Speech Code of the Month: Pennsylvania State University

FIRE announces its Speech Code of the Month for September 2008: Pennsylvania State University.

Penn State owes this undesirable distinction to the Penn State Principles, a set of behavioral guidelines that "[i]t is understood that members of the Penn State community agree to abide by...to ensure that Penn State is a thriving environment for living and learning." One of the principles states that "I will respect the dignity of all individuals within the Penn State community," and provides that

Actions motivated by hate, prejudice, or intolerance violate this principle. I will not engage in any behaviors that compromise or demean the dignity of individuals or groups, including intimidation, stalking, harassment, discrimination, taunting, ridiculing, insulting, or acts of violence. [Emphasis added.]

The problems with this policy are so patently obvious that I am not going to launch into a discussion of why they violate both the First Amendment and Penn State's own statement that it "is committed to the protection and preservation of the free search for truth; the freedom of thought, inquiry, and speech." What I am going to launch into a discussion of is how crazy Penn State—in particular—is to maintain this policy.

First, Penn State has already had to settle one lawsuit regarding several speech codes it used to maintain (it revised those policies as part of the settlement). Second, Penn State is a public university in the Third Circuit, where there are now two decisions clearly establishing the unconstitutionality of campus speech codes. In 2001, the Third Circuit struck down a public high school's harassment policy on First Amendment grounds because it conditioned the permissibility of speech on subjective listener reaction. The policy at issue defined harassment as "verbal or physical conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment." The court found the policy unconstitutional because it did not "require any threshold showing of severity or pervasiveness," and thus "it could conceivably be applied to cover any speech about some enumerated personal characteristics the content of which offends someone." The court emphasized that "it is certainly not enough that the speech is merely offensive to some listener." Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001).

And just last month, in DeJohn v. Temple University, the Third Circuit held that a sexual harassment policy at Temple University was facially unconstitutional. Temple's former policy prohibited "all forms of sexual harassment" including "expressive, visual or physical conduct of a sexual or gender-motivated nature" whenever that conduct "has the purpose or effect of unreasonably interfering with an individual's work, educational purpose or status" or "creating an intimidating, hostile or offensive environment." In finding the policy unconstitutional, the court wrote that

[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.

Crucially, the court also pointed out that college administrators "are granted less leeway in regulating student speech than elementary and high school administrators"—which means the court's earlier decision in Saxe is yet more important on the college campus.

In light of all this, Penn State is playing with fire (no pun intended??) by maintaining a policy that so clearly violates what the Third Circuit has said—on multiple occasions—about the extent to which schools may restrict student speech in the name of preventing harassment. For this reason, Penn State is our September 2008 Speech Code of the Month. If you believe that your college or university should be a Speech Code of the Month, please email speechcodes@thefire.org with a link to the policy and a brief description of why you think attention should be drawn to this code. And if you would like to help fight abuses at universities nationwide, add FIRE's Speech Code of the Month Widget to your blog or website and help shed some much-needed sunlight on these repressive policies.