples: a pro-Palestinian demonstration in which students refer to Israelis as “occupiers” will offend some Israeli students. An abortion rights demonstration in which protestors chant “keep your rosaries off my ovaries” will offend some anti-abortion students. An anti-war demonstration in which demonstrators carry “no blood for oil” signs will offend some war veterans and supporters. The notion that a university would suppress the expression of these ideas because they might “offend” other students is completely inconsistent with the role of colleges and universities as “vital centers for the Nation’s intellectual life.” Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 836 (1995).
The policy is also blatantly unconstitutional. To quote the U.S. Supreme Court, “[s]peech 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.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949). In keeping with this principle, courts across the country have repeatedly stated that schools may not restrict speech simply because someone finds it offensive. A court in Pennsylvania held that there is “no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive….” Saxe v. State College Area School District, 240 F.3d 200, 206 (3d Cir. 2001). Another court in Michigan wrote not only that “[i]t is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,” but also that “[t]hese principles acquire a special significance in the University setting, where the free and unfettered interplay of competing views is essential to the institution’s educational mission.” Doe v. University of Michigan, 721 F. Supp. 852, 863 (E.D. Mich.1989).
As a public university, MCLA is legally bound to uphold the constitutional rights of its students, and it has failed. In Terminiello v. Chicago, Justice Douglas wrote that “[t]he right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.” MCLA’s attempt to strip students of that right and to create a little totalitarian regime right in Massachusetts earns it the distinction of being our January 2006 Speech Code of the Month.
If you believe that your college or university should be a Speech Code of the Month, please email email@example.com with a link to the policy and a brief description of why you think attention should be drawn to this code.