Campus Speech Codes

Speech codes at public U.S. colleges and universities remain common features on campus despite federal courts having consistently ruled that they violate students’ First Amendment speech rights. Debates over the appropriateness and constitutionality of campus speech codes focus on whether school officials’ drive to protect students from offensive comments justify limiting freedom of speech.

After the 1970s, the number of women and minority students on campuses significantly increased as a result of expanded recruiting efforts by colleges and universities and federal policies. Incidents of racist, homophobic, and sexist harassment also increased. Universities, beginning with the University of Wisconsin, responded with campus speech codes prohibiting offensive or intolerant speech directed at individuals or groups based on their race, color, religion, ethnicity, disability, sex, age, or sexual orientation.

Although speech codes limit student speech, universities justify such limitations on any or all of three grounds: educational purposes, the limited protection provided certain kinds of speech, and the rights of the victim. Justification concerning educational purposes resembles the compelling interest argument used by the Supreme Court in United States v. O’Brien (1968), in which the justices declared incidental restrictions of speech rights as permissible if these restrictions are narrowly tailored and necessary to pursue compelling governmental interests. Proponents of university speech codes claim that one of the essential interests of education is to promote a diverse and tolerant society, and limiting speech that is injurious, offensive, or demeaning furthers that essential interest.

Universities also note that the First Amendment’s speech guarantee is qualified and does not protect certain kinds of speech. The First Amendment offers absolute protection of speech only when its purpose is to advance worthy societal and political objectives. In Chaplinsky v. New Hampshire (1942), the Supreme Court determined that the right to free speech does not extend to a lower class of discourse characterized as “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting words.’” Campus speech codes specifically prohibit these categories of speech.

Speech codes protect the rights of the victim by preventing the so-called heckler’s veto, a lawful function upheld by the Supreme Court in Terminiello v. Chicago (1949). A heckler’s veto occurs when an opponent effectively silences a speaker by either causing a disturbance or threatening a disturbance. Campus speech codes prevent the equivalent of a heckler’s veto by prohibiting harassing or demeaning speech directed at such speakers. A student who suffers such a verbal attack may be so intimidated and humiliated that he or she cannot respond. To allow free speech for all, the offensive speech of some can and must be curtailed.

Doe v. University of Michigan (E.D. Mich. 1989), brought by a graduate student, became the first challenge to speech codes heard in federal court. The court ruled the code to be unconstitutional on the grounds of vagueness, overbreadth, and viewpoint discrimination. The code’s vagueness included wording that made it “simply impossible to discern any limitation on its scope,” because the terms used in it—for example, stigmatize and victimize—were not self-defining. That vagueness also resulted in the code being overly broad, as the court found it “impossible to discern between protected and unprotected conduct.” The university’s policy prohibited “certain speech because it disagreed with ideas of messages sought to be conveyed.” This is the essence of viewpoint discrimination and a violation of the First Amendment. Since the Doe decision, other courts have applied its rationale to similar speech code challenges.

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