by David L. Hudson Jr., First Amendment Scholar, and Lata Nott, Executive Director, First Amendment Center
Last updated: March 2017
“It is an unfortunate fact of our constitutional system that the ideals of freedom and equality are often in conflict. The difficult and sometimes painful task of our political and legal institutions is to mediate the appropriate balance between these two competing values.” — Judge Avern Cohn, in Doe v. University of Michigan, 1989
During the 1980s and early ’90s many public colleges and universities sought to combat discrimination and harassment on campuses through the use of so-called speech codes. Proponents of the codes often argued the codes were necessary to prevent a rise in discriminatory harassment. Others said the push for the codes was merely part of a general movement of political correctness.
Whatever the reason, this time period witnessed an amazing rise in the number of speech codes on college campuses. More than 350 public colleges and universities regulated some forms of hate speech, Arati Korwar reported in 1995.
Many speech codes sought to end hate speech, which code proponents said should receive limited or no First Amendment protection. Supporting this view were many academics who subscribed to so-called “critical race” theory. Critical-race theorists contend that existing First Amendment jurisprudence must be changed because the marketplace of ideas does not adequately protect minorities. They charge that hate speech subjugates minority voices and prevents them from exercising their own First Amendment rights.
Those who argue for speech codes contend that hate speech is akin to fighting words, a category of expression that does not receive First Amendment protection. In its 1942 decision Chaplinsky v. New Hampshire, the Court wrote that fighting words are those that incite an immediate violent response. According to the Court, they “are no essential part of any exposition of ideas, and are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
The speech codes that have been challenged in court have not fared well. Courts have struck these policies down as being either overbroad or vague. A statute is overbroad if it prohibits a substantial amount of protected speech in its attempts to restrict unprotected speech. A statute or regulation is vague if it does not adequately inform a person what expressive conduct is prohibited and what expressive conduct is allowed, leaving a person to guess at its application.
An example is a 1989 federal court decision, Doe v. University of Michigan, striking down that university’s speech code. Administrators had adopted the speech code in 1988 after a campus anti-discrimination group threatened to file a class-action suit against the university. The group was upset over several incidents, including the distribution of a flier on campus that declared “open season” on blacks and referred to blacks as “saucer lips, porch monkeys, and jigaboos.”
The policy prohibited:
“Any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed … and that …
“Creates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University[-]sponsored extra-curricular activities.”
The university published a guide explaining the speech code. The guide provided examples of harassing conduct, including:
Several complaints were filed against students under the policy. One was filed against a student for stating that Jewish people used the Holocaust to justify Israel’s policies toward the Palestinians. Another complaint was lodged against a student who said that “he had heard that minorities had a difficult time in the course and that he had heard they were not treated fairly.”
A psychology graduate student, identified only as John Doe, challenged the policy. He argued that discussion of certain controversial theories in his field of biopsychology, the study of individual differences in personality traits and mental abilities, might violate the policy.
The court agreed that the policy was overbroad. “The Supreme Court has consistently held that statutes punishing speech or conduct solely on the grounds that they are unseemly or offensive are unconstitutionally overbroad,” the court wrote.
Examining the complaints that had been filed under the policy, the court determined that “the University could not seriously argue that the policy was never interpreted to reach protected conduct.”
The court also determined that the policy was unconstitutionally vague because people would have to guess at the meaning of the policy’s language. The court reasoned that it was “simply impossible to discern any limitation” on the policy’s scope and reach.
The court concluded: “While the Court is sympathetic to the University’s obligation to ensure equal educational opportunities for all of its students, such efforts must not be at the expense of free speech.”
The next major legal challenge involving a speech code arose out of a plan called “Design for Diversity” at the University of Wisconsin. Several campus incidents triggered the adoption of a speech code targeting hate speech. The incidents included a fraternity erecting a picture of a black Fiji islander during a party. Another fraternity held a “slave auction,” featuring pledges in blackface mimicking African-American entertainers. The policy in part prohibited addressing any specific individuals with “racist or discriminatory comments” that:
“Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and
“Create an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity.”
The policy did not prohibit speech expressing derogatory opinions about a specific racial group in a classroom discussion because the speech was not directed at a specific individual.
A student newspaper and several students challenged the policy on First Amendment grounds. In the 1991 case UWM Post v. Board of Regents of University of Wisconsin, a federal district court agreed and struck down the policy.
The university argued that the policy was a constitutional way to prohibit fighting words, or words defined by the Supreme Court as inciting an immediate breach of the peace, as described in Chaplinsky v. New Hampshire. But the federal court in UWM Post thought otherwise, writing: “Since the elements of the UW Rule do not require that the regulated speech, by its very utterance, tend to incite violent reaction, the rule goes beyond the present scope of the fighting words doctrine.”
