December 2020 Speech Code of the Month: University of Colorado Denver

(Editor’s note: This policy has since been revised. Please visit the University of Colorado Denver's entry in FIRE’s Spotlight Database for more information.)

Speech codes don’t just apply when college campuses are open. While many colleges are conducting classes remotely, the threat to free speech these policies pose remains, as they often target online expression. At the University of Colorado Denver, for example, students are banned from sending or storing emails with messages that could be “considered offensive by an ordinary member of the public,” as well as any other “inappropriate matter.” The policy is FIRE’s Speech Code of the Month for December. 

Under CU Denver’s policy, emailing a link to Cardi B’s WAP video or even a photo of Michelangelo’s David would be punishable.

Next week, FIRE will release our annual Spotlight on Speech Codes report. The report covers the speech code ratings of the 478 colleges and universities included in our Spotlight database and discusses trends in policy reform over the past year. 

Each year, we add a few schools to the Spotlight database based on student enrollment and ranking statistics, and one of those additions this year was CU Denver. Unfortunately, CU Denver’s email policy sent the school straight to the “red light” list — a rating reserved for policies that clearly and substantially restrict free speech. 

In addition to banning anything that might be considered offensive, the policy directs students not to use email to send any “offensive … or otherwise inappropriate matter.” Listed examples include “offensive comments” about a range of topics, including race, gender, political beliefs, and even terrorism. I’m not sure what they’re trying to target by banning offensive comments about terrorism, but in any case, expression doesn’t lose constitutional protection just because it has offended someone, even “an ordinary member of the public.” And since the policy also says students can’t “store” messages that are considered offensive, they’re even on the hook for failing to immediately delete someone else’s offensive email.

The policy also bans “hyperlinks or other references to indecent or patently offensive websites and similar materials,” so students could be held responsible for merely including a link or reference in an email that someone finds “indecent.” While material that meets the stringent legal standard for obscenity is not constitutionally protected, expression can’t be limited merely because someone has found it indecent. Under CU Denver’s policy, emailing a link to Cardi B’s WAP video or even a photo of Michelangelo’s David would be punishable. This absurd result is impermissible at a public university.

Instead, the university should narrowly ban the use of email for conduct that is not protected by the First Amendment, such as harassment, or transmitting a “true threat.” 

Instead, the university should narrowly ban the use of email for conduct that is not protected by the First Amendment, such as harassment, or transmitting a “true threat.”

For the regulation of obscene material, I recommend taking a look at Boise State University’s “Information Technology Resource Use” policy for model language. The policy narrowly bans “[v]isiting, viewing or distributing Internet sites or materials that contain obscenity, as defined under applicable federal and state law; and publishing, displaying, transmitting, retrieving or storing such obscene material.” By using the term “obscene” (rather than the undefined term “indecent”) and by referencing that the term has an applicable definition from federal and state law, Boise State’s policy narrowly targets speech that is not constitutionally protected, rather than broadly sweeping in any speech found subjectively indecent like CU Denver’s policy. 

As always, FIRE’s Policy Reform team stands ready to assist CU Denver and all other universities in revising their policies so that they better meet First Amendment standards. 

In fact, FIRE recently worked with the University of Colorado Boulder in revising its policies, and welcomed the school to our list of “green light” institutions this summer. Three Colorado universities now earn the overall green light rating. 

CU Denver should follow the Boulder campus’s lead by revising its restrictive policies, including this email policy. That way, CU Denver could make the green light list for next year’s Spotlight on Speech Codes report! 

If you are a college student or faculty member interested in free speech, consider joining the FIRE Student Network or Faculty Network to connect with a coalition of college students and faculty members dedicated to advancing individual liberties at their institutions. 

If you’re concerned about a potential violation of your rights, contact FIRE for more information.