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FIRE Speech Code Memorandum for the Indiana University System



DATE:      SEPTEMBER 9, 2010

I.     Introduction

The Indiana University system and many of its member institutions maintain
policies that violate students’ and faculty members’ First Amendment right to
freedom of speech. Over the past two decades, numerous federal courts have
struck down similar policies as unconstitutional. This memorandum will provide
detailed information on the deficiencies in these policies so that they may be
reformed to accord with the university’s legal obligation to uphold its students’
and faculty members’ First Amendment rights.

II.    Systemwide Policies

Students at all IU campuses are subject to the Indiana University Code of Student
Rights, Responsibilities, and Conduct. Although IU is a public university and
legally bound to uphold its students’ First Amendment rights, a number of the
Code’s provisions infringe on constitutionally protected speech and expression.

The first problem is found in the Preamble to the Code, which provides that

       A student who accepts admission to Indiana University agrees to: ...
       behave in a manner that is respectful of the dignity of others, treating
       others with civility and understanding ....

While it may seem innocuous, a policy requiring student expression to be “civil”
actually interferes significantly with students’ ability to advance their ideas in
ways that have the maximum emotional impact and thus can be highly persuasive.
To quote the U.S. Supreme Court, “[s]peech is often provocative and
challenging. It may strike at prejudices and preconceptions and have profound unsettling effects
as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is
nevertheless protected against censorship or punishment, unless shown likely to produce a clear
and present danger of a serious substantive evil that rises far above public inconvenience,
annoyance, or unrest.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

In 2007, a federal judge in California found that the California State University system’s civility
policy—which much like IU’s policy, stated that students were expected “to be civil to one
another”—was unconstitutional. See College Republicans at San Francisco State University v.
Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007). The judge found two significant problems with
such a policy. First, he noted that “the word ‘civil’ is broad and elastic—and its reach is
unpredictably variable in the eyes of different speakers.” In other words, since what may seem
impassioned and persuasive to one person may seem uncivil to another, a speaker’s risk of
punishment is dependent upon the subjective reaction of his or her listeners—a result courts have
long held to be unconstitutional. The judge then discussed why, even if it were more clearly
defined, a “civility” requirement would have a profound chilling effect on constitutionally
protected expression:

       Civility connotes calmness, control, and deference or responsiveness to the
       circumstances, ideas, and feelings of others. … Given these common understandings, a
       regulation that mandates civility easily could be understood as permitting only those
       forms of interaction that produce as little friction as possible, forms that are thoroughly
       lubricated by restraint, moderation, respect, social convention, and reason. The First
       Amendment difficulty with this kind of mandate should be obvious: the requirement “to
       be civil to one another” and the directive to eschew behaviors that are not consistent with
       “good citizenship” reasonably can be understood as prohibiting the kind of
       communication that it is necessary to use to convey the full emotional power with which
       a speaker embraces her ideas or the intensity and richness of the feelings that attach her to
       her cause. Similarly, mandating civility could deprive speakers of the tools they most
       need to connect emotionally with their audience, to move their audience to share their

The same reasoning is applicable here. While IU is certainly free to urge its students to conduct
their exchanges with civility, it cannot require them to do so, as this policy appears to do. If IU
wishes to maintain any “civility” language, it must be revised to make clear that is it purely
aspirational and that students cannot face any disciplinary action or even investigation for
engaging in speech that is not “civil.”

The next problem is found in the “Student Responsibilities” section of the Code, which prohibits:

       Verbal abuse of another person, including the following:

       a. An express or implied threat to:

       (1) Interfere with an individual’s personal safety, academic efforts, employment, or
       participation in university-sponsored activities and that under the circumstances causes
       the person to have a reasonable apprehension that such harm is about to occur; or

       (2) Injure that person, or damage his or her property; or

       b. “Fighting words” that are spoken face-to-face as a personal insult to the listener
       or listeners in personally abusive language inherently likely to provoke a violent
       reaction by the listener or listeners to the speaker.

