Running head: UNIVERSITY SPEECH CODE
Considerations for a University Speech Code
Eric J. Teske
Bowling Green State University
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Considerations for a University Speech Code
Public universities are bastions of controversial thought. They bring together a
strange host of diverse ideas put forth by an even stranger congregation of diverse
students, faculty, and staff. Emerging from the crucibles of disagreement, advancements in
our approximation of the truth rise to the top. Even the most controversial or heretical
notions must be investigated in order to advance the pursuit of knowledge while avoiding
dogmatic limitations. The concept of academic freedom, therefore, is absolutely essential to
the core mission of higher education, and demands “the right to inquire broadly, to
question and to promote an environment where wrong answers, seemingly absurd ideas
and unconventional thought are not just permitted but even encouraged” (Hall, 2002).
Simultaneously, public universities are communities requiring “civility, respect and
human dignity” (Hall, 2002). They bring together a strange host of diverse individuals
representing even stranger and unique combinations of family dynamics, local norms,
cultural traditions, regional language, and national heritage. Individuals in these
communities deserve security from intrusion, protection from exclusion, safety from verbal
and physical attacks, and the right to live in an environment free from hostility. These basic
civil rights should be ensured through the administration of regulatory policies at the
university.
Hopefully I have successfully illustrated the paradox between the “robust protection
of offensive expression and protection of the dignity and physical integrity of potential
victims of such expression” (Massaro, 1991). It is a case of free speech versus potentially
damaging speech, and civil-liberties versus civil-rights within our public institutions of
higher education. Rather than trying to discern whether expression or community order is
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more important, this paper will explore the legal issues surrounding limited speech in an
attempt to answer the question: Can speech codes be implemented at public universities?
First, the most compelling arguments in favor of speech codes are put forth, followed by the
most compelling arguments against them, resulting in a discussion of how the concluding
decision would play out in practice.
The most compelling argument in favor of speech codes insists that institutions have
an obligation to protect potential victims from the “psychological, emotional and even
physical damage” of hate speech (Hall, 2002). Furthermore, harassment on campus would
impair or otherwise disrupt the educational mission of the university by interfering with
the learning process. Speech codes that seek to limit both hate speech and harassment
receive backing from a Supreme Court decision in the case of Chaplinsky v. State of New
Hampshire, where it was noted that “[t]here are certain well-defined and narrowly limited
classes of speech” that may be prevented and punished without Constitutional problems
(1942). The First Amendment Center website, hosted by Vanderbilt University, cites nine
categories of speech that are not protected: Obscenity, fighting words, defamation, child
pornography, perjury, blackmail, incitement to imminent lawless action, true threats, and
solicitations to commit crimes (First Amendment Center, 2012). The right of free speech is
not absolute at all times and under all circumstances. In the majority opinion written by
Justice Murphy, the types of speech that fall outside the protection of the First Amendment
include “the lewd and obscene, the profane, the libelous, and the insulting or 'fighting'
words-those which by their very utterance inflict injury or tend to incite an immediate
breach of the peace” (Chaplinsky v. State of New Hampshire, 1942).
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Clearly, verbal harassment in the form of hate speech qualifies as “insulting,” and
Justice Murphy specifically mentions that utterances that inflict injury are not protected by
the freedom of speech clause. Many states, including Ohio, have laws against “harassment,
intimidation, or bullying” in public schools, and acknowledge that harassment includes
written, verbal, electronic, or physical acts (Ohio Revised Code 3313.666). Even if
statements cannot be proved to inflict harm on the hearer, profane, indecent, or abusive
remarks directed to the hearer can be considered “making statements likely to provoke
violence and disturbance of good order” (Cantwell v. Connecticut, 1940). Disturbance of
good order provides even more support for limiting certain speech in a school setting,
especially if it poses a substantial threat of disruption (Tinker v. Des Moines Independent
Community School District, 1969), if the speech is deemed offensive by current community
standards (Bethel School District v. Fraser, 1986), and if, as a part of a school activity or
function, the speech contradicts the educational mission of the institution (Hazelwood
School District et al. v. Kuhlmeier et al., 1988).
Finally, in addition to protecting potential victims from hurtful speech, maintaining
order in an educational environment, and preventing threats to the educational mission of
the university, public institutions have a legal obligation to prevent discrimination in the
form of hostile workplace environments according to Title VII of the Civil Rights Act of
1964 (As cited in Hudson, 2002). “Campus harassment makes the educational environment
hostile, just as workplace harassment makes the employment environment so” (Grey,
1991). As a legal matter, racial harassment and other forms of hate speech can be
considered similar to sexual harassment as a form of discrimination, and public
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universities have a legal obligation to protect against discrimination when providing
educational services.
