argument for speech codes

At Emory University, certain conduct that is permissible off campus is not allowed on campus. Specifically, some speech and behaviors are prohibited in Emory's version of what are derogatorily labeled "politically correct" codes but are more commonly known as hate speech codes. Emory's code begins with its definition of banned behavior.

Discriminatory harassment includes conduct (oral, written, graphic or physical) directed against any person or, group of persons because of their race, color, national origin, religion, sex, sexual orientation, age, disability, or veteran's status and that has the purpose or reasonably foreseeable effect of creating an offensive, demeaning, intimidating, or hostile environment for that person or group of persons.

There were approximately 75 hate speech codes in place at U.S. colleges and universities in 1990; by 1991, the number grew to over 300. School administrators institute codes primarily to foster productive learning environments in the face of rising racially motivated and other offensive incidents on many campuses. According to a recent study, reports of campus harassment increased 400 percent between 1985 and 1990. Moreover, 80 percent of campus harassment incidents go unreported.

Hate speech codes follow several formats. Some codes, including Emory's, prohibit speech or conduct that creates an intimidating, hostile, or offensive educational environment. Others ban behavior that intentionally inflicts emotional distress. Still others outlaw general harassment and threats," without clarifying what constitutes such conduct. Court rulings have prohibited public (state-run) colleges and universities from enacting codes that restrict the constitutional right to free speech based on content. Private institutions, in contrast, are not subject to these decisions. Emory, for example, as a private university, can ignore public law rulings and draft whatever hate speech policy it chooses.

Hate speech codes raise important ethical questions. When civil liberties are pitted against the right to freedom of speech, which does justice favor? Do the costs of hate speech codes outweigh their benefits? Is the harm that results from hate speech so serious that codes to restrict freedom of speech are morally required?

The most fundamental argument against hate speech codes rests on the idea that they violate a fundamental human right, freedom of speech. Such a fundamental right, it is argued, should not be limited except to prevent serious harm to others. Libel or shouting "Fire!" in a movie theater, for example, can cause serious harm and, therefore, are legitimately banned. In contrast, what campuses prohibit as "hate speech" is primarily opinion that, while often offensive and unpopular, does not cause serious harm. The fundamental right to free speech should not be restricted merely to prevent hate speech.

Additionally, critics assert that the costs of hate speech codes far outweigh their benefits. Threatened by "politically correct" students who are backed by hate speech codes, students who have reasonable yet nonconforming points of view will be afraid to speak in classes. As a social institution, a university should be open to all opinions, popular and unpopular. As Oliver Wendell Holmes commented, "The very aim and end of our institutions is just this: that we may think what we like and say what we think." Hate speech codes thus inflict a major harm on our social institutions.

Censorship is only one example of how hate speech codes undercut the benefits of higher education. If these codes shield students from dissenting opinions, how will they learn to respond to such opinions after they graduate? Hate speech codes encourage an artificial reality on campus that prevents students from learning effectively to tolerate diversity.

Hate speech codes may obstruct the kind of education that promotes tolerance of diversity in other ways. Over time, the same fervor that brought hate speech codes will bring further restrictions by administrators eager to create egalitarian institutions in a nonegalitarian world.

The law school at the State University of New York, Buffalo, for example, seeks out and ask state bars to deny admission to former students who violate its hate speech code. And following the 1988 passage of the Civil Rights Restoration Act, which denies federal aid to students of private colleges and universities that violate federal anti-discrimination rules, legislators are considering a law that would force private institutions to require courses on, racial sensitivity and ethnic history. From defining what specifically constitutes "hate speech" to choosing the manner in which policies are enforced, codes clearly cause or invite more trouble than they are worth.

Those who advocate hate speech codes believe that the harm codes prevent is more important than the freedom they restrict. When hate speech is directed at a student from a protected group, like those listed in Emory University's code, the effect is much more than hurt feelings. The verbal attack is a symptom of an oppressive history of discrimination and subjugation that plagues the harmed student and hinders his or her ability to compete fairly in the academic arena. The resulting harm is clearly significant and, therefore, justifies limiting speech rights.

In addition to minimizing harm, hate speech codes result in other benefits. The university is ideally a forum where views are debated using rational argumentation; part of a student's education is learning how to derive and rationally defend an opinion. The hate speech that codes target, in contrast, is not presented rationally or used to provoke debate. In fact, hate speech often intends to provoke violence. Hate speech codes emphasize the need to support convictions with facts and reasoning while protecting the rights of potential victims.

As a society we reason that it is in the best interest of the greatest number of citizens to sometimes restrict speech when it conflicts with the primary purpose of an event. A theater owner, for example, has a right to remove a heckler when the heckler's behavior conflicts with the primary purpose of staging a play - to entertain an audience. Therefore, if the primary purpose of an academic institution is to educate students, and hate speech obstructs the educational process by reducing students' abilities to learn, then it is permissible to extend protection from hate speech to students on college or university campuses.

Hate speech codes also solve the conflict between the right to freely speak and the right to an education. A student attending a college or university clearly has such a right. But students exercising their "free speech" right may espouse hateful or intimidating words that impede other students abilities to learn and thereby destroy their chances to earn an education.

Finally, proponents of hate speech codes see them as morally essential to a just resolution of the conflict .between civil rights (e.g., freedom from harmful stigma and humiliation) and civil liberties (e.g., freedom of speech). At the heart of the conflict is the fact that under-represented students cannot claim fair and equal access to freedom of speech and other rights when there is an imbalance of power between them and students in the majority. If a black student, for example, shouts an epithet at a white student, the white student may become upset or feel enraged, but he or she has little reason to feel terror or intimidation. Yet when a white student directs an epithet toward a black student or a Jewish student, an overt history of subjugation intensifies the verbal attack that humiliates and strikes institutional fear in the victim. History shows that words of hatred are amplified when they come from those in power and abridged when spoken by the powerless.

Discrimination on college and university campuses is a growing problem with an uncertain future. Whether hate speech codes are morally just responses to campus intolerance depends on how society interprets the harms of discriminatory harassment, the benefits and costs of restricting free speech, and the just balance between individual rights and group rights.

This article builds on a November 1990 presentation delivered at the Center by Gerald F. Uelmen, dean of Santa Clara University School of Law and a fellow of the Center for Applied Ethics.

Further Reading:

Feinberg, Joel. Social Philosophy . Englewood Cliffs, N.J.: Prentice Hall, Inc., 1973.

Grey, Thomas C. "Civil Rights vs. Civil Liberties: The Case of Discriminatory Harassment"- Social Philosophy & Policy 8. (August 1991): 81-107.

Hentoff, Nat. "The New Jacobins." Reason 23 (November 1991): 30 33.

Rieff, David. "The Case Against Sensitivity." Esquire 114: (November 1990): 120-131.

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Do University Regulations Against Offensive Speech Often Inhibit Freedom of Expression?

The American Civil Liberties Union (ACLU) stated in its Dec. 31, 1994 paper “Hate Speech on Campus”:

“The First Amendment to the United States Constitution protects speech no matter how offensive its content. Speech codes adopted by government-financed state colleges and universities amount to government censorship, in violation of the Constitution. And the ACLU believes that all campuses should adhere to First Amendment principles because academic freedom is a bedrock of education in a free society… Where racist, sexist and homophobic speech is concerned, the ACLU believes that more speech — not less — is the best revenge. This is particularly true at universities, whose mission is to facilitate learning through open debate and study, and to enlighten. Speech codes are not the way to go on campuses, where all views are entitled to be heard, explored, supported or refuted.” Dec. 31, 1994

American Association of University Professors (AAUP) adopted a statement in Nov. 1994 titled “On Freedom of Expression and Campus Speech Codes,” which stated:

“In response to verbal assaults and use of hateful language some campuses have felt it necessary to forbid the expression of racist, sexist, homophobic, or ethnically demeaning speech, along with conduct or behavior that harasses… Rules that ban or punish speech based upon its content cannot be justified. An institution of higher learning fails to fulfill its mission if it asserts the power to proscribe ideas… Indeed, by proscribing any ideas, a university sets an example that profoundly disserves its academic mission… A college or university sets a perilous course if it seeks to differentiate between high-value and low-value speech, or to choose which groups are to be protected by curbing the speech of others… [F]reedom of expression requires toleration of ‘ideas we hate.’… It is the very precondition of the academic enterprise itself.” Nov. 1994

Kermit L. Hall, PhD, Former President of University at Albany, State University of New York, wrote in the “Overview of Free Speech on Public College Campuses,” posted on the First Amendment Center website (accessed June 7, 2006):

“Speech codes… are the most controversial ways in which universities have attempted to strike a balance between expression and community order… Courts have viewed [speech codes]… as failing on two important points. First, they have been deemed to be overly broad and vague, reaching groups and persons not appropriately covered by such codes… Second… the speech codes have been attacked successfully because they involve a regulation of either the content or viewpoint, not just its time, place and manner. While advocates of speech codes argued that they were essentially content neutral and protected by the fighting-words doctrine, federal judges found otherwise… The debate over speech codes reminds us of the ongoing importance of free expression on campus and the often controversial nature of its practice. Universities above all other institutions must welcome a broad range of views and protect speech that has a strong viewpoint or content in its message… Efforts to restrict the viewpoint or message of anyone on a campus puts the institution at odds with its primary educational mission: to give students the opportunity to sort through opposing ideas.” June 7, 2006

The Foundation For Individual Rights in Education (FIRE) stated in an article posted on its website, “About Speech Codes” (accessed June 7, 2006):

“Colleges and universities’… administrators create and enforce speech codes in an attempt to outlaw free speech and free expression that do not conform to various new campus orthodoxies. For example, in recent years… speech codes [have notably]… banned ‘verbal behavior’ that produces ‘feelings of impotence, anger, or disenfranchisement,’… outlawed ‘inconsiderate jokes,’ ‘stereotyping’ and even ‘inappropriately directed laughter…’ These codes… lead students to believe they have an absolute right to be free from offense, embarrassment, or discomfort. As a result, other students begin the compromise of self-censorship… If students on our nation’s campuses learn that jokes, remarks, and visual displays that ‘offend’ someone may rightly be banned, they will not find it odd or dangerous when the government itself seeks to censor and to demand moral conformity in the expression of its citizens. A nation that does not educate in freedom will not survive in freedom, and will not even know when it has lost it.” June 7, 2006

Paul Gottfried, PhD, Professor of Humanities at Elizabethtown College, and Richard Delgado, JD, Professor of Law at the University of Pittsburgh School of Law, wrote in their June 26, 1994 article for Insight on the News , “Do Prohibitions of Hate Speech Harm Public Discourse?”:

