DeJohn and the Fate of Speech Codes on Campus
August 5, 2008
The Third Circuit Court of Appeals' opinion in DeJohn v. Temple found that Temple University's harassment code flagrantly violated the First Amendment. It did so for reasons laid out in FIRE's amicus brief, sending a clear message to all public universities: unless harassment codes are narrowly tailored, they are unconstitutional.
This decision has serious ramifications for the many public universities currently maintaining broad harassment codes. Such schools are now vulnerable to suit, and given this unambiguous decision, administrators and school officials, particularly in the Third Circuit, will have little chance of receiving qualified immunity on the theory that the law is unsettled on this issue. Schools would be smart to immediately revise their codes.
The Third Circuit reminded schools of an important point regarding harassment codes. The court wrote, quoting itself from a previous case, "[T]here is no ‘harassment exception' to the First Amendment's Free Speech Clause; that is, ‘we have found no categorical rule that divests "harassing" speech as defined by federal anti-discrimination statutes, of First Amendment protection.'" This point addresses an all-too-common misconception, particularly among university administrators, that "hate speech" aimed at disadvantaged groups is not protected speech under the First Amendment. In fact, racist, sexist, and other allegedly offensive speech—or as the court put it, "evil" speech—is fully protected by the First Amendment.
Turning to the harassment policy itself, the court pointed out, as FIRE argued in our amicus brief, that the Temple policy clearly restricts protected speech. The court wrote:
[T]he policy's use of "hostile," "offensive," and "gender-motivated" is, on its face, sufficiently broad and subjective that they "could conceivably be applied to cover any speech" of a "gender-motivated" nature "the content of which offends someone." This could include "core" political and religious speech, such as gender politics and sexual morality. (Internal citation omitted.)
Temple's policy additionally banned verbal conduct that unreasonably interferes with a student's "status" or that creates an "intimidating" environment. Not only is it unclear what exactly qualifies as an "intimidating" environment, it can easily be argued that a smart, outspoken student creates an "intimidating" environment for her fellow students. And as the court points out, students can forget arguing about gender politics or sexual morality, lest Temple punish them for speech that supposedly lowers the status of women.
The court specified that a constitutional policy must, at a minimum, restrict its reach to severe and pervasive conduct that both objectively and subjectively creates a hostile environment or substantially interferes with an individual's work. Under this standard, schools can never ban speech merely because other students find its content offensive or hateful, or merely because the speech is intended to be hurtful. The speech has to be delivered in a way that is objectively severe and pervasive and which objectively interferes with someone's work.
Universities should consult this decision and FIRE's amicus brief and revise their harassment and other speech-regulating policies accordingly. Otherwise, more lawsuits are sure to follow. Temple's speech code is just the latest to fall in FIRE's Speech Codes Litigation Project, an initiative which has successfully dismantled unconstitutional speech codes at Shippensburg, Texas Tech University, the State University of New York at Brockport, California's Citrus College, and San Francisco State University and the California State University System.