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MEMORANDUM To: Christopher Brown, University of Montana Western From: Samantha Harris, Director of Speech Code Research, Foundation for Individual Rights in Education (FIRE) Date: April 19, 2013 Re: Speech Codes at University of Montana - Western Introduction Thank you very much for contacting the Foundation for Individual Rights in Education (FIRE). FIRE unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, and freedom of conscience on America’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities. This memorandum is in response to your request for information about how the University of Montana Western’s (UMW’s) policies might be revised to better protect students’ right to free speech and expression. As discussed in our email correspondence, I am very pleased to offer assistance. FIRE rates a university as a “red light,” “yellow light,” or “green light” institution depending on the extent to which the university’s written policies restrict constitutionally protected speech and expression. UMW currently earns a “red light” rating because of two policies that clearly and substantially restrict student expression protected by the First Amendment. In addition, the university maintains three “yellow light” policies (policies which, while not as restrictive as “red light” policies, still infringe on an impermissible amount of student speech). Fortunately, all of these policies could easily be revised to better protect student speech. FIRE would be thrilled to work with you and others to make UMW a green light institution and to publicize this change through our extensive national media 2 network. By simply revising these policies, UMW would join a select group of colleges nationwide that have earned FIRE’s most favorable speech code rating. What follows is a discussion of the specific free speech issues with each of UMW’s problematic policies, as well as proposed solutions for remedying those defects while still preserving the university’s underlying intent. I. Red Light Policies A. Campus Policy Manual: Harassment Policy 1. Problematic Provisions “Sexual harassment in education or employment covers a broad spectrum of behavior, ranging from sexual innuendoes and gender-based comments made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” While UMW has a legal obligation to prevent student-on-student (or peer) discriminatory harassment, this policy grossly overshoots that requirement and reaches speech protected by the First Amendment. The Supreme Court of the United States has set forth a strict standard for peer harassment in the educational context, and only a policy meeting that standard is permissible at a public university such as UMW. In Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999), the Court held that peer harassment must be unwelcome, discriminatory conduct “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.” By definition, this includes only extreme and usually repetitive behavior—behavior so serious that it would prevent a reasonable person from receiving his or her education. The Supreme Court’s standard properly balances public universities’ obligations to both uphold student speech rights and prevent true harassment. UMW’s harassment policy fails to meet the Davis standard. Unfortunately, it does not even attempt to define sexual harassment, stating only that harassment includes “sexual innuendoes and gender-based comments made at inappropriate times.” This is staggeringly broad. Because “gender-based comments” could encompass a wide range of expressions of opinion on political and social issues, it directly threatens the type of core political speech that is at the heart of the First Amendment’s protection. Indeed, most “gender-based comments,” even if their timing is perceived as inappropriate, are protected by the First Amendment. 2. Proposed Solution 3 As the Court’s only decision to date regarding the substantive standard for peer harassment in the educational context, Davis is controlling on this matter. Therefore, UMW should amend its policy to include a definition of sexual harassment that incorporates the Davis standard. It should also ensure that any purported examples of sexual harassment contained in its policies will constitute actionable harassment at UMW only if they rise to the level specified by the Davis standard. B. Student Handbook: Computer Use 1. Problematic Provisions i. “Do not distribute pornography or other questionable material. If you have a question about whether or not something is questionable, it probably is.” The prohibition here on “questionable material” is impermissibly 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). There is no guidance in the policy as to what types of communications are “questionable.” While unprotected speech, like obscenity or defamation, would almost certainly be deemed questionable, so might a wide variety of controversial but protected communications. ii. “Do not use computing facilities for any project that promotes or involves prejudice based on race, creed, color, age, national origin, sexual orientation, gender, or physical or mental disability.” This provision is unconstitutionally overbroad because it prohibits expression that “promotes or involves prejudice,” most of which is nonetheless entirely protected and much of which may be core political speech. On its face, this provision could be used to prevent student groups from organizing speeches and other activities opposing gay marriage or illegal immigration, while allowing other student groups to organize similar activities in support of the same things. This is precisely the kind of viewpoint discrimination that the Constitution does not permit—allowing one project (e.g., a student group activity in support of gay marriage) to be promoted over the university’s computing facilities, while prohibiting another project (a student group activity opposing gay marriage) from using the same facilities because of the group’s viewpoint on a particular subject. 