This policy is impermissibly vague, which means that 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). The term “verbal
abuse” is left undefined—giving the university broad discretion to enforce the policy against
various types of speech—except for several examples which are vague in and of themselves. In
particular, the exact language in section a(1) was held to be unconstitutionally vague by a federal
court in Doe v. Michigan, 721 F. Supp. 852 (E.D. Mich. 1989), which held that the phrase
“involve an express or implied threat to an individual’s academic efforts” was vague because “it
is not clear what kind of conduct would constitute a ‘threat’ to an individual’s academic efforts.”
The term could apply to true threats and harassment of the sort that are not constitutionally
protected. However, it could also refer to conduct far less serious than that; for example, an
unpleasantly stated threat not to partner with someone on a group project due to an interpersonal
conflict would certainly be a “threat to interfere with an individual’s academic efforts,” but it
would also be protected expression. When one considers the fact that even “implied threats” are
punishable, the vagueness problem is further compounded.

Moreover, even if one refers to an external definition of “verbal abuse,” the policy is still
unconstitutional. The term “verbal abuse,” as defined by The American Heritage College
Dictionary, means “insulting or coarse language.” Most such language is completely protected
by the First Amendment. One does not have a right to be free from insult or free from hearing
language that one finds coarse or offensive. As the Supreme Court has pronounced, “If 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). Specifically addressing the public university
campus, the Supreme Court has also stated 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).

III.   Individual Campuses

       A.      Indiana University–Bloomington

               i.      Residence Hall Rules and Regulations

This policy restricts any speech on “dry erase boards, walks, or other areas frequented by the
public” that is deemed to be “offensive” or “inappropriate,” thus covering a great deal of
protected speech. As discussed earlier, most speech that is “offensive” or “inappropriate” is

nevertheless protected under the First Amendment, and cannot be banned by a public university
such as Indiana University–Bloomington.

Moreover, the policy fails to provide any guidance as to what will be considered “offensive” or
“inappropriate,” or who makes that determination, presenting a fundamental vagueness problem.
As a result of the policy’s vague terminology, campus speakers are provided with inadequate
notice of the speech prohibited. The policy’s lack of specificity and concrete guidance is likely to
only confuse students, forcing them to guess at what their peers or the administration will deem
to be punishable. This produces an impermissible chilling effect on campus expression.

               ii.     Student Organization Handbook: Policy on Free Speech

This policy limits campus protests, rallies, demonstrations, and other expressive activities to two
areas of campus: Dunn Meadow and the Sample Gates. It also limits “spontaneous” expressive
activities to only one of these areas, Dunn Meadow. These restrictions ignore the principle that at
a public university, the vast majority of campus should be open to free speech activities. At a
minimum, all traditionally public areas of campus such as sidewalks, greens, and other open
areas should be made available for such activities. For example, in considering the
constitutionality of a free speech zone policy at Texas Tech University, a federal judge wrote that
“to the extent the campus has park areas, sidewalks, streets, or other similar common areas, these
areas are public forums, at least for the University’s students, irrespective of whether the
University has so designated them or not.” Roberts v. Haragan, 346 F. Supp. 2d 853, 861 (N.D.
Tex. 2004).

Certainly, the university may enact reasonable “time, place, and manner” restrictions on campus
speech. However, in order to pass constitutional muster in a public forum, such a regulation must
be “reasonable,” must be “narrowly tailored to serve a significant governmental interest,” and
must “leave open ample alternative channels for communication.” Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989) (internal quotation marks omitted). It is difficult to imagine what
governmental interest is served by limiting free expression to only two areas of a public
university campus and “spontaneous” expression to only one area. The university’s regulation is
also not “narrowly tailored” toward such an interest, if there is one, nor does it leave sufficient
alternative channels for communication, since the rest of campus is closed off to expressive
activity. In sum, the policy does not pass muster as a reasonable “time, place, and manner”

The additional limitation on “spontaneous” speech restricts the ability of students to engage in
expressive activities in response to recent or still-unfolding events. Forcing them to instead wait
to speak effectively robs them of the immediacy and urgency of their message, thus hindering
campus dialogue and debate in a meaningful way.

               iii.    Student Organization Handbook: Appendix D — Free Speech
                       Policies and Guidelines

This policy requires students wishing to plan and participate in a “protest march or
demonstration” to notify the Student Activities Office 24 hours in advance to “discuss applicable

University policies and to confirm the line of march.” It also designates “an area on Dunn
Meadow immediately north of the Indiana Memorial Union as the Indiana University Assembly

Like the “Policy on Free Speech,” this policy encumbers spontaneous expressive activity by
requiring students both to decide at least 24 hours in advance to hold such an event and to
contact the Student Activities Office. Again, these kinds of requirements sharply limit the ability
of students to react to the news of the day.

