Speech Codes

First emerging in the United States in the late 1980s, speech codes restricted or banned certain kinds of speech on college and university campuses. Legal definitions and criminal procedures for cases of harassment, libel, slander, and fighting words already existed. However, universities sought to further restrict undesirable speech in classrooms and shared campus spaces, including racist, sexist, and homophobic speech. The resulting school codes placed sanctions on students and faculty for offensive speech that might not be considered legally actionable. Private schools with speech codes do not have to allow their students First Amendment rights and protections, but public universities must allow their students due process of law. As a result, speech codes proved controversial from their earliest days, as the American ideals of equality and freedom came into conflict.

Several reasons are commonly given for the creation of speech codes. First, they aim to combat discrimination by protecting vulnerable minority students from hateful speech and harassing actions. Second, they are designed to encourage campus climate change and promote social justice through support for racial and gender diversity on college campuses. Third, the “hate speech” sanctioned by such codes is generally aimed to incite violence and to cause emotional harm, rather than to provoke debate. Finally, such “hate speech” is usually used by people of an ethnic or sexual majority group with the goal of discouraging minority voices and preventing them from using their own First Amendment rights.

Speech code opponents also put forth several arguments. First, speech codes illegally prioritize civil liberties over the First Amendment right to the freedom of speech. Second, they create an artificial environment on campuses where campus administrators, rather than encouraging frank and critical dialogue on civil liberties issues, may silence unpopular opinions. Third, code enforcement may lead campus officials to reframe political or moral disagreements as personal attacks. Finally, they are often vaguely worded and impossible to enforce in practice. U.S. courts to date have generally overturned speech codes in multiple rulings, stating that speech containing offensive ideas remains protected by the First Amendment.