Speech Codes of the Year: 2012
December 27, 2012
Each month, FIRE singles out a particularly reprehensible campus speech code for our Speech Code of the Month designation. While all of 2012's Speech Codes of the Month flagrantly violated students' and faculty members' right to free expression, two of them were so egregious that they deserve special mention as 2012's Speech Codes of the Year.
- Oakland University. At Oakland University in Michigan, the policy on "Telephones" (PDF) provides that "No person shall use any telephone or other communications device to harass, offend, or disturb any other person, nor shall any person use threatening, obscene, immoral, or insulting language over any telephone or other communications device." This policy illustrates perfectly the mock-Victorian sensibility that seems to underlie so many university speech codes-a sensibility according to which adult college students must not be exposed to anything "insulting" or (gasp) "immoral."
The policy is also unconstitutionally vague and overbroad. It is vague because students cannot possibly know in advance what is prohibited, since there is no way to know what another person might find offensive, disturbing, immoral, or insulting. It is overbroad because most language that would be offensive or insulting to a reasonable person is still entitled to full First Amendment protection. As the U.S. Supreme Court has written, "the 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.'" Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973).
- Illinois State University. Illinois State University's Code of Student Conduct (PDF) sets forth a list of "non-negotiable values" at the university, including "civility," "an appreciation of diversity," and "individual and social responsibility." The policy then provides that "[w]hen individual behavior conflicts with the values of the University, the individual must choose whether to adapt his or her behavior to meet the needs of the community or to leave the University." In other words, if a student's expression or behavior deviates from the university's definition of what it means to appreciate diversity or be socially responsible, that student may be kicked out of the university.
As a public university, Illinois State has no right to require its students to adhere to certain values as a condition of membership in the university community. If this is not immediately clear to you, just try substituting the word "patriotism" for any of the values on that list and imagine the university enforcing the policy. Administrators at Illinois State would be well advised to read the decision of the Supreme Court in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), in which the Court held that a public school could not compel its students to salute or pledge allegiance to the American flag. Such a requirement was unconstitutional, the Court held, because "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."