FIRE announces its Speech Code of the Month for January 2008: Texas Southern University. Texas Southern’s Student Code of Conduct prohibits “intentional mental or physical harm,” which it defines as follows:
Knowingly or recklessly causing or attempting to cause by acts and/or threats, emotional, mental, physical or verbal harm to another person (which includes but is not limited to faculty, staff, students, visitors, etc.). This includes intimidation, emotional force, embarrassing, degrading or damaging information, assumptions, implications, remarks, or fear for one’s safety.
This public university’s policy piles vague proscription on top of vague proscription, making it difficult if not impossible for students to know what is actually prohibited (and thus, allowing the university to punish students for virtually any expression that someone else finds hurtful). The first vague prohibition is the prohibition on “emotional,” “mental,” or “verbal harm”—to say these phrases elude precise definition is an understatement. What, exactly, is emotional harm? Does emotional harm occur if a student feels hurt, insulted, or even simply miffed by another student’s speech? How is emotional harm distinct from mental harm? How are those two distinct from verbal harm?
Compounding the problem, the policy follows up this vague prohibition with a set of equally vague examples of prohibited conduct, namely: “emotional force”; “assumptions”; “implications”; and, perhaps most bizarrely, “remarks.” How can the university conceivably regulate whether students make “assumptions” about one another? What kind of “remarks” are prohibited? And what the heck is “emotional force”?
Finally, the policy prohibits not only “causing” these harms, but merely “attempting to cause” them. How is this enforced? If no one actually suffers “emotional harm” as the result of an interchange, who determines whether a student was nonetheless “attempting to cause” such harm? Passersby? The Texas Southern administration?
The U.S. Supreme Court has held that laws must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,” or else they are unconstitutionally vague. Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). I assume most Torch readers are of ordinary, if not extraordinary, intelligence—if any of you have even the foggiest idea what is actually prohibited by this policy, I’d love to hear it. Personally, I haven’t got a clue. This vague policy gives the university unfettered discretion to punish Texas Southern students for constitutionally protected speech, and as such it is both wholly unconstitutional and morally reprehensible. For this reason, it is our January 2008 Speech Code of the Month.
If you believe that your college or university should be a Speech Code of the Month, please e-mail 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.