Florida State University Speech Code Memo_ November 8_ 2012

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Florida State University Speech Code Memo_ November 8_ 2012 Powered By Docstoc
					                                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)
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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,
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“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.
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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
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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
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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,
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       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.
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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
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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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