“More than 200 American universities have.. enact[ed] student-conduct codes penalizing face-to-face insults and epithets… Are these measures a good idea? Emphatically, yes: Racist and similar taunts convey little of value. They demean the victim while communicating to all who hear the message that equal personhood is of little value in American society. Campuses and workplaces wherein a climate of racial or sexual terror thrives are unattractive and unwelcoming for members of the victimized groups… A[n]… objection [to speech codes] is that prohibitions against verbal abuse and assault encourage minorities to see themselves as victims. Instead of running to campus authorities every time something wounds their feelings, persons of color ought to learn either to confront or ignore the offensive behavior… Will hate-speech rules have these effects? No, because other alternatives, such as talking back, will remain. No gay or minority student is required to file charges under the rules when targeted by abuse. The rules merely provide one more avenue of recourse for those who wish to take advantage of them. Filing a complaint might, indeed, be seen as one way of taking charge of one’s destiny… Hate-speech rules are wholly consistent with the spirit of free inquiry. Indeed, by demoralizing the victim and excluding him or her from the human community, hate speech reduces participation and dialogue. Far from diminishing the values of the First Amendment, hate-speech rules may be necessary for their full flowering and effectuation.” June 26, 1994

Charles R. Lawrence III, JD, Professor of Law at Stanford University, in his chapter titled “If He Hollers Let Him Go: Regulating Racist Speech on Campus,” published in the 1993 book Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment, wrote:

“Requiring civility and respect in academic discourse encourage rather than discourage the fullest exchange of ideas. Regulations that require minimal civility of discourse in certain designated forums are not incursions on intellectual and political debate… When racist speech takes the form of face-to-face insults, catcalls, or other assaultive speech aimed at an individual or a small group of persons, then it falls within the ‘fighting words’ exception to first amendment protection… A second factor that distinguishes racial insults from protected speech is… [that] words of response to such verbal attacks may never be forthcoming because speech is usually an inadequate response… Blacks and other people of color are equally skeptical about the absolutist argument that even the most injurious speech must remain unregulated because in an unregulated marketplace of ideas the best ideas will rise to the top and gain acceptance. Our experience tells us the opposite.” 1993

Jae-Jin Lee, PhD, Former Director of the Department of Journalism and Mass Communication at Hanyang University, wrote in his 1997 article for Communications And The Law , titled “Understanding Hate Speech As a Communication Phenomenon: Another View On Campus Speech Code Issues”:

“Proponents of speech codes… maintain that [racist and sexist] speech inevitably creates an intimidating, hostile, or demeaning environment for education and university-related work… Minority students are far more likely to feel overwhelmed by the numerical superiority of white students and realize that a violent response to fighting words will result in a risk to their own life and limb, they are forced to remain silent and submit… The Supreme Court… without considering the [one-way] communication process of hate speech, extended [protection] to hate speech, adhering to the content neutral rules… [I]t is becoming difficult for courts to resolve increasing hate-speech issues on campus with the content-neutral doctrine alone. Speech codes are not so destructive of academic freedom of speech as the courts noted, because most of them were made for the purpose of preventing speech that is not exchangeable and not protected as pure speech. In this sense, special exceptions for the content-neutral principle should be allowed on campus.” 1997

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Speech on Campus

The First Amendment to the Constitution protects speech no matter how offensive its content. Restrictions on speech by public colleges and universities amount to government censorship, in violation of the Constitution. Such restrictions deprive students of their right to invite speech they wish to hear, debate speech with which they disagree, and protest speech they find bigoted or offensive. An open society depends on liberal education, and the whole enterprise of liberal education is founded on the principle of free speech.

How much we value the right of free speech is put to its severest test when the speaker is someone we disagree with most. Speech that deeply offends our morality or is hostile to our way of life warrants the same constitutional protection as other speech because the right of free speech is indivisible: When we grant the government the power to suppress controversial ideas, we are all subject to censorship by the state. Since its founding in 1920, the ACLU has fought for the free expression of all ideas, popular or unpopular. Where racist, misogynist, homophobic, and transphobic speech is concerned, the ACLU believes that more speech — not less — is the answer most consistent with our constitutional values.

But the right to free speech is not just about the law; it’s also a vital part of our civic education. As Supreme Court Justice Robert Jackson wrote in 1943 about the role of schools in our society: “That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” Remarkably, Justice Jackson was referring to grade school students. Inculcating constitutional values — in particular, the value of free expression — should be nothing less than a core mission of any college or university.

To be clear, the First Amendment does not protect behavior on campus that crosses the line into targeted harassment or threats, or that creates a pervasively hostile environment for vulnerable students. But merely offensive or bigoted speech does not rise to that level, and determining when conduct crosses that line is a legal question that requires examination on a case-by-case basis. Restricting such speech may be attractive to college administrators as a quick fix to address campus tensions. But real social change comes from hard work to address the underlying causes of inequality and bigotry, not from purified discourse. The ACLU believes that instead of symbolic gestures to silence ugly viewpoints, colleges and universities have to step up their efforts to recruit diverse faculty, students, and administrators; increase resources for student counseling; and raise awareness about bigotry and its history.

QUESTIONS Q: The First Amendment prevents the government from arresting people for what they say, but who says the Constitution guarantees speakers a platform on campus?

A: The First Amendment does not require the government to provide a platform to anyone, but it does prohibit the government from discriminating against speech on the basis of the speaker’s viewpoint. For example, public colleges and universities have no obligation to fund student publications; however, the Supreme Court has held that if a public university voluntarily provides these funds, it cannot selectively withhold them from particular student publications simply because they advocate a controversial point of view.

Of course, public colleges and universities are free to invite whomever they like to speak at commencement ceremonies or other events, just as students are free to protest speakers they find offensive. College administrators cannot, however, dictate which speakers students may invite to campus on their own initiative. If a college or university usually allows students to use campus resources (such as auditoriums) to entertain guests, the school cannot withdraw those resources simply because students have invited a controversial speaker to campus.

Q: Does the First Amendment protect speech that invites violence against members of the campus community?

A: In Brandenburg v. Ohio , the Supreme Court held that the government cannot punish inflammatory speech unless it intentionally and effectively provokes a crowd to immediately carry out violent and unlawful action. This is a very high bar, and for good reason.

The incitement standard has been used to protect all kinds of political speech, including speech that at least tacitly endorses violence, no matter how righteous or vile the cause. For example, in NAACP v. Clairborne Hardware , the court held that civil rights icon Charles Evans could not be held liable for the statement, “If we catch any of you going in any of them racist stores, we’re going to break your damn neck.” In Hess v. Indiana , the court held that an anti-war protestor could not be arrested for telling a crowd of protestors, “We’ll take the fucking street later.” And In Brandenburg itself, the court held that a Ku Klux Klan leader could not be jailed for a speech stating “that there might have to be some revengeance [sic] taken” for the “continued suppression of the white, Caucasian race.”

The First Amendment’s robust protections in this context reflect two fundamentally important values. First, political advocacy — rhetoric meant to inspire action against unjust laws or policies — is essential to democracy. Second, people should be held accountable for their own conduct, regardless of what someone else may have said. To protect these values, the First Amendment allows lots of breathing room for the messy, chaotic, ad hominem, passionate, and even bigoted speech that is part and parcel of American politics. It’s the price we pay to keep bullhorns in the hands of political activists.

Q: But isn't it true you can't shout fire in a crowded theater?

People often associate the limits of First Amendment protection with the phrase “shouting fire in a crowded theater.” But that phrase is just (slightly inaccurate) shorthand for the legal concept of “incitement.” (Although, if you think there’s a fire — even if you’re wrong — you’d better yell!) The phrase, an incomplete reference to the concept of incitement, comes from the Supreme Court’s 1919 decision in Schenck v. United States . Charles Schenck and Elizabeth Baer were members of the Executive Committee of the Socialist Party in Philadelphia, which authorized the publication of more than 15,000 fliers urging people not to submit to the draft for the First World War. The fliers said things like: “Do not submit to intimidation,” and “Assert your rights.” As a result of their advocacy, Schenck and Baer were convicted for violating the Espionage Act, which prohibits interference with military operations or recruitment, insubordination in the military, and support for enemies of the United States during wartime.

Writing for the Supreme Court, Justice Oliver Wendell Holmes Jr. held that Schenck’s and Baer’s convictions did not violate the First Amendment. Observing that the “most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic,” Holmes reasoned by analogy that speech urging people to resist the draft posed a “clear and present danger” to the United States and therefore did not deserve protection under the First Amendment. This is the problem with the line about shouting fire in a crowded theater — it can be used to justify suppressing any disapproved speech, no matter how tenuous the analogy. Justice Holmes later advocated for much more robust free speech protections, and Schenck was ultimately overruled . It is now emphatically clear that the First Amendment protects the right to urge resistance to a military draft, and much else.

Q: But what about campus safety? Doesn’t the First Amendment have an exception for “fighting words” that are likely to provoke violence?

A: The Supreme Court ruled in 1942 that the First Amendment does not protect “fighting words,” but this is an extremely limited exception. It applies only to intimidating speech directed at a specific individual in a face-to-face confrontation that is likely to provoke a violent reaction. For example, if a white student confronts a student of color on campus and starts shouting racial slurs in a one-on-one confrontation, that student may be subject to discipline.

Over the past 50 years, the Supreme Court hasn’t found the “fighting words” doctrine applicable in any of the cases that have come before it, because the circumstances did not meet the narrow criteria outlined above. The “fighting words” doctrine does not apply to speakers addressing a large crowd on campus, no matter how much discomfort, offense, or emotional pain their speech may cause.

In fact, the Supreme Court has made clear that the government cannot prevent speech on the ground that it is likely to provoke a hostile response — this is called the rule against a “ heckler’s veto .” Without this vital protection, government officials could use safety concerns as a smokescreen to justify shutting down speech they don’t like, including speech that challenges the status quo. Instead, the First Amendment requires the government to provide protection to all speakers, no matter how provocative their speech might be. This includes taking reasonable measures to ensure that speakers are able to safely and effectively address their audience, free from violence or censorship. It’s how our society ensures that the free exchange of ideas is uninhibited, robust, and wide-open.

Q: What about nonverbal symbols, like swastikas and burning crosses? Are they constitutionally protected?

A: Symbols of hate are constitutionally protected if they’re worn or displayed before a general audience in a public place — say, in a march or at a rally in a public park. The Supreme Court has ruled that the First Amendment protects symbolic expression, such as swastikas, burning crosses, and peace signs because it’s “closely akin to ‘pure speech.’” The Supreme Court has accordingly upheld the rights of students to wear black armbands in school to protest the Vietnam War, as well as the right to burn the American flag in public as a symbolic expression of disagreement with government policies.

But the First Amendment does not protect the use of nonverbal symbols to directly threaten an individual, such as by hanging a noose over their dorm room or office door. Nor does the First Amendment protect the use of a non-verbal symbol to encroach upon or desecrate private property, such as by burning a cross on someone’s lawn or spray-painting a swastika on the wall of a synagogue or dorm. In R.A.V. v. City of St. Paul , for example, the Supreme Court struck down as unconstitutional a city ordinance that prohibited cross-burnings based solely on their symbolism. But the Court’s decision makes clear that the government may prosecute cross-burners under criminal trespass and/or anti-harassment laws.

Q: Isn’t there a difference between free speech and dangerous conduct?

