The State of Free Speech on Campus: Middlebury College

February 8, 2013

Today, FIRE continues our blog series on the state of free speech at America’s top 10 liberal arts colleges, as ranked by U.S. News & World Report. Up for discussion today is U.S. News‘ fourth-ranked liberal arts college, Middlebury College.

Like third-ranked Swarthmore College, Middlebury receives a “red light” rating, which means that it maintains at least one policy (in Middlebury’s case, two policies) that both clearly and substantially prohibits what would otherwise be protected expression. Although Middlebury is private, its College Handbook states that “The College recognizes that its students are citizens of larger communities—local, state, and federal—and should enjoy the same rights of petition and freedoms of speech and peaceful assembly that other citizens enjoy.” But one look at Middlebury’s policies quickly reveals that Middlebury students emphatically do not the same the same rights as their fellow citizens.

Turning to the first of Middlebury’s two red light policies, the College Handbook’s policy on General Conduct prohibits “flagrant disrespect for persons,” a provision that infringes upon a substantial amount of protected expression. The university cannot prohibit “disrespect”—as individuals with “the same rights … that other citizens enjoy,” students at Middlebury are free to express their respect or disrespect for other members of the community so long as they do so in a way that does not fall within the very narrow areas of speech not protected by the First Amendment (physical threats, harassment, fighting words). The university can advocate for respect and encourage all members of the community to treat one another with respect. It cannot, however, prohibit constitutionally protected speech in the name of this otherwise worthy goal. And most speech that would be considered “flagrantly disrespectful” is wholly protected. To understand this, one need only look at political campaign ads throughout history. I suggest starting with this video, which recounts how supporters of Thomas Jefferson’s presidential campaign referred to John Adams as “blind, bald, crippled, [and] toothless,” while Adams’ supporters warned that under a Jefferson presidency, “Murder, robbery, rape, adultery, and incest will be openly taught and practiced.” Flagrant disrespect indeed!

The same General Conduct policy also prohibits “behavior unbecoming of a Middlebury student,” an exceedingly vague catch-all provision that gives the Middlebury administration seemingly unlimited discretion to punish any conduct it dislikes. The Supreme Court has held that laws must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,” or else they are unconstitutionally vague. Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). Here, there is literally no way for students to know in advance what the college administration might deem “unbecoming,” making it virtually impossible to comply with this provision.

Middlebury’s College Anti-Harassment/Discrimination Policy also earns a red light from FIRE.

The policy starts off reasonably, defining discriminatory harassment as conduct that “has the purpose or effect, from the point of view of a reasonable person, of objectively and substantially … creating an intimidating, hostile, or offensive educational, work, or living environment.” Ideally, this policy language would include the requirements of severity and pervasiveness set forth by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999), which defined peer harassment in the educational context as conduct “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” But even as is, if the policy ended with just the definition, it would not be terribly problematic.

Unfortunately, the policy then attempts to illustrate harassment and sexual harassment, including the statement that “Examples of sexual harassment include … derogatory or provoking remarks about or relating to a student’s or employee’s sex or sexual orientation.” With this statement, the policy prohibits a substantial amount of protected expression, including the kind of core political expression that lies at the heart of the First Amendment’s protections.

Sometimes people choose to make their opinions known in harsh or insulting ways, and that does not deprive them of the right to express those opinions. To quote the Supreme Court, “Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why 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.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

The policy also includes a statement that “Harassment may include” things like “disparaging references to others,” the use of “stereotypes,” and “negative reference to customs” based on protected characteristics. While less of a clear restriction than the statement that sexual harassment does include any derogatory or provoking remarks, this provision is still likely to have an impermissible chilling effect on protected speech by its suggestion that such speech—even when not part of a pattern of conduct severe enough to rise to the level of actual harassment—is prohibited.

Middlebury also maintains several other “yellow light” policies that, while narrower in scope than the red light policies, still impermissibly threaten protected speech and expression.

First, the college’s Student Organization Policies require that “Student organizations bear full responsibility for arranging and financing any Department of Public Safety provisions that may be necessary in connection with controversial speakers.” This policy allows fellow students to exercise a “heckler’s veto” over unpopular speech by threatening disruptive protests, thus requiring additional security and, accordingly, additional—and possibly prohibitive—costs.

This policy would be unconstitutional at a public university. In Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992), the Supreme Court struck down an ordinance in Forsyth County, Georgia, 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 in the case of the Forsyth County ordinance, “[t]he fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit.” The Court further 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.)

Regarding students’ own expressive activities on campus, the College Handbook provides that “Anyone who wishes to stage a demonstration or protest at any event on College property should contact and arrange a meeting with Public Safety to discuss College policy, demonstration-specific regulations, and safety issues.” While it is understandable that the college would want to review its regulations with would-be demonstrators when possible, there must always be some allowance for unscheduled expressive activities. This is because demonstrations and protests are often spontaneous responses to unfolding events (think of the Virginia Tech shootings, or 9/11), and requiring students to wait any meaningful amount of time to hold a protest might significantly diminish, if not altogether eliminate, the impact of their message. If the college publishes clear demonstration guidelines and holds would-be demonstrators responsible for reading and abiding by those guidelines, it need not exercise any prior restraint over student speech by requiring these kind of advanced meetings.

Finally, the college’s policy on the Responsible Use of Computing and Network Facilities prohibits the use of computing resources for “attacks on personal integrity” and also provides that “abusive” messages “can be prosecuted as harassment.” Both of these prohibitions are impermissibly vague and could easily encompass protected speech. A student government campaign or a heated online political debate, for example, could easily involve statements that some might view as “attacks on personal integrity,” but the college can no more prohibit that kind of political expression online than it can elsewhere on campus.

And while the ban on “abusive” messages could refer only to the kind of severe and repetitive abuse that rises to the level of actual harassment (which would not be protected), it could also refer to a harshly worded argument that occurs in the course of a heated debate (which almost certainly would be protected). Students, for their part, have no way to know in advance what speech the university will deem “abusive,” and will likely self-censor as a result.

Of the colleges we have reviewed so far in this series, Middlebury has the furthest to go in order to earn a “green light.” But we hope the college will look at this as a positive challenge rather than an insurmountable obstacle (which is certainly isn’t!), and we are always available to help.

Schools:  Middlebury College