Throughout the spring semester, FIRE is drawing special attention to the state of free speech at America’s top 25 national universities (as ranked by U.S. News & World Report). In the first two installments of the countdown, we described the restrictive policies at the University of California—Los Angeles (UCLA) and the University of Virginia, both of which receive a poor, "red light" rating from FIRE for restricting student speech. The next institution on the list is Georgetown University, another "red light" institution.
Before we delve into Georgetown’s speech codes, it is important to explain why FIRE believes that Georgetown—a private, Catholic university—owes its students the same right to free expression that they would enjoy at a public institution. The First Amendment regulates only government conduct, so private universities are not required by the First Amendment to protect freedom of expression. However, many private institutions, such as Georgetown, promise to protect the right to free speech. As such, students attending a school like Georgetown reasonably expect that their right to free expression will be every bit as robust as that enjoyed by their peers at public universities. And institutions like Georgetown—having voluntarily chosen to offer such protections—are bound by their promises to students.
Georgetown is a perfect example of a private university that makes such a promise. Georgetown’s Speech and Expression Policy provides:
All members of the Georgetown University academic community, which comprises students, faculty and administrators, enjoy the right to freedom of speech and expression. This freedom includes the right to express points of view on the widest range of public and private concerns and to engage in the robust expression of ideas.
The policy further provides that "’time, place and manner’ are the only norms allowable in governing the expression of ideas and sharing of information that is the very life of the university." This policy is prominently displayed on Georgetown’s website, in full view of all those considering attendance at the university, so students come to Georgetown with the expectation that they will enjoy the right to free speech limited only by content-neutral time, place, and manner restrictions of the same sort that are permissible under the First Amendment.
Turning now to Georgetown’s speech codes, the most objectionable policy in force at Georgetown is the Student Code of Conduct‘s prohibition of harassment, which is defined in that document as "Any intentional or persistent act(s) deemed intimidating, hostile, coercive, or offensive." (Emphasis added.) Given that the prohibitions in this policy are all given in the alternative, the policy literally prohibits any "intentional act deemed offensive" at Georgetown University. This directly contradicts the Supreme Court’s holding that "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 (1989). It also contradicts decades of lower court precedent similarly holding that speech may not be prohibited in school simply because it offends others, even intentionally. See Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) ("it is certainly not enough that the speech is merely offensive to some listener"); Doe v. Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) ("Nor could the University proscribe speech simply because it was found to be offensive, even gravely so, by large numbers of people").
As objectionable as this policy is, it could be easily and dramatically improved simply by replacing both instances of "or" with "and," and by adding "unreasonably" after "deemed." These simple revisions would bring Georgetown’s definition of harassment much closer to the U.S. Supreme Court’s definition of what constitutes harassment in the educational context: conduct "so severe, pervasive, and objectively offensive that it denies its victims … equal access to education." Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999).
The student code’s prohibition of disorderly conduct is similarly problematic, with disorderly conduct defined as "Actions or attempted actions that annoy or disturb others." Again, speech must do far more than merely annoy or disturb others in order to be legitimately prohibited.
Furthermore, the student conduct code prohibits "incivility" directed at "university officials," which it defines as "Disrespect of a University Official through language or actions." While this provision may be aimed at preventing educational disruptions by students behaving in a grossly disrespectful way in the classroom or at official university meetings and the like, it is wildly overbroad. Part of a student’s right to free speech includes the right to criticize the university administration, even if administrators might find such criticism disrespectful. For example, by its plain language, this policy would apply to a student editorial harshly criticizing an action or decision by a university administrator, and such an act of censorship would be wholly impermissible at a university that makes such broad promises of free expression to its students.
Other Georgetown policies, while not explicitly prohibiting as much protected speech as those discussed above, also threaten the "untrammeled expression of ideas and information" that Georgetown promises its students.
The Speech and Expression Policy has a section on student expressive events which provides that "An individual hosting an event is responsible for all costs (including security if such is deemed necessary by the University administration) associated with the event." The Supreme Court has held that any requirement that student organizations hosting controversial events pay for extra security is unconstitutional, for it bases the cost of an event on that event’s expressive content. The Court addressed this issue in Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) when it struck down a law that permitted the local government to set varying fees for events based upon how much police protection the event would need. The Court wrote that "[l]isteners’ reaction to speech is not a content-neutral basis for regulation…. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob." (Emphasis added.)
The Speech and Expression Policy also provides that "[E]xpression that is indecent or is grossly obscene or grossly offensive on matters such as race, ethnicity, religion, gender, or sexual orientation is inappropriate in a university community and the University will act as it deems appropriate to educate students violating this principle." Depending on what actions the university takes to "educate" students who engage in "grossly offensive" expression, this provision may violate students’ right to free speech. While the university may certainly educate its students by speaking out against expression it believes to be damaging to the university community, it cannot impose "educational sanctions" on students who engage in offensive expression without violating their right to free speech. So, for example, if a student who makes a "grossly offensive" comment about race or sexual orientation is required by the university to attend some form of sensitivity training, this would be a coercive punishment that violated the student’s right to freedom of speech and freedom of conscience. If, however, the "education" came in the form of a university statement decrying the use of offensive and hurtful language, that statement would not violate the school’s promises of basic rights. The university must clarify this policy so that it does not lead students to believe they may be punished simply for "grossly offensive" expression.
Finally, the student conduct code contains an "Ethos Statement" requiring students to "honor the following commitments in all their actions … A commitment to treat others in a respectful manner, regardless of differences such as race, religion, nationality, ethnicity, gender, or sexual orientation." While the university does not explicitly state whether a violation of the Ethos Statement is an independent basis for disciplinary action, the Statement’s location in the student conduct code is likely to lead students to believe it is a statement of policy and to act accordingly. As discussed above, merely "disrespectful" expression can never legitimately form the basis for punishment, so this provision likely has an impermissible "chilling effect" on student expression.
Tune in next week for information on the state of free speech at Carnegie Mellon University.