Furthermore, the policy designates only one area of campus as being open to student assembly.
Again, like the “Policy on Free Speech,” this provision ignores the principle that the vast
majority of a public university campus should be open to student speech, including student
assembly, and that protected activities cannot be relegated to one area of campus or to small and
remote areas.

                 iv.       Stop It! Brochure

This policy instructs students to report incidents of discrimination or harassment, but uses
purported examples of this behavior that in fact constitute protected speech, such as “verbal
abuse” and “telling jokes that are demeaning to women.” While it is perfectly legitimate—and in
fact legally required—for the university to address and prevent real instances of harassment and
discrimination, in doing so it must make sure that it adheres to the proper legal standards for
harassment and discrimination. The term “harassment,” in particular, is often used by
universities in ways that encompass a great deal of protected speech. The Supreme Court has
instructed that to constitute student-on-student (or peer) harassment in the educational setting,
conduct must be “so severe, pervasive, and objectively offensive that it effectively bars the
victim’s access to an educational opportunity or benefit.” Davis v. Monroe County Board of
Education, 526 U.S. 629, 633 (1999).

The Department of Education’s Office for Civil Rights (OCR) confirmed this understanding in a
2003 “Dear Colleague” memorandum sent to federally funded colleges and universities
following the Davis decision.1 OCR made clear in its letter that federal harassment regulations
“are not intended to restrict the exercise of any expressive activities protected under the U.S.
Constitution” and therefore “do not require or prescribe speech, conduct or harassment codes that
impair the exercise of rights protected under the First Amendment.”

In contravention of the strict, speech-protective standard mandated by Davis, as well as OCR’s
policy guidance, IU–Bloomington’s policy’s use of “verbal abuse” and “telling jokes that are
demeaning to women” as examples of behavior that should be reported and made subject to
university investigation and punishment threatens protected speech. Most speech that is verbally
abusive of another is nevertheless protected under the First Amendment. Likewise, jokes that are
“demeaning” to women (or other groups, for that matter) are almost always protected, and in fact
encompass the expression of views on important social and political matters such as women in

 See Letter from Gerald A. Reynolds, Assistant Sec’y, U.S. Dep’t of Educ., Office for Civil Rights, to Federally
Funded Colleges and Universities, Dep’t of Educ. (July 28, 2003), available at

the military, the “wage gap” between men and women, affirmative action and hiring quotas in
employment, and more.

               v.      Student Organization Handbook: Outdoor Campus Events

This policy requires students wishing to hold outdoor campus events to submit an “Outdoor
Campus Event Registration Form” to the Student Activities Office “a minimum of ten business
days prior to the event.” This requirement impermissibly burdens a wide swath of protected
student speech, as it forces students to plan outdoor campus events well in advance of the actual
date. As discussed with respect to two other policies, the “Policy on Free Speech” and
“Appendix D — Free Speech Policies and Guidelines,” in many instances this effectively robs
the immediacy of their message from students seeking to speak out about recent events. The
policy, by forcing students to plan events so far in advance, also potentially prevents students
from accounting for new developments that take place closer to the date of the event, and failure
to account for these developments may render their event incomplete or even irrelevant.

In addition, the existence of this provision in the policy, along with the “Policy on Free Speech”
and “Appendix D — Free Speech Policies and Guidelines,” both of which are also in the Student
Organization Handbook and cover similar ground, may only serve to confuse students
attempting to discern the applicable regulations regarding their expressive activity. The “Policy
on Free Speech” allows for “spontaneous” expressive activity in Dunn Meadow; “Appendix D
— Free Speech Policies and Guidelines” requires that students planning a “protest march or
demonstration” discuss it with the Student Activities Office 24 hours in advance; and the
“Outdoor Campus Events” policy requires registration ten business days prior to an outdoor
campus event. Students facing these regulations, all contained in the same document, are likely
to be confused about their obligations under university policy.

Another problem is that this policy states that some outdoor events may require security, which
will be paid for at the expense of the sponsoring student group, and that the Indiana University
Police Department (IUPD), “in consultation with Student Activities and the host facility staff,
will determine whether such security considerations are required.” This arrangement carries the
potential to punish student organizations that seek to bring controversial speakers to campus or
discuss controversial subjects, as they may be assessed burdensome security fees at the discretion
of the IUPD, due to the potentially hostile reactions of offended or angered students. This result
is impermissible.

