A Judicial Bright Spot – Courts Invalidate Unconstitutional Campus Speech Codes

©2014 Kenneth N. Margolin

Other articles on this web site have criticized the many court decisions showing undue deference to colleges that trample the rights of students charged with violations of campus codes of conduct. There is, however, one area of college disciplinary code law, in which the courts have done their jobs with distinction – invalidating speech codes in public universities. This article relates only to public colleges, which are fully subject to the United States Constitution. While many private colleges promise students free speech rights, and may be contractually held to that promise, the free expression guarantees of the First Amendment, which applies to public colleges, are especially powerful.

Arising out of an overzealous effort to make all students feel comfortable and welcome at all times, most colleges have incorporated limits on speech into their codes of conduct. There are two usual categories of unconstitutional speech codes: (1) codes that attempt to limit the content of expression; and (2) codes that limit the areas on campus upon which students may engage in free expression. A typical "speech code" (never candidly labeled as such) suppressing content of speech, may prohibit students from expressing beliefs that are "intolerant," "discriminatory," or "harassing." Some codes even require students to be "civil" in all campus interactions. The notion that students must avoid expressions considered harmful to others, has gained enormous appeal among college administrators, and many students. These advocates of cultural sameness and intellectual blandness, forget that colleges are intended to broaden students' minds and expose them to others with life experiences and points of views different from their own. Intellectual stimulation requires exposure to impassioned expression. Effective speech, including symbolic speech, is often provocative, often intentionally provocative. Speech codes on public college campuses that attempt to squelch provocative speech are unconstitutional. Fortunately, our federal courts have agreed with near-unanimity.

The cases in which courts have invalidated speech codes are numerous. This article will discuss a few, to give a flavor of the judicial constitutional thinking on the subject. A federal court in Pennsylvania (Blair v Shippensburg Univ., 280 F.Supp. 2d 357 (M.D. Pa 2003). invalidated a Shippensburg University code of conduct that required all expression to be communicated "in a manner that does not provoke, harass, intimidate, or harm another," and conduct, including speech that would advocate the "subordination of any person or group based on race, color, creed or national origin." The court explained that such speech, while undoubtedly offensive, is constitutionally protected, quoting the Supreme Court's holding that "[I]f there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable."

The 3rd Circuit Court of Appeals (DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008) invalidated a Temple University code that attempted to broadly suppress speech that might be considered sexually harassing by some students. The court noted that there is no "harassment exception" to the First Amendment, and stated bluntly that while harassing conduct may be prohibited, that "`[H]arrassing' or discriminatory speech, although evil and offensive, may be used to communicate ideas or emotions that nevertheless implicate First Amendment protections. For example, (these examples are mine, did not appear in the court opinion), a student has the right to state that Mexican immigrants are lazy and just want welfare, and should be kept from our country, that the Bible teaches that homosexuals are sinful, that Jews are trying to control the world, or that women's place is in the home raising children. As deeply offensive as such comments might be to many, they are undeniably comments on matters of public import, and protected by the First Amendment. A federal court in California (Coll. Republicans at S.F. State Univ. v. Reed, 523 F.Supp.2d 1005 (N.D.Cal. 2007), made similar pronouncements in a case throwing out a speech code that resulted in disciplinary action against students who stomped on flags of Hamas and Hezbollah, that had the word, "Allah" written on them. The students were charged with being "uncivil" toward Muslims. The Court held that the controversial, and to some, offensive nature of the students' expression "were critical to its effectiveness," and that "`controversial' expression ... is the First Amendment's highest duty to protect."

The belief among college administrators that they own the limits of students' speech has created some ludicrous situations. At both the University of Hawaii and Modesto Junior College in California, students were penalized for handing out copies of the United States Constitution outside of the campuses' "free speech zones." The Modesto student was handing the constitutions out on "Constitution Day," a day celebrating the document containing our country's highest laws. The University of Hawaii voluntarily suspended its free speech zone policies – the lawsuit continues, while Modesto Junior College settled with the student for $50,000. The monetary settlement was significant, as it reflected the realization of the university officials, no doubt after belatedly consulting with counsel, that their code and conduct were so patently unconstitutional that the school, and even individual administrators, might be found liable if the case proceeded.

In a separate article on this web site, I will discuss the importance of lawsuits by students who have been disciplined by public colleges and universities for engaging in speech or symbolic expression protected by the First Amendment. Such litigation is effective and should be instituted in many cases. Amidst a sad history of misplaced and harmful judicial deference to unfair college disciplinary proceedings, our courts have stood tall in defense of free speech.