FIRE announces its Speech Code of the Month for October 2008: the University of Northern Iowa.
We have written in the recent past about the explosion of overbroad “bias incident” policies on college campuses nationwide. Many schools maintain policies that define so-called “bias incidents” to include a great deal of constitutionally protected expression. But perhaps none does so as dramatically as the University of Northern Iowa (UNI), a public university, which defines a bias incident as “any inappropriate word or action directed toward an individual or group based upon actual or perceived identity characteristics or background of a group or person and that is contrary to law or policy.”
This policy is fatally flawed in many ways. First, the prohibition on “inappropriate words” is laughably overbroad and vague. Who decides what is “inappropriate”? It can’t be the listener; courts have held time and again that a finding of harassment, for instance, cannot be based solely on the subjective reaction of the listener, since that would place speakers at the mercy of the most sensitive members of their community. Rather, conduct must be both subjectively and objectively harassing (from the perspective of a “reasonable person” in the victim’s position) before it can actually constitute harassment. Moreover, most speech that a reasonable person would find “inappropriate” is still protected by the First Amendment, since to be harassment speech must be so severe and pervasive that it unreasonably interferes with the victim’s ability to pursue his or her education. It also can’t be the university that decides what is “inappropriate”; it would be—for lack of a better word—entirely inappropriate for university administrators to have unfettered discretion to decide what UNI students can and cannot say. This policy is an invitation to abuse of discretion and arbitrary enforcement.
Second, the fact that speech can be deemed a “bias incident” if it is based on “actual or perceived identity characteristics or background” is also hopelessly vague. While that phrase presumably encompasses such legally protected categories as race, sex, and national origin, it could also be interpreted to include almost anything—height, weight, attractiveness—heck, even making fun of a bad hairdo could be punishable under this policy.
Finally, the policy’s statement that a bias incident must be “contrary to law or policy” cannot save it from unconstitutionality, since (among other things) it is self-referencing; the document in question is itself a policy, providing that the university “will not tolerate bias or hate incidents.”
For these reasons, the University of Northern Iowa is our October 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 email@example.com with a link to the policy and a brief description of why you think attention should be drawn to this code. And if you would like to help fight abuses at universities nationwide, add FIRE’s Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.