The State of Free Speech on Campus: Williams College
December 20, 2012
This winter, FIRE will be presenting a blog series on the state of free speech at ten of America's top liberal arts colleges. First up: Williams College in Massachusetts. Williams fares quite well in comparison to many of its counterparts when it comes to protecting free speech on campus, but there is still room for improvement. Overall, FIRE gives Williams a "yellow light" rating for its speech codes because of several policies that could too easily be abused to punish protected speech.
Although Williams is a private institution (as are all of the colleges in this series), and thus not legally bound by the First Amendment, it claims to value free speech, describing itself (PDF) as "committed to being a community in which all ranges of opinion and belief can be expressed and debated." As a result, students attending Williams would almost certainly expect to have the same expressive rights as their counterparts at Massachusetts' public colleges and universities. Several policies in the college's Student Handbook, however, have the potential to infringe on students' ability to fully express themselves.
First, the College Standards of Conduct (PDF) provide that:
Accepting membership in this community entails an obligation to behave with courtesy to others whose beliefs and behavior differ from one's own; all members and guests of this community must be free of disturbance or harassment, including racial and sexual harassment.
While requiring students to behave with "courtesy" may sound innocuous and well intended, the term—along with the term "disturbance," used later in the policy—is so vague that the policy could apply to mere passionate expressions of opinion that leave other students feeling offended. Might the college find that a harshly worded statement or op-ed was impermissibly discourteous towards those with opposing beliefs, or that certain types of controversial speech may be censored because they "disturb" those who disagree?
This policy is reminiscent of the "civility" policy that San Francisco State University's College Republicans were charged with violating several years ago. The alleged "incivility" was an anti-terrorism protest against Hezbollah and Hamas in which members of the student group stomped on homemade replicas of those organizations' flags. That policy was ultimately struck down by a federal judge, who issued an opinion eloquently setting forth the dangers of mandating civility on campus. In that opinion, Judge Wayne Brazil wrote that civility "reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause," and that it thus infringed upon speakers' First Amendment rights to restrict speech in this manner. The same can be said of a "courtesy" requirement.
Regarding Williams' requirement that its students' speech be "free of disturbance," consider this statement from the U.S. Supreme Court in Terminiello v. Chicago, 337 U.S. 1, 4 (1949):
Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. (Emphases added.)
While Williams may not, consistent with its commitment to free speech in official policy, require its students to behave courteously, it may of course encourage them to do so. This policy could easily be revised by making clear that it is entirely aspirational, and that students will not face any discipline for displaying a lack of courtesy or for leaving other students feeling "disturbed." Indeed, one might argue that one of the primary purposes of a liberal arts education is to "disturb" at least some of students' preconceived notions—at least, disturb them enough to make students think about why they hold them.
Williams' Sexual Harassment Policy (PDF) also potentially implicates protected speech, but has a simple fix. The policy defines sexual harassment as conduct that "has the purpose or effect of unreasonably interfering with an individual's performance by creating an intimidating or hostile educational or working environment." This definition could be improved: the policy language tracks the law of workplace harassment, but the Supreme Court has set forth a more speech-protective standard for student-on-student (or peer) harassment in the educational setting. According to the Court's decision in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), peer harassment in the educational context is limited to conduct that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." Williams' definition lacks the requirements of severity and pervasiveness that characterize peer harassment in the educational setting, and should be revised to be consistent with the Davis standard.
More problematic than the college's definition, however, is the list of potential examples of sexual harassment set forth in the policy, including "sexually offensive remarks." This is highly misleading; while such remarks could be part of a pattern of conduct that ultimately rises to the level of prohibited harassment, most instances of such speech are constitutionally protected. The policy's implication that all "sexually offensive remarks" could be subject to discipline is likely to have a chilling effect on expression that, while controversial, would be constitutionally protected at a public university. There are two simple ways to fix this problem. First, the policy could simply define sexual harassment, as explained above, without including a list of examples. Alternatively, the list of examples could be introduced by a statement along these lines: "Examples of conduct that may constitute sexual harassment if sufficiently severe, pervasive, and objectively offensive include...." Explicitly tying the examples to the Davis standard of harassment would remove the ambiguity in the policy that results in a chilling effect on speech.
Finally, Williams' policy on Computing Ethics and Responsibilities (PDF) prohibits the use of the college's computing resources for "annoyance and harassment." Since neither "annoyance" nor "harassment" is defined, this policy is potentially applicable to a broad range of protected speech (remember, again, that the Supreme Court has explicitly stated that, to fall outside the scope of the First Amendment, speech must rise far above "public inconvenience, annoyance, or unrest"). Harassment is unprotected when limited to its legal definition, but here, the college has left it wholly undefined, giving the administration discretion to apply the term as it sees fit and threatening students' expressive rights in the process. A much better alternative would be to explicitly limit the policy to unlawful conduct, much like the following policy (PDF) from the University of North Carolina at Chapel Hill: "Users may not distribute or send unlawful communications of any kind, including but not limited to cyberstalking, threats of violence, obscenity, child pornography, or other illegal communications (as defined by law)."
The problems with Williams College's policies, while troublesome, are actually relatively minor in comparison to problems found at other colleges and universities, and Williams could easily live up to its commitment to free speech and earn FIRE's most favorable, "green light" rating by making just a few simple revisions. We hope that the Williams administration will consider this undertaking in the new year. And, as always, we at FIRE would be delighted to lend a hand.