Arguments in opposition to speech codes claim they violate the free speech clause of
the First Amendment, that they silence unpopular interpretations of the world, and that
they favor “one very particular ideological agenda and school of social thought” over others
(Kors, 1991). Speech codes that have been directly challenged in the courts have not been
upheld for two main reasons: They have been “overly broad and vague,” and cannot be
considered well-defined and narrowly limited as decided by Chaplinsky v. State of New
Hampshire, and because they “involve a regulation of either the content or viewpoint”
(Hall, 2002). Speech cannot be restricted for the sake of political correctness, and
utterances cannot be considered “fighting words” simply by the fact that they are offensive
or controversial.
In 1992, the Supreme Court defended the content of unpopular speech in the case of
R.A.V. v. City of St. Paul. A St. Paul, Minnesota ordinance prohibited placing symbols,
objects, characterization or graffiti on public or private property “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” including but not limited to a burning cross or Nazi
swastika (As cited in R.A.V. v. City of St. Paul, 1992). Justice Scalia, delivering the opinion of
the Court, stated that the ordinance was overbroad, that it addressed some offensive
instances while leaving others alone, and that the ordinance went beyond mere content,
but to actual viewpoint discrimination. This decision, along with many others, have held
that “[t]here is no such thing as a false idea” (Gertz v. Robert Welch, Inc., 1974), that “[o]ne
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man’s vulgarity is another’s lyric” (Cohen v. California, 1971), and that “speech content is
an inappropriate basis for government speech regulation” (Massaro, 1991).
The paradox is not easily resolved, because the issue has the ability to “appear to a
single person in different shapes and suggest different solutions as it oscillates between
being framed in civil-liberties and civil-rights terms” (Grey, 1991). It is beyond the scope of
this paper to contradict the jurisprudence established by the Constitution and subsequent
case law, therefore the only solution is to examine the reasons previous speech codes have
failed in an attempt to establish provisions that do not violate the free speech clause.
Speech codes may be adopted to protect individuals from “insulting or ‘fighting’ words”
that “by their very utterance inflict injury or tend to incite to an immediate breach of the
peace” (Chaplinsky v. State of New Hampshire, 1942). However, any speech code must be
“generally neutral as to content,” and “certainly neutral as to viewpoint” (Grey, 1991). So, it
appears that any attempt to write a speech code that is anti-discrimination would by its
very nature violate the neutrality constraint. University speech codes dealing with insults,
provocations, or harassment of “individuals” stand a better chance than codes dealing with
defined groups.
In practice, a university may restrict the time, place, and manner of speech, but not
the message that is being expressed – even if that message of bursting with ignorance and
hate. Because it is unclear whether educational sanctions or verbal consequences qualify as
a form of punishment (where obviously suspension or expulsion would be an act of
punishment), it would be reasonable to invite both parties in a case of discriminatory
harassment to voice their perspectives in a supervised intervention. Student affairs
practitioners should seek out opportunities to engage students in difficult dialogues on the
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topic of discrimination. Without the ability to sanction students based on the content of
their speech, this is likely easier said than done. However, encouraging college personnel
to raise the level of discourse beyond slurs and verbal attacks, campus administration
could restrict the time and place of offensive speech to appropriate free speech zones,
newspaper opinion columns, and classroom discussions. It seems universities would also
have the authority to restrict the use of voice amplification systems (a restriction of the
manner of speech), which would prevent disruption of the educational mission in
classrooms adjacent to free speech zones. In conclusion, speech codes must be “narrowly
limited” indeed, and cannot be worded in a way that favors the content of an antidiscrimination message. The message portrayed by the mere existence of a speech code (or
“harassment code”) might promote a more inclusive campus. However, with a lack of
restrictions on protected speech, the codes would be fairly toothless.
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References
Bethel School District v. Fraser, 478 U.S. 675 (1986).
Cantwell v. Connecticut, 310 U.S. 296, 309 (1940).
Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942).
Cohen v. California, 403 U.S. 15 (1971).
First Amendment Center. (2012). Frequently asked questions – speech. Retrieved from
http://www.firstamendmentcenter.org/faq/frequently-asked-questions-speech.
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
Grey, T. C. (1991). Civil rights vs. civil liberties: The case of discriminatory verbal
harassment. Journal of Higher Education, 63(5), 485-516.
Hall, K. L. (2002). Free speech on public college campuses overview, First Amendment
Center. Retrieved from http://www.firstamendmentcenter.org/free-speech-onpublic-college-campuses.
Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988).
Hudson, Jr., D. L. (2002). Hate speech and campus speech codes, First Amendment Center.
Retrieved from http://www.firstamendmentcenter.org/hate-speech-campusspeech-codes.
Kors, A. C. (1991). Harassment policies in the university. Society, 28(4), 22-30.
Massaro, T. M. (1991). Equality and freedom of expression: The hate speech dilemma.
William and Mary Law Review, 32, 211-265.
Ohio Revised Code 3313.666.
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).