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A review of US Supreme Court Decisions on Speech and Speech Codes in Academic Settings from 1943 to 2001
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Speech and Speech Codes in High Schools and Public Universities
What is free speech? Is speech ever truly free in an academic setting? Does
“freedom of speech” change depending on whether it refers to high school students,
college students, and college professors? Are speech codes at public universities a good
idea, and if so, what should they say? These are the questions underlying this paper. A
closer look at US Supreme Court decisions related to free speech in academic settings
reveals that the meaning of free speech changes dramatically depending on whether it is
applied to high school students or college students. The Supreme Court promoted the
free speech rights of high school students in West Virginia State Board of Education v.
Barnette (1943) and affirmed these rights in Tinker v. Des Moines School District (1969),
but it restricted these rights in Hazelwood School District v. Kuhlmeier (1988). The
Supreme Court and the Appellate Courts have consistently upheld the free speech rights
of college students and professors in cases such as Antonelli v. Hammond (1970), Papish
v. University of Missouri (1973), Stanley v. Magrath (1983), and Hardy v. Jefferson
Community College (2001). In an effort to understand the intricacies of speech rights in
academic settings, I read the individual Supreme Court opinions issued in these cases as
well as commentary regarding the contemporary effects of these rulings. In an effort to
better understand why universities enact speech codes and whether the codes are legal, I
read F.I.R.E.’s Guide to Free Speech on Campus by David A. French, “Freedom of
Expression and Public Morality” by Walter Berns, “There’s No Such Thing as Free
Speech and It’s a Good Thing, Too” by Stanley Fish, “Ban It! The Initial Arguments for
Speech Codes” by Timothy Shiell, and “There’s Such a Thing as Free Speech and It’s a
Good Thing Too” by Stephen Smith. I also looked at the speech codes of various public
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and private universities, including Michigan University, Haverford College, and
Swarthmore College. First, I will examine the free speech rights of high school students,
college students, and college professors, and the limits of those rights; then I will
investigate the overt and covert rationales for speech codes and the characteristics that
determine whether a speech code is legal or illegal; and finally, I will review the ethical
and practical arguments for and against speech codes and make suggestions as to how
colleges and high schools can implement sane speech policies. What I have found is that,
so long as speech is not unduly disruptive, high school students, college students, and
college professors alike have a right to say what they believe even if others consider their
speech to be offensive. Speech codes in high schools and public universities that try to
restrict speech on the grounds that it may offend others are unconstitutional and
impractical. The best speech policies are narrowly constructed to encourage tolerance
and respect in the academic community while affirming a commitment to academic
freedom in ideas, art, and political expression.
PART 1: Speech Rights and Limitations in Academic Settings
High school students have constitutionally protected speech rights. In West
Virginia State Board of Education v. Barnette (1943), the Supreme Court ruled that
elementary and high-school students have a right not to salute the American flag and not
to say the pledge of allegiance. The precedent established by that ruling is that schools
cannot compel the speech of students. In Tinker v. Des Moines School District (1969),
the Supreme Court ruled that elementary and high-school students have a right to
peacefully protest in school with armbands, leaflets, polls, petitions, underground
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newspapers, and rallies. The majority opinion in that case states, “It can hardly be argued
that either students or teacher shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate” (Tinker v. Des Moines School District, 2). The
precedent established by that ruling is that high schools cannot prohibit students from
expressing opinions unless those opinions create a severe disturbance in the school or
hurt the rights of other students. As the Court wrote, “A prohibition against expression of
opinion, without any evidence that the rule is necessary to avoid substantial interference
with school discipline or the rights of others, is not permissible under the First and
Fourteenth Amendments” (Tinker v. Des Moines School District, 1). The court thus
implied that the speech of elementary and high-school students can be restricted if it is
disruptive.
The speech rights of high school students are hence limited in cases where the
speech is disruptive. In Hazelwood School District v. Kuhlmeier (1988), the Supreme
Court ruled that schools could censor high-school newspapers. In its majority opinion the
Court wrote, “First Amendment rights of students in the public schools are not
automatically coextensive with the rights of adults in other settings, and must be applied
in light of the special characteristics of the school environment. A school need not
tolerate student speech that is inconsistent with its basic educational mission, even though
the government could not censor similar speech outside the school” (Hazelwood School
District v. Kuhlmeier, 1). In that case, the Court made clear that the speech rights of
adults are greater than those of minors. The court affirmed that high schools have a right
to prior restraint, which means administrators can view high school newspapers before
they are published, though administrators cannot censor the newspaper unless it uses
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speech that is obscene, libelous, or slanderous, or if administrators believe that the
content will cause a major disruption that goes against the basic mission of the school.