A: Yes. Speech does not merit constitutional protection when it targets a particular individual for harm, such as a true threat of physical violence. And schools must take action to remedy behavior that interferes with a particular student’s ability to exercise their right to participate fully in the life of the university, such as targeted harassment.

The ACLU isn’t opposed to regulations that penalize acts of violence, harassment, or threats. To the contrary, we believe that these kinds of conduct can and should be proscribed. Furthermore, we recognize that the mere use of words as one element in an act of violence, harassment, intimidation, or invasion of privacy does not immunize that act from punishment.

Q: Aren’t restrictions on speech an effective and appropriate way to combat white supremacy, misogyny, and discrimination against LGBT people?

A: Historically, restrictions on speech have proven at best ineffective, and at worst counter-productive, in the fight against bigotry. Although drafted with the best intentions, these restrictions are often interpreted and enforced to oppose social change. Why? Because they place the power to decide whether speech is offensive and should be restrained with authority figures — the government or a college administration — rather than with those seeking to question or dismantle existing power structures.

For example, under a speech code in effect at the University of Michigan for 18 months, there were 20 cases in which white students charged Black students with offensive speech. One of the cases resulted in the punishment of a Black student for using the term “white trash” in conversation with a white student. The code was struck down as unconstitutional in 1989.

To take another example, public schools throughout the country have attempted to censor pro-LGBT messages because the government thought they were controversial, inappropriate for minors, or just wrong. Heather Gillman’s school district banned her from wearing a shirt that said “I Support My Gay Cousin.” The principal maintained that her T-shirt and other speech supporting LGBT equality, such as “I Support Marriage Equality,” were divisive and inappropriate for impressionable students. The ACLU sued the school district and won , because the First Amendment prevents the government from making LGBT people and LGBT-related issues disappear.

These examples demonstrate that restrictions on speech don’t really serve the interests of marginalized groups. The First Amendment does.

Q: But don’t restrictions on speech send a strong message against bigotry on campus?

A: Bigoted speech is symptomatic of a huge problem in our country. Our schools, colleges, and universities must prepare students to combat this problem. That means being an advocate: speaking out and convincing others. Confronting, hearing, and countering offensive speech is an important skill, and it should be considered a core requirement at any school worth its salt.

When schools shut down speakers who espouse bigoted views, they deprive their students of the opportunity to confront those views themselves. Such incidents do not shut down a single bad idea, nor do they protect students from the harsh realities of an often unjust world. Silencing a bigot accomplishes nothing except turning them into a martyr for the principle of free expression. The better approach, and the one more consistent with our constitutional tradition, is to respond to ideas we hate with the ideals we cherish.

Q: Why does the ACLU use its resources to defend the free speech rights of white supremacists, misogynists, homophobes, transphobes, and other bigots?

A: Free speech rights are indivisible. Restricting the speech of one group or individual jeopardizes everyone’s rights because the same laws or regulations used to silence bigots can be used to silence you. Conversely, laws that defend free speech for bigots can be used to defend civil rights workers, anti-war protestors, LGBT activists, and others fighting for justice. For example, in the 1949 case of Terminiello v. City of Chicago , the ACLU successfully defended an ex-Catholic priest who had delivered a racist and anti-Semitic speech. The precedent set in that case became the basis for the ACLU’s defense of civil rights demonstrators in the 1960s and 1970s.

Q: How does the ACLU propose to ensure equal opportunity in education?

A: Universities are obligated to create an environment that fosters tolerance and mutual respect among members of the campus community, an environment in which all students can exercise their right to participate meaningfully in campus life without being subject to discrimination. To advance these values, campus administrators should:

• speak out loudly and clearly against expressions of racist, sexist, homophobic, and transphobic speech, as well as other instances of discrimination against marginalized individuals or groups;
• react promptly and firmly to counter acts of discriminatory harassment, intimidation, or invasion of privacy;
• create forums and workshops to raise awareness and promote dialogue on issues of race, sex, sexual orientation, and gender identity;
• intensify their efforts to ensure broad diversity among the student body, throughout the faculty, and within the college administration;
• vigilantly defend the equal rights of all speakers and all ideas to be heard, and promote a climate of robust and uninhibited dialogue and debate open to all views, no matter how controversial.

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• The Big Idea

Hate speech is protected free speech, even on college campuses

My students trust colleges to control offensive speech. They shouldn’t.

by Erwin Chemerinsky

“We should refuse to allow hateful speakers on campus,” a campus faculty member said.

The statement was met with resounding applause. I mentally prepared for the response to what I was going to say next.

It was September, and I was at a forum at which several professors, including me, discussed free speech issues before a large audience of students at the University of California Berkeley. Several faculty and students had already implored Chancellor Carol Christ to revoke the invitations of conservative provocateurs Milo Yiannopoulos and Ann Coulter to speak on campus, and their declarations were met with enthusiasm.

Read Robert Post’s argument that it makes little sense to apply the First Amendment to colleges here .

Finally, I spoke up. “Be clear that if Chancellor Christ were to exclude speakers based on their viewpoint, she would get sued and lose,” I said. “The speakers would get an injunction and be allowed to speak. They would recover attorneys’ fees and maybe money damages. They would be portrayed as victims. And since they would get to speak anyway, nothing would be gained.”

No one applauded.

I have been dean of Berkeley’s law school for several months. But before I arrived at campus, the university, home of the free speech movement of the 1960s, had become a battleground for a new kind of campus speech debate.

In late September, elaborate security precautions were taken when conservative commentator Ben Shapiro spoke at Berkeley; $600,000 had to be spent so he could deliver his remarks without disruption. When conservative student groups attempted to host a “Free Speech Week,” and invited conservative speakers like Coulter and Steve Bannon, the campus steeled itself to spend in excess of $1 million to allow them to speak while ensuring safety on the campus. (In the end, “Free Speech Week” was canceled by the student group that had organized it.)

I have been teaching First Amendment law to law students and undergraduates for more than 37 years. I have also litigated free speech cases, including at the Supreme Court. I believe that Chancellor Christ and the campus have done a superb job of adhering to the First Amendment, protecting free speech while ensuring the safety of students, staff, and faculty. But it’s also become clear to me that current college students are often ambivalent, or even hostile, to the idea of free speech on campus.

Students today are driven by a desire to protect their classmates from hate speech

Disputes over free speech on campus have long occurred, but today is different. Usually in the past, it was students who wanted to speak out and campus administrators who tried to stop demonstrations. Now it often is about outside speakers and outside disruptors, like the radical leftist protest group antifa. The campus is just the place for their battle.

At Berkeley and elsewhere, it is now often students and faculty calling for preventing the speakers while campus officials are steadfastly protecting freedom of expression.

In my seminars the past two years (before Berkeley, I was at UC Irvine’s law school), I was surprised by how much the students wanted campuses to stop offensive speech — and the degree to which they trusted campus officials to have the power to do so. A 2015 survey by the Pew Research Institute said that four in 10 college students believe the government should be able to prevent people from publicly making statements that are offensive to minority groups.

While teaching our class on free speech on campus at UC Irvine, Chancellor Howard Gillman and I realized that the students’ desire to restrict hurtful speech came from laudable instincts. This is the first generation of college students to be taught from a young age that bullying is wrong; they have internalized this message. Many spoke powerfully of instances in which they or their friends had suffered from hurtful speech. They want to make campuses inclusive for all, and they know that hate speech causes great harm, especially among those who have been traditionally underrepresented in higher education.

But I worry, too, that students do not realize the degree to which free speech has been essential for the advancement of rights and equality. There would not have been a 19th Amendment, which gave women the right to vote, without the women’s suffrage movement and its widespread demonstrations. The civil rights protests of the 1960s — lunch counter sit-ins, the march on Selma, demonstrations on campuses — were essential to bringing about the end of segregation.

Those events, though, are ancient history for my students. I worry that they equate freedom of speech more with the vitriol of the anonymous messaging app Yik Yak than the anti-Vietnam War protests I participated in when I was in college. I was surprised by how little our students knew about the history of free speech, including the outbreak of McCarthyism, when faculty and students suffered greatly from the lack of legal protection for expression and academic freedom.

Although all of this makes the context different today, the law of the First Amendment and the principles of academic freedom are clear and long established. The Supreme Court repeatedly has said that the First Amendment means public institutions cannot punish speech, or exclude speakers, on the grounds that it is hateful or deeply offensive. This includes public colleges and universities.

Hate speech is protected by the First Amendment

Every effort by the government to regulate hate speech has been declared unconstitutional. Over 25 years ago, more than 350 colleges and universities adopted hate speech codes. But every court to consider such a hate speech code declared it to be unconstitutional. The codes inevitably were far too vague in terms of what speech was permitted and what was prohibited. Of course, free speech is not absolute and can be punished when it incites illegal activity, constitutes a “true threat” that causes a person to fear imminent harm to his or her physical safety, or rises to the level of prohibited harassment.

This does not mean that campuses are powerless in the face of disruptive or hateful speech. Even though there is a First Amendment right to speak, that does not mean that protesters have the right to demonstrate in the middle of a freeway at rush hour. A campus surely could prohibit a large demonstration in a classroom building while classes are in session. Campuses can regulate when and where speech takes place in order to prevent disruption of school activities. Controversial speakers can be placed in auditoriums where it is easier to assure safety and prevent disruptions. Demonstrations can be placed in areas away from where classes are in session.

Although the First Amendment applies only to the government, including public universities, private universities should follow these same principles. They are essential to academic freedom, which is at the very core of a university’s mission.

There might be a point at which it is impossible to simultaneously protect public safety and allow controversial speech to occur. Then campus officials have no choice but to prevent the speech, given that they must provide for the safety of students, staff, and faculty. But canceling a speaker should truly be a last resort and never based on the viewpoint expressed.

At what point should a campus cancel a speaker because it cannot afford to ensure the safety of students, staff, and faculty? Chancellor Christ has estimated that already this semester, the campus has spent more than $2 million to protect free speech. I believe Berkeley campus officials made the right choice in protecting these speakers from harm, but I also know that such expenditures are not sustainable.

Although speakers have a right to express hateful messages on campus, that does not mean that campus officials should silently tolerate such speech. It is important that campus officials denounce hate when it occurs and explain why it is inconsistent with the type of community we desire.

Education is enhanced when there is more speech, not when speech is regulated by campus officials

The law is clear that a public university may not exclude a speaker based on his or her views, nor may students or faculty be punished for the views they express. In a separate piece for Vox , professor Robert Post challenges this by suggesting that usual free speech principles should not apply on campus. He argues that campuses must of course engage in content-based judgments in evaluating a faculty member’s scholarship or a student’s work. From this, he concludes that universities are justified in excluding outside speakers that do not serve the educational mission of the campus.

Post’s premise is undoubtedly correct: Universities must evaluate the content of faculty and student work. But it does not follow that outside of this realm, free speech principles do not apply on campus. It is a logical fallacy to say that because basic free speech principles sometimes do not apply on campus, they must never apply.

