FIRE announces its Speech Code of the Month for November 2015: Southwest Minnesota State University (SMSU).
SMSU’s Prohibited Code of Conduct for students bans “cultural intolerance,” defined as follows:
Any verbal or physical contact directed at an individual or group such as racial slurs, jokes, or other behaviors that demean or belittle a person’s race, color, gender preference, national origin, culture, history or disability, is prohibited. [Emphasis added.]
SMSU is a public university, which means it cannot lawfully maintain policies—such as this one—that violate students’ First Amendment right to free speech. In cases too numerous to mention, courts across the country have held that the First Amendment does not permit the prohibition of speech simply because someone finds it offensive. In Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), for example, the Supreme Court ruled 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.’” See also Saxe v. State College Area School District, 240 F.3d 200, 206 (3d Cir. 2001) (holding that there is “no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive … .”); Doe v. University of Michigan, 721 F. Supp. 852, 863 (E.D. Mich. 1989) (“Nor could the University proscribe speech simply because it was found to be offensive, even gravely so, by large numbers of people.”).
Under SMSU’s policy, any speech or expression that another student subjectively finds “demeaning” or “belittling” is subject to punishment. And on today’s college campus, where students increasingly demand the right to emotional comfort, that often includes a tremendous amount of speech, including the expression of unpopular views on political and social issues. If students’ free speech rights exist only at the mercy of the most sensitive members of the university community, then meaningful debate becomes impossible.
There is little question, based on decades of First Amendment law, that SMSU’s policy is unconstitutional. And unconstitutional public university speech codes have suffered a virtually unbroken string of federal court losses stretching back decades. Hopefully, the SMSU administration will spare itself the embarrassment of fighting against the Bill of Rights and will voluntarily revise this egregiously broad policy.
For these reasons, Southwest Minnesota State University’s policy is our November 2015 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 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 free speech, consider joining the FIRE Student Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses.