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Aug. 11 2009 - 9:05 pm | 369 views | 1 recommendation | 11 comments

Speech codes are unconstitutional (get over it)

There is a certain phenomenon in American higher education that I just can’t seem to wrap my head around. It’s called ‘the speech code,’ and holy mackerel, it’s all the rage these days! — Even though policies regulating speech are completely antithetical to the purpose of higher learning; and even though courts have laughed at them. Over and over and over again. Because they are a joke and a disgrace.

So it’s really not surprising the Harvard Law Review published a comment that basically said, “Speech codes aren’t so bad. Keep ‘em. They are very chi chi.” Which is funny, because apparently the folks at HLR forgot to mention courts have ruled unanimously that speech codes at public universities are outrageously unconstitutional — like, not even a little bit constitutional. Or as Kelly Sarabyn from the Foundation for Individual Rights in Education (FIRE) points out:

Here are the citations for cases the comment’s author and editors missed: Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring university discriminatory harassment policy facially unconstitutional); College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of university civility policy); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding university sexual harassment policy unconstitutionally overbroad); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of university harassment policy due to overbreadth); 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); The UWM Post, Inc. 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); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy due to unconstitutionality).

via ‘Harvard Law Review’ Gets Lazy: Prestigious Journal Publishes Article Ignoring Case Law, Defending Speech Codes.

So yeah. Just a quick question: I know I’m not a fancy Harvard Law student, but uh … How the fuck did the Harvard Law Review miss all that? Oh right, because their argument is 100% ideological and has absolutely no basis in reality! Or in more eloquent terms:

How can you write a scholarly article about speech codes without acknowledging the unanimous case law? But the truth of the matter is that there is simply no credible constitutional argument for speech codes — at least no credible argument that relies on historic free-speech jurisprudence, controlling precedent, or the fundamental nature of the public university. The only real argument is ideological. So the speech code’s ideological defenders are left doing just what the students at the Law Review did — try mightily to pound the square peg of workplace harassment concepts into the round hole of the university’s marketplace of ideas.

via Pushback on Speech Codes?

You want to know where that excerpt is from? (No, you don’t.) The National Review Online’s Phi Beta Cons. I’m serious. And I’m embarrassed. I’m embarrassed I have to read Phi Beta Cons — a blog I usually visit when I want a good chuckle — to find a smidgen of reason regarding speech codes. Yoo-hoo? Where are you, ‘progressives’? Hello?

Honestly, what are people so afraid of? That without speech codes hoards of secretly sexist/racist/homophobic college students are going to come out of the woodwork and take over? Yes, there are literally thousands of racist sleeper cells in every college and university in America. They are just waiting for a ripe time to rise up and impose academic apartheid! They are like the Al-Qaeda of intolerance! OH NOES!

You would think freedom of expression would be considered particularly sacred in academia, where presumably ideas are dissected and engaged on an academic level — you know, the whole ‘marketplace of ideas’ concept.

Think again, asshole!


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  1. collapse expand

    “Yoo-hoo? Where are you, ‘progressives’? Hello?”

    Amen, Riley!

    Unfotunately, progressives can also fall prey to the mindset captured in the Nat Hentoff book title, “Free Speech For Me, But Not For Thee.” We all just need to remember that the best weapon against speech is more speech, not stifling restrictions on it. Lies should be fought with truth. Hate speech should be fought with love speech; war speech with peace speech; and anti-speech speech with more and more pro-speech speech.

  2. collapse expand

    Good post — I’m flashing back as we speak to a John Stuart Mill lesson from last semester’s ethics class. Since you didn’t mention it, I’m curious what you think about speech codes at private colleges (which I think we both have in common). What’s your take?

    • collapse expand

      Private institutions should recognize that allowing free and open dialog/expression is a crucial part of ‘the pursuit of truth’, i.e. the reason (hopefully) their institution exists.

      I mean, what kind of message does it send when an academic institution punishes speech it doesn’t agree with/finds offensive? It’s not that hard to counter blatantly bigoted speech. Academics should have the intellectual capacity to rebuttal without resorting to sanctioning or what have you.

      What’s your take?

