FIRE Speech Code Memorandum for Georgia Gwinnett College_ July 13_ 2012

							To: Stephen Christian and Travis Jones, Georgia Gwinnett College
From: Azhar Majeed, Associate Director of Legal and Public Advocacy, FIRE
Re: Georgia Gwinnett College Speech Codes
Date: July 13, 2012

Introduction

The Foundation for Individual Rights in Education (FIRE) unites leaders in the
fields of civil rights and civil liberties, scholars, journalists, and public
intellectuals across the political and ideological spectrum on behalf of liberty,
legal equality, freedom of religion, academic freedom, due process, and freedom
of expression on America’s college campuses.

As a public college, Georgia Gwinnett College is legally bound by the First
Amendment’s guarantee of freedom of speech. Protecting students’ right to free
speech is essential to the ability of GGC to fulfill its mission as a quintessential
“marketplace of ideas.” Yet in contravention of these principles, GGC currently
maintains seven policies restricting students’ expressive rights in violation of the
First Amendment. The university must immediately revise these policies to bring
them into compliance with the requirements of the First Amendment.

If it were to do so, GGC would join a select group of colleges and universities
nationwide that do not maintain any substantial restrictions on protected student
speech. This would be a proud achievement for GGC, and one that FIRE would
be pleased to publicly praise. Of course, FIRE stands ready to assist GGC in
making the necessary revisions.

We will now examine each of the college’s speech codes in turn.

I. Designated Speech and Demonstration Areas (http://www.ggc.edu/about-
ggc/freedom-of-expression.html)

Policy:

“GGC has identified the concrete area/walkway between Student Housing
and the Student Center or the concrete in front of the Food Court area,
Building A as ‘free speech expression areas.’ These areas are generally
available from 11:00 a.m. to 1:00 p.m. and 5:30 p.m. to 7:30 p.m., Monday
through Thursday, and 11:00 a.m. to 1:00 p.m. on Friday. On occasion, other
areas and other times may be authorized, and the College reserves the right to
modify the free speech areas based on the operational needs of the institution. The
Assistant Dean for Student Life or the designated Student Affairs official is responsible for
reservation scheduling and authorization of the free speech expression areas in order to
accommodate all interested users. Authorization will be granted in accordance with the
principle of content neutrality. Appeals related to the decision of the Assistant Dean should be
made to the Dean of Students. The decision of the Dean is final.

[...]

All requests must follow the appropriate facility reservation process. The designated free
speech forms must be completed, any publicity materials must be attached and submitted
to the Assistant Dean for Student Life or the designated Student Affairs official at least five
(5) business days prior to the free expression speech, program, event or gathering in
accordance with this policy. Organizers are encouraged to submit their requests as early in the
planning stages of the event as possible.” (Emphasis added.)

Analysis:

This policy is impermissibly restrictive of free speech in multiple ways. It confines expressive
activities to just two “free speech expression areas” on campus. It severely restricts the time of
expression within those areas to just a few hours per day. And it allows for no spontaneous
expression on campus, requiring at least 5 days notice to use the free speech zones. We now turn
to a more detailed examination of each of these problems.

This policy designates two specific areas on GGC’s campus as “free speech expression areas.”
Like most free speech zone policies that FIRE sees on college and university campuses, the
policy limits student speech and expressive activity, which should be allowed in the vast
majority of open and public areas of campus. Instead, this policy restricts such activity to just
two areas. While it is not possible to know the full impact of this restriction without seeing those
areas (in order to gauge just how much space is made available for student expression),
quarantining student speech to specific areas of campus is problematic. As we like to say at
FIRE, free speech should be the rule, not the exception, at any college that, like GGC, is legally
bound by the First Amendment.

Furthermore, even in those areas that this policy makes available to expressive activity, GGC
limits such activity to just a few hours per day, Monday to Friday, and none on Saturday or
Sunday. This is wholly unacceptable: Students cannot be limited in exercising their First
Amendment rights to those few hours that the college is willing to allow. While colleges may
enact reasonable “time, place, and manner” restrictions on speech, such regulations must be
content-neutral, “narrowly tailored” to serve a significant governmental interest, and must leave
ample alternative methods of communication. Thus, while a college may, for instance, restrict
use of amplified sound during late hours or during exam study periods, it may not prohibit all
speech during all hours except for those few that the college makes available.

Finally, the policy requires students to reserve one of the designated free speech areas ahead of
time with the “Assistant Dean for Student Life or the designated Student Affairs official.” The
prior notice requirement of at least five days means that students are prohibited from engaging in
spontaneous speech or expressive activity even in the designated free speech areas. Yet such
spontaneity is an important aspect of student speech, and students seeking to speak about recent
or still-unfolding events will lose the immediacy of their message. FIRE believes that any
demonstration policy must make some allowance for spontaneous expressive activity on campus.
Moreover, while the policy does state that decisions regarding reservation of space will be made
in a content-neutral manner, it provides no clear criteria upon which approval will be granted or
denied, giving the administration a great deal of discretion to approve or deny events-- discretion
that could easily be abused. The fact that students must provide prior notice and gain
administrative approval before engaging in speech even in the designated free speech areas is
unacceptable.