First, it is important to distinguish what the law is from what Post thinks the law should be. Under current First Amendment law, a public university clearly would be acting unconstitutionally if it excluded a speaker from campus based on his or her viewpoint. When Auburn University attempted to prevent white supremacist Richard Spencer from speaking, a federal court ruled against the university.

Second, Post ignores the distinction between the university’s ability to regulate speech in professional settings (such as in grading students’ papers or in evaluating teaching and scholarship) and its ability to regulate speech in other contexts. The former does not justify a university’s ability to restrict campus speakers based on viewpoint or to punish student or faculty speech in a nonprofessional setting.

Professor Post also argues that a primary purpose of a university is to educate students — so a campus would be justified in excluding speakers that it perceives as interfering with this mission. But the law says quite the contrary. It does not allow a public university to exclude a speaker by claiming that the viewpoint expressed would be so offensive to students that it would interfere with their education. Also, this would seem to give unlimited discretion to campus officials to exclude or punish any speaker that they deemed to be inconsistent with students’ education. The assumption of freedom of speech, and of academic freedom, is that education is enhanced when there is more speech, not when government officials have the power to censor and punish speech they don’t like.

Having seen the enormous amount of time and money invested by the Berkeley campus to deal with the appearances of Ben Shapiro and Milo Yiannopoulos, I cannot help but wish this had happened someplace else. But I know that Berkeley, especially because of its history with the free speech movement of the 1960s, is a unique place for expression. This is why it is so important that the campus did all it could to ensure freedom of speech. It is also why this campus has the chance to be a model for other schools in upholding the principle that all ideas and views can be expressed at colleges and universities.

Erwin Chemerinsky is dean and Jesse H. Choper distinguished professor of law at the University of California Berkeley School of Law. He is the co-author, with Howard Gillman, of Free Speech on Campus (Yale University Press, 2017) .

The Big Idea is Vox’s home for smart discussion of the most important issues and ideas in politics, science, and culture — typically by outside contributors. If you have an idea for a piece, pitch us at [email protected] .

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Guest Essay

Campus Speech Codes Should Be Abolished

By James Kirchick

Mr. Kirchick is the author of “Secret City: The Hidden History of Gay Washington,” a contributing writer at Tablet and a senior fellow at the Foundation for Individual Rights and Expression.

The tentative, lawyerly answers given last week by three university presidents at a House committee hearing investigating the state of antisemitism on America’s college campuses have generated widespread revulsion across the partisan divide. When none of the presidents — representing Harvard, the Massachusetts Institute of Technology and the University of Pennsylvania — could muster a straightforward reply to the question from Representative Elise Stefanik, Republican of New York, about whether “calling for the genocide of Jews” amounted to “bullying or harassment,” many prominent Democrats joined Republicans in denouncing the testimony.

“I’m no fan” of Ms. Stefanik, the Harvard law professor Laurence Tribe said on social media, “but I’m with her here.” When one of Donald Trump’s most ardent detractors applauds one of his most staunch defenders , you know some sort of vanishingly rare political singularity has been achieved.

Critics are correct to note the hypocrisy of university leaders who have belatedly come to embrace a version of free speech absolutism that tolerates calls for Jewish genocide after years of punishing far less objectionable speech deemed offensive to other minority groups. In 2021, for instance, M.I.T. withdrew a speaking invitation from a geophysicist who had criticized affirmative action. Harvard and Penn appear at the very bottom of the annual free speech rankings of the Foundation for Individual Rights and Expression (where I am a senior fellow).

But two wrongs don’t make a right. If the problem with campus speech codes is the selectivity with which universities penalize various forms of bigotry, the solution is not to expand the university’s power to punish expression. It’s to abolish speech codes entirely.

Universities have a vital role to play in fostering a culture of free and open debate, and the presidents were right to draw a distinction between speech and conduct. Threats directed at individual students are inconsistent with a university’s goal of fostering a productive educational environment, not to mention against the law. Students can and should face disciplinary action and even expulsion for certain behavior: acts of violence, true threats ( defined by the Supreme Court as “serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”) and discriminatory harassment (which the court delineates as behavior “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”). Students can and should also be punished for disrupting classes, occupying buildings or employing the so-called heckler’s veto, whereby they prevent a speaker from being heard.

But students should not be punished for speech protected by the First Amendment — even something as odious as a call for genocide.

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Campus Speech Codes: Absurd, Tenacious, and Everywhere

Greg Lukianoff

• May 23, 2008
• Freedom of Speech
• First Amendment Issues

Greg Lukianoff 1

INTRODUCTION

A Florida University’s Policy Against The Passion.   In the fall of 2004 the Christian Student Fellowship at a Florida public college had pushed the administration too far: the CSF wanted to show Mel Gibson’s The Passion of the Christ at their next meeting.  The movie, which portrays the crucifixion of Jesus of Nazareth, was hardly an unknown quantity—it remains the highest grossing foreign language film in US box office history and the highest grossing religious film of all time worldwide. But it was not so popular with the administration of Indian River Community College (IRCC), which claimed that the students could not show it because it was “controversial” and “R-rated.”  

When the administration threatened further draconian measures against the Christian group, they contacted the Foundation for Individual Rights in Education (FIRE) for help.  We at FIRE receive hundreds of requests for help each year, and, sadly, few abuses of college students’ rights surprise us anymore, but this ban seemed so petty and mean-spirited that we were confident it would be quickly resolved.  Instead, the college stubbornly stood by its alleged blanket code against R-rated movies.  This argument was outrageous on its own; college students range from teenagers to retirees, and the lofty mission of higher education—the search for truth—would be, to say the least, hampered by a content ceiling of PG-13.  But what made this case so classic, was the administration’s stunning double standard.  Not only did our research show that the college had sponsored the showing of R-rated movies in the previous year, at virtually the same time the school was banning The Passion it was hosting a production that included a skit called “Fucking for Jesus”—a piece about masturbating to an oil painting of the Christian messiah.

While FIRE was exceedingly clear that the both the skit and The Passion were fully protected expression and could not be banned on a public college campus, the school’s double standard was jaw-dropping. After months of public pressure from FIRE the college relented, ceased its punitive actions against the CSF and allowed them to show The Passion .  This case is far too typical in FIRE’s experience and reveals how speech policies are used to silence certain disfavored views on campus, while seriously misinforming students about their basic speech rights. It also highlights the fact that, despite some reports that speech codes died off in the 1990s, these codes remain the rule rather than exception on America’s campuses.

FIRE and Campus Speech Codes.   One can be forgiven for thinking that campus speech codes are a thing of the past.  After all, there were no fewer than five legal decisions from 1989 to 1995 overturning such codes as unlawful or unconstitutional.  Sadly, however, speech codes did not disappear in the 1990s; in fact, they increased in number even as it became painfully clear that they were both unlawful and unwise.  

The Foundation for Individual Rights in Education (FIRE) was founded to address the abuses of fundamental liberties on campus, including the shocking tenacity and pervasiveness of campus speech codes.  FIRE was founded by Alan Charles Kors, a conservative-leaning libertarian, and Harvey Silverglate, a liberal-leaning libertarian. The organization has proudly maintained its non-partisan nature, defending the free speech rights of everyone from conservative student newspapers to liberal ones, from evangelical Christians to those who mock Christianity, from devout Muslim students to those who are highly critical of Islam, and from Ward Churchill to those who protest Ward Churchill.

While FIRE has never made a secret of that fact that some views—social conservatism, religious orthodoxy, and politically incorrect satire—are more likely to be punished on the modern campus rather than others, speech codes pose a special threat to the campus “marketplace of ideas” itself.  

FIRE is sometimes wrongly characterized as a “free speech absolutist” organization, implying that we see no such thing as a “reasonable” restriction on free speech.  While we take this label with a certain amount of pride, it is not quite correct.  FIRE tends to agree with the limitations that the Supreme Court has recognized concerning First Amendment rights.  This is sometimes called the “categorical” approach, which means that, generally speaking, outside of a limited number of categories, speech is presumed to be free.  These categorical exceptions include libel, placing someone in fear of bodily harm or death (true threats), hardcore pornography (obscenity), inciting people to imminent lawless action, child pornography.  The speech codes that have arisen over the last three decades, however, bear little or no resemblance to these narrow limitations and, by their terms, can sweep in even the most run of the mill expression.  Such broad policies, of course, cannot be enforced across the board, lest virtually any speaker be reduced to silence—instead they are often used to discourage people with the “wrong” views.  Fighting campus speech codes is, therefore, not to agitate for anarchy; rather, it is to fight against a uniquely un-American form of totalitarianism, in precisely the setting where we need discussion to flow the most freely.

FIRE defines a speech code as any campus regulation that punishes, forbids, heavily regulates, or restricts a substantial amount of protected speech, or what would be protected speech in society at large .  This basic definition is necessary because colleges rarely label such restrictions as “speech codes” in their handbooks. Instead, they are referred to by many other names: 

 “Speech zone” policies like the one at Texas Tech University which limited the free speech activities of 28,000 students to only one twenty foot wide gazebo; “student rights and obligations” policies like Texas A&M University’s code, which prohibits students from violating others’ “rights” to “respect for personal feelings” and “freedom from indignity of any type”;   computer use policies like the one at Northeastern University in Boston, which prohibits students from using campus e-mail accounts or servers to send any message that “in the sole judgment of the University” is “annoying” or “offensive”;  “diversity” policies like the one at Ohio State University, which warns,  “Words, actions, and behaviors that inflict or threaten infliction of bodily or emotional harm , whether done intentionally or with reckless disregard, are not permitted” (emphasis added);

But the most common type of speech code comes in the form of absurdly overbroad “harassment policies.” For example, Western Michigan University’s harassment policy actually bans “sexism,” which it defines as “the perception and treatment of any person, not as an individual, but as a member of a category based on sex.” The University of Iowa, meanwhile, defines sexual harassment as something that “occurs when somebody says or does something sexually related that you don’t want them to say or do, regardless of who it is.” Davidson College’s Sexual Harassment Policy prohibits the use of “patronizing remarks,” and, heartbreakingly, goes on to explicitly prohibit “comments or inquiries about dating.” 2

In 2007 FIRE published its second official report on the state of speech codes on the nation’s college campuses.  As will be detailed later in this article, we found that 75 percent of schools surveyed had some form of highly restrictive speech code and that only a handful had policies which were free of any potentially threatening speech restrictions.

Our colleges and universities are institutions that rely on an open exchange of ideas in order to function correctly. When that candor is limited by such absurdly broad policies, the marketplace of ideas becomes distorted.  Courts understand this, the Supreme Court has understood this for over a half a century, and even campus administrators, university presidents, and professors often claim to understand this.  The question then becomes, if campus speech codes are so clearly harmful and universally reviled, why are they still so pervasive?  Where did they come from in the first place? 