      In response to another comment. See in context »
      • collapse expand

        I completely agree with you, actually. Not only because of the reasons you cited but because, as of the earlier commenters said, the best way to fight bad speech is with good speech, lest we run the risk of getting lazy and forgetting why we believe what we believe. It all goes back to Mill’s “dead dogma” argument — even if you don’t like what someone has to say, the process of forming a counterargument refreshes the discourse and reminds us/teaches new generations why we hold a certain point of view.

        There was a really great example of this at my private university a few years ago. College Republicans invited Anne Coulter (need I say more?) to come speak and thus ignited a huge firestorm of controversy. Muslim student organizations, the gay student alliance among dozens of other groups and hundreds of individuals rallied in protest beforehand. She still went on, and promptly got booed off the stage by students arguing against her particular brand of hate speech. Yeah, it was a fiasco (which I’m sure gave Loyola’s PR department quite a headache) but all in all, I think the whole episode was pretty positive in that it provided the campus with a tangible, real-world lesson about free speech in action and reemphasized my university’s ideological commitment to tolerance instead Coulter’s brand of shock-jock-ish hate. You couldn’t have asked for a better affirmation to new students about what our community stands for.

        In response to another comment. See in context »
  3. collapse expand

    Riley – Awful post.

    First of all, you copied and pasted FIRE’s inaccurate analysis and NRO’s inanity without adding any original content or opinions of your own.

    Second, you clearly have no idea what the purpose or format of a case comment is in the context of legal scholarship. A case comment analyzes a recent case by detailing the history and procedural posture of the case and arguing that it was correctly or incorrectly decided and why.

    Third, you evince no understanding of the substance of the HLR case comment (or of First Amendment law, generally). The comment does not say that speech codes are “not so bad.” Let’s explore. (Sigh). What the comment argues is that this facial challenge should have failed because the specific policy at issue could have been read more narrowly than the court read it. In supporting that, it noted that the Supreme Court in RAV went out of its way to say that Title VII is constitutional, even though it places some restrictions on hate speech. The comment did not say that speech codes are always constitutional, and your response that speech codes have been invalidated is beside the point.

    Finally, on the more general legal issues, federal district court opinions are not “law.” Citing six or seven opinions does not mean that there is some unanimous “law” that speech codes are unconstitutional in every form, iteration and context. To talk policy in an unsettled area of the law what comments should do. A comment writer is not obligated to provide a comprehensive overview of federal case law in every circuit in her analysis.

    • collapse expand

      booberry – AWESOME COMMENT.

      You’re absolutely right. Summarizing the HLR comment as, “Speech codes aren’t so bad. Keep ‘em. They are very chi chi” was just irresponsible and wrong! Allow me to correct myself:

      The Harvard Law Review harvested their dingle berries (it was a bounteous harvest) in an attempt to defend backward policy, on a technicality. As long as they make it look pretty with their Bluebook footnoting, right?

      I’m going to have to go with Erin O’Connor on this one:

      “So much for the traditional student prerogative of dissent, questioning authority, speaking truth to power, envisioning a better and more just way, etc. etc.”

      (http://www.erinoconnor.org/archives/2009/08/harvard_law_rev.html)

      Oh no I CITED OTHER SOURCES, what a terrible terrible, unoriginal thing to do!

      But I DO have opinions of my own (only like 2 though, tops.)

      As I pointed out in my post, we DESPERATELY NEED SPEECH CODES. Otherwise the hateful sleeper cells will conquer and enslave us all, with their hate. Can’t trust those students with “free speech”! Heavens, that would be a disaster!

      In response to another comment. See in context »
    • collapse expand

      Riley:

      Excellent blog! Thanks for drawing attention to both the ridiculous argument put forth by the HLR case comment and to the shocking and shameful prevalence of unconstitutional speech codes at our nation’s public universities.

      “booberry”:

      I am befuddled as to what part of Kelly Sarabyn’s analysis for FIRE you would deem “inaccurate” (and, for that matter, what part of David French’s analysis for Phi Beta Cons you would characterize as “inanity”). Rather, the analysis contained in both track the case law on speech codes and are firmly and entirely grounded in First Amendment doctrine.

