About Speech Codes

Public and Private: What Is the Difference?

When discussing free speech on campus, it is important to understand the relevance of the First Amendment to private and public institutions.

As state agents, all public colleges and universities are legally bound to respect the constitutional rights of their students. That the protections of the First Amendment apply on public campuses is well-settled law.

Private universities are not directly bound by the First Amendment, which limits only government action. However, the vast majority of private universities have traditionally viewed themselves—and sold themselves—as bastions of free thought and expression. Accordingly, private colleges and universities should be held to the standard that they themselves establish. If a private college advertises itself as a place where free speech is esteemed and protected—as most of them do—then it should be held to the same standard as a public institution.

Furthermore, private colleges and universities are contractually bound to respect the promises they make to students. Many institutions promise freedom of expression in university promotional materials and student conduct policies, but then deliver selective censorship once the first tuition check is cashed. They may not be bound by the First Amendment, but private institutions are still legally obligated to provide what they promise. Private institutions may not engage in fraud or breach of contract.

It is important to note, however, that if a private college wishes to place a particular set of moral, philosophical, or religious teachings above a commitment to free expression, it has every right to do so. The freedom to associate voluntarily with others around common goals or beliefs is an integral part of a pluralistic and free society. If a private university states clearly and publicly that it values other commitments more highly than freedom of expression, that institution has considerably more leeway in imposing its views on students, who have given their informed consent by choosing to attend.

Types of Policies

Certain types of speech policies are common on campus and may be divided into the following categories:

  • Advertised Commitments to Free Expression
  • Restrictions on Expressive Rights
  • Harassment Policies
  • Policies on Tolerance, Respect, and Civility
  • Policies on 'Bias' and 'Hate Speech'
  • Policies Restricting Freedom of Conscience
  • Free Speech Zones
  • Internet Usage Policies
  • Posting Policies

Advertised Commitments to Free Expression

Many colleges and universities advertise themselves as bastions of freedom of expression, where all viewpoints, including those that may be offensive to others, can be expressed, discussed, and debated. FIRE catalogues these advertised commitments to free expression on campus to highlight the fact that universities are breaking their own promises when they restrict speech. This is especially crucial at private universities, where colleges are legally and morally required to honor the promises they have made to students in promotional materials in their policies.

Harassment Policies

Actual harassment is not protected by the First Amendment. In the educational context, the Supreme Court has defined student-on-student harassment as conduct "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999).

Harassment is extreme and usually repetitive behavior—behavior so serious that it would prohibit a reasonable person from getting his or her education. For example, in Davis, the conduct found by the Court to be harassment was a months-long pattern of conduct including repeated attempts to touch the victim's breasts and genitals and repeated sexually explicit comments directed at and about the victim. Universities are legally obligated to maintain policies and practices aimed at preventing this type of genuine harassment from happening on their campuses.

Unfortunately, universities often use this obligation to punish protected speech that does not meet this exacting legal standard. This misuse of harassment regulations became so widespread that in 2003, the federal Department of Education's Office for Civil Rights (OCR)—which is responsible for the enforcement of federal harassment regulations in schools—issued a letter of clarification to all of America's colleges and universities.

Then-Assistant Secretary Gerald Reynolds wrote:

Some colleges and universities have interpreted OCR's prohibition of "harassment" as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR's jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.

Reynolds wrote that "OCR's regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution," and concluded that "[t]here is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment." This letter forecloses any argument that federal anti-harassment law requires colleges to adopt speech codes that violate the First Amendment.

In spite of this clarification, however, countless universities persist in maintaining ludicrously broad definitions of harassment and in punishing students and faculty members for constitutionally protected speech. Instead of limiting themselves to the narrow definition of "harassment" that is outside the realm of constitutional protection, universities expand the term to prohibit broad categories of speech that do not even approach actual harassment, despite such policies having been repeatedly and consistently struck down by federal courts. These vague and overly broad harassment policies deprive students and faculty of their free speech rights.

