SPEECH CODE ENJOINED

As reported briefly in the September 2003 edition of Fraternal Law, Shippensburg University, a public university, was enjoined from enforcing parts of its speech code until a trial on the merits challenging the constitutionality of the speech code is held.¹

In its decision, the court noted the dilemma confronted by courts in such decisions:

Preliminarily, it is easy to discern that the provisions of the student code in question were part of an attempt to achieve a utopian community within Shippensburg. Students are directed to respect the rights of other students in a world where reasoned, rational debate is the norm. Defendant argues that the prohibitions set forth within the Code will foster free speech, rather than discourage it. Regrettably, this sword has two edges. Certainly during President Ceddia’s tenure the Speech Code has not been used, and likely will not ever be used, to punish students for exercising their First Amendment rights. However, given that this is a facial challenge, our inquiry must assume not the best of intentions, but the worst.

In granting the preliminary injunction, the court noted that “the language of the Code instructs students that they must ‘mirror’ the University’s ideals as they apply to racial tolerance, cultural diversity and social justice.”  The court then cited several United Supreme Court decisions that emphasized:

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 offensive or disagreeable.