Partial Victory for Free Speech at Florida Gulf Coast University: Unconstitutional ‘Speech Code of the Month’ Revised, but Other Troublesome Policies Remain
June 9, 2008
In a victory for free speech on campus, Florida Gulf Coast University has completely revised its "Personal Abuse" policy, which FIRE named its April 2007 Speech Code of the Month.
That policy previously prohibited "lewd, indecent, racist, prejudice [sic], obscene, or expressions deemed inappropriate." As we wrote in April 2007:
This policy is unconstitutional on so many levels that it is almost hard to know where to begin. Let's start with what is perhaps the most obvious problem: "expressions deemed inappropriate." Who gets to do the deeming? Is it university administrators? If so, that's an awful lot of discretion just waiting to be abused. Is it the listener, such that the university is willing to punish anything that a particularly sensitive listener deems inappropriate? You get the point. This policy is so vague and so broad that it cannot be enforced across the board, so it will necessarily be enforced arbitrarily. Moreover, even most speech that a reasonable person would deem "inappropriate" is nonetheless constitutionally protected, and cannot be prohibited by a public university like FGCU.
The updated version of the "Personal Abuse" policy now prohibits only "Violence, threat of violence or disregard of potential harm to others or against oneself or actions which endanger any member or guest of the University community, including physical, verbal, or sexual assault and relationship/domestic violence." While "verbal assault" is still somewhat vague, there is no question that this policy is a vast improvement over its predecessor.
Though these revisions mark a step in the right direction, this victory for free speech is not yet complete, as there are other policies in place at FGCU that still unlawfully restrict students' right to free speech. (Remember, FGCU is a public university, legally bound to uphold the First Amendment.) For example, the university's nondiscrimination policy prohibits, as harassment, "offensive or demeaning language or treatment of an individual, where such language or treatment is based typically on prejudicial stereotypes of a group to which an individual may belong, such as, objectionable epithets, threatened or actual physical harm or abuse, or other intimidating or insulting conduct directed against the individual." This definition of harassment is far too overbroad and vague to pass constitutional muster. That's because any student making a good faith effort to adhere to this policy would face two big problems: First, they'd be left in the dark as to what speech in particular would qualify, in the eyes of FGCU administrators, as "offensive" or "demeaning" expression. That uncertainty means speech will be chilled at FGCU, as students will almost certainly bite their tongues rather than face punishment. Second, FGCU's policy prohibits constitutionally protected speech—such as speech some listeners may find "insulting." That's just unacceptable.
Making matters yet worse, the Office of Housing and Residence Life prohibits, among other things, "annoying" messages "sent via e-mail or instant messenger, posted on Facebook, MySpace, blogs, or other electronic media," as well as "rude" or "derogatory" comments. Unfortunately, this prohibition suffers from the same problems just outlined above.
So long as these outrageous policies are still in place, student speech cannot be truly free at FGCU. We have seen—in the case of the "Personal Abuse" policy—that FGCU is willing to reform its policies to address free speech issues. Now it is time for the university to undertake the same process with respect to its other unconstitutional speech codes. Until then, it will continue to receive a poor, "red light" rating on FIRE's Spotlight. The First Amendment demands better.