Due to the numerous ways in which this policy restricts student speech, FIRE would rate it as a
“red light” policy (our worst rating for campus speech codes), designated for those speech codes
that both clearly and substantially restrict free speech.

II. Disorderly Conduct
(Student Handbook, p. 28: http://www.ggc.edu/ggc-community/ggc-students/student-
handbook.html)

Policy:

“Examples of specific prohibited actions include but are not limited to the following: … Physical
abuse, verbal abuse, threats, intimidation, harassment, coercion, and/or other conduct that
threatens or endangers the health or safety of another person or other conduct used to coerce
club/organization membership. In recognition and support of the First Amendment of the United
States Constitution, freedom of expression and academic freedom shall be considered in
investigating and reviewing these types of alleged conduct violations.” (Emphasis added.)

Analysis:

This policy prohibits “verbal abuse” without defining the term in any way, despite the fact that
much expression that someone might subjectively consider verbally abusive is protected by the
First Amendment. This potentially includes sharp-edged debate about important social and
political issues of the day, as a student may be found to have “verbally abused” another student
simply for passionately disagreeing on a contentious point of debate.

By failing to define this amorphous term, GGC gives students little to no notice of what speech is
actually prohibited. As a result, students are likely to self-censor rather than risk punishment for
engaging in protected speech, creating a harmful “chilling effect” on campus discourse. While
GGC states that “freedom of expression and academic freedom shall be considered” in enforcing
the policy, that alone does not clarify the intent of the policy or erase students’ understandable
confusion and apprehension about how the policy is to be applied. Rather, the policy vests
unbridled discretion with GGC administrators, making it susceptible to uneven and selective
enforcement.
Due to the policy’s flaws, FIRE would rate this policy as a “yellow light” speech code, reserved
for ambiguous policies that ban or excessively regulate protected speech, or that too easily
encourage administrative abuse and arbitrary application.

III. Code of Conduct (Student Handbook, p. 44:)

Policy:

“We will: … Treat fellow employees, students and the public with dignity and respect.”

Analysis:

This policy is so broadly worded that it could be used to punish speech and expression in
addition to merely behavior (the “explanatory notes” on the section refer to disruptive conduct
and inappropriate sexual relationships, but the notes do not specify whether that is the only
conduct prohibited by the provision). The university may not, consistent with the First
Amendment, prohibit students from engaging in speech that lacks “dignity and respect”-- most
speech that is lacking in these values is nevertheless protected by the First Amendment. As the
U.S. Supreme Court has said, “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). Under this and other binding precedents, GGC may not,
consistent with its obligations under the First Amendment, censor or punish student expression
simply because it is not characterized by “dignity and respect.”

Moreover, speech that is lacking in “dignity and respect” to one person may be perfectly
acceptable, and even tame, to another. Given that these amorphous terms, which are capable of
divergent interpretations, are left undefined in the policy, students are given inadequate notice of
what may subject them to investigation and punishment. This renders the policy
unconstitutionally vague; the Supreme Court has held that laws must “give a person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that he may act
accordingly,” or else they are unconstitutionally vague. Grayned v. City of Rockford, 408 U.S.
104, 108–09 (1972). As with the previous policy banning “verbal abuse,” students are likely to
self-censor rather than risk disciplinary action under this vague proscription.

Due to this policy’s potential impact on constitutionally protected speech, FIRE would rate the
policy as a “yellow light” speech code.

IV. Prohibited Discrimination and Harassment (Student Handbook, p. 64:)

Policy:

“Georgia Gwinnett College prohibits its faculty, staff and students from engaging in any form of
prohibited discrimination or protected status harassment (including sexual harassment), and
expects these individuals to refrain from committing acts of bias within the College‟s
jurisdiction. Such prohibition include, but are not limited to, actions which discriminate, harass,
threaten or physically/verbally abuse another individual, with the intent or effect of
unreasonably interfering with that person’s work/academic performance, or
employment/enrollment opportunity; or creates an intimidating or hostile work/academic
environment based on that person’s membership in a protected group.” (Emphasis added.)

Analysis:

This policy violates GGC students’ free speech rights in a number of ways. It contains overly
vague prohibitions on “verbal abuse” (discussed in detail earlier in this memo) and also on “acts
of bias”-- that term, like verbal abuse, could theoretically encompass a substantial amount of
protected speech and expression, depending on how the university decides to define it.

The policy also defines harassment much more broadly than the standard that the U.S. Supreme
Court has set forth for peer harassment in the educational setting. The Supreme Court’s
controlling standard states that an actionable claim for peer harassment requires 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." Davis v. Monroe County Board of Education, 526 U.S.
629, 652 (1999). This standard protects student speech rights while simultaneously addressing
schools’ legal obligations to prevent and remedy true harassment, including sexual harassment.
GGC’s standard merely requires that someone perceive the environment as “intimidating or
hostile” in order for harassment to have occurred.

Due to the policy’s potentially serious impact on protected speech, FIRE would rate it as a
“yellow light” speech code.

