FIRE announces its Speech Code of the Month for October 2011: Sam Houston State University in Texas.
Sam Houston State University’s (SHSU’s) Code of Student Conduct [.pdf] prohibits, as disorderly conduct, the use of “abusive, indecent, profane or vulgar language.” While a policy like this may seem at first blush to prohibit only low-value speech, FIRE’s current case at SHSU demonstrates that even core political expression is threatened by such a ban.
As an initial matter, it is important to understand that profanity and vulgarity are entitled to constitutional protection. In Cohen v. California, 403 U.S. 15 (1971), the U.S. Supreme Court overturned the conviction of a Vietnam War protestor for wearing a jacket emblazoned with the words “Fuck the Draft” in a county courthouse. The Court held that the message on Cohen’s jacket, however vulgar or unseemly to some, was protected speech, famously declaring that “one man’s vulgarity is another’s lyric.” In Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973), the Court upheld the First Amendment right of a college student newspaper to publish an article with the headline “Motherfucker Acquitted,” writing 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.'”
Despite these clear constitutional protections, many people seem untroubled by prohibitions on profanity and vulgarity because they perceive such policies to apply only to speech that is of seemingly low social value. But harsh, even profane, words can also be a powerful and primal way for people to express their deep discontent with or resentment of our political system, and it is often through this type of emotional speech that speakers are able to truly connect with others who share their deep feelings. As federal magistrate judge Wayne Brazil wrote a few short years ago in finding San Francisco State University’s policy requiring “civility” to be unconstitutional:
For many speakers on religious or political subjects, for example, having their audience perceive and understand their passion, their intensity of feeling, can be the single most important aspect of an expressive act. And for many people, what matters most about a particular instance of communication is whether it inspires emotions in the audience, i.e., whether it has the emotional power to move the audience to action or to a different level of interest in or commitment to an idea or cause. For such people, the effectiveness of communication is measured by its emotional impact, by the intensity of the resonance it creates. … In sum, there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.
College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007).
This brings us to FIRE’s current case at SHSU. To protest a controversial new social media policy at SHSU, a diverse array of SHSU student groups sponsored the display of a “free speech wall,” on which students were invited to write any message they wanted. Someone wrote “FUCK OBAMA” on the wall (underneath which someone else added “Bush”). Numerous other political messages were also written on the wall, including “Legalize Weed!!!”, “don’t hate against Gays,” and “Nazi Punks Fuck Off!!!” When SHSU Professor Joe E. Kirk saw the “FUCK OBAMA” message, he demanded that the student organizers cover it up. When they refused, he returned with a box cutter and cut out the word “fuck.” On the advice of an SHSU administrator, the student groups contacted SHSU’s University Police Department to report the vandalism. But, in accordance with SHSU’s speech code (the police later cited an inapplicable law), the police actually ordered the students to either censor the profanity on the wall or take down the wall altogether. The students decided to take down the wall.
SHSU is a public university, and its obligation under the First Amendment was to protect its students’ right to engage in even controversial and provocative political expression. Because of its unconstitutional speech code, however, the students who sought protection for their expression ended up facing censorship from the very administration legally bound to protect them. And the professor who wanted the anti-Obama message removed from the free speech wall (he did not take his box cutter to any of the numerous other instances of profanity on the wall) got his wish.
SHSU’s ban on profane and vulgar expression has led to the censorship of core political expression at a university, which the Supreme Court has called “peculiarly the marketplace of ideas.” Healy v. James, 408 U.S. 169 (1972). For this reason, SHSU is our October 2011 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, consider joining FIRE’s Campus Freedom Network, which consists of college faculty members and students dedicated to advancing individual liberties on their campuses. You also can add FIRE’s Speech Code of the Month Widget to your blog or website and help shed some much-needed sunlight on these repressive policies.