A BRIEF HISTORY OF SPEECH CODES

The Rise of Speech Codes.   The rise of modern speech codes took place in the 1980s and coincided with a decidedly positive development nationwide: increased representation in higher education for women, minorities, and openly gay individuals. This development brought new tensions along with it, and an increase in racially charged incidents and confrontations—ranging from the criminal to the relatively minor—was reported at campuses across the country. 3   Some commentators have characterized the rise of campus speech codes as the direct, natural, and understandable--if misguided--response of colleges to such incidents. 4  Meanwhile, other commentators have asserted that the rise of speech codes in the 1980s was more closely related to the growing dominance of the left in higher education, and to their belief that it was their function to reengineer society, starting with students’ interior beliefs and moving outward. 5   Another possibility posited by some is that speech codes were largely a tool for quelling campus unrest and guaranteeing to college presidents and administrators “peace on their watch.” 6

 Given the remarkable overbreadth of the earliest codes, it is difficult to imagine that the intent of speech codes was limited to punishing only the most threatening racist speech, such as the hurling of racial epithets.  For example, the speech code at the University of Michigan—one of the earliest codes—defined harassment as including:

• “You comment in a derogatory way about a particular person or group’s physical appearance or sexual orientation, or their cultural origins, or religious beliefs.”
• “You exclude someone from a study group because that person is of a different race, sex, or ethnic origin than you are.”
• "You display a confederate flag on the door of your room in your residence hall.” 7

Meanwhile, the University of Connecticut banned the “use of derogatory names, inappropriately directed laughter, inconsiderate jokes, anonymous notes or phone calls, and conspicuous exclusions from conversations and /or classroom discussions…” 8   These represent just two of the dozens of speech codes that cropped up around this time period, many of which reflected intentions clearly beyond addressing mere ‘civility,’ and delved into more sweeping, mandated social engineering. 9

The country was paying attention to the rise of speech codes and in May of 1991, President George H. W. Bush warned of “free speech under assault throughout the United States, including on some college campuses…And in their own Orwellian way, crusades that demand correct behavior crush diversity in the name of diversity.” 10   Shortly before President Bush’s speech, Henry Hyde introduced a congressional bill called the “Collegiate Speech Protection Act of 1991” as an amendment to the 1964 Civil Rights Act. 11   The act did not pass, however, perhaps because it was not seen as necessary; after all, by that time speech codes were already being struck down by the courts.

In 1989, in Doe v. Michigan , a federal district court overturned Michigan’s speech code; then in 1991, a federal court overturned Connecticut’s afore mentioned policy in an unreported opinion. 12   In another 1991 case, a court overturned the University of Wisconsin at Madison’s speech code, which forbade students from making comments that would “demean” others on the basis of a number of different categories, including race, gender, and religion. 13   Then in 1992, the U.S. Supreme Court handed down a decision that, while not directly concerning speech codes, demonstrated that such codes could not survive constitutional scrutiny. 14   

1993 should have put the final nail in the campus speech code coffin.  For the first time, a campus speech code was overturned in a published federal appellate court decision. 15   That same year, the University of Pennsylvania became the target of national and even international ridicule for attempting to discipline a student for calling other students “water buffaloes.” 16    

In 1995, the fight against speech codes escalated to a new level when a California court struck down Stanford University’s speech code. 17   This case is exceptional because Stanford is a private university and thus not directly bound by the First Amendment.  The court was acting under the power of the state’s new “Leonard Law,” which extended the free speech protections of the First Amendment to private college campuses in California.

Add to this unanimous tide of victories 18 clear Supreme Court precedent like Texas v. Johnson , 19   and the already well developed case law regarding the rights of college students, 20   and it is perhaps no surprise that some commentators like Robert O’Neil reported:

EXT: [The R.A.V. decision] seemed to sound the death knell for most campus speech codes…[college administrators] read a clear message, that few codes drawn along such lines could survive the Supreme Court’s broader First Amendment ruling. Many colleges and universities either repealed speech codes or allowed them to languish…most of the codes were either given a decent burial by formal action or were allowed to expire quietly and unnoticed. 21

The Rumors of Campus Speech Codes’ Death Are Greatly Exaggerated.   But speech codes didn’t die; rather they thrived. 21   FIRE was founded in 1999 and soon began the preliminary stages of developing what would become FIRE’s Spotlight speech code database.  In 2003, FIRE initiated our Speech Codes Litigation Project.  While FIRE is not a litigation group, we began the process of partnering with lawyers, as well as identifying suspect codes and potential plaintiffs

The first lawsuit, filed in April 2003, targeted Shippensburg University’s code, which was then overturned by a federal court in Bair v. Shippensburg . 23    The second lawsuit was filed by ACLU attorney Carol Sobel against California’s Citrus College’s speech code and speech zone policies; the case settled in just over two weeks.  The next lawsuit was filed against Texas Tech University in cooperation with the Alliance Defense Fund, a Christian litigation group.  Under pressure from FIRE, Texas Tech had already greatly expanded its “speech zone” from the 280 square feet of the “free speech gazebo” to nine acres.  The university, however, still maintained unacceptable restrictions and in Roberts v. Haragan , a federal court held that it could not maintain a speech code that banned, among other things, “insults,” “ridicule,” and “personal attacks.” 24

At virtually the same time as the Shippensburg decision, the Office for Civil Rights of the Department of Education issued a letter of clarification to all of the colleges and universities under its jurisdiction (virtually every university in the country).  The letter addressed the tendency on the part of universities to blame OCR regulations for the fact that so many of them maintained absurdly overbroad harassment codes.  Gerald A. Reynolds, Assistant Secretary for OCR, wrote:

EXT: I want to assure you in the clearest possible terms that OCR’s regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution… Thus, for example, in addressing harassment allegations, OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR. 25

With regard to private colleges, Reynolds wrote:

EXT: Because the First Amendment normally does not bind private institutions, some have erroneously assumed that OCR’s regulations apply to private federal-funds recipients without the constitutional limitations imposed on public institutions. OCR’s regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses. Any private post-secondary institution that chooses to limit free speech in ways that are more restrictive than at public educational institutions does so on its own accord and not based on requirements imposed by OCR. 26

OCR thus made it clear that no federal regulation could require banning constitutionally protected speech.  Momentum seemed to be gaining.  In February 2004, the Association for Student Judicial Affairs, an umbrella group of college administrators, issued a statement 27   that “urge[d] public institutions of higher education in the U.S. to ensure that their policies, rules, and procedures protect students’ freedom of speech and expression as guaranteed by the U.S. Constitution,” and promised the aid of ASJA members in helping to bring campus codes into compliance. With all of these developments, could the death of speech codes be on the horizon at long last?  Sadly, our research indicates that, in spite of everything, speech codes are as strong and pervasive as ever.

For our 2007 report, FIRE surveyed publicly available policies at the 100 “Best National Universities” and at the 50 “Best Liberal Arts Colleges,” as rated in the August 28, 2006 “America’s Best Colleges” issue of U.S. News & World Report . FIRE surveyed an additional 196 major public universities. (because public universities are legally bound by the First Amendment, FIRE is continually adding data on public universities to our database, at a rate consistent with our available resources). Several FIRE staff members spent a substantial portion of their year researching literally thousands of policies and rules in student handbooks, other official campus materials, and on schools’ websites.  The policies were then evaluated by FIRE’s specialized lawyers and assigned a red (worst), yellow or green light (best) rating to the university based on the extent to which their written policies restricted constitutionally protected speech. We publicly post all of the relevant materials, our ratings, and excerpts containing the language most dangerous to basic liberties on our Spotlight website ( www.thefire.org/spotlight ).  It is, to our knowledge, the most extensive evaluation of campus codes ever attempted.

A school is given a “red light” if it has at least one policy that both clearly and substantially restricts freedom of speech. A “clear” restriction involves a threat to free speech which is obvious on the face of the policy, whereas a “substantial” restriction is one that is broadly applicable to important categories of campus expression. 

A “yellow light” institution is one that has policies which could be interpreted to suppress protected speech, or policies that, while restrictive of freedom of speech, restrict only narrow categories of speech. For example, a policy banning “verbal abuse” would have broad applicability and would pose a substantial threat to free speech, but it would not be a clear violation because “abuse” might refer to unprotected speech, such as threats of violence or genuine harassment. “Yellow light” policies may still be unconstitutional, 28   but they do not clearly and substantially restrict speech in the same manner as “red light” policies.

If FIRE finds no policies that seriously imperil protected speech, a college or university receives a “green light.” This does not necessarily mean that a school actively supports free expression. It simply means that the school does not have any publicly available written policies which violate students’ free speech rights. 

Of the 346 schools reviewed by FIRE, 259 received a red-light rating (75%), 73 received a yellow-light rating (21%), and only 8 received a green-light rating (2%). Six schools did not receive any rating from FIRE.  Surprisingly, public schools, which are unambiguously legally bound by the First Amendment, actually had a somewhat higher percentage of “red light” ratings; a full 79% of public schools were “red light,” 19% “yellow light”, and 2% green.

What Makes Speech Codes So Hardy?   So how do speech codes continue to survive? I have come to the conclusion that there are at least four major factors at work:

• Ideology : Political correctness is still alive and powerful on our college campuses. The belief that some students (and, indeed, some administrators) have a right not to be offended plays a part in dozens upon dozens of incidents every year in which FIRE must come to the defense of a student or faculty member who said “the wrong thing.”  “The wrong thing” can range from publishing an “insensitive cartoon,” 30   to sending out an overly ironic Halloween invitation, 31   to an attempt to satirize or protest any number of issues, from affirmative action 32   to terrorism and religious extremism. 33
• Bureaucracy : What I find perhaps most galling about universities’ unwillingness to defend free speech and provide basic due process rights for students is that students are being asked to pay increasing portions of their lifetime earnings for the privilege of attending these institutions.  Furthermore, their tuition money is far too infrequently spent on improving faculty-to-student ratios or otherwise guaranteeing the quality of education.  Rather, it goes toward an ever expanding army of student judicial officers, residential life officials, and other administrators whose primary existence seems to revolve around keeping an eye on students and being involved in their lives.  The results have not been surprising, as administrators justify their positions and salaries by diagnosing more and more problems in the behavior, speech, and even attitudes and beliefs of students. 
• Liability : This is the factor that I believe gets the least attention from the critics of campus political correctness.  An ever-growing industry of university lawyers and “risk management” experts has left universities in a panic about avoiding lawsuits.  Unfortunately, some poorly decided harassment cases, as well as case law indicating an increased legal duty on the part of campus administrators to police the behavior of students, 34 seems to have encouraged many plaintiffs. At the same time, the risk management industry has a vested interest in exaggerating how serious and complex the state of the law actually is, and in this process free speech and due process often lose.
• Genuine ignorance of the law, the principles of modal liberty, and the reality of speech codes : Starting in 2000, FIRE has made a point of sending a representative to the annual Association of Student Judicial Affairs conference, and we have led seminars there concerning abuses of student speech rights on campus.  While there are notable exceptions, I have been routinely surprised by how much misinformation and lack of understanding there is among both college administrators and university counsels regarding basic principles of free speech and academic freedom.  