Policies on Tolerance, Respect, and Civility

Many colleges and universities today feel a need to protect students from speech and expression that they might find objectionable or offensive. This is a return to the old notion of a college acting in loco parentis—in the place of the parents—and is seen most clearly in policies requiring students to act with tolerance, civility, and respect. These policies seek to create a particular campus "environment" or "climate," and they frequently regulate speech to this end. While many of these policies aspire to noble ends—who wants a campus of hate, disrespect, and intolerance?—they too often elevate a supposed right to be free from indignity of any type above the right to free expression. Also, and of note, they are usually enforced very selectively, leaving some students free to speak their minds and forcing other students to censor themselves.

Policies on 'Bias' and 'Hate Speech'

Many universities have established committees ostensibly designed merely to investigate "bias incidents" or "hate incidents." These committees often lack the authority themselves to punish speech, but because of this, they often have no scruples about adopting a dangerously broad mandate. Thus, these committees tend to "investigate" not just harassment or hate crimes, but also things like "expressions of hostility," "negative opinions or attitudes," and actions that "mock" others.

Students and faculty on any campus with a bias incident commission should be wary. These committees usually have a chilling effect on free expression. Some of the policies establishing these committees are so poorly worded that they never distinguish clearly between a bias incident and a hate crime, which might lead some students to believe that bias incidents are just as punishable as actual hate crimes. Even if a committee's mandate explicitly states that it does not have the power to punish speech, free expression can still be imperiled. Given the choice between remaining silent or speaking out (but facing official investigation, hearings, and the humiliation of a charge of bigotry if they do), only the bravest student will feel comfortable choosing the latter.

Policies Restricting Freedom of Conscience

While most speech codes simply govern what people say, policies restricting freedom of conscience target what people think and believe, striking at the very heart of individual liberty and dignity. These policies require students or faculty to adopt a particular orthodoxy on pain of punishment or as a condition of membership in the university community.

Public universities, and private universities that claim to value freedom, may not require students to adopt or to profess their adherence to an official point of view, be it on politics, philosophy, culture, or any other subject. While universities can often force students to conform their conduct to the requirements of the law, the realms of the mind, the spirit, and the heart are off-limits.

This freedom from officially imposed orthodoxies was clearly articulated in the landmark 1943 Supreme Court case of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), in which the Court struck down a West Virginia state law compelling all public school students to participate in a daily flag salute. The Supreme Court ruled that the flag salute requirement was unconstitutional because it forced citizens to "declare a belief." This, it held, runs contrary to the First Amendment, the purpose of which is to protect the "sphere of intellect and spirit" from "official control." As Justice Robert Jackson famously wrote, "If 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."

While a university is permitted to advance its own message (universities have free speech rights, too), it is unconstitutional under Barnette for a public university to force its students or faculty to indicate their agreement with a particular set of values. Private universities are free to define the parameters of accepted truth for their students—as long as they advertise themselves accordingly. They may not—as so many do—simultaneously promote themselves as places where independent thought is encouraged and respected, and then force a particular viewpoint on students once they arrive on campus. A decent society believes in the right to informed consent.

Free Speech Zones

Many colleges and universities maintain "free speech zone" policies that quarantine free speech to small and/or remote areas of campus. This means that those who wish to engage in protests, demonstrations, or other expressive activities often cannot direct their message toward their intended audience. For example, students wishing to protest administrative policies might not be allowed to demonstrate outside the administrative building.

Universities often defend free speech zones by arguing that restrictions on the "time, place, and manner" of speech—i.e., restrictions that are not based on the content or viewpoint of the speech in question—are allowed by Supreme Court decisions. This defense often misinterprets the law. The Supreme Court has held that so-called "time, place, and manner" restrictions are permissible only if they do not "burden substantially more speech than is necessary to further the government's legitimate interests." Ward v. Rock Against Racism, 491 U.S. 781 (1989). While universities have a legitimate interest in protecting the ability of students to sleep and study, of faculty to teach, etc., policies that limit protests and demonstrations to one small stage or lawn on a large campus burden far more speech than is necessary to protect that interest.

Internet Usage Policies

Nearly all universities maintain policies regarding the acceptable use of their computer networks. While some of these policies are reasonable—prohibiting, for example, impersonating another person's identity in an e-mail, or using excessive bandwidth on a network—many others prohibit protected expression, such as the transmission of "offensive" e-mails.

