Last week, we introduced a speech code countdown here on The Torch. Over the next six months, FIRE will be drawing special attention to the state of free speech at America’s top 25 national universities (as ranked by U.S. News & World Report). Last week we described the restrictive policies at UCLA, which receives a poor, "red light" rating from FIRE for restricting student speech.
The next institution on the list is the University of Virginia, which FIRE also rates as a "red light" institution. The University of Virginia’s red-light rating is the result of a number of policies, the combined effect of which is to lead students to believe that they can be investigated and even punished for engaging in constitutionally protected expression.
First, the University of Virginia’s Women’s Center dedicates a section of its website to helping students determine whether they have been sexually harassed. While the university’s stated definition of harassment is not in and of itself problematic, the Women’s Center website presents a slew of auxiliary materials that confuse the issue and will almost certainly lead reasonable students to believe that constitutionally protected expression is prohibited at the university. As a federal judge wrote in holding that San Francisco State University’s speech codes likely violated the First Amendment,
We must assess regulatory language in the real world context in which the persons being regulated will encounter that language. The persons being regulated here are college students, not scholars of First Amendment law…. What path is a college student who faces this regulatory situation most likely to follow? Is she more likely to feel that she should heed the relatively specific proscriptions of the Code that are set forth in words she thinks she understands, or is she more likely to feel that she can engage in conduct that violates those proscriptions (and thus is risky and likely controversial) in the hope that the powers-that-be will agree, after the fact, that the course of action she chose was protected by the First Amendment?
College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007).
The section of the Women’s Center website entitled "Are You Being Harassed?" describes harassment in terms far different from the severe, pervasive conduct that actually constitutes hostile environment harassment at a public university like the University of Virginia. It tells students that "examples of problematic behavior" include "jokes of a sexual nature" and "suggestive comments about physical attributes or sexual experience." In reality, most such jokes and comments are protected by the First Amendment, unless—as the U.S. Supreme Court has stated—they are so "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit." Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999). The "Are You Being Harassed?" section also directs students to ask themselves questions such as "do I feel disrespected?" and states that "one or more YES response(s) could indicate sexual harassment." Mere disrespect, however, is a far cry from genuine harassment, and by suggesting otherwise this website is likely to lead to the reporting and investigation of protected expression.
Another section of the Women’s Center website lists a series of "Myths and Realities" about sexual harassment. That page tells students that "Flirting is fine if it is wanted and mutual. Harassment by peers is different, and comes in many forms, such as teasing, innuendo, inappropriate sexual comments, street harassment, unwelcome touches or kisses, obscene jokes or e-mail messages, sending pornographic photos, sexist graffiti, etc." Again, speech in the form of "teasing," "innuendo," and even "inappropriate sexual comments" is almost always constitutionally protected, and this website’s suggestion to the contrary no doubt has a chilling effect on campus speech.
The university also maintains a Bias Reporting Web Site that encourages "prompt reporting" of any "bias complaint," which it defines as
[A] report of a threat or act of bigotry, harassment or intimidation—verbal, written or physical—which is personally directed against or targets a University of Virginia student because of that student’s race, age, color, disability, national or ethnic origin, political affiliation, religion, sex (including pregnancy), sexual orientation, or veteran status.
While the web site does state that its definition of bias "is used for reporting and statistical purposes only" and "carries no independent sanctioning weight or authority," it also promises to "investigate" all reports of bias complaints. Given that the definition of a "bias complaint" includes protected speech (expressions of "bigotry," however deplorable they might seem, are constitutionally protected unless they fall within one of the narrow categories of speech, such as true harassment or threats, that a public university may legitimately prohibit), the university’s promise to investigate all such complaints necessarily means that protected expression will be subject to investigation. This, in and of itself, is enough to chill free speech on Virginia’s campus, since students will almost certainly wish to avoid the negative educational effects that would result from being subjected to any sort of disciplinary investigation. (For more on the problems with investigating protected speech, see FIRE’s case at San Francisco State University.)
Finally, the university’s Responsible Computing Handbook for Students prohibits "messages that vilify and threaten other people"—a classic example of a policy that is overbroad, in that it contains both legitimate and illegitimate proscriptions on speech. While the university may, consistent with the First Amendment, prohibit the transmission of threatening messages, it cannot prohibit all messages that "vilify" other people. To "vilify" means to "spread negative information about," and while certain types of vilification (such as making false statements, which could be defamation) may be prohibited, others—however offensive—are constitutionally protected. Moreover, one can easily conceive of communications that would be perceived as "vilifying"-such as a harsh statement of opposition to a candidate for student government, for example—that are not only protected, but also of important value to the university community.
Overall, these policies create an atmosphere in which students have reason to believe they may be investigated and even punished for engaging in protected expression—an atmosphere inconsistent both with Virginia’s obligations as a public institution of higher learning under the First Amendment and with its own commitment to being "a community of scholars in which the ideals of freedom of inquiry, freedom of thought, freedom of expression, and freedom of the individual are sustained."
Tune in next week for information on speech codes at Georgetown University.