MEMORANDUM To: Chase Mitchell, Young Americans for Liberty (YAL), Angelo State University From: Azhar Majeed, Associate Director of Legal and Public Advocacy, Foundation for Individual Rights in Education (FIRE) Date: September 11, 2012 Re: Speech Codes at Angelo State University Introduction I have prepared this memorandum in response to your request for information about how Angelo State University’s (ASU’s) policies might be revised to better protect students’ right to free speech and expression. FIRE rates a university as a “red light,” “yellow light,” or “green light” institution depending on the extent to which the university’s written policies restrict constitutionally protected speech and expression. ASU currently maintains one red light speech code, which we define as a policy that both clearly and substantially prohibits speech protected by the First Amendment. ASU also has two yellow light speech codes, which are ambiguous policies that could too easily be abused to punish protected speech. Fortunately, all three of these policies could easily be revised to protect student speech and meet ASU’s legal and moral obligations as a public institution to honor the First Amendment. FIRE would be very pleased to work with the students and administrators of ASU to make the school a green light institution, and to praise and publicize this change through our extensive national media network. By simply revising these policies, ASU would be able to join a select group of colleges nationwide that have earned FIRE’s most favorable speech code rating. What follows is a discussion of the specific First Amendment issues with each of ASU’s speech codes, as well as proposed solutions for remedying those defects. I. Code of Student Conduct: Student Misconduct (Red Light) A. Problematic Provisions 2 Specific examples of misconduct or attempted misconduct for which students may be subject to disciplinary action include, but are not limited to, the following: [...] Campus disruptive activities or disorderly conduct on University-owned or controlled property or at a University-sponsored or supervised function that inhibit or interfere with the educational responsibility of the University community or the University's social-educational activities shall include but not be limited to: using abusive, indecent, profane or vulgar language; making offensive gestures or displays that tend to incite a breach of the peace; perpetrating fights, assaults, acts of sexual violence, abuse, or threats; or evincing some obviously offensive manner or committing an act that causes a person to feel threatened. [Emphases added.] This policy prohibits a great deal of constitutionally protected speech and earns FIRE’s worst, red light rating for speech codes. First, the policy is likely void for overbreadth. A statute or law regulating speech is unconstitutionally overbroad “if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate.” Doe v. University of Michigan, 721 F. Supp. 852, 864 (E.D. Mich. 1989), citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Most egregiously, ASU’s policy bans “using abusive, indecent, profane or vulgar language” anywhere “on University-owned or controlled property.” This restricts everything from sharp-edged political debate, to jokes among friends, to academically related material. For instance, a student may face disciplinary action merely for expressing his or her views on a contentious social or political issue such as affirmative action, illegal immigration, or gay marriage; all that would need to happen is for an administrator or fellow student to deem this speech to be “abusive” toward the individual or group being addressed. Yet the Supreme Court of the United States has made clear that social and political commentary lies at the core of the First Amendment’s protections, stating that “speech concerning public affairs is more than self-expression; it is the essence of self-government," reflecting "our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (internal quotations omitted). The same provision is likely void for vagueness as well. A law or regulation is unconstitutionally vague when it does not “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). Here, ASU students are given no notice of what an administrator charged with enforcing the policy may determine to be “indecent” or “vulgar” for purposes of this policy. As these terms are not self-defining, the policy’s lack of explanation or illustration leaves students to guess for themselves. Consider the Supreme Court’s well known decision in Hustler Magazine v. Falwell, 485 U.S. 46 (1988), in which the Court upheld the First Amendment right of Hustler magazine to publish a satirical advertisement suggesting that the Reverend Jerry 3 Falwell’s first sexual experience was a drunken tryst in an outhouse with his own mother. The publication of such material may well be punishable at ASU as “indecent” or “vulgar” expression, yet it is not clear whether that it would be. The policy’s uncertainty means that many rational students will understandably self-censor rather than risk punishment, creating a harmful and impermissible “chilling effect” on campus discourse. Additionally, the policy encounters First Amendment problems with its restriction on “offensive gestures or displays that tend to incite a breach of the peace.” This provision grants a type of “heckler’s veto” to individuals who are offended by another’s speech or expressive activity, whereby they can potentially silence speech with which they disagree by reacting in an unreasonable and disruptive manner. Speech does not “tend to incite a breach of the peace” simply by virtue of being “offensive,” and most “offensive” speech is in fact constitutionally protected. As the Supreme Court pronounced long ago, “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949).” See also Boos v. Barry, 485 U.S. 312, 322 (1988) (quoting Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 56 (1988)) (“in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide ‘adequate “breathing space” to the freedoms protected by the First Amendment’”). Under these and other precedents, ASU may not, consistent with its First Amendment obligations, grant a “heckler’s veto” to those who find campus speech or expressive activity to be disagreeable or inconsistent with their own views or values. Lastly, the policy problematically prohibits “evincing some obviously offensive manner.” This encounters the same defects of vagueness and overbreadth as the provision regarding “using abusive, indecent, profane or vulgar language.” Not only are students left to guess at what speech or expressive activity may “evinc[e]” an “offensive manner,” this provision gives far too much discretion to those ASU administrators who apply the policy, paving the way for selective enforcement and viewpoint-based discrimination. The Supreme Court has made clear