V. Sexual Harassment Policy Statement (Student Handbook, p. 68)

Policy:

“Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, or
other verbal or physical conduct of a sexual nature when: … Such conduct unreasonably
interferes with an individual's work or academic performance, or creates an intimidating, hostile,
or offensive working or academic environment.

[...]

In some circumstances, sexual harassment may involve a pattern of conduct (not legitimately
related to the subject matter of an academic course or function of a job) that causes discomfort or
humiliation, or both through one or more actions. Some examples include: 1. sexual
innuendos; 2. sexually explicit statements; 3. questions; 4. jokes or anecdotes; or 5. posting
of nude/sexually exposed pictures or drawings.

An isolated comment usually does not meet the hostile environment definition of sexual
harassment. Hostile-environment harassment usually requires repeated instances of offensive
behavior.”
Analysis:

This policy, like the previously discussed policy on Prohibited Discrimination and Harassment,
falls short of the Supreme Court’s controlling standard for peer harassment in the educational
context. The policy merely requires that conduct “creates an intimidating, hostile, or offensive”
environment, subjectively defined, to constitute actionable sexual harassment. This is a far less
speech-protective standard than the Supreme Court’s required elements of “severe,” “pervasive,”
and “objectively offensive” conduct, as set forth in Davis v. Monroe County Board of Education,
526 U.S. 629, 652 (1999). GGC’s sexual harassment standard contains none of these important
prongs, and therefore places protected speech at risk of punishment.

Furthermore, the policy explicitly states that examples of sexual harassment include broad
categories of speech like “jokes,” “anecdotes,” and “sexual innuendoes,” without reference to
whether they meet the actual legal standard for harassment. In reality, these types of speech are
almost always entitled to First Amendment protection, unless they rise to the level of actual
harassment (as defined by the Supreme Court). This policy, by contrast, implies that they are
prohibited outright.

Due to the policy’s prohibition on broad categories of speech, FIRE would rate this policy as a
“red light” speech code.

VI. Discriminatory Harassment Policy Statement (Student Handbook, p. 71)

Policy:

“Speech or other expression (words, pictures or symbols) constitutes discriminatory harassment
if it constitutes ‘fighting words’ and is also sufficiently severe, pervasive, or persistent so as to
interfere, limit or deny one’s ability to participate in or benefit from an educational program or
service. ‘Fighting words’ may include, but are not limited to, words, pictures or symbols. In the
context of discriminatory harassment, ‘fighting words’ are those which are commonly
understood to convey direct hatred or contempt for a human being(s).”

Analysis:

This policy comes close to meeting the Supreme Court’s standard for peer harassment, as set
forth in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999). However, in
place of the standard of “sufficiently severe, pervasive, or persistent” conduct, GGC must
substitute the Davis standard of “severe, pervasive, and objectively offensive” conduct in order
to be in compliance with Supreme Court precedent. In total, Davis requires that in order for
student behavior to be actionable harassment, it must be conduct that is (1) unwelcome; (2)
discriminatory; (3) on the basis of gender or another protected status, like race; (4) directed at an
individual; and (5) "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." Incorporating the Davis standard,
with all of its elements, into this policy would allow GGC to protect student free speech while
simultaneously meeting its obligations to address and prevent true peer harassment.

Because this policy does not pose a serious threat to students’ free speech rights, we would give
it a “green light.” This does not mean, however, that there is not room for improvement, as
discussed above.

VII. GGC Housing Code of Conduct: Acts of Intolerance (Student Handbook, p. A-17)

Policy:

“Acts of intolerance are behaviors that, by intent and/or outcome, harm or threaten to harm a
person or group. These behaviors are motivated by prejudice toward a person or group because
of their race, religion, ethnicity, abilities, national origin, gender, body size, socioeconomic
status, or sexual orientation. This is not an exhaustive list. An act of intolerance can include
either overt or covert actions, including verbal attacks and/or physical assaults on students
and/or their property (including residence hall doors), as well as jokes, posters, or comments.”
(Emphasis added.)

Analysis:

This very broad speech code prohibits “verbal attacks” as well as “jokes, posters, or comments”
when they are “motivated by prejudice” toward an individual or group on the basis of a listed
characteristic. Yet most “verbal attacks” and virtually all “jokes, posters, or comments” are
protected under the First Amendment even when they are “motivated by prejudice.” The mere
fact that speech includes the expression of prejudicial views does not preclude it from
constitutional protection; indeed, a great deal of satire and parody is restricted and punishable
under this policy.

Due to this policy’s explicit prohibition of constitutionally protected speech, FIRE would give it
a “red light” rating.

Conclusion

The policies identified in this memorandum will continue to violate GGC students’ First
Amendment rights and chill campus speech as long as they are on the books. However, these
policies can be easily revised to bring them in line with constitutional standards, as explained in
FIRE’s analysis. Of course, FIRE would be happy to work with the GGC administration to make
these policy changes, and we stand ready to help at any time.

Sincerely,


Azhar Majeed
Associate Director of Legal and Public Advocacy