Yesterday’s edition of The Temple News, a student newspaper at Temple University, features an article titled “Exasperating rights of expression,” by Mark Newman. The article correctly emphasizes the importance of freedom of speech on college and university campuses and posits that university students confronted with speech that they do not like should “show some respect for the First Amendment” rather than seek to shut down the expression. Unfortunately, the article goes wrong in its review of Temple University’s track record on free speech.
In the article, Newman blithely states that “Temple’s track record on freedom of speech so far has been relatively unscathed” and that “[l]imiting free speech has not been a significant problem on Temple’s campus.” In support of these assertions, the article points to the diversity of student organizations and community-outreach programs at Temple, with student groups having the right to “set up a table on-campus, promote their views and hold events in university-owned buildings.”
However, it ignores the elephant in the room when it comes to discussing Temple’s recent history with free speech on campus: namely, that the university’s former speech code was struck down by the United States Court of Appeals for the Third Circuit on constitutional grounds just last year in DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008).
As any student at Temple should be aware, the university formerly maintained a sexual harassment policy broadly prohibiting “expressive, visual, or physical conduct of a sexual or gender-motivated nature” whenever such conduct had the “purpose or effect of unreasonably interfering with an individual’s work, educational purpose or status” or “creating an intimidating, hostile or offensive environment.” In August 2008, the Third Circuit struck down the policy as facially unconstitutional. The Third Circuit found that the policy was “sufficiently broad and subjective” that it “could conceivably be applied to cover any speech of a gender-motivated nature the content of which offends someone.” It held that since the terms of the policy “could include ‘core’ political and religious speech, such as gender politics and sexual morality,” it “provide[d] no shelter for core protected speech.”
By maintaining the former policy, Temple curtailed its students’ First Amendment rights and chilled campus expression. Moreover, by losing its legal battle, Temple became the second university to have its speech code invalidated by a federal appellate court and the latest entry in two decades of case law uniformly striking down unconstitutional speech codes. This hardly sounds like the work of an institution with an unscathed record on free speech. Rather, Temple has a long way to go before it can be considered an exemplary institution under the First Amendment. It needs to demonstrate, through policy and practice, that it is committed to the free exchange of ideas on campus. At present, FIRE rates Temple as a yellow light institution on Spotlight, meaning that Temple maintains at least one ambiguous policy that too easily encourages administrative abuse and arbitrary application.
In addition to ignoring the DeJohn decision and its ramifications, the Temple News article erroneously states the following:
The only time Temple should step in to regulate freedom of speech is if there is a crime attached to fighting words.
While a part of me admires the free speech absolutism of this sweeping statement, the fact is that it is plainly wrong legally. In the first place, reliance on the “fighting words” doctrine to regulate speech is dangerous and outdated, as the doctrine is essentially dead-letter law. Furthermore, there are a few limited exceptions to the First Amendment’s guarantee of freedom of speech, and universities may legitimately proscribe speech that falls into these categories. The exceptions include obscenity, defamation, true threats and intimidation, and incitement to immediate lawless action. Of course, these exceptions are subject to abuse by censors both on college campuses and in society at large—and they often are cited as justification for censoring speech that doesn’t truly qualify as one of these categories, as FIRE well knows. Nevertheless, we recognize that universities are allowed to regulate speech falling under the enumerated exceptions, properly defined under the law. Newman’s misleading assertion fails to consider this and is therefore wrong as a matter of law.
While the Temple News article is encouraging to read in its earnest defense of free speech on college campuses, I was disappointed to discover the omissions it has pertaining to its subject matter. Perhaps the occasion will provide a learning experience for both the newspaper and for the students at Temple University.