2. Proposed Solutions 4 i. The prohibition on “questionable material” should simply be stricken. If the university wants to provide students with a list of prohibited online activities, it is best if the list simply references applicable law. The following policy language, from Arizona State University, is a good example: “Unlawful communications, including threats of violence, obscenity, child pornography, and harassing communications, are prohibited.” ii. Rather than prohibiting any promotion of prejudice via computing facilities, this portion of the policy could also refer to applicable law and simply state “do not use computing facilities for any activity that would constitute harassment or discrimination as prohibited by applicable law or university policy.” II. Yellow Light Policies A. Student Handbook: Statement of Responsibility 1. Problematic Provisions “All members of the campus community have the personal responsibility to promote an atmosphere of civility in which the free exchange of ideas and opinions can flourish.” While it may seem innocuous, a policy requiring students 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, “Speech 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 UMW’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 the California State University system’s 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: 5 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 passion. 2. Proposed Solution The same reasoning is applicable here. While UMW is certainly free to urge its students to conduct their exchanges with civility, it cannot require them to “promote an atmosphere of civility,” as this policy appears to do. If UMW 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.” B. Student Handbook: Resident Rights and Responsibilities 1. Problematic Provisions i. “You have the responsibility to accept all other residents for who they are and where they come from, and to educated yourself [sic] on issues of human diversity and to appreciate differences as simply differences.” This provision intrudes upon students’ right of private conscience—the right to keep their innermost thoughts and feelings free from governmental intrusion. While the university has the right to require students’ outward behavior to meet certain standards (such as by prohibiting harassment and discrimination), it does not have the right to require students who are otherwise behaving appropriately to “appreciate differences” or “educate [themselves] on issues of human diversity.” While the stated values—appreciation of difference, support for diversity, and so forth—may sound uncontroversial, a public university such as UMW cannot, consistent with the First Amendment, require students to adopt a particular set of beliefs as a condition of membership in 6 the university community. As the Supreme Court famously held in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), “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." ii. “You have the right to feel safe and free from threat of intimidation, physical, or emotional harm.” By amorphously prohibiting conduct that results in “emotional harm” to any resident, this speech code threatens expression entitled to protection at a public university. Under First Amendment standards, the policy is likely overbroad and vague on its face. Under this policy, UMW students are given no guidance regarding how the university defines “emotional harm,” which on its face could mean anything from hurt feelings to severe emotional distress. Moreover, the lack of an objective, “reasonable person” standard means that the interpretation of this undefined term is subject to the sensibilities of a complaining individual or of an administrator enforcing the policy, no matter how hypersensitive or unreasonable they may be. As you can well imagine, speech or conduct that causes one person “emotional harm” may well be perfectly acceptable, and even tame, to another. Finally, much speech that might cause a listener “emotional harm” is constitutionally protected. Indeed, the Supreme Court has declared that “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, 337 U.S. at 4 (1949). Under this and other precedents, speech must not be censored or punished at a public university merely because some find it to be provocative or sharp-edged. 2. Proposed Solutions The university could easily remedy the problems with this policy by simply making clear that it is aspirational and not mandatory. Several years ago, FIRE wrote to the administration at Penn State about a similar policy (the “Penn State Principles,”) and they fixed it by adopting the following language: 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, that individuals will voluntarily endorse these common principles, thereby contributing to the traditions 7 and scholarly heritage left by those who preceded them, and will thus leave Penn State a better place for those who follow. UMW has every right to inform its students of the values it believes are important, and to encourage students to adopt those values; it simply cannot require them to do so. With some simple tweaks, this statement could be revised to make that distinction clear. C. Campus Policy Manual: Acceptable Use 1. Problematic Provisions “Use of the UMW Network for purposes which may be interpreted as harassment or intimidation is prohibited.” Harassment and intimidation are not protected forms of speech. But this policy goes beyond that by prohibiting any electronic communications “which may be interpreted” as harassment or intimidation, which conditions the permissibility of speech entirely on the subjective reaction of the listener. Because speech codes that condition speech on subjective listener reaction place free speech rights at the mercy of the most sensitive listeners, courts have repeatedly struck down such policies. See DeJohn v. Temple University, 537 F.3d 301, 318 (3d Cir. 2008) (holding that because university policy failed to require that speech in question "objectively" created a hostile environment, it provided "no shelter for core protected speech"). See also Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (“[R]egulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in the public high school and university settings.”). 2. Proposed Solution This policy could easily be improved by removing the subjective language and simply prohibiting unlawful harassment and intimidation. Like the computing policies discussed earlier, this language should be replaced by language referencing applicable law, such as the above-cited policy from Arizona State University: “Unlawful communications, including threats of violence, obscenity, child pornography, and harassing communications, are prohibited.” Conclusion We hope this memorandum is helpful in your efforts to promote speech code reform at University of Montana Western. Once again, each of these policies could readily be revised to 8 better protect student speech. FIRE would be very happy to help with your efforts, so we ask that you please keep us updated.