The State of Free Speech on Campus: Northwestern University

Throughout the spring semester, FIRE is drawing special attention to the state of free speech at America's top 25 national universities (as ranked by U.S. News & World Report). Today we review policies at Northwestern University, which FIRE has given a red-light rating for maintaining policies that clearly and substantially restrict free expression on campus.

As with all private universities—which are not bound by the First Amendment, but are bound by the promises they make to students and faculty—we begin by examining the commitments Northwestern has made to free speech. Northwestern’s student handbook provides that students have the right “to speak freely, and to exercise the civil rights to which any citizen of the United States is entitled, as long as the student does not claim to represent the institution.” (Emphasis added.) The handbook also states that Northwestern “is committed to the principles of free inquiry and free expression—to providing a learning environment that encourages a robust, stimulating, and thought-provoking exchange of ideas.” Based on these representations, Northwestern students would certainly believe that they were entitled to the same First Amendment rights as students at any of Illinois’ public universities. Indeed, the student handbook explicitly says so! And yet, as with so many universities (both public and private), Northwestern’s policies directly contradict these promises.

First, Northwestern’s sexual harassment policy suffers from a flaw common to many university sexual harassment policies. The definition of sexual harassment, while not without significant problems (it mirrors the language of the Equal Employment Opportunity Commission, and fails to incorporate the requirements of severity and pervasiveness that apply in the educational context), is fairly reasonable. The more serious problem is that in spite of this definition, the policy provides a list of “examples of sexual harassment” that explicitly prohibit protected speech. According to the policy, prohibited harassment includes things such as “belittling remarks about a person’s gender,” “inappropriate sexual innuendoes or humor,” and “offensive sexual graffiti, pictures, or posters.” Contrary to the language of the policy, these types of conduct can only be prohibited when they rise to the level of severity necessary to constitute actual harassment—they cannot be prohibited outright. In reality, most sexual humor and offensive remarks about gender will constitute protected speech.

Northwestern’s student handbook also prohibits any conduct that “threatens or endangers the emotional well-being” of another person on campus. This provision is dangerously vague; “emotional well-being” could refer to anything from severe emotional distress to simple hurt feelings, and without further guidance, students have no way of knowing what is prohibited. As a result, they will likely refrain from engaging in a range of protected expression that might violate this policy, resulting in an impermissible chilling effect on campus speech.

Northwestern also maintains a policy on “Civility, Mutual Respect, and Unacceptability of Violence on Campus” which states that “Each community member is expected to treat other community members with civility and respect….” While requiring civility and respect may seem relatively innocent, remember that it is controversial—and even offensive—speech that the First Amendment exists to protect! As the U.S. Supreme Court stated in Terminiello v. Chicago, 337 U.S. 1 (1949),

Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

And as a California federal judge explained in enjoining the California State University system from enforcing a civility code, requiring civility may actually profoundly interfere with the ability of a speaker to convey his or her message:

[M]andating civility could deprive speakers of the tools they most need to connect emotionally with their audience, to move their audience to share their passion.

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

Finally, Northwestern’s policy on Hate Crimes and Bias Incidents is perhaps the worst policy on campus in terms of the sheer amount of protected speech it prohibits by its plain language. That policy prohibits “an act of conduct, speech, or expression to which a bias motive is evident as a contributing factor (regardless of whether the act is criminal),” and explicitly states that “Sanctions will be imposed for students found to have committed bias incidents or hate crimes.” (Emphasis added.) Prohibited forms of bias include bias on the basis of “race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin.” Under this policy, any speech which appears to be motivated by bias on the basis of any of those factors is punishable, regardless of its severity, its impact on the listener, or even its germaneness to an academic discussion! So any student who, in any context, states his or her belief that Creationists are ignorant of science, that homosexuality is morally wrong, that mental illness is a myth, or any other such opinion is subject to punishment under this policy. These are all opinions that might be raised in the course of any number of academic discussions, but Northwestern has the authority, under this policy, to punish students for expressing them. Obviously, such a restriction is terribly dangerous to free speech on campus.

All of these policies seriously threaten free expression at Northwestern University, which is bound by its own promises to uphold students’ fundamental rights.

Stay tuned next week for information on the state of free speech at Dartmouth College.