Letter from FIRE to University of Nevada, Las Vegas President Neal Smatresk, April 19, 2011

April 19, 2011

President Neal Smatresk
University of Nevada, Las Vegas
Office of the President
Box 451001
4505 S. Maryland Parkway
Las Vegas, Nevada 89154

Sent via U.S. Mail and Facsimile (702-895-1088)

Dear President Smatresk:

As you can see from the list of our Directors and Board of Advisors, the Foundation for Individual Rights in Education (FIRE) unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of liberty, free speech, legal equality, due process, the right of conscience, and academic freedom on America’s college campuses. Our website, thefire.org, will give you a greater sense of our mission and activities.

We write you today to once again express our concern over policies at UNLV that clearly and substantially restrict students’ expressive rights, and to point out that the key to successfully revising these policies can be found in the aspirational “Statement of Civility” recently adopted at UNLV. As the new civility statement demonstrates, the university can encourage students to behave in certain ways without requiring them to do so in a way that infringes on their fundamental rights. UNLV’s restrictive speech codes prohibiting—among other things—any expressions of “disrespect for persons” stand in stark contrast to the new civility statement, which appropriately conveys institutional values without compromising student rights. We urge you to cure the defects in these policies to ensure UNLV students the First Amendment freedoms that UNLV, a public university, is legally bound to protect.

Turning to the policies in question, UNLV’s “Statement on Diversity in the University Community” reads, in relevant part:

[T]he university … will not tolerate any harassment of or disrespect for persons because of race, sex, age, color, national origin, ethnicity, creed, religion, disability, sexual orientation, gender, marital status, pregnancy, veteran status, or political affiliation.

This policy violates students’ free speech rights in a number of ways. First, it is unconstitutionally overbroad. The prohibition on any “disrespect for persons” on the basis of enumerated categories (including political affiliation, thus effectively pre-empting political debate on campus) completely ignores the fact that the vast majority of expression that can be characterized as “disrespect[ful]” is in fact protected by the First Amendment. A statute or law regulating speech is unconstitutionally overbroad “if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate.” Doe v. University of Michigan, 721 F. Supp. 852, 864 (E.D. Mich. 1989), citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). While unprotected speech such as true threats and harassment will almost certainly be disrespectful, most speech that is disrespectful will not fall into one of the very narrow categories of expression that are outside the protection of the First Amendment. The Supreme Court declared decades ago that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949). Under this and other longstanding precedents, it is clear that UNLV, a public university legally bound by the Constitution, cannot proscribe any and all “disrespect” of others.

The policy is also unconstitutionally vague. By regulating student expression with as amorphous a term as “disrespect,” UNLV fails to provide its students with adequate notice of what speech is and is not prohibited. A regulation is said to be unconstitutionally vague when it does not “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). The term “disrespect” is inherently subjective and open-ended, and what one person may consider disrespectful may be perfectly acceptable to another person. The policy’s lack of specificity and guidance is likely to only confuse students at UNLV, and they will be forced to guess what their peers and/or the administration might deem to be punishable. Even if students are somehow able to determine what the policy prohibits, they will likely self-censor to such a degree that expression on campus will be chilled. Such a result is untenable.

This policy also bans “harassment” on the basis of enumerated categories without defining the term in any way. Yet student-on-student harassment has a specific definition in the educational context, and only a policy that meets that standard is permissible at a public university. That standard, announced by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999), requires the conduct in question to be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit” to constitute actionable harassment. Because UNLV’s policy fails to limit its proscription of “harassment” to this stringent, speech-protective standard, it threatens student speech entitled to constitutional protection. This contributes to the policy’s problem of overbreadth. In addition, because the policy fails to define harassment in any way, it does not provide adequate notice of the expressive conduct prohibited, contributing to the vagueness of the policy. Finally, in light of UNLV’s legal obligation to follow the Davis standard when addressing peer harassment, we urge that you review UNLV’s existing policies on peer harassment, including sexual harassment, and ensure that those policies define peer harassment in accordance with the Davis decision.

The second speech code of concern to FIRE is the Office of Information Technology’s policy on “Student Computer Use,” which states, in relevant part:

Inappropriate use would include but is not limited to: … Using a computer to harass, send offensive messages, or knowingly cause a computer or system crash.

