A few weeks ago I wrote here about an excellent Atlanta Journal-Constitution column by University of Georgia (UGA) journalism professor William Lee, in which he pointed out the infirmities in UGA’s speech codes, which fall well short of giving students the First Amendment protections they are owed.
As Lee now writes for UGA’s paper, The Red and Black, he’s been taking that message to his students. As his April 20 column opens:
The remark was extraordinary. After a discussion of the University’s anti-harassment policies in my communication law class, a student exclaimed, "UGA treats us like children. It is time that UGA let us sit at the grown-up table."
Well past time, actually, as FIRE and Professor Lee would argue. Lee goes on to say that "The University’s harassment policies, designed to prevent students from experiencing a ‘hostile environment,’ actually create an atmosphere on campus that is hostile to free speech."
This reality, he notes, strikes a sharp contrast to the numerous free speech rulings the Supreme Court has handed down through the years, most recently in the case of Snyder v. Phelps:
In a concluding passage, Chief Justice John Roberts wrote, "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation, we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
Roberts was not creating new doctrine. His opinion resembles many other Supreme Court opinions in which the Court acknowledged that free speech often creates discomfort.
For example, the Court wrote in 1949 in Terminiello v. Chicago that a "function of free speech is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, and even stirs people to anger. Speech is often provocative and challenging … and may have profound unsettling effects as it presses for acceptance of an idea."
Or, as Justice Byron White wrote in 1992, "the mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected."
Many universities, as we’ve often pointed out, ignore the wisdom of the Court in devising policies (most often in the form of "harassment" policies) that have the effect of silencing wide swaths of protected speech. Frequently, these policies are unconstitutionally vague as well. Lee notes that the findings of an ad hoc committee at UGA that has been tasked with recommending changes to UGA’s "Non-Discrimination and Anti-Harassment" policy bear out both of these concerns:
The recent report of the Ad Hoc Committee on Sexual Harassment found an "unnecessarily broad application" of the Non-Discrimination and Anti-Harassment Policy to cases of pedagogical incompetence.
The committee also found that according to sanctions imposed, the University ranks "a concerted campaign of sexual predation" with "a single, unacceptably rude classroom joke."
To underscore the difficulties of enforcement, a federal judge found in 2009 that the University illegally treated a complainant’s subjective feelings of discomfort as sufficient to violate the NDAH; to be punishable, the severity and pervasiveness of sexual harassment must be objectively measured.
The failure of University officials to apply the correct legal standard was termed by the judge as "gross abuse."
The University of Georgia has, obviously, quite a lot of work to do to shape up its harassment policy. Fortunately, the group assigned to review it seems to have a sense of where the problems lie. (I recommend you read its whole 11-page report.)
Fortunately, as well, UGA has faculty members like Lee that are committed to making sure the process is open and honest, and that the UGA community is kept informed. I highly encourage Torch readers to check out his excellent column.