FIRE announces its Speech Code of the Month for February 2013: Wesleyan University.
Although Wesleyan is a private university, it claims to value free speech. Its Student Handbook states that (PDF) “Academic institutions exist for the transmission of knowledge, the pursuit of truth, the development of students, and the general well-being of society. Free inquiry and free expression are indispensable to the attainment of these goals.” Moreover, the handbook also contains a statement (PDF) on the “Responsibility of the University to Its Members” which explicitly provides that
It is the responsibility of every member of the University to respect the rights and privileges of all others in the University as enumerated below.
1. Freedom of assembly, speech, belief, and the right of petition ….
The university’s speech codes directly contradict these statements by placing substantial restrictions on students’ expressive rights. Most notably, the same policy that obligates the university and its members to respect the right of free speech also requires “every member of the University” to refrain from
[A]ctions that may be harmful to the health or emotional stability of the individual or that degrade the individual or infringe upon his/her personal dignity.
This provision infringes on protected speech in a number of ways. First, the policy contains no objective, “reasonable person” standard—it is enough to constitute a violation if someone feels his or her “emotional stability” has been harmed or that his or her “personal dignity” has been infringed upon. But people have drastically different baseline levels of emotional stability and sensitivity, so there is no way for a student to know what speech might run afoul of this provision. For this reason, courts have repeatedly struck down speech codes that condition speech on subjective listener reaction. See Saxe v. State College Area School District, 240 F.3d 200, 217 (3d Cir. 2001) (finding an anti-harassment policy unconstitutional because it did not “require any threshold showing of severity or pervasiveness,” and thus “it could conceivably be applied to cover any speech about some enumerated personal characteristics the content of which offends someone.”) See also Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (“regulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in the public high school and university settings”).
Even if the policy did contain a reasonable person standard, however, speech cannot be prohibited simply because someone finds it upsetting or insulting. As the U.S. Supreme Court has stated, “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.” Texas v. Johnson, 491 U.S. 397, 414 (1989). See also Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (“freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”)
For these reasons, Wesleyan University is our February 2013 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.