The Supreme Court has made clear that “[l]isteners’ reaction to speech is not a content-neutral
basis for regulation. … Speech cannot be financially burdened, any more than it can be punished
or banned, simply because it might offend a hostile mob.” Forsyth County v. Nationalist
Movement, 505 U.S. 123, 134–135 (1992). Therefore, IU–Bloomington’s policy must assure that
the relevant university authorities will not take the controversial content of an expressive event
into account when determining security fees, and that only appropriate content-neutral criteria,
such as the expected size of the audience and the nature of the location of the event, will be taken
into account. Currently, this policy contains no such assurance, thus threatening students’ free
speech rights.

       B.      Indiana University–Purdue University Indianapolis

               i.      Residential Handbook: Civility and Respect for Self and Others

This policy prohibits, in relevant part, any “act or threat” that subjects another person to “mental
pain, discomfort, indignity or humiliation.” Most speech that causes mental pain, discomfort,
indignity, or humiliation is nevertheless constitutionally protected, and by leaving these stand-
alone terms undefined and without any constitutionally acceptable limitation, IUPUI’s policy
threatens a great deal of protected speech. In Hustler Magazine v. Falwell, 485 U.S. 46 (1988),
the Supreme Court ruled that the First Amendment protects even such expression as a cartoon
suggesting that the Reverend Jerry Falwell lost his virginity in a drunken encounter with his
mother in an outhouse—speech that undoubtedly caused Falwell mental pain, discomfort,
indignity, or humiliation. Under this and other precedents, IUPUI’s policy is unconstitutional on
its face.

Additionally, some of the terms employed by the policy are unconstitutionally vague, failing to
provide campus speakers with adequate notice of the speech prohibited. Students seeking to
discern their speech rights at IUPUI must somehow figure out, for instance, what constitutes
“mental pain” or “indignity” for purposes of IUPUI’s policy. Since the policy fails to elaborate
on its prohibitions, students will likely self-censor on many occasions rather than risk
punishment at the discretion of the university’s administration. This creates an impermissible
chilling effect on student speech.

       C.      Indiana University South Bend

               i.      Affirmative Action Office: Understanding Sexual Harassment

This policy states that the following behaviors “may be considered” actionable sexual
harassment: “suggestive or insulting sounds,” “sexist jokes or humor,” and “gender specific
insults or comments.” These examples encompass a wide swath of protected speech. Under
“gender specific … comments,” for example, the university could target a student for opining on
a variety of social and political matters that are related to gender issues, such as reproductive
rights or same-sex marriage; the university could even punish a student for addressing a
professor as “sir” or “madam,” due to the gender-specific nature of the comment. Similarly, the
use of “sexist jokes or humor” as an example of what may constitute sexual harassment covers
much constitutionally protected speech, including parody and satire. Finally, it is difficult to
discern from the face of the policy what would constitute a “suggestive or insulting sound[].”
Such an amorphous term could cover any number of behaviors that are in fact innocuous and do
not come close to meeting the threshold for actionable harassment.

In addition to having a problematic list of examples, the policy fails to define sexual harassment
in accordance with the law. Since the policy pertains to the “workplace or academic”
environment at IUSB, it governs the expressive rights of students when interacting with fellow
students. Consequently, the policy must comply with the Supreme Court’s stringent standard
from Davis, referenced earlier, for student-on-student harassment. While the IUSB policy
requires that the offensiveness of alleged conduct be judged from the perspective of a

“‘reasonable person’” and states that the “context, severity, and frequency of the behavior must
be considered” when determining whether sexual harassment has occurred, it fails to explicitly
follow the Davis standard. Following the Davis standard would ensure that the policy’s
regulation of student-on-student conduct provides the necessary protection for student speech.

       D.      Indiana University East

               i.      Electronic Mail Code of Practice

This policy states that messages sent over university e-mail should not be “harassing, libelous,
threatening, abusive or obscene.” The ban on “abusive” messages ignores the fact that most
speech that may be characterized as abusive is still entitled to protection under the First
Amendment. The ban on “abusive” speech is also vague in that the policy neglects to elucidate
what the university will consider to fall under that term. It is therefore difficult to discern on the
face of the policy what students are not allowed to say over e-mail.

