Runnin’ Rebel with a Cause: Protecting the First Amendment
September 18, 2012
by Joseph Cohn
In April of 2011, my colleague Azhar Majeed wrote to University of Nevada, Las Vegas (UNLV) President Neal Smatresk urging him to revise two policies (UNLV's Statement on Diversity in the University Community and its Student Computer Use Policy) that violated the First Amendment by restricting constitutionally protected speech.
When I joined FIRE's staff in March, I took particular interest in our efforts to fight for free speech at UNLV, not only because I am a UNLV alumnus (Class of 2000—Go Runnin' Rebels!), but also because reforming these two restrictive student speech policies would cap work that I began nearly 15 years ago as a founding member of the UNLV student chapter of the ACLU. I guess you could say that to me, fixing unconstitutional policies at UNLV is somewhat personal. That's why I asked for permission to take a pause from my legislative and policy work to personally write the follow-up letter to President Smatresk before I hit my 30th day on the job. I sent my letter on March 27, 2012.
In my letter, I, like Azhar, invited President Smatresk to work with FIRE to revise UNLV's two "red light" policies. The unconstitutional language in UNLV's Statement on Diversity in the University community reads in relevant part:
[T]he university ... will not tolerate any harassment of or disrespect for persons of race, sex, age, color national origin, ethnicity, creed, religion, disability, sexual orientation, gender, marital status, pregnancy, veteran, status, or political affiliation
This policy is unconstitutional in a variety of ways. First, it's overbroad. The policy prohibits "disrespect for persons" on the basis of enumerated categories. Now, I don't want anyone to be disrespected, but at the end of the day, a lot of disrespectful speech is constitutionally protected. For example, UNLV cannot prohibit the College Republicans from being disrespectful to College Democrats, or vice-versa.
Second, the policy is unconstitutionally vague. What speech constitutes "disrespectful" speech in the first place? Your guess is as good as mine. Disrespect is, after all, pretty subjective.
Finally, the policy is problematic because it bans "harassment" without defining what exactly harassment is. In Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999), the United States Supreme Court defined student-on-student harassment carefully and made clear that schools can only prohibit as harassment conduct that is so "severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit."
Unfortunately, even with the Supreme Court's decisive instruction, institutions across the country commonly run into one of two pitfalls when addressing harassment. They either define harassment too broadly to include speech that fails to meet the Davis threshold of severity, pervasiveness, and objectively offensive conduct, or they fail, as UNLV does here, to define harassment at all. This policy could easily be fixed if UNLV clearly and to-the-letter adopted the Davis standard.
The other policy Azhar and I asked UNLV to revise in our letters is the "Student Computer Use" policy. The unconstitutional portion of that policy reads:
Inappropriate use would include but is not limited to: ... Using a computer to harass, send offensive messages, or knowingly cause a computer or system to crash.
Not to sound redundant, but this policy, like the previous policy, also fails to define harassment, and it too is unconstitutionally overbroad and vague. Clear and simple: UNLV cannot ban "offensive messages." It's been settled for decades 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." Texas v. Johnson, 491 U.S. 397, 414 (1989). And how is it vague? What one person deems offensive, another may not. Without any guidance, student speech may be chilled for fear that what they type may be deemed offensive enough for sanction. Bottom line, this policy could be made constitutional by ditching the prohibition on "offensive" speech and incorporating the Davis definition of harassment. I'm telling you, a little bit of Davis can go a long way.
As you can see, it would not be particularly hard to cure these policies of their constitutional defects. However, I'm disappointed to report that, to date, we have not yet even received a response from my alma mater. And that's a shame, because UNLV has a long tradition of working with students, faculty, community leaders, and critics alike when it comes to addressing civil liberties violations on campus. I know this firsthand. I sat on committees in the late 90's dealing with campus police misconduct in the aftermath of some high profile incidents of excessive force and racial profiling against students of color, community leaders, and even the famed civil rights advocate Dick Gregory.
So, President Smatresk, if you're reading this: It's not too late to take a look at the two policies FIRE wrote to you about. Every day of delay is a new violation of the First Amendment, but each day also presents an opportunity to work with us to create a freer, better UNLV. After all, how rebellious can a Runnin' Rebel really be without free speech?