FIRE has a number of strategies for addressing the problems presented by these four factors, which I will address in greater detail below.

The argument of “But we don’t enforce our speech codes.” A favorite argument of those on campus who defend speech codes is to essentially say, “Yes, we do have speech codes on the books but we don’t enforce them.”  This explanation has been oddly effective at quelling some campus concerns about codes.  It is, of course, a peculiar argument—why are the codes there if the administration does not intend to use them?  But it may nonetheless help to convince some administrators that the codes do little harm, while allowing universities to express their opposition to offensive speech.

Defeating speech codes depends, at least in part, on dismantling this faulty argument.  The first response is that this claim is just flatly and demonstrably wrong: FIRE can point to dozens of well-documented examples of campus policies being used against clearly protected speech—cases that readers can see for themselves at http://www.thefire.org/index.php/case/ .  To cite just one recent glaring example in which a code was used to justify viewpoint based censorship, in the spring of 2006 Pennsylvania State University’s School of Visual Arts cancelled the opening of a student’s art exhibit on the basis that the student’s art violated the university’s Statement on Nondiscrimination and Harassment. The student’s exhibit on images of terrorism, which showed the destruction of Jewish shrines, anti-Semitic cartoons and propaganda in Palestinian newspapers, and the indoctrination of Palestinian youth, did “not promote cultural diversity” or “opportunities for democratic dialogue,” according to the School of Visual Arts. 35

Second, while universities may claim that they do not actually enforce their speech codes, they have the convenient protection of the Family Educational Rights and Privacy Act (FERPA), which requires a university, whether public or private, to keep disciplinary proceedings against students confidential, 36  to hide behind.

Third, even if the university has not enforced the code, it is still part of its regulations and may, at any time, be pulled out when a student or faculty member might wish to silence, intimidate, or punish a member of the community whose opinions he or she disagrees with. It would most likely be at the very instances when free speech protections are most badly needed that the dormant code would be dusted off and put to work. 37

Finally, and most importantly, the speech code itself, whether enforced or not, is the harm.  First Amendment jurisprudence recognizes this concept in the doctrine of “facial” unconstitutionality.  A speech regulation may be declared “facially” unconstitutional if it, by its very terms, sweeps in a large amount of clearly protected speech or if it is so vague that people of reasonable intelligence would have to guess at its meaning.  Either way, speech is “chilled” because the overwhelming majority of people typically would rather keep their mouths shut than risk the consequences of violating such a policy.  Furthermore, if the speech code is promulgated through the student handbook at a public university and the administration tells students that the university reserves the right to punish any speech that it deems “offensive,” it has both chilled speech and gravely misinformed students about their rights as students and citizens, whether the administration intends to enforce the speech code or not.  

DEFEATING SPEECH CODES

Speech codes have proven to be surprisingly resilient, so what strategies can be used to eradicate them once and for all?

For starters, the Speech Codes Litigation Project is essential to this end and has, so far, proven to be uniformly successful.38  Likewise, David French, director of the Alliance Defense Fund's Center for Academic Freedom, has committed his organization to litigating against speech codes, and so far his attempts have been equally successful.39  At every school where a “red light” speech code has faced a sustained challenge,40  that code has fallen-- whether by the university’s unilateral decision, negotiation with the school, or legal decision. However, more litigation is sorely needed.  In FIRE’s experience—given that overbroad speech codes are plentiful and many lawyers are interested in doing pro bono work on important matters of constitutional law— finding students who are willing to sue their own schools is the great limiting factor for the Speech Codes Litigation Project.  FIRE hopes that more brave students are willing to come forward to challenge their schools’ repressive codes, and we will be working to identify these students both through our Campus Freedom Network and through cooperation with other non-profits.

Continued litigation is, however, not enough by itself.  Colleges around the country have chosen to ignore one legal decision after another, and because it is not possible to litigate against every single school in the country, other approaches must be taken as well.

Since its founding, FIRE's primary weapon has been public exposure.  FIRE’s ever expanding Spotlight speech code database and our regular speech code reports are crucial aspects of this effort.  Prior to the creation of the Spotlight database, partisan commentators could pretend that speech codes no longer existed; now they can look for themselves to the original documentation taken from university websites to see that speech codes are indeed alive and well. To go along with Spotlight, FIRE has been drawing attention to particularly egregious speech codes through our Speech Code of the Month program.  In a relatively short amount of time, the program has already led to the revision of speech codes at seven schools.41  We have also discovered that collaborating with students on campus can be a particularly effective means to defeating speech codes.  In this respect, we are hopeful that our new Campus Freedom Network will help attract more ground forces in the battle against speech codes.

It is, also, crucial that this effort not be understood in an overly partisan rubric.  My experience indicates that average Americans, whether they are Democrats or Republicans, think that having speech codes on college campuses is unjustifiable.  Some of FIRE’s most effective campaigns against speech zones, for example, have been in collaboration with local ACLU chapters42  and left or liberal student groups.43   Opposing speech codes likewise may present an opportunity for real and meaningful cross spectrum cooperation.

As for the problem of a genuine lack of understanding of the law and the basic philosophy of liberty on the part of college administrators, FIRE already leads seminars educating campus administrators about fundamental principles of free speech and individual liberty.  In the future we hope to participate in more conferences and even to establish a continuing legal education program for university lawyers.44  

As for the confusion caused by genuine ambiguities in the law, FIRE hopes that this can be addressed through further litigation and legal scholarship.  To this end, we’ve established our Justice Robert H. Jackson Fellowship, which is directed at producing legal scholarship on precisely the types of legal ambiguities that exacerbate the erosion of liberty on campus. As for changing the prevailing culture, a lack of ideological commitment to the principles of a free society is a tremendous hurdle to overcome.  FIRE, however, may be more optimistic than most people about the potential for change due to the fact that our remarkable record of successes relies almost entirely on American society’s belief in fundamental liberties.  Free speech, meaningful dissent, regard for toughness in debate, and a willingness to question existing orthodoxies have, to forgive the expression, become fashionable again.  And while we have a long way to go, I have seen real change in the attitudes of administrators and students.  An encouraging sign of the progress that FIRE has witnessed during its eight years of existence is the fact that case submissions have begun to decline, even as FIRE’s prominence and name recognition has grown.   From a qualitative standpoint, it appears as though schools are increasingly handling instances of “offensive” speech in ways that show regard for free speech.  Whether this is due to a genuine shift in appreciation for free speech among college administrations, or merely out of fear of public embarrassment is, of course, impossible to tell.

Is Legislation the Answer?  FIRE has traditionally held a healthy skepticism of the effectiveness of legislation.  Legislation tends to be a clumsy instrument, and oftentimes even well thought out and well constructed legislation becomes highly distorted through the political process.  We have, therefore, avoided supporting legislation in the past.45 Looking forward, however, legislation might be appropriate in certain areas.  Legislators could very well require universities to follow controlling case law, to define harassment in a way that follows the appropriately narrow formulation of the only student-on-student harassment case to reach the Supreme Court, Davis v. Monroe County Board of Education,46  and to provide further redress for students and faculty members whose free speech rights have been violated.  Congress could also give teeth to contractual requirements so that private universities face more serious consequences should they fail to live up to their promises regarding free speech.  Thus, well constructed legislation could help end the scandal of campus speech codes forever. FIRE will be exploring how to best achieve these results in the coming years. 

The war against speech codes has spanned two decades and, despite constant losses in the courts and in the court of public opinion, too many of these codes remain.  Ending this scourge once and for all will require the coordinated effort of groups like FIRE, litigators, faculty, students, alumni, and possibly even federal and state governments.  The first step, furthered by our database, our speech code report and articles such as this one, is to make sure that the public knows that these codes still exist, that they are pervasive, and that they are harmful.  And the harm is indeed grave: entire generations of educated Americans are being taught that they have fewer rights than they actually do, while at the same time being inculcated with a fatal hostility to the very principles of free speech and academic freedom that make our democracy and our system of education possible.  Because our campuses seem oblivious to the dangers inherent in raising a generation that sees little wrong in regulating away “disagreeable” expression, it is up to those of us who care about preserving the basic principles of liberty to band together in this fight.  It is a fight we can win, and indeed it is a fight we must win.  Campus speech codes have survived for too long; it is time that they are finally relegated to the dustbin of history.

1 The author would like to thank Azhar Majeed and Kelly Sarabyn for their help in preparing this article.  I would particularly like to thank FIRE Director of Legal and Public Advocacy Samantha Harris for her outstanding work on FIRE’s speech code database, 2006 report, and Speech Code of the Month feature. 2 For more information about these and other harassment policies, refer to FIRE’s Spotlight website. www.thefire.org/spotlight.

3 Carnegie Foundation for the Advancement of Teaching. Campus Tensions. 4 Robert O’Neil, Free Speech in the College Community (Bloomington, IN:  Indiana University Press, 1997).

5 Alan Charles Kors and Harvey A. Silverglate, “Codes of Silence – Freedom of Speech in University Campuses,” Reason, November 1998.

6 Alan Charles Kors and Harvey A. Silverglate, The Shadow University: The Betrayal of Liberty on America’s Campuses (New York, NY: The Free Press, 1998).

7 Doe v. University of Michigan, 721 F. Supp. 852, 858 (E.D. Mich. 1989).

8 O’Neil at 11. To use another illustration, Drexel University in Pennsylvania still, to this day, maintains a ban on “inappropriately directed laughter” and “inconsiderate jokes.”

9 Policies at some schools, such as Antioch College, made no attempt to hide their intention of rewriting the basic rules of appropriate human interaction.  Antioch gained national attention when it introduced its Sexual Offense Prevention Policy in the early 90s, which defined required consent as “the act of willingly and verbally agreeing to engage in specific sexual conduct.”  Given that normal human sexual interaction does not involve such constant verbal negotiation and renegotiation, the plain language of the code made virtually any sexually active member of the Antioch community an offender of the policy.

10  President George H.W. Bush, University of Michigan Commencement Address, May 4, 1991.

11 The objective of the bill was to bind private colleges and universities (but only those receiving federal aid) to the same First Amendment obligations that public schools were held to. It would have allowed students at such private schools to sue for injunctive and declaratory relief any time their administration restricted speech in a manner inconsistent with the students’ First Amendment rights. The bill did provide an exemption for religious universities, to the extent that its application would be inconsistent with their religious tenets. See Henry J. Hyde and George M. Fishman, “The Collegiate Speech Protection Act of 1991: A Response to the New Intolerance in the Academy,” Wayne Law Review 37 (1991): 1469-1525.

12 O’Neil at 11.  See also Robert C. Post, “Racist Speech, Democracy, and the First Amendment,” William and Mary Law Review 32 (1991): 269-70.

