Wednesday, August 13, 2008

The U.S. Court of Appeals for the Third Circuit just made hundreds of colleges wonder how long their restrictive speech codes can survive. On Aug. 4, the Philadelphia-based appellate court affirmed a lower court’s ruling against a broadly worded Temple University speech code prohibiting words or deeds whose “purpose or effect [is to create] an intimidating, hostile or offensive environment.” Such loose, eye-of-the-beholder standards are increasingly recognized as affronts to the First Amendment, which is right and just.

Interestingly, it did not even take much of a challenge by the plaintiff to get to this point. Christian DeJohn, a graduate student in military history and American history who served in the Pennsylvania National Guard, sued because he “felt inhibited in expressing his opinions in class concerning women in combat and women in the military.” He was “concerned that discussing his social, political, and/or religious views regarding these issues might be sanctionable by the University.” Fittingly, Mr. DeJohn appears not to have taken great lengths, nor did the courts require him to take lengths, to prove the case. The result is that backers of Temple‘s nebulous speech code who left all to the realm of perception are now getting a taste of their own medicine. The courts readily recognized the underlying constitutional issues.

Colleges and universities generally know the game is up. Indeed, Temple saw the ruling coming and tried to pre-empt it by throwing out the offending sections of the speech code early in the proceedings. Before a lower court, Temple tried to argue that the voluntary removal of these sections solved the problem and should close the case. Both courts disagreed. Nothing would stop Temple or another school from simply reinstating these sections at some future date, the appellate court reasoned. Perhaps the Temple dons should enroll in their own constitutional law offerings.

The moment when the Orwellian practice of restricting speech at what are supposed to be this country’s free centers of learning may not be far off. A few years ago, the Foundation for Individual Rights in Education (FIRE) estimated that as many as two-thirds of American colleges and universities have speech codes. There is disagreement over how many of these codes rise to the level of Temple’s or would otherwise be sufficiently restrictive to be unconstitutional.

At minimum, the unknown number of schools that do enforce excessive speech restrictions have another unmistakable point of comparison. They will have little plausible defense if they insist on speech codes as nebulous and facially unconstitutional as Temple’s.

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