      When Kelly writes that courts adjudicating facial challenges to speech codes have unanimously struck down such codes, it is because–guess what–courts adjudicating facial challenges to speech codes have unanimously struck down such codes. Fancy that. When Kelly writes that broadly prohibiting all forms of “offensive” speech under the guise of a harassment policy is unconstitutional, it is because, as she points out, the Supreme Court has established a standard for student-on-student (or peer) harassment which is much more exacting and protective of speech than many public universities’ harassment policies. And as the United States Court of Appeals for the Third Circuit would be happy to inform you, that includes the Temple University sexual harassment policy invalidated in DeJohn. I could go on and on–about Kelly’s point that conflating the speech rights of college students with the speech rights of high school students is unwise and goes against precedent; her point that conflating harassment standards for the workplace with harassment standards for the educational setting (and, in particular, the university setting) is, yes, unwise and goes against precedent; and more. The arguments she makes are fully supported by First Amendment doctrine and case law, and if you wish to read more about where her arguments come from, I would suggest reading this law review article or this law review article.

      Next, to state that the purpose or format of a case comment excuses the type of incomplete (to put it mildly and generously) analysis contained in the HLR comment is simply not true. If, as you say, the purpose is to “detail[] the history and procedural posture of the case and argu[e] that it was correctly or incorrectly decided and why,” then the HLR has surely done a poor job with the comment on DeJohn. The fact that every single court to date facing a challenge to a speech code has struck down the code would seem plainly relevant to an analysis of the most recent (at the time) speech code decision. This is even more true when one considers that the unconstitutional policy at issue in DeJohn was very much like many other speech codes that were previously invalidated. Generally speaking, hiding one’s head in the sand when it comes to the relevant legal landscape is not a good idea when analyzing whether or not a particular case was decided correctly.

      Regarding the argument that the Third Circuit should have read the policy more narrowly and thus found it constitutional, I find it hard to imagine that any court with a shred of credibility would leave intact a policy that, on its face, banned expressive conduct of a “sexual or gender-motivated nature” which has the “purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or…has the purpose or effect of creating an intimidating, hostile, or offensive environment.” If you (re-)read the Third Circuit’s opinion and take a look at the court’s reasoning, you will see that such a policy is capable of reaching much constitutionally protected speech and falls well short of the controlling legal standard for peer harassment in the educational setting. The reliance on R.A.V. and Title VII is inapposite. For starters, Title VII governs the workplace, and the legal standard for harassment in the employment setting is different (and less protective of speech) than the harassment standard relevant to the educational setting. To rely on Title VII law to say that some incursions on protected speech are permissible misses the point. Moreover, that some protected speech may be swept up in a legitimate harassment claim under Title VII (for the workplace) or under Title IX or Title VI (for the educational setting) is true only when such speech is part of a larger pattern of extreme, harassing conduct. There is no harassment exception to the First Amendment. For more on the legal reality that harassment claims typically require a pattern of extreme conduct, and not pure verbal expression, again, see this law review article.

      Lastly, to say that the string of federal district court decisions is “not ‘law’” and to call this area of the law “unsettled” is woefully inaccurate. Absent an on-point Supreme Court decision, the fact that every single speech code decision to date has come down in favor of free speech is indeed significant. Counting DeJohn, this includes two federal circuit court decisions. A federal district court judge in California found DeJohn and its predecessors convincing enough to invalidate yet another speech code, in a decision last month which cited and relied on DeJohn heavily.

      At some point, a unanimous track record in the courts must be acknowledged by any legal source or authority straining to retain credibility, and the HLR comment author failed to do so. No one is saying that the HLR was “obligated to provide a comprehensive overview of federal case law in every circuit.” But to fail to mention even one previous speech code decision–let alone the uniformity of the case law on speech codes–represents poor legal research. For a publication of the HLR’s prestige, or for any law journal or law review for that matter, such an omission is inexcusable. Riley, Kelly, and David French were all correct to criticize the HLR and the comment itself for the sloppy work.

      In response to another comment. See in context »
      • collapse expand

        My apologies, I didn’t realize that the links I included in my comment would be left out.

