As the fall semester gets into full swing, college students are busy with clubs, sports and working towards that elusive 4.0 grade point average. And after a tumultuous presidential election, followed by a turbulent start to the new presidency, many students will continue to speak out, protest and agitate for the causes that drive them. While some universities welcome such political activism, students should be aware that many others have speech codes that restrict their expression and stifle political advocacy.
At the Foundation for Individual Rights in Education (FIRE), where I work, we’ve been tracking campus speech codes for over a decade. As a result, we’ve seen our fair share of ridiculous restrictions on student expression — from “inappropriately directed laughter” to “harsh text messages or emails.” But some speech codes are more common than others, and it would behoove students, especially those seeking to protest on campus, to familiarize themselves with these policies as they engage in activism this semester.
1) Overbroad harassment policies
Many colleges utilize policies that define speech protected by the First Amendment as punishable “harassment,” rending them unconstitutionally overbroad. The Supreme Court has held that student-on-student harassment in the educational setting is conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” This definition balances a university’s dual obligations to uphold freedom of speech and address harassing conduct.
However, numerous colleges maintain overbroad harassment policies that are a far cry from this speech-protective standard. For example, Syracuse University’s harassment policy bans “intentional, unwanted and unwelcome words or conduct directed at a specific person that annoys [or] alarms … that person.” Also, a large number of educational institutions define sexual harassment as any “unwelcome conduct of a sexual nature,” including “verbal” conduct (i.e., speech). Policies employing this definition subject a wide range of expression protected by the First Amendment (or by private institutions’ promises of First Amendment-like speech protection) to investigation and punishment.
Considering that offensive and annoying speech is generally protected by the First Amendment, these harassment policies are egregious infringements on student free speech. It would behoove students to learn whether their schools maintain such policies as they plan their protests this fall semester.
2) Free speech zones
Another prevalent type of speech code limits not what students may say, but where they may say it. Many universities limit student protests and pamphleting to tiny, cordoned off, and sometimes swampy areas of campus called “free speech zones.”
FIRE has been tracking which colleges use free speech zones to cabin speech on their campuses and, in 2013, roughly one in six of America’s top 400 universities had such policies. Now, due to a combination of litigation and advocacy, only around one in 10 colleges limit student expression in this manner.
Additionally, several states have taken a stand against free speech zones by abolishing them at their public colleges and universities. Students seeking to protest on campus should determine whether they will be subject to a free speech zone policy as they plan their event.
3) Civility codes, bullying policies and other broadly worded speech codes
Policies that prohibit “hate speech,” “bullying,” or “bias incidents,” or that mandate tolerance, civility and respect, encompass a substantial amount of protected speech. These policies utilize broad language by, for example, prohibiting speech that is “offensive” or that “demeans or degrades others.” By utilizing such vague terms to describes limits on speech, these policies give university administrators almost complete discretion to determine what speech can result in discipline. Students should be aware of such policies and how they are enforced on their campuses.
According to FIRE’s “Spotlight on Speech Codes” report, the vast majority of universities have at least one policy that could be interpreted to suppress protected speech, while a large minority have policies that clearly and substantially restrict free speech. Only 36 institutions have written policies that fully protect student free speech. If you are a student reading this, the odds are that your college maintains restrictive speech codes.
But fear not! FIRE not only has a database allowing anyone to find speech codes at over 400 institutions of higher education, we also have guides about speech codes and about campus free speech issues more generally. Additionally, students who run afoul of these regulations while protesting on campus are encouraged to contact FIRE.
The work we do, from litigation and public awareness campaigns to policy reform and lobbying, would not be nearly as successful without an active, engaged and informed student body. It is the students against whom these speech codes are enforced and, ultimately, it must be the students who drive the fight against them.
We are continually inspired by the great work students have done to protect free speech, and we stand ready to help in any way that we can. Above all, we implore students to, at the very least, check out what policies they are studying under. FIRE has always believed that, when it comes to defending liberty on campus, forewarned is forearmed.
• Zach Greenberg is a Robert H. Jackson Legal Fellow at the Foundation for Individual Rights in Education and a graduate of the Syracuse University College of Law.