that “[i]f 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 itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). B. Proposed Solutions ASU would be far better served limiting this policy to truly disruptive campus conduct and to speech and conduct falling outside of the First Amendment’s protection. For instance, ASU may prohibit “activity or conduct on university-owned or controlled property or at a university-sponsored or supervised function that substantially and materially interferes with the university’s educational programs and activities, disrupts the functioning of campus administration and management, or otherwise interferes with the core mission and activities of the university.” This type of limited language would not require a major change from the current formulation at the beginning of ASU’s policy, 4 with the crucial difference being that ASU would thereby remove the provisions restricting constitutionally protected student speech. The touchstone here is that conduct that “substantially and materially” disrupts or interferes with campus functions is an appropriately high standard, ensuring that protected speech does not get swept into allegations of disruptive conduct. II. Student Handbook: Freedom of Expression Activities (Yellow Light) A. Problematic Provisions Students engaged in freedom of expression activities may be subject to disciplinary action under the Code of Student Conduct for the following actions: [...] Activities that include the use of obscenities, libelous statements, or fighting words, as defined by law. [Emphasis added.] This policy serves as an ambiguous regulation of student expression at ASU and thus earns a yellow light rating from FIRE. The policy governs “freedom of expression activities” at ASU, which it defines as any and all “activities that involve public orations, rallies, demonstrations, etc., where the speaker is seeking a public forum for the expression of opinions and ideas.” Within this broad range of student activity, the policy prohibits the “use of obscenities,” though it fails to define what exactly the university intends by this term. If the university intends to ban actual obscenity, as narrowly defined by the Supreme Court in Miller v. California, 413 U.S. 15 (1973), it must make that clear in the policy. If, however, the university actually intends to restrict the mere use of profanity and the like, its policy is unconstitutionally overbroad. Profane speech is largely entitled to constitutional protection and must therefore be allowed of students on a public university campus bound by the First Amendment. In Cohen v. California, 403 U.S. 15 (1971), the Supreme Court famously overturned the conviction of a man who wore a jacket bearing the words "Fuck the Draft" into a county courthouse. In holding that his expression was entitled to constitutional protection, the Court wrote that "one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual." Id. at 25. Under such longstanding precedent, ASU may not, consistent with its constitutional obligations, ban its students from using profanity during any and all expressive activities on campus. The policy’s ambiguity on this point likely chills student speech. The Supreme Court has observed that “[W]here a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone ... than if the 5 boundaries of the forbidden areas were clearly marked.’” Grayned, 408 U.S. at 109 (internal citations and quotation marks omitted). ASU must revise its policy if it wishes to remove this harmful chilling effect on campus discourse. B. Proposed Solutions If ASU wishes only to ban actual obscenity as narrowly defined by the Supreme Court in Miller, it must make that clear in its policy. That can easily be achieved under a formulation such as the following: “Activities that include the display or dissemination of obscenity or obscene materials, as defined under applicable federal and state law.” Such a policy ideally would also include a statement clarifying that “this ban does not include discussion of sexual topics, sexually related materials, or other speech or expressive activity that does not rise to the legal definition of obscenity.” III. Student Handbook: Distribution Policy (Yellow Light) A. Problematic Provisions The distribution of literature, publications, books, flyers, handouts, and other forms of advertising media on the campus of Angelo State University by individuals and organizations, other than students, faculty, staff and organizations consisting solely of members of one or more of these classes of individuals, is subject to the Freedom of Expression policy adopted by Angelo State University. No materials that include "fighting words" expressions, obscenities, vulgarities, libel, slander, expressions that are an incitement to imminent lawlessness, or impermissible solicitation can be distributed. [Emphasis added.] This policy, like the policy on Freedom of Expression Activities, serves as an ambiguous regulation on students’ use of “obscenities” as part of campus expression (in this case, the distribution of literature), as well as students’ use of “vulgarities.” Therefore, it similarly earns a yellow light rating from FIRE. As previously stated with respect to the Freedom of Expression Activities policy, if ASU wishes to narrowly prohibit the use or distribution materials that meet the legal definition of obscenity, it must make its policy clear on that point. If, on the other hand, it intends to prohibit the mere distribution of materials containing profane language and the like, it has erred under the First Amendment. The latter reading appears to be more likely in this case, as the policy explicitly bans “vulgarities.” Yet the restriction of student speech containing profane or “vulgar” language contradicts longstanding Supreme Court precedent dictating that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973). Failure to follow this principle renders the policy overbroad on its face. 6 B. Proposed Solutions Once again, if ASU wishes only to ban actual obscenity, it can easily do so under a formulation such as the following: “Students may not distribute obscene materials, as defined under applicable federal and state law.” It would also be useful, as previously discussed, to include a statement clarifying that “this ban does not include discussion of sexual topics, sexually related materials, or other speech or expressive activity that does not rise to the legal definition of obscenity.” Conclusion FIRE hopes this memorandum is helpful in your efforts to promote speech code reform at Angelo State University. Once again, each of these policies could easily be revised to better protect student speech, and FIRE stands ready to work with the students and administrators of ASU to help it meet its First Amendment obligations and to make the school a green light institution.
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