        The second paragraph in my response to booberry should be as follows:

        “When Kelly writes that courts adjudicating facial challenges to speech codes have unanimously struck down such codes, it is because–guess what–courts adjudicating facial challenges to speech codes have unanimously struck down such codes. Fancy that. When Kelly writes that broadly prohibiting all forms of “offensive” speech under the guise of a harassment policy is unconstitutional, it is because, as she points out, the Supreme Court has established a standard for student-on-student (or peer) harassment which is much more exacting and protective of speech than many public universities’ harassment policies (http://www.law.cornell.edu/supct/html/97-843.ZS.html). And as the United States Court of Appeals for the Third Circuit would be happy to inform you, that includes the Temple University sexual harassment policy invalidated in DeJohn. I could go on and on–about Kelly’s point that conflating the speech rights of college students with the speech rights of high school students is unwise and goes against precedent; her point that conflating harassment standards for the workplace with harassment standards for the educational setting (and, in particular, the university setting) is, yes, unwise and goes against precedent; and more. The arguments she makes are fully supported by First Amendment doctrine and case law, and if you wish to read more about where her arguments come from, I would suggest reading this law review article (http://www.thefire.org/article/10419.html) or this law review article (http://www.thefire.org/article/10575.html).”

        The third-from-last paragraph should be as follows:

        “Regarding the argument that the Third Circuit should have read the policy more narrowly and thus found it constitutional, I find it hard to imagine that any court with a shred of credibility would leave intact a policy that, on its face, banned expressive conduct of a “sexual or gender-motivated nature” which has the “purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or…has the purpose or effect of creating an intimidating, hostile, or offensive environment.” If you (re-)read the Third Circuit’s opinion and take a look at the court’s reasoning, you will see that such a policy is capable of reaching much constitutionally protected speech and falls well short of the controlling legal standard for peer harassment in the educational setting. The reliance on R.A.V. and Title VII is inapposite. For starters, Title VII governs the workplace, and the legal standard for harassment in the employment setting is different (and less protective of speech) than the harassment standard relevant to the educational setting. To rely on Title VII law to say that some incursions on protected speech are permissible misses the point. Moreover, that some protected speech may be swept up in a legitimate harassment claim under Title VII (for the workplace) or under Title IX or Title VI (for the educational setting) is true only when such speech is part of a larger pattern of extreme, harassing conduct. There is no harassment exception to the First Amendment. For more on the legal reality that harassment claims typically require a pattern of extreme conduct, and not pure verbal expression, again, see this law review article (Regarding the argument that the Third Circuit should have read the policy more narrowly and thus found it constitutional, I find it hard to imagine that any court with a shred of credibility would leave intact a policy that, on its face, banned expressive conduct of a “sexual or gender-motivated nature” which has the “purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or…has the purpose or effect of creating an intimidating, hostile, or offensive environment.” If you (re-)read the Third Circuit’s opinion (http://www.thefire.org/article/9572.html) and take a look at the court’s reasoning, you will see that such a policy is capable of reaching much constitutionally protected speech and falls well short of the controlling legal standard for peer harassment in the educational setting. The reliance on R.A.V. and Title VII is inapposite. For starters, Title VII governs the workplace, and the legal standard for harassment in the employment setting is different (and less protective of speech) than the harassment standard relevant to the educational setting. To rely on Title VII law to say that some incursions on protected speech are permissible misses the point. Moreover, that some protected speech may be swept up in a legitimate harassment claim under Title VII (for the workplace) or under Title IX or Title VI (for the educational setting) is true only when such speech is part of a larger pattern of extreme, harassing conduct. There is no harassment exception to the First Amendment. For more on the legal reality that harassment claims typically require a pattern of extreme conduct, and not pure verbal expression, again, see this law review article (http://www.thefire.org/article/10575.html).”

        And the second-to-last paragraph should be as follows:

        “Lastly, to say that the string of federal district court decisions is “not ‘law’” and to call this area of the law “unsettled” is woefully inaccurate. Absent an on-point Supreme Court decision, the fact that every single speech code decision to date has come down in favor of free speech is indeed significant. Counting DeJohn, this includes two federal circuit court decisions. A federal district court judge in California found DeJohn and its predecessors convincing enough to invalidate yet another speech code, in a decision last month which cited and relied on DeJohn heavily ()http://www.thefire.org/article/10870.html.”

        In response to another comment. See in context »
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