In his latest “Think Again” column for The New York Times, Florida International University professor Stanley Fish minimizes the dangers presented by campus speech codes at our nation’s colleges and universities. Fish’s argument is essentially that since speech codes have in the past universally failed to withstand constitutional scrutiny in the courts, universities will rarely, if ever, actually enforce them against their students. According to Fish, the nationwide persistence of speech codes is an overblown or even nonexistent threat to free speech, as these school policies are dead letters and do not have any real impact on the marketplace of ideas.
While I argued yesterday that speech codes do in fact get enforced all the time, and are thereby utilized to suppress many forms of protected speech, there is a second major flaw in Fish’s reasoning: even when they are not enforced, speech codes have a tremendous impact on campus speech.
The basic problem is that many campus speech codes are, in the constitutional sense, vague, overbroad, or both. First Amendment jurisprudence has long recognized that whenever a vague or overbroad regulation of speech is in place, it harms the free flow of ideas, even outside of any actual enforcement, because of the “chilling effect” it has on speakers. The problem is especially acute with respect to vague regulations; due to the uncertain contours of the regulation, speakers will necessarily have to guess at its meaning and at the types of speech that are prohibited therein. Rather than risk the possibility of punishment if found to have violated the regulation, many speakers will refrain from expressing their views altogether, or will curb their speech in order to steer clear of any possible violation. In doing so, they will have in many instances refrained from engaging in clearly protected speech. After all, it’s unrealistic to expect college students to have the same ability as a First Amendment lawyer to recognize when a speech code does not uphold the requirements of the Bill of Rights.
What types of speech codes could be found to be unconstitutionally vague? Take, for instance, the University of North Carolina at Greensboro’s “discriminatory conduct policy,” which prohibits “disrespect for persons.” Or how about Northeastern University’s “acceptable use” computer policy, which tells students to refrain from using school e-mail accounts or servers to send any message that, “in the sole judgment of the University,” is deemed “offensive” or “annoying?” Another great example comes from Texas Southern University, where a disorderly conduct policy simply bans “vulgar language” in its entirety. Furman University, meanwhile, fares no better by using a disorderly conduct policy which bans any “offensive communication not in keeping with community standards.” To use just one illustration from the area of harassment, the University of Iowa defines sexual harassment as something that “occurs when somebody says or does something sexually related that you don’t want them to say or do, regardless of who it is.”
These examples, and countless others, are almost comically absurd, if not for the sad reality that they represent a significant barrier to the free flow of ideas on our nation’s campuses. By placing students in understandable fear of being prosecuted, these types of policies severely impinge upon the ability and willingness of many potential speakers to express themselves freely. In the process, they do a great disservice to the ability of students to learn and benefit from their collegiate experience.