13 UMW Post, Inc. v. Bd. of Regents of University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wisc. 1991).

14 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).  In R.A.V., the city of St. Paul attempted to prosecute an individual under the city’s “Bias-Motivated Crime Ordinance” for burning a cross in the yard of a black family.  The Court held that the city’s ordinance, which prohibited placing, on public or private property, “a symbol, object, appellation…which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” was invalid because it unconstitutionally prohibited “otherwise permitted speech solely on the basis of the subjects the speech addresses.”  The primary principle to be drawn from this case is that even within an unprotected form of speech, the state may not choose to ban only those viewpoints it dislikes. 

15 Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1993). Dambrot involved a basketball coach who was fired by the university for using a racial epithet to “motivate” his basketball team.  The court ruled that the university’s harassment policy was unconstitutionally overbroad and vague and was furthermore directed at censoring unpopular viewpoints, and accordingly prohibited the University from enforcing the policy.

16 Kors and Silverglate at 27.

17 Robert J. Corry v. The Leland Stanford Jr. University, No. 740309 (Cal. Super. Ct. 1995). In Corry, a California state court struck down Stanford University’s speech code because it banned speech that was protected by the Constitution.  The university argued that the speech code prohibited only speech within the Supreme Court’s doctrine of “fighting words,” but the state court disagreed, holding that the speech forbidden by the university’s code extended well beyond the bounds of “fighting words.” 

18 See also, Booher v. Board of Regents of Northern Kentucky University, U.S. Dist. LEXIS 11404 (E.D. Ky. 1998). The court determined that a university’s sexual harassment policy was facially invalid under the First Amendment due to its vagueness and overbreadth.  The court noted that the “policy gives one the impression that speech of a sexual nature that is merely offensive would constitute sexual harassment…” 

19 491 U.S. 397 (1989). The Supreme Court held in Johnson that the defendant’s act of flag burning was protected speech, famously stating that "(i)f 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. . ."

20 See, e.g., Papish v. Board of Curators of the Univ. of Missouri, 410 U.S. 667, 670 (1973) (“[T]he mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency’”), and Healy v. James, 408 U.S. 169, 180 (1972) (“[t]he college classroom with its surrounding environs is peculiarly the marketplace of ideas”).

21 O’Neil at 20-21.

22 See, e.g., Jon B. Gould, The Precedent That Wasn’t: College Hate Speech Codes and the Two Faces of Legal Compliance, 35 Law & Soc’y Rev. 345, 345 (2001) (“[H]ate speech policies not only persist, but they have actually increased in number following a series of court decisions that ostensibly found many to be unconstitutional.”). Alan Charles Kors and Harvey Silverglate also exposed the continuing pervasiveness of these codes in their 1998 book, The Shadow University, and it was a primary motivation for their founding the Foundation for Individual Rights in Education (FIRE) in 1999.  By the time of Gould’s article, FIRE had already begun work on its own far larger scale, more in depth study of campus speech codes.   In 2003, Harvey Silverglate and I published an article in which we announced:  “FIRE's still-in-progress survey and analysis demonstrates that a clear majority of higher-education institutions have substantial speech restrictions and many others have lesser restrictions that still, arguably, infringe on academic freedom.” Greg Lukianoff and Harvey Silverglate, “Speech Codes Alive and Well,” Chronicle of Higher Education, August 1, 2003.

23 280 F. Supp. 2d 357 (M.D. Pa. 2003).

24 346 F. Supp. 2d 853 (N.D. Tex. 2004).

25 Gerald A. Reynolds, Letter from the U.S. Department of Education, Office of Civil Rights, July 28, 2003.

27 The ASJA statement is available at: http://www.thefire.org/index.php/article/11.html?PHPSESSID=...

28 For example, in 2004, the U.S. Court of Appeals for the Third Circuit found that a state law banning advertisers from paying to place advertisements for alcoholic beverages in university newspapers was unconstitutional. Pitt News v. Pappert, 379 F. 3d 96 (3rd Cir. 2004).

29 The following universities were not rated:  Bard College, Baylor University, Boston College, Brigham Young University, Worcester Polytechnic Institute, and Yeshiva University.  Consistent with the freedom of association of colleges, FIRE recognizes that a private college may choose to define itself as being committed to values other than free speech, as long as the school makes it publicly and consistently clear that it holds a certain set of values above a commitment to free speech.  For example, Brigham Young University (BYU) is quite forthright in its stated policies that students entering BYU are not guaranteed robust free speech rights. One BYU policy says the following about free expression: “[T]he exercise of individual and institutional academic freedom must be a matter of reasonable limitations. In general, at BYU a limitation is reasonable when the faculty behavior or expression seriously and adversely affects the university mission or the Church.” It would be clear to anyone attending BYU that they are not entitled to unfettered free speech at BYU.  This does not mean that FIRE agrees with BYU’s restrictions; rather FIRE recognizes that if a private college clearly does not promise free speech, and the college makes this known publicly and consistently, entering students have given informed consent and have voluntarily chosen to limit their own rights—in much the same way students entering military academies or theological seminaries understand that they are relinquishing many rights they would enjoy at a state college.  Most private colleges, however, do promise robust free speech rights and FIRE believes that these schools should deliver on their promises.  Several courts have recognized this “contract theory” of student rights at private institutions. See Tedeschi v. Wagner College, 49 N.Y. 2d 652 (Ct. App. 1980); McConnell v. Le Moyne College, 2006 N.Y. Slip Op. 256 (Sup. Ct. 2006); and Schaer v. Brandeis, 432 Mass. 474 (Sup. Ct. 2000).

30 One such episode took place in 2004 at Missouri State University. For more information, check FIRE’s webpage on this case: http://thefire.org/index.php/case/652.html.

31 In 2006, a Johns Hopkins University student was suspended for an entire year for sending out an “offensive” Halloween invitation. For more information, check FIRE’s webpage on this case: http://thefire.org/index.php/case/730.html.

32 Just one example of university suppression of an affirmative action bake sale took place at the University of California at Irvine in 2003. FIRE’s webpage on this case contains further details: http://thefire.org/index.php/case/644.html.

33 In 2006, a student group at San Francisco State University was dragged through a lengthy investigation and hearing for holding an anti-terrorism rally on campus. More information on this case is available here: http://thefire.org/index.php/case/734.html.

34 See, e.g., Shin v. MIT, No. 02-0403 (Mass. Super. Ct. 2005).

35 More information about this case is available at: http://www.thefire.org/index.php/article/6997.html.

36 Harvey A. Silverglate and Josh Gewolb, FIRE’s Guide to Due Process and Fair Procedure on Campus (Philadelphia: Foundation for Individual Rights in Education, 2003), 79.

37 To illustrate, one need look no further than a 2006 case at Marquette University, where a university administrator removed a political quote from a Ph.D. student’s office door. The university justified its actions by arguing that, under its regulations, hallways and office doors are not “free speech zones.” However, this argument flew in the face of university practice; in the past, other members of the student’s department had been allowed to post materials on their doors without reprimand. Thus, the administration could not hide the fact that it was selectively applying an obscure provision in order to suppress a viewpoint that it did not like. More information about this case is available at: http://www.thefire.org/index.php/case/726.html .

38 For example, the State University of New York at Brockport in 2005 decided to settle a lawsuit challenging its speech code, which listed the following as examples of harassment: “cartoons that depict religious figures in compromising situations”; “calling someone an ‘old bag’”; “jokes making fun of any protected group”; and even merely “discussing sexual activities.” For more information about this case, refer to FIRE’s website: http://www.thefire.org/index.php/case/76.html .  Most recently, a court enjoined San Francisco State University’s speech codes.  This litigation was the sixth successful lawsuit in FIRE’s Speech Codes Litigation Project and was done in collaboration with the Alliance Defense Fund.

39 ADF’s legal successes include victories at Georgia Institute of Technology, Temple University, and Penn State University.. More information about these and other cases can be found on ADF’s website: http://www.alliancedefensefund.org.

40 One school that did not face a sustained challenge, and therefore did not have to amend its policy, is Troy University. Although a lawsuit was initially brought in federal court, it failed on grounds of mootness, as the student challenging Troy’s speech code had graduated. For more information about this case, refer to FIRE’s website: http://www.thefire.org/index.php/case/688.html.

41 These schools are Fayetteville State University, the University of Mississippi, Colorado State University, Jacksonville State University, Massachusetts College of Liberal Arts, the University of Nevada at Reno, and Albertson College of Idaho. In addition, policy change is imminent at Western Michigan University, where a concerned alumnus wrote to the university president after FIRE named the university’s sexual harassment policy its Speech Code of the Month for March 2007. Information on these and other cases can be found at FIRE’s Speech Code of the Month webpage: http://thefire.org/index.php/scotm.

42 In 2006, FIRE, in conjunction with the ACLU of Nevada, was able to bring about meaningful change at the University of Nevada at Reno. The university previously had had a policy in place designating only four remote areas of the campus as “public forum areas,” while the rest of campus was a “non public forum.” Under pressure from FIRE and the local ACLU chapter, however, the administration capitulated and designated the entire campus, except for the interior of university buildings, as “open public forum areas.” More information is available at: http://www.thefire.org/index.php/case/711.html.

43 In the previously mentioned case at the University of Nevada at Reno, FIRE worked in collaboration with student activists at the university, in addition to the local ACLU chapter. In fact, the students helped to propose a new policy, and worked closely with university administrators in the drafting process. To use an earlier example, FIRE took aim at a chilling speech policy at West Virginia University in 2002 with the help of two student groups, the West Virginia University Free Speech Consortium and the West Virginia Association of Scholars. In achieving this early and monumental victory, FIRE’s coalition was able to convince the administration to change its policy from one that limited free expression to two small areas of campus to one that designated the entire campus as a “free speech zone.” Along with the Reno case, this outcome speaks volumes about the power of FIRE and its allies to bring about meaningful change when they work together. More information about the case is available at: http://www.thefire.org/index.php/case/30.html.

44 What would perhaps be the most significant step along these lines would be an opportunity for FIRE to directly address the National Association of College and University Attorneys (NACUA), the umbrella association of university lawyers and general counsels.  In my experience with FIRE, university counsels—while being extremely familiar with harassment lawsuits and investigations—too often have a shocking lack of knowledge of First Amendment law.

45 Also, as a Section 501(c)(3) non-profit organization under the U.S. Internal Revenue Code, FIRE is limited in the amount of lobbying it can do to influence legislation. Specifically, “no substantial part” of FIRE’s activities may be devoted to lobbying. 26 U.S.C. § 501(c)(3).

46 526 U.S. 629 (1999) (holding that in order for student-on-student harassment to fall outside of constitutionally protected speech, it must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”).

Image: Pixabay , Public Domain 

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A Black Graduate Student’s Perspective on University Speech Codes

Critics of speech codes contend that public universities cannot restrict speech as it violates the First Amendment, which protects hate speech with a few narrowly defined exceptions . Accordingly, public universities must be careful in writing and enforcing their speech codes as failed attempts have worked against both the university and the marginalized students such restrictions aim to protect. For example, a broad speech code may be subject to judicial invalidation or litigation as was the case for the University of Michigan . Universities can also be vulnerable to litigation if they take actions such as uninviting speakers to their campus on the basis of their viewpoint.

