A September 2 article in The GW Hatchet, an independent student newspaper at GW, discusses the university’s yellow-light rating in Spotlight. As the article points out, there are three policies that earn GW this rating: a "Disorderly Conduct" policy, a policy on "Demonstrations," and a policy on "Poster/Flyer Distribution." With regard to the Disorderly Conduct policy, which in relevant part prohibits "acting in a manner that annoys, disturbs, threatens or harasses others," the article notes:
The University’s policy was recently reworded for clarification, Student Association President Jason Lifton said. The old policy prohibited "acting in a manner … offensive to others," while the new policy omits the word "offensive" and includes "harass" and "threaten."
University spokeswoman Michelle Sherrard said the disorderly conduct policy was edited to "clarify the wording and emphasize the need for students to conduct themselves in a civil and respectful manner toward others."
"It is not intended to restrict the ability of students to express their opinions, engage in debate or support causes using orderly means that do not disrupt University operations," Sherrard said.
It’s nice to hear that, and the policy revision to remove the ban on "acting in a manner … offensive to others" is certainly an improvement. However, the fact remains that the policy in its new form covers constitutionally protected speech. Speech that merely "annoys" or "disturbs" another individual is for the most part protected, and it would have to take a lot more than that for speech to fall into one of the exceptions to the First Amendment. Moreover, the use of such amorphous terms to regulate student speech fails to provide speakers with adequate notice of the speech prohibited. How is a student to know ahead of time whether certain speech will subjectively "annoy" or "disturb" someone else? Under this vague policy, students at GW are left to guess as to the extent of their speech rights, creating a chilling effect on campus expression.
The policy’s prohibitions on speech that "threatens" or "harasses" another could also, in the hands of the wrong official, be used to restrict or punish protected expression. Discriminatory harassment and true threats, while outside the protection of the First Amendment, have specific, strict legal definitions, so it does not suffice to simply allege that particular speech is harassing or threatening. As this policy does not contain any definitions of harassing or threatening speech that limit those terms to their proper legal standards, there is a risk that the policy could be applied against protected expression.
Among the other two yellow-light policies at GW, I note that the policy on Poster/Flyer Distribution simply bans all posters and flyers that are found to be "in bad taste/blatantly offensive to any group on campus." Besides being hopelessly vague ("in bad taste," really?), it almost goes without saying that the policy errs by hinging students’ expressive rights on what someone else, whether a fellow student, a student group, or an administrator, finds to be "in bad taste" or "blatantly offensive." Most speech that another person finds to be in bad taste or even blatantly offensive is nevertheless protected. This policy is therefore untenable.
One final point from the Hatchet article bears mention. The article quotes the following analysis:
FIRE’s classification of GW does not have much legal basis, GW Law School Professor Daniel Solove said, because GW is a private institution and is not required to guarantee First Amendment rights.
"[A]s a private institution, GW would not be subject to First Amendment law, so the opinion would be based solely on policy considerations rather than legal ones," Solove said.
It is simply wrong to say that FIRE’s analysis of GW’s policies does not have a legal basis. As we have had to point out many times, though private colleges and universities are not legally bound by the First Amendment, when they make extensive promises of free speech to their students and faculty, they are legally bound to follow through on these promises under a "contract theory." (For a detailed and great analysis of the law in this area, see former FIRE Justice Robert H. Jackson Legal Fellow Kelly Sarabyn’s legal scholarship in the Journal of Law & Education.)
In the case of George Washington, which indeed is a private university and thus free to set its own standards for freedom of speech on campus, the university has committed itself to upholding freedom of expression for its students and faculty. Consider the following from its "Statement of Student Rights and Responsibilities":
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. As members of the academic community, students should be encouraged to develop the capacity for critical judgment and to engage in a sustained and independent search for truth.
Student organizations and individual students shall be free to examine and discuss all questions of interest to them and to express opinions publicly and privately.
Elsewhere, in its policy on "Pamphlets, Petitions, and Demonstrations," GW claims:
The George Washington University is committed to the protection of free speech, the freedom of assembly, and the safeguarding of the right of lawful protest on campus.
Having made these laudable promises, GW is contractually bound to uphold students’ and faculty members’ freedom of expression. FIRE’s analysis therefore certainly carries a legal basis, making the Hatchet‘s report on GW’s speech codes all the more important. The university cannot simply shirk its responsibility to follow through on promises expressed in its policies by pointing to its private status. And, of course, matters of contract law have no bearing on whether it is morally sound for a university to promise free expression and then refuse to deliver it.
Meanwhile, an article in The Daily Targum at Rutgers University similarly points to Rutgers’ Spotlight rating, which unfortunately for those at Rutgers is a red light. Though the main subject of the Daily Targum article is the existence of political bias on campus, the article takes note of Rutgers’ red-light policy on campus bias incidents, which in pertinent part prohibits any "act—verbal, written, physical, psychological—that maligns, threatens, or harms a person or group" on the basis of listed traits. The article quotes FIRE Director of Speech Code Research Samantha Harris’ analysis of this policy:
"While speech that actually threatens another person is not protected, speech that simply ‘maligns’ someone encompasses a great deal of speech that is constitutionally protected, including expressions of opinion on controversial political or social issues," Harris said.
If an individual’s words are hurtful or makes someone else feel bad, it does not mean he can be censored or punished in any way, Harris said.
Well-explained, Sam. This policy on its face violates the First Amendment rights of students at this public university. Rutgers also has a yellow-light policy on "Verbal Assault, Defamation, and Harassment," but if it wants to get to a green light rating in Spotlight and uphold its legal obligations under the First Amendment, it will have to take a hard look at its bias policy. Therefore, I’m glad the Daily Targum has drawn attention to the university’s speech code. Hopefully, the administrations at Rutgers and George Washington are paying attention.