The Chilling Effect at Iowa State

The Iowa State Daily has devoted much coverage this week to the issue of free speech on campus, prompted in large part by the publication of FIRE's latest national report on campus speech codes across the country, in which Iowa State University receives a "red light" rating for its speech codes. These ratings, of course, are based on the extent to which university policies, as written, impermissibly restrict free speech.

This approach occasionally elicits protestations from within university communities that our rating system may unfairly paint universities as being "bad" on free speech, when in fact (they say), the spirit of the First Amendment on campus—if only we could get there to check it out for ourselves—is alive and thriving. Iowa State Daily writer Kelsey Kremer is among those to offer a critique along these lines. In her recent Daily column, she writes:

I don't think the strength of the First Amendment on a college campus comes from policy. It's found in the attitudes of the faculty and students who exercise those rights on campus.

According to the First Amendment Center's 2011 State of the First Amendment survey, 30 percent of Americans cannot list any of the rights guaranteed by the First Amendment. Before coming to Iowa State, I did not know about those constitutional protections and how they relate to public policy. Now, as I sit in the Iowa State Daily newsroom writing this, the five freedoms hang on the wall behind me. I learned the First Amendment in my journalism classes and I know that I am free to express myself at Iowa State.

Iowa State has a tradition of honoring the First Amendment, teaching it in classes, exercising it in many student publications and organizations across campus and celebrating it each year on First Amendment Day.

We can indeed attest that there is quite a contingent of people on the Iowa State campus who care deeply about free speech. After all, it was only last year that FIRE's Adam Kissel (along with Kelsey Kremer) was on hand for Iowa State's celebration of First Amendment Day.

But as FIRE's Samantha Harris wrote in a post on this issue some time ago: "The fact that [a] university isn't currently punishing protected speech cannot legitimize policies that allow it to do so." 

For one, the mere existence of such policies on college campuses like Iowa State undeniably and impermissibly chills speech, and even if such policies are never enforced, they remain ripe for abuse by administrators, who might not always be so friendly to free expression as this year's administrators may seem.

This argument helps explain why speech codes have been struck down as facially invalid in court after court for over two decades. As Sam continues:

All across the country, courts have struck down university speech codes as facially unconstitutional (meaning the unconstitutionality lies in what is written, not in how the policy is applied), and for good reason—policies prohibiting protected expression have a "chilling effect" on free speech, wherein students reading the policy will simply refrain from legitimate expression because they fear punishment. Therefore, even if a university chooses never to enforce a speech code, a substantial amount of speech is still suppressed.

Besides, if administrators really are so friendly to free expression, it should be no trouble at all to revise Iowa State's policies to fully conform to the First Amendment, just like many other university administrators have done elsewhere. Iowa State's "red light" rating should, if anything, embolden students, faculty members, and staff to work harder to make sure that appreciation for free speech rights is as well-reflected in policy as it is in spirit. And indeed, as Kremer notes in her column:

I think my friend and past president of SPJ [Society of Professional Journalists] Jessie Opoien said it best in an email to First Amendment Day committee members last week regarding the red-light rating.

"A red-light rating should energize the First Amendment Day committee, not deflate us. It makes what we do that much more important," Opoien said. "We should use this as a tool to draw more attention to our efforts and try to get even more students, faculty and staff involved."

With that kind of attitude, such positive reform is within reach at Iowa State University. Of course, FIRE stands ready to help.