Speech Code of the Month: Delaware State University

FIRE announces our Speech Code of the Month for April 2018: Delaware State University.

Much ink has been spilled over the past few days about Fresno State University’s investigation of a professor for controversial comments she made on Twitter. Unfortunately, however, Fresno State is far from the only public school that, despite its First Amendment obligations, threatens to infringe on online expression.

Delaware State University, for example, maintains an “Acceptable Use Policy” prohibiting any internet usage that would, among other things, “cause offense to others,” “harm morale,” or cause “embarrassment or loss of reputation” to the university.

This policy prohibits an extraordinary amount of protected expression, and essentially prohibits students and faculty from criticizing the university online.

In cases too numerous to mention, courts — including the Supreme Court of the United States — have ruled that speech cannot be prohibited simply because it might “cause offense to others.” See, for example, Matal v. Tam (2017)(“We have said time and again that ‘the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers’”); Texas v. Johnson (1989)(“If 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”); Papish v. Board of Curators of the University of Missouri (1973)(“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.’”)

The prohibition on speech that could “harm morale” is similarly broad, and could apply to virtually anything from publishing a despondent editorial lamenting the outcome of an election to criticizing the conduct of the university itself. The ban on electronic communication that could cause the university “embarrassment or loss of reputation” is an even more direct ban on speech critical of the university, which constitutes a significant infringement on student and faculty free speech rights. Students and faculty often wish — as is their right — to speak out about issues affecting them at their universities, but universities too frequently try to shut down such speech if it is unflattering or inconvenient.

This policy is inconsistent both with Delaware State’s obligation to protect the First Amendment rights of its students and faculty and should be revised immediately.

For this reason, Delaware State University is our April 2018 Speech Code of the Month. If you believe that your college’s or university’s policy 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. If you are a current college student or faculty member interested in free speech, consider joining the FIRE Student Network, a coalition of college students and faculty members dedicated to advancing individual liberties on their campuses.