MEMORANDUM To: David Brunal, Florida State University From: Azhar Majeed, Associate Director of Legal and Public Advocacy, Foundation for Individual Rights in Education (FIRE) Date: November 8, 2012 Re: Speech Codes at Florida State University Introduction The Foundation for Individual Rights in Education (FIRE; thefire.org) is a nonpartisan, nonprofit organization dedicated to defending core constitutional rights on university campuses. This memorandum is in response to your request for information about how Florida State University’s (FSU’s) policies can be revised to protect students’ right to free speech under the First Amendment. 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. FSU currently maintains two red light speech codes, which we define as policies that clearly and substantially prohibit free speech. The university also has a “free speech zone” policy that we rate as a yellow light—a rating given to ambiguous policies that could too easily be abused to censor or punish protected speech. While FSU maintains a number of other yellow light speech codes that are not covered in this memorandum, the revision of its free speech zone policy would significantly improve student speech rights by opening up FSU’s campus to expressive activity. Moreover, by revising its two red light policies, FSU would be able to improve to an overall yellow light rating as an institution. This would be a major step forward for the university in upholding students’ First Amendment rights, and it can be achieved through relatively simple policy changes. FIRE would be pleased to work with the students and administrators of FSU to make these policy changes, and to praise them publicly through our extensive national media network. What follows is a discussion of the First Amendment issues with FSU’s speech codes, as well as proposed solutions for remedying those defects. I. Student Conduct Code: Sexual Misconduct (Red Light) 2 This policy prohibits, in relevant part: Conduct of a sexual nature that creates an intimidating, hostile, or offensive environment for another person. This includes unwanted, unwelcome, inappropriate, or irrelevant sexual or gender-based behaviors, actions or comments. FSU’s policy on Sexual Misconduct violates students’ First Amendment rights in a number of respects, thus earning FIRE’s worst, red light rating for speech codes. First, the policy prohibits “unwanted, unwelcome, inappropriate, or irrelevant sexual or gender- based behaviors, actions or comments.” Yet how is any student to know what expression, whether “sexual or gender-based” or not, may be considered “inappropriate” by the university? The term “inappropriate” is not defined at all in this policy, giving students no notice of the speech thereby prohibited. This renders the policy unconstitutionally vague. A policy or regulation is said to be 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). Students’ expressive rights are left at the mercy of administrators charged with interpreting and enforcing this policy, or of complaining students, no matter how unreasonable or hypersensitive their sensibilities may be. After all, speech that is inappropriate to one person, or in one context, may be perfectly appropriate to another person, or in another context. Indeed, FSU’s policy has the potential to stifle discussion of many important social and political issues relating to gender or sexual activity—such as women’s rights, gay marriage, teen pregnancy, and reproductive rights—any time an administrator or student subjectively deems this expression to be “inappropriate.” The policy’s ban on “irrelevant sexual or gender-based” expression is similarly flawed under the First Amendment. The policy provides no explanation of what speech may be considered “irrelevant,” and under what circumstances. Once again, this raises the question of who gets to decide whether particular speech is irrelevant and why that is the case. As with the restriction of “inappropriate” expression, the resulting uncertainty is likely to chill campus discourse, as students will understandably self-censor rather than risk punishment. 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 boundaries of the forbidden areas were clearly marked.” Grayned, 408 U.S. at 109 (internal citations omitted). This chilling effect does grave harm to the “marketplace of ideas” that a public university campus such as FSU’s is supposed to be, and is fundamentally at odds with the university’s obligations under the First Amendment. Next, FSU’s policy prohibits “unwanted” and “unwelcome” “sexual or gender-based behaviors, actions or comments” without giving students any indication or examples of when particular expression might be unwanted or unwelcome. This raises the same problem of vagueness as the provisions on “inappropriate” and “irrelevant” speech. Under this policy, how is a student to know beforehand whether a given statement, joke, or question will be subjectively held to be unwanted or unwelcome by the recipient? Absent any clear definition, or the use of an objective, 3 “reasonable person” standard, any student expression touching on issues of gender or sexual activity—including the examples of clearly protected social and political speech listed above—is punishable if another student subjectively finds the expression unwanted or unwelcome. Giving listeners this much of a veto power over campus discourse, no matter how unreasonable or hypersensitive their sensibilities might be, is simply untenable under FSU’s First Amendment obligations. Taken together, the policy’s restriction of “unwanted, unwelcome, inappropriate, or irrelevant sexual or gender-based” speech is, in addition to being unconstitutionally vague, overbroad on its face. 