FIRE STUDY BLASTS USE OF SPEECH CODES

Tim Burke, Manley Burke, tburke@manleyburke.com

On December 6, 2006, the Foundation for Individual Rights in Education (FIRE) issued a scathing report criticizing American colleges and universities for their continued use of “speech codes.”  Their recent report, entitled “Spotlight on Speech Codes 2006:  The State of Free Speech on our Nation’s Campuses,”¹ surveyed 330 colleges and universities all across the United States looking at the regulation of speech on campuses.

FIRE, which has been an aggressive advocate of Freedom of Speech on college campuses, largely on behalf of conservative voices, identified numerous continuing examples of speech codes which limit the First Amendment rights of students.  By examining publicly available material, FIRE put schools into four categories:  Red Light, Yellow Light, Green Light and Not Rated.  Red Light schools were those which had at least one regulation which clearly and substantially restricts Freedom of Speech on its face.  A regulation against “offensive speech” was cited as an example of such a regulation since it had no limits, it was vague and failed to recognize that most offensive speech may not be regulated under the First Amendment.  Yellow Light schools were those where FIRE determined that the regulation could infringe on the Freedom of Speech, depending on its application.  A regulation against “verbal abuse,” for example, would be appropriate if it was applied to prohibit fighting words or sexual abuse, but inappropriate if used to punish those who simply voiced a strong disagreement with the ideas of another.  That might happen in any spirited political debate.  Green Light schools were those where FIRE failed to identify any regulations that infringed upon Freedom of Speech.

FIRE acknowledged that certain private schools tell prospective students in advance that they may not expect to exercise all of their First Amendment freedom on the campus.  Those schools were unrated.

Of the more than 300 schools examined, FIRE rated 229 as Red Light, 91 as Yellow and only 8 as Green.

It has long been recognized that private colleges have far greater latitude when it comes to regulating speech, than do public institutions.  Public schools are “state actors” and may not deprive students of First Amendment or any other civil rights anchored in the Constitution.  Private colleges, on the other hand, generally are not so restricted and, in the absence of making a contractual constitutional First Amendment commitment to its students, are not obligated to recognize Constitutional rights.²  But amazingly, FIRE found in its study that private colleges did somewhat better in recognizing the Freedom of Speech rights of their students than did their public counterparts.

Seventy-three percent (73%) of the public colleges surveyed received Red Lights, while only fifty-eight percent (58%) of the private colleges did.  In total, 104 private institutions were surveyed with 61 rated Red, 33 Yellow, 4 Green and 6, like BYU, Not Rated.  Of the 230 public colleges in the survey, 167 were rated Red, 58 Yellow and 4 Green.

FIRE correctly recognized that even on public campuses, certain types of narrowly defined speech can be regulated.  There is no Constitutional right to yell “fire” falsely in a crowded theater, or to use fighting words to entice reasonable people to immediate violence, or engage in libel, or obscenity, which itself is narrowly defined by Constitutional precedent.  Similarly, actual harassment, normally engaged in over a long period of time, and most frequently seen in sexual abuse cases, can be regulated.  But such exceptions are narrow and have been carefully regulated over the years by the courts.

Public colleges and universities have, on many occasions, been able to enforce speech codes which were vague and broadly over-regulated speech only because, in many instances, students and student organizations have failed to challenge such conduct in court.  Where litigation has occurred designed to block disciplinary actions based on overly-broad speech codes, colleges and universities have almost always been found to have acted in an unconstitutional manner and it has not been unusual to find that the mere filing of cases against state colleges and universities for such threatened disciplinary action has led to settlements which have included the withdrawal of the discipline.

FIRE’s study and their efforts against limitations on First Amendment Freedom of Speech rights on college campuses are worth noting by the Greek world.  The Freedom of Association rights upon which students are entitled to rely, at least on public college campuses, when they decide to associate with one another, in any particular organization, are based on the same Constitutional provisions upon which FIRE has relied to protect its clients.

Any successful effort to preserve student rights in one area aids future efforts to protect student rights in other related areas.  Under the First Amendment, the Freedom of Speech and Freedom of Association go hand in hand.

Thus, it is in the interest of the Greek world to support efforts like those that FIRE has engaged in and to speak out against unconstitutional limits on the First Amendment rights of students.  On private campuses, the argument may have to be phrased differently, but frequently, broad pronouncements of academic freedom and the promotion of free thought and debate can be found in many college publications and often in the speeches of college administrators.  Appropriately calling attention to the hypocrisy of advocating such freedom of expression while prohibiting it by disciplinary regulation is an appropriate campus response.

His comments should be taken to heart by Greek organizations and others interested in protecting for students the panalopy of rights guaranteed by the First Amendment.

¹ The complete report is available on FIRE’s web site:  www.thefire.org.

² Some states, California for example, have their own laws protecting First Amendment rights.