There is a small percentage of universities that choose to adopt free speech policies that do not restrict hate speech. In 2015, 35 universities adopted the Chicago Statement on Principles , also known as the Chicago Principles, for their free speech policies. The Chicago Principles support a commitment to free speech and a “culture of inquiry and informed argument” where the members of the University community are responsible for making up their own minds about the nature of the ideas put forth. Of course, there are limitations to using the Chicago Principles as a free speech policy. While free speech policies are considered neutral and fair by the universities that employ them, a neutral approach to free speech within the social context of the United States ignores power, privilege and the presence of White supremacy in our social institutions , including institutions of higher education. Campus free speech policies in practice leave marginalized students vulnerable to hate speech. Students, therefore, cannot depend on their universities to provide protection from incidences like the demonstration at the University of Virginia in Charlottesville , Virginia, targeted flyers that promote harmful ideas and speakers who spread hateful ideologies. Thus, “neutral” free speech policies are insufficient if universities intend to provide a safe environment for all of their students since “neutral” free speech policies allow hate speech that is harmful for some of their students.

The ACLU states that “the First Amendment does not protect behavior on campus that crosses the line into targeted harassment or threats, or that creates a pervasively hostile environment for vulnerable students.” However, it is important to critically consider who gets to define what is “crossing the line” or what is “a pervasively hostile environment”. I believe people with privileged identities who benefit from the oppression of marginalized people should not be allowed to determine what is crossing the line into threatening or hostile territory. The identities of those who define these terms are not addressed in the ACLU’s statement. People with privileged identities includes those who hold power within the U.S. over marginalized people (i.e., White, cis-gendered, abled, heterosexual and/or male persons). It stands as unethical for privileged people to determine how much trauma marginalized people should endure before intervening, especially while the privileged people maintain their power. Instead, the voices of marginalized groups should be centered when universities make policies concerning what is considered “crossing the line” or a “pervasively hostile environment” for marginalized people.

For instance, racially marginalized people may find that demonstrations held by White nationalists create a pervasively hostile environment. A majority White team of university administrators may come to a different conclusion and decide that this is allowed on their campus under their free speech policies. However, those who share this privileged identity maintain power in our society and benefit from the racial marginalization of those targeted by hate speech in such demonstrations. White people also will not experience the trauma that racially marginalized people may experience during and after such a demonstration. Thus, a majority White administrative team should not be the ones to determine whether or not such a demonstration creates a pervasively hostile environment for their racially marginalized community members

In further critique of the Chicago Principles approach, enforcement of the free speech policies in line with this statement can run counter to a university’s diversity, equity and inclusion goals. By allowing hateful speakers and demonstrations to occur on college campuses, universities allow the continuation marginalization of oppressed groups. Such exclusionary experiences, and at times the university’s responses to them, give students with marginalized identities the impression that their campuses are unwelcoming and toxic. Thus, universities must counter harmful narratives that detract from their stated institutional values. More importantly, university administrators must consistently work to create an equitable and inclusive campus culture.

Universities have specific approaches to responding to public demonstrations of harmful and hateful speech, including releasing statements that re-affirm the values of the university, re-stating their non-discrimination policies, and referring students, faculty, and staff to the university resources for reporting hate and bias. These statements are meant to reassure the campus community that the university is committed to upholding specific values and that discriminatory actions will not be tolerated. However, statements are often interpreted as being superficial, especially when administrators do not invest in impactful diversity, equity, and inclusion efforts and the overall campus climate feels hostile towards marginalized groups.

Universities have a difficult balance to strike between speech codes, free speech policies and the creation of a diverse, equitable and inclusive campus. Universities must be proactive in building an inclusive campus community wherein hate speech against marginalized students is not tolerated by the campus community. Creating a truly inclusive campus culture is especially important considering the limitations universities have when creating speech codes and the negative effect hate speech has on marginalized students. Further, a university’s response to hate speech should be effective at asserting: 1) the university is actively opposed to discriminatory attitudes, actions and values that perpetuate the oppression of marginalized groups, and 2) the university is actively working to create an inclusive campus environment where all students feel valued, respected and safe.

Ulyssa Hester is a doctoral student in the Department of Agricultural Sciences Education and Communication at Purdue University. Ulyssa’s research interests include the creation of inclusive campus culture at Historically White Institutions with an emphasis on racial, ethnic and gender minority student experiences. You can follow her on Twitter @Ulychirp.

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E. Jean Carroll, center, leaves Manhattan federal court with her attorney Roberta Kaplan, left, Friday, Sept. 6, 2024, in New York. (AP Photo/Eduardo Munoz Alvarez)

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WASHINGTON (AP) — Shortly after appearing in court for an appeal of a decision that found him liable for sexual abuse, Donald Trump stepped in front of television cameras Friday and brought up a string of past allegations of other acts of sexual misconduct, potentially reminding voters of incidents that were little-known or forgotten.

The former president has made hitting back at opponents and accusers a centerpiece of his political identity, but his performance at his namesake Manhattan office tower was startling even by Trump’s combative standards.

At times, he seemed to relish using graphic language and characterizations of the case brought by advice columnist E. Jean Carroll, which could expose the former president to further legal challenges from Carroll’s attorneys. His remarks were especially striking given that they came four days before Trump will debate Vice President Kamala Harris, with early voting about to begin in some parts of the country and Election Day just two months away.

Trump is doing his best to stay in the public eye while Harris prepares for the debate in private, meeting with her advisers in Pittsburgh. That’s a reflection of their divergent campaign styles, with Trump frequently engaging with reporters — albeit often in friendly settings — while Harris has done just one interview and no news conferences since taking President Joe Biden’s place atop the Democratic ticket.

His team had billed Friday’s appearance as a press conference and Trump repeatedly brought up Harris’ lack of news conferences. But Trump took no questions and instead talked about the cases against him for an hour while hardly mentioning any campaign issues.

“I’m running for president, and I have all these cases all of a sudden come,” he said. “And they’re fake cases.”

Trump’s campaign raised tens of millions of dollars off his previous indictments, convictions and appearances in court. But it’s unclear how focusing on his legal woes will help him now as he works to win over undecided voters — including independents and those on the fence in critical swing states, ahead of a critical debate on Tuesday that will likely draw tens of millions of viewers.

Trump has disregarded his aides’ advice to focus on policy

Trump’s trying to seize the political offensive by bringing up allegations against him recalled 2016 when, in the weeks before Election Day, he attempted to dismiss as simple “locker room talk” a recording of him bragging about grabbing, forcibly kissing and sexually assaulting women, which triggered subsequent allegations of misconduct by a string of women.

But on Friday, standing inside Trump Tower, where he lived for decades before moving to Florida, Trump had many moments that evoked a more distant past.

He suggested women have accused him of wrongdoing because he is famous. He made a trio of references to how he was already famous in some circles in the 1970s, and talked about his work in the real estate and construction worlds in the 1980s — before millions of today’s voters were born. At one point, he referenced the New York Post’s famous “Page Six” gossip section, whose writers have spent decades covering him, as being the internet of its day.

Trump called Carroll’s case against him “Monica Lewinsky Part II,” referencing the then-White House intern who had a sexual relationship with President Bill Clinton, and recalled an infamous dress that played a pivotal role in the late-1990s impeachment proceedings against Clinton.

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The former president also repeatedly implied he would not have assaulted two of his accusers due to their looks. He said of a woman who has accused him of sexual misconduct on a plane in the 1970s “she would not have been the chosen one,” and of Carroll, “I never touched her. I would have had no interest in meeting her in any way, shape or form.”

Harris, a former California attorney general, says frequently of her opponent’s criminal record, “I know Donald Trump’s type.” She had no public schedule as she continued debate preparation on Friday, but has built her campaign partly around the idea of prosecuting the case against him — and the accusations Trump brought up Friday could give her more lines of political attack.

Trump’s supporters and aides have urged him to focus on policy contrasts with Harris instead of personal attacks during the final stretch of a race that remains extremely close.

But, as Trump spoke, two of his top political advisers were on a call with Republican members of Congress, criticizing the media as being too soft on Harris while saying they felt confident about the race for the White House. Instead, the former president was flanked by his lawyers, some of whom also spoke in defense of their client.

Trump faces unprecedented criminal and civil jeopardy for a major candidate

His comments came after Trump was in court to hear his lawyers argue for overturning a jury’s $5 million verdict finding him liable of sexually abusing Carroll in 1996.

Juries now have twice now awarded Carroll huge sums for Trump’s claiming she made up a story about him attacking her in a department store dressing room to help her sell a memoir. But that hasn’t stopped Trump from continuing to make nearly identical statements to reporters. On Friday, he said again that Carroll was telling a “made up, fabricated story.”

Carroll’s lawyer, Roberta Kaplan, warned in March after a jury awarded Carroll another $83 million that she would continue to monitor Trump’s comments and would consider suing again if he kept it up. In a speedy response to his Friday comments at Trump Tower, Kaplan said in a statement, “I’ve said before and I’ll say it again: All options are on the table.”

In the meantime, Trump faces unprecedented criminal and civil jeopardy for a major-party nominee.

He has separately been convicted on 34 felony counts in a New York state case related to hush money payments allegedly made to a porn actor. The judge in that case announced separately Friday that he would postpone sentencing until after Election Day on Nov. 5.

Trump has also been ordered to pay steep civil fines for lying about his wealth for years .

And he’s still contending with cases alleging his mishandling of classified documents, his actions after the 2020 election and his activities during the insurrection at the U.S. Capitol on Jan. 6, 2021 — though none are likely to go to trial prior to Election Day.

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What Are Speech Codes?

Table of contents, reforming college policies.

FIRE defines a “speech code” as any university regulation or policy that prohibits expression that would be protected by the First Amendment in society at large. Any policy—such as a harassment policy, a protest and demonstration policy, or an IT acceptable use policy—can be a speech code if it prohibits protected speech or expression.

Many speech codes impermissibly prohibit speech on the basis of content and/or viewpoint. An example of this type of policy would be a ban on “offensive language” or “disparaging remarks.” Other speech codes are content-neutral but excessively regulate the time, place, and manner of speech.  College speech regulations of this type might limit protests and demonstrations to one or two “ free speech zones ” on campus and/or require students to obtain permission in advance in order to demonstrate on campus.

If universities applied these rules to the letter, major voices of public criticism, satire, and commentary would be silenced on American campuses, and some of our greatest authors, artists, and filmmakers would be banned. These codes also lead students to believe they have an absolute right to be free from offense, embarrassment, or discomfort. As a result, other students begin the compromise of self-censorship.

These attitudes stay with students long after graduation. If students on our nation’s campuses learn that jokes, remarks, and visual displays that “offend” someone may rightly be banned, they will not find it odd or dangerous when the government itself seeks to censor and to demand moral conformity in the expression of its citizens. A nation that does not educate in freedom will not survive in freedom, and will not even know when it has lost it. It is to prevent this unspeakable loss of freedom that FIRE has created the Spotlight Database.

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