This policy impermissibly bans sending “offensive messages,” despite the fact that most offensive speech is protected under the First Amendment. In fact, the Supreme Court has declared that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). Indeed, in affirming the protected status of a college student newspaper containing an article entitled “Motherfucker Acquitted,” the Court has held that “the 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.’” Papish v. Board of Curators of University of Missouri, 410 U.S. 667 (1973). Again, under these and other precedents, it is clear that UNLV cannot simply prohibit any and all offensive expression.

Finally, the “Student Computer Use” policy also suffers from the same vagueness problem afflicting the “Statement on Diversity.” Relying on an amorphous term such as “offensive” to regulate student conduct and expression fails to provide UNLV students with adequate notice as to what exactly is prohibited. Once again, students attempting to abide by the terms of this policy will be forced to guess what their peers and/or the administration may deem to be sufficiently offensive. The resulting chilling effect on campus discourse and dialogue is unacceptable.

Please be advised that federal and state courts across the country have consistently struck down unconstitutional speech codes, often masquerading as harassment or civility policies, at public universities over the past twenty years. See Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring university discriminatory harassment policy facially unconstitutional); DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) (striking down university sexual harassment policy as facially overbroad); McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) (invalidating policies on hazing-harassment, emotional distress, and offensive or unauthorized signs); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy due to unconstitutionality); The UWM Post, Incorporated v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring university racial and discriminatory harassment policy facially unconstitutional); Corry v. Leland Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.) (declaring “harassment by personal vilification” policy unconstitutional); Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (finding university sexual harassment policy void for vagueness and overbreadth); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of university harassment policy due to overbreadth); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding university sexual harassment policy unconstitutionally overbroad); College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of university civility policy); and Smith v. Tarrant County College District, 694 F. Supp. 2d 610 (N.D. Tex. 2010) (invalidating “cosponsorship” policy due to overbreadth).

If UNLV seeks a model for how to encourage positive interactions among its students without unconstitutionally infringing on their right to free speech, it need look no further than its own Statement of Civility. According to a report in the January 20, 2011, edition of The Rebel Yell, the UNLV Statement of Civility reads, in its entirety:

UNLV is dedicated to intellectual inquiry in its full depth, breadth, abundance, and diversity. Integral to this overarching duty is the essential commitment to academic freedom and personal expression in their fullest manifestations. We embrace the articulation of unpopular and unsettling ideas as an integral part of intellectual inquiry. To the extent it is consistent with the full pursuit of intellectual inquiry, UNLV fosters a civil, respectful, and inclusive academic community defined by a concern for the common good, by developing relationships and a culture that promotes the rights, safety, dignity, and value of every individual. A civil university community, consisting of faculty, staff, students, and external constituents, is vital to the pursuit of excellence in research, scholarship, and creative activity — appreciating what distinguishes us from one another while celebrating that which binds us together.

 In the same Rebel Yell article, UNLV Vice President and General Counsel Richard Linstrom acknowledges that the Statement is purely aspirational and will not be used to sanction or punish constitutionally protected expression. Linstrom is quoted in the article as saying, “There’s no way you could be disciplined for being uncivil because I don’t even know what civility is …. It’s really not policy … It’s a statement.” On the basis of Linstrom’s words, we are happy to praise UNLV for its proper understanding of First Amendment principles in this situation. Indeed, we have already done so—you can read our public analysis and praise of UNLV’s aspirational civility statement on our blog, The Torch, at https://www.thefire.org/article/12771.html. We have recognized UNLV in this way for its respect for student expression, and we hope this proper balancing of respect for the First Amendment with the desire to promote civility on campus can serve as a model as the university considers its speech codes.

FIRE asks that UNLV revise its policies to make them consistent with the requirements of the First Amendment and, to prevent speech at UNLV from being impermissibly chilled, that you clarify to students and administrators that protected expression may never and will never be investigated or punished at UNLV.

Thank you for your attention and sensitivity to these concerns. If FIRE can be of any assistance or you wish to discuss our concerns further, please do not hesitate to contact me at azhar@thefire.org.