The university also contended that the policy was consistent with the major anti-discrimination employment law, Title VII of the Civil Rights Act of 1964. The university contended that because Title VII regulated hostile workplace environments, the university could regulate hostile academic environments.
No, said the court, for several reasons, including: (1) differences between the employment and educational settings; (2) the fact that employers can generally be liable for the conduct of their employees, but universities often cannot be held liable for the conduct of students; and (3) Title VII is a statute that does not supersede the First Amendment.
The court also rejected the speech-code defenders’ rationale that the code was necessary to stop discriminatory harassment. The UWM Post federal court wrote:
“This commitment to free expression must be unwavering, because there exist many situations where, in the short run, it appears advantageous to limit speech to solve pressing social problems, such as discriminatory harassment. If a balancing approach is applied, these pressing and tangible short run concerns are likely to outweigh the more amorphous and long run benefits of free speech. However, the suppression of speech, even where the speech’s content appears to have little value and great costs, amounts to governmental thought control.”
Though no challenges to university speech codes have reached the U.S. Supreme Court, the Court did decide R.A.V. v. City of St. Paul, a 1992 cross-burning case with heavy implications for speech codes.
In R.A.V., a juvenile burned a cross on the lawn of a neighboring African-American family in St. Paul, Minn. The youth was charged with violating a hate-crime ordinance, which provided:
“Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.”
The Minnesota Supreme Court upheld the statute, construing it to apply only to fighting words. But the U.S. Supreme Court reversed the Minnesota ruling unanimously, although the justices differed sharply in their reasoning.
Justice Antonin Scalia, writing the R.A.V. Court’s main opinion, reasoned that the ordinance violated the First Amendment because it selectively proscribed a certain subset of fighting words. To Scalia, such a ban would be like the government prohibiting only libel that was critical of the government. “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects,” he wrote. “In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination.”
Legal commentator S. Douglas Murray writes that “while speech codes faced an uphill battle under the constitutional precedent in place before R.A.V., this decision made it virtually impossible for a speech code to pass constitutional muster.”
The R.A.V. v. City of St. Paul decision, coupled with the Michigan and Wisconsin decisions, created a formidable legal hurdle for universities to clear. Central Michigan University and Stanford University could not clear that hurdle.
In 1995, the 6th U.S. Circuit Court of Appeals struck down the University of Central Michigan’s speech code in Dambrot v. Central Michigan University. That same year, in Corry v. Stanford, a California state court ruled that Stanford University’s speech code violated the First Amendment. Some First Amendment advocates cheered these court decisions as the demise of campus speech codes.
Some universities dropped their broad, wide-ranging policies, such as those found at the Universities of Michigan and Wisconsin, in favor of more narrowly crafted anti-harassment or code-of-conduct policies. Whatever the terminology used, many universities still regulate various forms of hate speech.
George Mason law professor Jon Gould writes that “hate speech policies not only persist, but they have actually increased in number following a series of court decisions that ostensibly found many to be unconstitutional.”
“Many of the provisions that used to be called speech codes are being wrapped into anti-harassment policies,” says First Amendment expert and law professor Robert Richards of the University of Pennsylvania.
Although these policies tend to punish harassing speech and conduct, as opposed to offensive speech, many of them still present First Amendment problems. For example, in 2003 a federal district court in Pennsylvania decided in Bair v. Shippensburg University that a policy requiring students to communicate “in a manner that does not provoke, harass, intimidate or harm another” violated the First Amendment, concluding that regulations that “prohibit speech on the basis of listener reaction alone” are unconstitutional. A few years later in College Republicans at San Francisco State University v. Reed, a federal district court in California found that a college could not enforce a policy requiring that students “be civil to one another”, or a policy prohibiting harassment, unless the harassment in question threatened the health or safety of another person.
The 3rd U.S. Circuit Court of Appeals has weighed in on this issue twice–once in 2008, and again in 2010. In the first case, DeJohn v. Temple University, it struck down a policy that defined sexual harassment as conduct of a “gender-motivated nature” which creates an “intimidating, hostile, or offensive environment.” This was partially due to the broad and subjective nature of terms such as “hostile,” “offensive,” and “gender-motivated.” Furthermore, the court found that the policy could prohibit core protected political and religious speech, because its definition of harassment could easily encompass discussions about gender politics and sexual morality.
In the second case, McCauley v. University of the Virgin Islands, the Third Circuit struck down a policy prohibiting conduct causing emotional distress, finding the policy to be unconstitutionally overbroad and entirely subjective. The court took note of the chilling effect this policy would have on speech: “Every time a student speaks, she risks causing another student emotional distress.”