08/15/2013 11:08 am ET Updated Oct 15, 2013

Speech Codes: Alive and Well, 10 Years Later

Ten years ago, in the summer of 2003, Harvey Silverglate and I published a piece in the Chronicle of Higher Education called "Speech Codes: Alive and Well at Colleges." The article debunked the myth that university restrictions on freedom of speech ("speech codes") had gone the way of the dodo after being roundly mocked in the court of public opinion and consistently defeated in federal courts in the 1980s and 90s. The article revealed that the overwhelming majority of campuses still maintained the very kind of speech codes that lost in court.

A decade later, I ask: What has changed since our 2003 article, and what does that change--or lack thereof--mean for our nation's campuses?

What Hasn't Changed: Campus Speech Codes Still Alive (and Thriving)

Sadly, at the overwhelming majority of American colleges, speech codes still remain the rule, not the exception. In the Foundation for Individual Rights in Education's 2013 report surveying policies maintained by 409 colleges, our attorneys found that 62% maintained codes that severely departed from First Amendment standards. (Amazingly, this number represents a 13% improvement from 2007.)

From 1989 to 2003, there were a half dozen successful legal challenges to campus speech codes. Since 2003, an additional 18 institutions have seen their speech codes struck down in court or abandoned in response to a lawsuit. Speech codes fare no better in the court of public opinion; most of FIRE's victories over speech codes result from our public awareness campaigns, not litigation.

One illustrative example of how oddly tenacious campus speech codes can be involves the University of Connecticut's notorious ban on "inappropriately directed laughter," which was defeated in court in 1990. Despite the legal victory--and the public mockery that resulted from the expansive ban--Drexel University in Philadelphia later adopted identical language as part of its harassment policy. Drexel only abandoned the policy in the face of public criticism, but the wholesale resuscitation of discredited codes is not unique to Drexel.

Just as it was in the 1980s and 90s, combating "harassment" remains the preferred legal rationale for speech codes. Recent examples of professors charged with racial or sexual harassment for what would normally be considered protected speech include the case of Professor Jammie Price at Appalachian State University, who was found guilty of creating a "hostile environment," in part for showing a film that critically examined the adult film industry; Professor Arthur Gilbert at the University of Denver, who was found guilty of harassment for the content of his class about "purity crusades"; and Professor Maurice Eisenstein, who was subjected to numerous harassment investigations at Purdue University Calumet for Facebook posts critical of Islam.

As Harvey and I wrote in 2003: "No one denies that a college can and should ban true harassment -- but a code that calls itself a 'racial-harassment code' does not thereby magically inoculate itself against free-speech and academic-freedom obligations." Nonetheless, campuses continue to go to court with codes that bear no relationship to the legal definition (nor the common sense essence) of harassment and then seem surprised when these codes are overturned.

Speech codes, of course, come in many forms, including email policies, civility statements, and the rightfully mocked "free speech zones" limiting expressive activities to tiny portions of campuses. In 2012, for example, FIRE helped defeat a code at the University of Cincinnati which limited speech activities to a zone that constituted less than 0.1% of campus and required students to provide 10 days advance notice before using it. Perhaps more disturbing than the tiny zone itself was that UC went so far as to defend it in court.

What's Gotten Worse: The Feds Supercharge Speech Codes

Perhaps the most striking difference between 2003 and today is that the federal government has gone from trying to clarify the law and discourage speech codes to requiring them. In 2003, the Department of Education's Office for Civil Rights made a serious attempt to stop colleges from abusing harassment codes to punish clearly protected speech. In a letter sent to virtually every campus in the country, OCR explained that federal regulations did not and could not be used to justify codes that violated the First Amendment. In that letter, OCR made clear that federally compliant harassment policies must include a "reasonable person" standard, meaning that in order to be considered harassment, the behavior in question must be both personally experienced as offensive and conduct that a "reasonable person" would find offensive.

On May 9 of this year, in a letter to the University of Montana regarding that institution's mishandling of sexual assault cases, the Department of Education and the Department of Justice joined together to dramatically expand the definition of sexual harassment to any sex-related speech that could be labeled "unwelcome"; a wildly broad and vague standard. Proclaiming their letter a "blueprint" for schools across the country, they also abandoned the requirement that harassment must be both objectively and subjectively offensive.

Perhaps realizing they had just mandated a national speech code that would never stand up in court, OCR has since attempted an awkward backpedal, claiming that their original intention was simply to encourage reporting of speech that is merely "unwelcome." This characterization is impossible to square with the text of the May 9 letter, which calls for the elimination of harassment, requires mandatory reporting, creates a file of all allegations against students and faculty (no matter how frivolous), and mandates investigation of all such claims. Yet in Meese v. Keene (1987), the Supreme Court rejected a similar justification in the line of "we're not banning speech, just encouraging people to report protected speech." Supporters of the federal blueprint would likely understand the threat to the First Amendment if the federal government attempted to mandate reporting of "unpatriotic" or "impious" but protected speech.

In sharp contrast to 2003, government intervention here is likely to supercharge universities' already overzealous application of harassment codes to protected speech, and potentially make the atmosphere for free speech on campus more hostile than during the supposed heyday of "political correctness."

Has Anything Gotten Better?

While FIRE has seen a modest yet consistent decrease in the number of speech codes on campus over the last six years, this progress threatens to be entirely undone by the federal blueprint. Perhaps the most positive sign is that the public seems far more aware that something needs to change in academia than they were in 2003. Ben Ginsberg's excellent book, The Fall of the Faculty, correctly diagnosed the problem of administrative bloat on college campuses; Andrew Hackers' and Claudia Dreifus' book, Higher Education?, covered how fear of litigation warps campus behaviors and jacks up prices; and studies such as Academically Adrift revealed students unable to make arguments from multiple points of view. These are just three notable examples in a recent flood of books about what needs to be fixed in higher ed.

In my 2012 book, Unlearning Liberty: Campus Censorship and the End of American Debate, I argue that campus censorship is contributing to an atmosphere of stifled discourse. I cite a 2010 study by the Association of American Colleges and Universities that found only 16.7% of professors strongly agree with the statement that it is "safe to hold unpopular positions on campus." Students report similar beliefs, with only 30.3% of college seniors strongly agreeing. More recent data gives me even more cause for concern: This summer, the First Amendment Center unveiled its annual survey of attitudes about free speech and found that a startling 47% of young people believe that the First Amendment "goes too far." While I hope that this is an anomalous fluctuation, it seems almost inevitable that if campuses show at best impatience with, and at worst outright hostility to, free speech, it would eventually produce students who take free speech for granted and even show support for "enlightened" censors. Censorship, of any stripe, is incompatible with academic freedom and the entire teaching-and-learning enterprise. Colleges and universities continue on this trajectory at their ultimate peril.