Second, the policy prohibits sending “threatening” and “obscene” messages over e-mail without
defining either term. Both “true threats” and “obscenity,” properly defined in accordance with
the law, fall outside of the protection of the First Amendment. However, left as stand-alone
terms, they can easily be used to censor and punish protected speech. Speech that is
“threatening” in the sense that it calls into question one’s deeply held beliefs, for instance, is
certainly protected and far different from speech or conduct that constitutes a “true threat” as that
exception to the First Amendment has been defined in the law. Likewise, speech that includes
the use of profane or vulgar language is often referred to as “obscene” even though it is protected
under the First Amendment and bears no resemblance to true obscenity under the law, which
essentially equates to hardcore pornography. The prohibition of “threatening” and “obscene”
messages, left undefined on the face of the policy, therefore threatens protected speech.

       E.      Indiana University Southeast

               i.      Equity & Diversity: Sexual Harassment Resources

This policy uses purported examples of behaviors “related to” sexual harassment that in fact
encompass a wide range of protected speech, including “[s]uggestive or insulting [s]ounds,”
“[s]exist jokes or humor,” “[g]ender specific insults or comments,” and “[e]-mails, faxes sexual
in nature.” The mere fact that an e-mail message is “sexual in nature,” for instance, does not
convert it into actionable sexual harassment. Under this provision, students could be punished for
e-mailing classmates about issues germane to course materials in the fields of biology,
psychology, literature, and many others. Even outside of class discussion, a student could be
punished for as little as e-mailing an innocuous sexual joke to a friend. Such a result is

Additionally, the policy does not follow the Davis standard for peer harassment in education.
Since the policy by its terms governs both the “workplace [and] academic” settings, its
application to student-on-student conduct must adhere to the Supreme Court’s standard for peer

harassment enunciated in Davis. By failing to do so, the policy jeopardizes the speech rights of
students at Indiana University Southeast.

               ii.     Residence Life Guide: Harassment and Offensive Behavior

This policy prohibits any “act or threat” that subjects another person to “mental pain, discomfort,
indignity or humiliation.” These proscriptions are the same as the ones in IUPUI’s policy on
“Civility and Respect for Self and Others” in IUPUI’s Residential Handbook. As discussed with
respect to that policy, most speech that causes mental pain, discomfort, indignity, or humiliation
is nevertheless constitutionally protected. By leaving these stand-alone terms undefined and
without any constitutionally acceptable limitation, Indiana University Southeast threatens a great
deal of protected speech. Additionally, the use of such terms as “mental pain” and “indignity”
renders the policy unconstitutionally vague, as it fails to provide campus speakers with adequate
notice of the speech prohibited. Accordingly, students are likely to self-censor rather than risk
punishment under the policy, creating an impermissible chilling effect.

               iii.    Guidelines Relating to Free Speech

This policy identifies McCullough Plaza as the “free speech area” on campus, and states that
other locations for expressive activity may be chosen “by the Director of Campus Life in
consultation with University Police.” As discussed previously, it is unacceptable to limit free
speech to a sole area of campus, while allowing for the use of other locations only at the
discretion of university officials.

The policy also requires that students “wishing to express their opinions, distribute materials or
assemble on campus” submit an “Application to Schedule Facilities” at least five days prior to
the event, and states that approval must be granted before the event can take place. The blanket
requirement that students wait five days and obtain approval before any expressive event on
campus can take place is extremely cumbersome, and it is particularly unreasonable when
applied to acts such as merely distributing literature, which are fundamental, time-honored
exercises of one’s First Amendment rights. For reasons discussed earlier, preventing students
completely from engaging in spontaneous expressive activities deprives them of the
effectiveness of their message in many instances and thereby impinges upon their First
Amendment rights, an untenable result at a public university.

The policy does recognize that the five-day wait period may be “burdensome” and states that the
wait period may be waived at the discretion of the Director of Campus Life. However, even
under those circumstances, the policy requires that students complete an application and obtain
approval before the event can take place. As such, even under the best circumstances, the policy
burdens students wishing to engage in spontaneous expression. Students who obtain a waiver of
the five-day wait period will nonetheless have to gain administrative approval, even where the
expression at issue consists of a basic form of First Amendment activity such as leafleting.
Moreover, the decision of whether or not to waive the wait period is at the sole discretion of the
Director of Campus Life. This presents a risk of selective enforcement, as leaving such open-
ended discretion in the hands of one individual creates the possibility that some speakers will be

favored and others disfavored due to the content or viewpoint of their expression. By leaving this
possibility open, the policy fails to uphold the First Amendment.