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). Under the First Amendment, FSU students must be free to discuss and debate the important social and political matters of the day, including issues relating to gender, sexual orientation, and sexual activity. As the Supreme Court of the United States has counseled, “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). Failure to abide by this principle renders the policy unconstitutionally overbroad. The second overarching flaw with this policy is its use of the standard of “[c]onduct of a sexual nature that creates an intimidating, hostile, or offensive environment for another person.” To the extent this provision addresses hostile environment discriminatory harassment on campus (including sexual harassment), the use of this standard restricts students’ free speech rights. Student-on-student hostile environment harassment (or peer harassment) in the educational setting has a specific legal definition, as set forth by the Supreme Court, and only a policy meeting that standard is permissible at a public university such as FSU. In Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999), the Court defined peer harassment in the educational context as conduct that is (1) unwelcome; (2) discriminatory; (3) on the basis of a protected status such as gender or 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.” This standard properly balances universities’ obligations to both uphold student speech rights and prevent true harassment. As the Supreme Court’s only decision to date regarding the substantive standard for peer harassment in education, Davis is controlling on this matter. By contrast, FSU’s policy makes punishable any “[c]onduct of a sexual nature” if it is held to “create an intimidating, hostile, or offensive environment.” This falls well short of the Davis requirements, first, because it fails to include an objective, “reasonable person” standard. Instead, the creation of an “intimidating, hostile, or offensive” environment appears to be judged from the subjective perspective of either the complaining student or university administrators. This plainly fails the Supreme Court’s requirement of “objectively offensive” conduct. In addition, FSU’s harassment standard does not include the Davis elements of “severe” and “pervasive” conduct. 4 These elements are necessary to ensure the proper balance mandated by the Supreme Court between respecting student free speech and preventing actionable harassment. While the problems with this policy are myriad, FSU can in fact revise it to meet constitutional standards with just a couple of simple steps. First, the university should adopt the Davis standard, in all of its elements, as its controlling standard for peer sexual harassment. This definition should take the place of FSU’s current standard of “[c]onduct of a sexual nature that creates an intimidating, hostile, or offensive environment for another person.” Second, FSU should remove the prohibition of “unwanted, unwelcome, inappropriate, or irrelevant sexual or gender-based behaviors, actions or comments,” and make clear that any purported examples of peer sexual harassment will be actionable only if they rise to the stringent level of the Davis standard. II. A Summons to Responsible Freedom (Red Light) This policy, which sets forth the “Values and Moral Standards at The Florida State University,” states, in pertinent part: Relations among all persons should be characterized by mutual respect and equality. Sexism, sexual harassment, and sexual coercion of any sort are wrong and constitute a violation of fundamental moral requirements and state law. [...] The university expects each individual to make a special effort to ensure that all are treated with dignity and respect and accorded the full opportunities of the University. Racism, whether in assumptions, attitudes, acts, or policies, is incompatible with the concept of responsible freedom as espoused by The Florida State University. Like FSU’s Sexual Misconduct policy, this speech code violates students’ free speech rights in a number of ways and therefore earns FIRE’s worst, red light rating. First, the policy prohibits students from engaging in any conduct or expression lacking in “mutual respect and equality” or in “dignity and respect.” Yet much speech that lacks these values is protected under the First Amendment. While presumably well-intentioned, FSU’s policy unconstitutionally regulates and restricts student discourse and interaction. As the Supreme Court has stated, “[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). Students at FSU should be allowed to disagree strongly and passionately when debating the issues of the day without worrying whether they could potentially face disciplinary action for allegedly “disrespectful” or “undignified” expression. FSU would be well-advised to review the case of College Republicans v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007), in which a federal district court in California invalidated a similar policy maintained by San Francisco State University. That policy required students to be “civil to one 5 another and to others in the campus community.” In striking down this provision on First Amendment grounds, the court wrote at length: As plaintiffs point out, the word “civil” is broad and elastic — and its reach is unpredictably variable in the eyes of different speakers. Given the fact that this term is both opaque and malleable, the University’s failure even to try to define it intensifies the risk that students will be deterred from engaging in controversial but fully protected activity out of fear of being disciplined for so doing. [...] There also is an emotional dimension to the effectiveness of communication. Speakers, especially speakers on significant or controversial issues, often want their audience to understand how passionately they feel about their subject or message. For many speakers on religious or political subjects, for example, having their audience perceive and understand their passion, their intensity of feeling, can be the single most important aspect of an expressive act. [...] [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... While Reed is not legally binding on FSU, the federal court’s treatment and analysis of the civility policy at issue is wholly relevant when it comes to considering the constitutionality of FSU’s own speech code. Second, FSU’s policy bans “[s]exism,” even going so far as to say that “[s]exism … of any sort [is] wrong and constitute[s] a