Fire’s The Torch
May 6, 2008
FIRE announces its Speech Code of the Month for May 2008: the University of Louisville.
The University of Louisville maintains such a repressive speech code, it’s hard to know where to begin. But since we have to dive in somewhere, let’s start with the fact that Louisville "requires that public speech and discourse on campus shall be civil." For the sake of the legal profession, I’m hoping that Louisville’s general counsel was out sick the day this crossed his or her desk, because there is just no way such a requirement could possibly be constitutional. As far as impermissible restrictions on speech at a public university go, this is a twofer: it’s both vague (what counts as "civil," and who gets to define it?) and overbroad (uncivil speech is certainly protected by the Constitution).
Indeed, Louisville’s prohibition of "uncivil speech," whatever that means, brings instantly to mind FIRE’s victory at San Francisco State University (SFSU) from a couple months back. Why? Because in issuing a preliminary injunction against SFSU’s speech code—which, like Louisville’s, required students to be "civil" to one another—a federal judge held that SFSU’s civility requirement was unquestionably unconstitutionally overbroad:
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. In sum, there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.
But my favorite part (by which I mean the most hilariously unconstitutional part) of Louisville’s code is their harassment section:
A person is guilty of harassment when, with intent to harass, annoy or alarm another person, he or she:
(c) In a public place, makes an offensively coarse utterance, gesture, or display, or addresses abusive language to any person present.
Besides the anachronistic, Victorian-era prohibition of "offensively coarse utterances, gestures, or displays" and the hopelessly vague restriction against "abusive language," what really makes this section of the speech code amusing is the fact that Louisville isn’t even trying to meet the legal definition of harassment in an education setting.
The best legal definition for peer-on-peer sexual harassment in the educational context was set forth by the United States Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999), and requires conduct or expression to be "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit." Obviously, Louisville’s policy (which sounds more like the signs you see at zoos) doesn’t even come close. Louisville’s harassment policy also fails to meet the somewhat weaker definition of sexual harassment promulgated by the Department of Education’s Office for Civil Rights, which prohibits "unwelcome conduct of a sexual nature so severe, persistent, or pervasive that it affects a student’s ability to participate in or benefit from an education program or activity, or creates an intimidating, threatening or abusive educational environment." So all in all, it’s about as far off the mark as can be.
For these reasons, the University of Louisville has earned our May 2008 Speech Code of the Month. If you believe that your college or university should be a Speech Code of the Month, please email [email protected] with a link to the policy and a brief description of why you think attention should be drawn to this code.
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