Posting Policies

Universities may maintain posting policies containing reasonable and narrowly tailored time, place, and manner restrictions. For example, a university may require that posters or fliers be no larger than a certain size or that only one copy of a poster be allowed on a bulletin board.

However, many university posting policies go beyond reasonable limits. Some, for example, require that all postings be approved in advance by an administrative office. Such a rule constitutes a prior restraint on speech—that is, a rule that silences speech before it can be uttered. Other policies, such as those banning any reference to alcohol or drugs, discriminate based on the content of the posters. While a university may prohibit postings that advocate illegal behavior (for example, posters promising to serve underage drinkers at a party), it may not prohibit all alcohol and drug references, since a great deal of protected expression (flyers announcing an Alcoholics Anonymous meeting or advertising a speech by an advocate of marijuana legalization, to name just two examples) would be banned.

Unprotected Speech

Although the First Amendment covers a very wide range of communicative acts, not all expression is protected by the Constitution. Some limited categories of speech receive very little or no constitutional protection. "Incitement" and "obscenity," for example, are unprotected categories of speech, while commercial speech explicitly enjoys less protection than noncommercial speech. Because college administrators will sometimes invoke these extremely limited categories of expression to justify bans on controversial (or just inconvenient) speech, it is important to understand the established legal boundaries of the few categories of unprotected speech.

  • Incitement
  • Threats and Intimidation
  • Obscenity, Indecency, and Pornography

Incitement

Incitement, in the legal sense, does not refer to speech that may lead to violence on the part of those opposed to or angered by it, but rather to speech that will lead those who agree with it to commit immediate violence. In other words, the danger is that certain speech will convince listeners who agree with it to take immediate unlawful action. Thus, an example of unprotected incitement would be standing in front of a government building and urging an angry mob to burn it down.

The precise standard for incitement is found in the Supreme Court's decision in Brandenburg v. Ohio, 395 U.S. 444 (1969). There, the Court held that the state may not "forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." 395 U.S. at 447 (emphasis in original). This is an exacting standard, as evidenced by its application in subsequent cases. For instance, the Supreme Court held in Hess v. Indiana, 414 U.S. 105 (1973), that a man who had loudly stated, "We'll take the fucking street later" during an anti-war demonstration did not intend to incite or produce immediate lawless action (the Court found that "at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time"), and was therefore not guilty under a state disorderly conduct statute. 414 U.S. at 108-09. The fact that the Court ruled in favor of the speaker despite the use of such strong and unequivocal language underscores the narrow construction that has traditionally been given to the doctrine and its requirements of likelihood and immediacy.

Threats and Intimidation

True threats are not protected by the First Amendment. The Supreme Court has narrowly defined "true threats" as only "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343, 359 (2003). The Court also defined "intimidation," in the constitutionally proscribable sense, as a "type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Id. at 360. Thus, neither term would encompass, for example, a vaguely worded statement that is not directed at any one in particular. The legal definition of threats and intimidation are important to understand because, particularly in the aftermath of the 2007 Virginia Tech shootings, there has been an increase in the number of universities using policies against threats and intimidation to punish protected speech.

Obscenity, Indecency, and Pornography

Obscene expression—loosely defined as "hard-core" depictions of sexual acts—is not protected by the Constitution. A student at a public institution does not have the right to produce, transmit, or even, in many situations, possess obscene material on campus or anywhere else.

In the 1973 case of Miller v. California, 413 U.S. 15 (1973), the Supreme Court outlined three questions that must be answered to determine whether or not particular material should be classified as obscene:

  • whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
  • whether the work depicts or describes, in a patently offensive way, sexual conduct; and
  • whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

If the answer to each of these questions is yes, then the material does not enjoy First Amendment protection, and a university may choose to regulate its transportation, communication, or sale. However, public universities are obliged to treat indecent but non-obscene speech just as they would other expressive activity. This principle derives from the 1972 Supreme Court case of Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1972), which concerned the expulsion of a journalism student from a state university for distributing a newspaper that contained indecent but non-obscene speech. Among other things, the newspaper reproduced a political cartoon that depicted policemen raping the Statue of Liberty. The Court held that the Constitution's protection of indecent speech applied to college campuses, and that the student therefore could not be disciplined: "[t]he 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.'"