       F.      Indiana University Northwest

               i.      Office of Information Technology: Computer Users’ Privileges and

This policy threatens disciplinary action for the transmission of material that is “inappropriate,
because it is unrelated to or is inconsistent with the mission of the University, involves the use of
obscene, bigoted, or abusive material on IU resources ….” This is a classic example of a policy
that is overbroad, in that it regulates both protected and unprotected speech. 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). In addition to a legitimate prohibition on the transmission of obscene
materials, which are not protected speech when defined in accordance with the law, the policy
also prohibits expression that is “abusive,” “bigoted,” or “inconsistent with the mission of the

Information technology policies—many of which were originally drafted before e-mail and other
forms of electronic communication became as central to students’ academic and personal lives as
they are today—now cover a large number of student and faculty interactions. Many classes
involve an online component, ranging from basic e-mail communications between a professor
and his/her students, to class listservs over which a significant amount of discussion takes place,
to course-related message boards. The university’s information technology systems are also
involved when a student uses a computer on campus to access his or her personal e-mail account,
Facebook account, and so forth.

The problem with this policy is twofold. First, it does not define any of the terms it uses, giving
the administration complete discretion over its enforcement. Since the university cannot possibly
have the resources to issue discipline for every e-mail that is, for example, unrelated to its
mission, the policy will have to be selectively enforced, raising issues of fundamental fairness.

Second, using the common definitions of the terms “abusive” and “bigoted,” the policy covers a
substantial amount of protected expression, and in fact could apply directly to academic—not to
mention out-of-class—discussions of controversial issues. According to the American Heritage
College Dictionary, the term “bigoted” means “strongly partial to one’s own group, religion,
race, or politics and … intolerant of those who differ.” Many expressions of unpopular
opinions—for example, on affirmative action, gay marriage, or immigration—may be viewed by
those who disagree as bigoted. Yet, such expressions not only are fully protected by the First
Amendment, but also are in fact at the heart of what the First Amendment exists to protect.

Similarly, as discussed earlier, verbal abuse—as commonly defined—includes a great deal of
protected speech.

               ii.     Office of Student Life & Athletics: Display of Material Rules and

This policy, which regulates students’ and student organizations’ ability to post materials on
campus, prohibits “postings that advertise alcohol, tobacco, drugs, imply illegal activities
(including but not limited to illegal gambling, illicit drug use, underage alcohol consumption,
etc.) or have sexually suggestive or harassing content ….” (Emphases added.)

Like the Internet usage policy, this policy is overbroad. The prohibition on posters that “imply
illegal activities” is impermissibly vague, and could apply to political expression that refers to
such substances or activities from an advocacy standpoint—for example, a flyer advertising a
demonstration or a speech in support of marijuana legalization or lowering the drinking age. The
restriction on any “sexually suggestive” content is even broader in scope, potentially applying to
a large number of flyers and posters relating to important social issues: a poster about birth
control and safe sex; a flyer advertising a performance of The Vagina Monologues; or a flyer
advertising a speech or debate about sex and sexuality on campus, to cite just a few examples.

IV.    Conclusion

The speech codes maintained by the Indiana University system and its member institutions
violate the freedom of speech guaranteed to IU students under the First Amendment. These
policies not only are substantially similar to the university speech codes that have been
consistently and repeatedly struck down by federal courts over approximately the past two
decades, but they also contradict the IU schools’ legal obligation, as public universities, to
uphold the First Amendment on campus.

As the Supreme Court has long made clear, “[T]he precedents of this Court leave no room for the
view that, because of the acknowledged need for order, First Amendment protections should
apply with less force on college campuses than in the community at large. Quite to the contrary,
‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community
of American schools.’” Healy v. James, 408 U.S. 169, 180 (1972) (citation omitted). The Court
has elsewhere declared, “[W]e have recognized that the university is a traditional sphere of free
expression so fundamental to the functioning of our society that the Government’s ability to
control speech within that sphere by means of conditions attached to the expenditure of
Government funds is restricted by the vagueness and overbreadth doctrines of the First
Amendment.” Keyishian v. Board of Regents, 385 U.S. 589, 60506 (1967). Under these and
other longstanding precedents, that the First Amendment’s protections fully extend to public
universities such as the member institutions of the IU system is settled law.