violation of fundamental moral requirements and state law.” This part of FSU’s policy improperly conflates “sexism” with “sexual harassment” and “sexual coercion,” which, properly defined, are prohibited under the law. On the other hand, the broad term “sexism” potentially encompasses much expression protected under the First Amendment. For example, a student’s opinion, expressed in class as a matter of legitimate academic debate, that women are physically unfit to serve in the military would be subject to disciplinary action under this policy. While others may disagree with that sentiment or find it offensive, that alone cannot make it punishable at a public university. Indeed, the United States Court of Appeals for the Third Circuit recognized this very concern in DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008), where it invalidated a sexual harassment policy at Temple University on First Amendment grounds. Temple’s policy restricted, in pertinent part, “expressive … conduct of a sexual or gender-motivated nature, when ... such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment.” DeJohn, 537 F.3d at 305. The student-plaintiff in that case claimed a “chilling 6 effect” under the policy, and that he “felt inhibited in expressing his opinions in class concerning women in combat and women in the military.” Id. The Third Circuit ultimately struck down the policy as facially overbroad, finding that its terms “could include ‘core’ political and religious speech, such as gender politics and sexual morality. Id. at 317. Likewise, FSU’s ban on any and all “sexism” does not pass constitutional muster. Third, FSU’s speech code prohibits “[r]acism, whether in assumptions, attitudes, acts, or policies.” This provision not only restricts students’ freedom of speech, it threatens their right of private conscience, which is fundamentally protected by the First Amendment. A public university such as FSU simply may not dictate that its students hold particular beliefs under pain of punishment, nor may it proscribe them from holding particular beliefs. The Supreme Court long ago declared that “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). Under this and other precedents relating to freedom of conscience, FSU’s ban on particular “assumptions” and “attitudes” cannot stand. In addition to its violation of students’ private conscience, the policy encounters free speech issues by prohibiting “racism” in “acts,” which would presumptively include expression. In the same vein as the example given above regarding allegedly “sexist” speech, FSU’s policy could be interpreted and enforced to silence the “wrong” views about such issues as affirmative action, illegal immigration, and racial profiling. That another person may find one’s views about these or other topics to be offensive is not sufficient grounds for censorship or punishment at a public university such as FSU. Indeed, the Supreme Court has made clear 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). See also Texas v. Johnson, 491 U.S. 397, 414 (1989) (“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.”). Once again, while the First Amendment problems with this red light policy are numerous, the solution is relatively simple. FSU can easily revise its speech code by making clear that the value statements made therein are entirely aspirational, and that no student will face investigation or disciplinary action for failing to abide by its terms. In other words, if FSU wishes to encourage (but not require) such values as “respect,” “dignity,” and refraining from “sexism” and “racism,” it may do so while staying consistent with its First Amendment obligations. A good example of such aspirational language can be found in Pennsylvania State University’s “Penn State Principles.” The preamble to the Penn State Principles states: The Penn State Principles were developed to embody the values that we hope our students, faculty, staff, administration, and alumni possess. At the same time, the University is strongly committed to freedom of expression. Consequently, these Principles do not constitute University policy and are not intended to interfere in any way with an individual’s academic or personal freedoms. We hope, however, 7 that individuals will voluntarily endorse these common principles, thereby contributing to the traditions and scholarly heritage left by those who preceded them, and will thus leave Penn State a better place for those who follow. Conversely, FSU’s policy at present states that the university “expects” students to abide by the listed values, and that failure to conform one’s behavior is “incompatible with the concept of responsible freedom as espoused by The Florida State University.” FSU should remove this and similar language from its policy, and make abundantly clear to its students that it merely wishes to encourage the adoption of those values. III. Florida State University Open Platform and Amplified Sound Policies (Yellow Light) This policy reads, in relevant part: The green area on the east side of Moore Auditorium, the central portion of Landis Green and the football stadium outside Gate D in the grassy area are designated "open platforms." Any student or other individual who desires to be heard publicly on any issue of concern may use these areas subject to the provisions of this regulation at any time when previous scheduling does not preclude such use but only from 8 a.m. to 10 p.m. local time. [...] Organized or prearranged outdoor student assemblies shall be registered at least twenty-four hours in advance in the Space Reservation Office located in the University Union. Exceptions to the twenty- four hour notice requirement may be granted by the Space Reservation Office. Like most university free speech zone policies, this speech code restricts the areas on campus where students may engage in free speech activity, including rallies, protests, demonstrations, and leafleting. The policy identifies only three areas on campus as being “designated ‘open platforms’” for expressive activity, and presumptively prohibits such speech in all other areas— even large, open spaces that are traditionally available for First Amendment activity. This is clearly insufficient at a large public university such as FSU. Universities are allowed to enact reasonable “time, place, and manner” regulations under the First Amendment. However, a valid time, place, and manner regulation must be “justified without reference to the content of the regulated speech,” must be “narrowly tailored to serve a significant governmental interest,” and must “leave open ample alternative channels for communication of the information.