It is also important to understand that a prohibition on "obscene language," which typically means swear words, is not a legitimate prohibition on "obscenity." In fact, the Supreme Court has explicitly held that most such language is constitutionally protected. In Cohen v. California, 403 U.S. 15 (1971), the defendant, Cohen, was convicted in California for wearing a jacket bearing the words "Fuck the Draft" into a courthouse. The Court overturned Cohen's conviction, holding that the message on his jacket, however vulgar, was protected speech.

A Note Regarding "Savings Clauses"

In order to avoid criticism for restricting free speech, some universities include "savings clauses" in their speech codes, stating that the policy's provisions do not apply to speech protected by the First Amendment. However, these clauses do not render unconstitutional speech codes constitutional.

In a 2007 decision finding a university speech code unconstitutional, a California federal judge explained the problem with such savings clauses:

The sentence that announces that nothing in this Code "may conflict" with the Education Code's prohibition on punishing students for behavior that is protected by the First Amendment appears to have even less 'saving' power. This sentence communicates virtually nothing. How are college students to be able to determine (when judges have so much difficulty doing so) whether any particular speech or expressive conduct will be deemed (after the fact) to fall within the protections of the First Amendment? We must assess regulatory language in the real world context in which the persons being regulated will encounter that language. The persons being regulated here are college students, not scholars of First Amendment law. What does a college student see when he or she encounters [the university's speech code]? That student sees a long list of mandates and proscriptions, most of which seem to describe, in terms relatively familiar to the student and with a fair amount of particularity, various forms of "Unacceptable Student Behaviors." After seeing all these prohibitions, a student who is particularly thorough and patient also could read that nothing in the Code "may conflict" with a cited state statute that prohibits universities from violating students' First Amendment rights.

What path is a college student who faces this regulatory situation most likely to follow? Is she more likely to feel that she should heed the relatively specific proscriptions of the Code that are set forth in words she thinks she understands, or is she more likely to feel that she can engage in conduct that violates those proscriptions (and thus is risky and likely controversial) in the hope that the powers-that-be will agree, after the fact, that the course of action she chose was protected by the First Amendment? To us, this question is self-answering—and the answer condemns to valuelessness the allegedly 'saving' provision in the last paragraph of the Code that prohibits violations of the First Amendment.

College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005, 1020?21 (N.D. Cal. 2007).

Selected Cases on Free Speech in Education

Supreme Court

  • Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)
  • Healy v. James, 408 U.S. 169 (1972)
  • Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967)
  • Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973)
  • Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
  • West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)

Other

  • Bair v. Shippensburg Univ., 280 F. Supp. 2d 357 (M.D. Pa. 2003)
  • Booher v. Board of Regents, Northern Kentucky University, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998)
  • College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007)
  • DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)
  • Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989)
  • UWM Post v. Board of Regents of the University of Wisconsin, 774 F. Supp. 1163 (E.D. Wis. 1991)
  • Dambrot v. Central Michigan University, 839 F. Supp. 477 (E.D. Mich. 1993)
  • Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004)
  • Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001)

Selected Cases on Free Speech in General

  • Brandenburg v. Ohio, 395 U.S. 444 (1969)
  • Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
  • Cohen v. California, 403 U.S. 15 (1971)
  • Hess v. Indiana, 414 U.S. 105 (1973)
  • Hustler Magazine v. Falwell, 485 U.S. 46 (1988)
  • Miller v. California, 413 U.S. 15 (1973)
  • Pickering v. Board of Education of Township High School District, 391 U.S. 563 (1968)
  • R.A.V. v. City of Saint Paul, 505 U.S. 377 (1992)
  • Sweezy v. New Hampshire, 354 U.S. 234 (1957)
  • Terminiello v. Chicago, 337 U.S. 1 (1949)
  • Virginia v. Black, 538 U.S. 343, 359 (2003)
  • Ward v. Rock Against Racism, 491 U.S. 781 (1989)