Administrators in the IU system and its member institutions should be aware that by continuing
to maintain unconstitutional speech policies, they are risking far more than a legal defeat for their
institution’s speech codes. By continuing to violate well-established law regarding the First
Amendment rights of students at public universities, they risk losing their “qualified immunity,”
thereby opening themselves up to personal liability should a student seek monetary damages for
the deprivation of his or her First Amendment rights.

Qualified immunity shields public officials such as administrators at public colleges and
universities from personal liability under 42 U.S.C. § 1983, a federal civil rights statute, for the
exercise of their discretionary duties. Section 1983 allows individuals who have been deprived of
a federal statutory or constitutional right to pursue monetary damages against the responsible
official acting under color of state law. Under Section 1983, public officials are entitled to
qualified immunity only if their actions do not violate “clearly established” law of which a
reasonable person in the official’s position would be aware. See Harlow v. Fitzgerald, 457 U.S.
800 (1982).

Given the weight of the authority against the continued implementation of speech codes at public
universities, it is dubious for administrators to argue that the law is not “clearly established” in
this area. Rather, courts have consistently invalidated speech codes in case after case over
approximately the past two decades.2 Therefore, a student in the IU system could file a First
Amendment lawsuit arguing that by maintaining an unconstitutional speech code, administrators
at his or her institution are depriving him or her of the right to freedom of speech, and
additionally argue that this violation contradicts clearly established law of which a reasonable
person in the administrators’ positions would have known. If a court were to accept this
argument, the named administrators would face personal liability for the monetary damages
related to the deprivation of First Amendment rights. The stark possibility of such a result should
make administrators at IU schools—like those at any other public college or university—wary of
continuing to maintain speech policies that violate students’ First Amendment rights.

Of course, in addition to the prospect of personal liability, administrations in the IU system and
its member institutions should be mindful that speech codes subject their institutions to negative
publicity and harm their reputations in the public eye. Censorship and restrictions upon the
exercise of First Amendment rights are disfavored by the vast majority of the general public. The
member institutions of the IU system should strive to allow and, indeed, encourage the free
exchange of ideas on their campuses, so that these places may become the true “marketplace[s]
of ideas” that the Supreme Court declared them to be in Healy, 408 U.S. at 180 (internal
quotation marks omitted). Doing so would establish the IU schools as institutions devoted to
  The full list of cases striking down university speech codes is as follows: Dambrot v. Central Michigan University,
55 F.3d 1177 (6th Cir. 1995) (declaring university discriminatory harassment policy facially unconstitutional);
DeJohn v. Temple University, 537 F.3d 301, 319 (3d Cir. 2008) (invalidating university sexual harassment policy
due to overbreadth); McCauley v. University of the Virgin Islands, No. 09-3735 (3d Cir. Aug. 18, 2010)
(invalidating university policies prohibiting “offensive” or “unauthorized” signs, speech that causes “emotional
distress,” and speech that causes “mental harm” or “demeans” or “disgraces” any person); Doe v. University of
Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment
policy due to unconstitutionality); The UWM Post, Incorporated v. Board of Regents of the University of Wisconsin
System, 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring university racial and discriminatory harassment policy
facially unconstitutional); Corry v. Leland Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995)
(slip op.) (declaring “harassment by personal vilification” policy unconstitutional); Booher v. Board of Regents,
1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (finding university sexual harassment policy void for
vagueness and overbreadth); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining
enforcement of university harassment policy due to overbreadth); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D.
Tex. 2004) (finding university sexual harassment policy unconstitutionally overbroad); College Republicans at San
Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of university
civility policy); Lopez v. Candaele, No. CV 09-0995-GHK (C.D. Cal. Sept. 16, 2009) (invalidating sexual
harassment policy due to overbreadth); and Smith v. Tarrant County College District, No. 4:09-CV-658-Y (N.D.
Tex. Mar. 15, 2010) (invalidating “cosponsorship” policy due to overbreadth).

educating their students in liberty and providing them with the necessary tools to succeed during
their collegiate years as well as beyond graduation.

We hope that the administrations of the IU system and its member institutions pursue these
objectives, and we hope that our policy analysis proves helpful in accomplishing them.


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