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Thus, a university may establish regulations preventing demonstrations from interfering with pedestrian or vehicular traffic or place restrictions on the use of amplified sound so that expressive activities do not interfere with classes in progress. These are examples of reasonable, content-neutral provisions serving a significant governmental interest (i.e., keeping traffic flowing or allowing classes to continue) while still allowing speakers other means to spread their message. 8 There is nothing reasonable, however, about transforming the vast majority of the university’s property—indeed, public property—into a censorship area by providing students with only three designated areas for free speech on the entire campus. The generalized concern for order that apparently underlies the establishment of FSU’s free speech zones is neither specific enough nor substantial enough to justify limiting the vast majority of student speech in this manner. FSU would be wise to heed the lessons of recent litigation involving the University of Cincinnati, which suffered a defeat in federal court this August due to its own free speech zone policy. The university maintained a tiny free speech zone comprising just 0.1 percent of its 137- acre West Campus and further required that student activity in that area be registered with the school ten business days in advance. In finding for the student group challenging this policy, the federal district court prohibited the University of Cincinnati from “[i]mposing or enforcing any policy restricting student speech in any designated public forum” on campus unless the restriction is “individually and narrowly tailored to serve a compelling University interest.” See University of Cincinnati Chapter of Young Americans for Liberty v. Williams, No. 1:12-cv-155 (S.D. Ohio Aug. 22, 2012). While FSU is in a different federal circuit than the University of Cincinnati, the federal court’s decision and analysis of the free speech zone in that case are wholly relevant for considering the constitutionality of FSU’s own policy. The second major concern with FSU’s policy is that it requires students and student organizations to register “[o]rganized or prearranged outdoor student assemblies” at least 24 hours in advance, and states only that exceptions to this notice requirement “may be granted by the Space Reservation Office.” The 24-hour notice requirement prevents students and student groups from engaging in any spontaneous free speech activities on FSU’s campus, which are important for purposes of responding to recent or still-unfolding events. The rule forces students to wait at least 24 hours no matter what their form of speech; even silent leafletting falls under the rule. This will in many instances crucially rob students of the immediacy of their message. While the university has an interest in ensuring that student use of the campus for expressive activity does not conflict with other uses or interfere with campus functions and educational purposes, it must provide some allowance for spontaneous, unregistered free speech on the part of its students and student groups. Moreover, the policy provides no indication of how the Space Reservation Office grants exceptions to the notice requirement. Instead, it leaves all discretion with the Office to approve or deny exceptions as it sees fit. The lack of specific, content-neutral criteria on this point is an ever-present threat to student speech rights, as students face the real possibility that their desired free speech activity will be subject to the notice requirement purely because of its content or viewpoint. The unbridled discretion afforded by the policy to the Space Reservation Office opens the door to selective and uneven application and viewpoint-based enforcement, a fundamental First Amendment problem. To meet its First Amendment obligations, FSU must open up much more of its campus to free speech and expressive activity by its students. A revision of this policy might state, for instance: “At any time, a student or student organization may exercise their right to free speech in the open and public areas of campus without need for prior reservation or approval.” The policy revision 9 should then list the major areas of campus that are available for spontaneous free speech, making sure that such areas represent the norm, and not the exception, when it comes to the large, open spaces of campus. The policy revision should also include language such as: “In these areas, spontaneous, non-amplified student speech and expressive activity will be permitted as long as it does not disturb classes, interfere with campus traffic, or otherwise materially disrupt the functioning of university operations.” If it wishes to ensure that student use of high-traffic areas or areas that are in constant demand does not conflict with the activity of other students or student groups, FSU may suggest that students wishing to use those particular areas reserve the space in advance. By encouraging (but not requiring) advanced notice for those spaces, FSU can coordinate campus use while also allowing for spontaneous expression in other areas. Conclusion FIRE hopes this memorandum is helpful in your efforts to promote speech code reform at Florida State University. Once again, each of these policies could easily be revised to better protect student speech, and FIRE would be thrilled to work with the students and administrators of Florida State University to help it meet its First Amendment obligations.
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