FIRE announces its Speech Code of the Month for August 2012: the University of Delaware (UD).
UD’s Code of Conduct prohibits “bullying,” defined as
Any deliberately hurtful behavior, usually repeated over time, with the desired outcome of frightening, intimidating, excluding or degrading a person. This includes, but is not limited to, physical assault, verbal abuse, teasing, ridiculing and spreading of rumors or private information about a person and may be done by any method of delivery, such as verbal, written or electronic.
With this, UD is the latest university to implement a poorly drafted, overbroad bullying policy that threatens constitutionally protected speech. As we have pointed out before, virtually all of the conduct associated with bullying (harassment, threats, intimidation, stalking, and invasion of privacy) is not protected speech and is already prohibited by legitimate policies and laws. Beyond that conduct, a public university—no matter how good its intentions—simply cannot require its students to be nice to each other.
What’s more, a great deal of protected speech, such as parody and satire, could be said to “degrade” or “ridicule” its targets. Ever watch The Daily Show? Indeed, it is settled law that speech cannot be prohibited simply because it is offensive—even deeply offensive—to others. See Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”); Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) (“[T]he 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.'”); Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (“[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”)
UD’s new policy is particularly worrisome in light of the university’s history of disregard for students’ rights. In 2007, FIRE exposed an ideological reeducation program in UD’s residence halls, where students were required to adopt highly specific university-approved views on issues ranging from politics to race, sexuality, sociology, moral philosophy, and environmentalism. Students in the residence halls were required to attend training sessions as well as one-on-one sessions with their RAs where they were asked intrusive personal questions such as “When did you discover your sexual identity?” At various points in the program, students were also pressured or even required to take actions that outwardly indicated their agreement with the university’s ideology, regardless of their personal beliefs. Internal program documents referred to the lesson plans as “treatments” for students in the program.
UD scrapped the program following intense public pressure brought by FIRE. But the fact that high level UD administrators, who are still employed by the university, ever felt that such a program was appropriate to begin with leaves FIRE with significant concerns over the university’s commitment to its students’ expressive rights.
For these reasons, this policy is our August 2012 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, an organization 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.