Such a disruption would not include merely creating controversy among students or
parents or even sparking threats of violence; rather, the disruption would have to cause
teachers to be unable to fulfill their basic teaching duties. An example of such a
disruption would be for a student to make an anti-war speech in the middle of a class. In
that case, the high school would have the right to censor that student’s speech.
The speech rights of college students are greater than those of high school
students. Whereas high school newspapers can be censored if their content would be
disruptive to a school’s mission, public university newspapers cannot be censored. The
Supreme Court has repeated ruled in cases such as Antonelli v. Hammond (1970), Papish
v. University of Missouri (1973), and Stanley v. Magrath (1983) that students at public
universities have the same speech rights as adults. For example, in Papish v. University
of Missouri (1973), the Supreme Court
ordered the reinstatement of a university student expelled for distributing an underground newspaper sporting the headline ‘Motherfucker Acquitted’ on the grounds that ‘the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of conventions of decency.’ (quoted in Smith, 242).
The Supreme Court strongly protects the speech of college students in part because, as
one Justice wrote in Rosenberger v. Rectors and Visitors of the University of Virginia
(1995), universities are “the center of our intellectual and philosophic tradition” (quoted
in F.I.R.E. Policy Statement, 7).
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The speech of college students and adults alike can be curtailed not because of the
content of the speech, but because of its location. As Walter Berns writes, “The
constitutional right to freedom of expression depends on the circumstances of the speech,
not its substance” (Berns, 190). For example, protestors cannot legally lie down in the
middle of the street and stop the flow of traffic, nor can a person shout fire in a crowded
movie theater. As Justice Black wrote in Tinker v. Des Moines School District, “It is a
myth to say that any person has a constitutional right to say what he pleases, where he
pleases, and when he pleases” (Tinker v. Des Moines School District, 10). In particular,
speech rights are more severely limited in cases where there is a “captive audience” made
up of individuals who do not want to hear the speech. For example, if a university
student yelled vulgarities at other students as they walked into class every day, the
university would have a right to censor that person’s speech.
College professors have broad free speech rights to offend their students so long
as the speech has a genuine academic purpose. In Hardy v. Jefferson Community
College (2001), the U.S. Court of Appeals ruled that professors have a right to curse and
use racial and ethnic slurs in the classroom so long as they are doing so for academic
reasons. The majority opinion states, “[U]sing the ‘N’ word in an academic context…
when it is germane to the classroom subject matter and advances an academic message, is
protected by the First Amendment” (Hardy v. Jefferson Community College, 10). On the
other hand, professors who use offensive slurs that are irrelevant to their courses and that
violate school harassment policies can be censured. Since students are almost by
definition a captive audience, professors must tread a narrow line when speaking about
anything non-academic that could possibly offend a student. Though it is
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“unconstitutional to suppress free speech on the grounds that it is subjectively offensive
to some listener” (Speech Code of the Month, 1), free speech can be suppressed if it
offends a captive audience without a particularly good reason for doing so.
PART 2: Rationales for and Legalities of Speech Codes in
Public Universities
Universities often implement speech codes that prohibit discrimination and sexual
harassment. Typically these speech codes aim to promote tolerance and diversity and to
deter very offensive speech. Some examples of very offensive speech include the
following:
“Make her prove she’s not a JAP, make her swallow”; “Stick rusty nails up the asses of heterosexual men”; “Preppies, bimbos, men without chest hair, and homos should be shot on sight”; “It’s people like you [Asians] – that’s the reason this country is screwed up”; “Death to all Arabs! Die Islamic scumbags!” (Shiell, 17)
Stanley Fish writes that “speech-related injuries may be grievous and deeply wounding”
and there is little doubt that he is correct (Fish, 109).
Interestingly, though, university speech codes are most likely to be enforced not
when a person is deeply wounded by speech, but when administrators personally find
speech to be offensive or inappropriate, when administrators fear that they will be
criticized by the community if they do not censor a person’s speech, and when
administrators are criticized themselves (see FIRE Issues Statement and Speech Code of
the Month). For example, many universities dis-invite guest speakers whose incipient
presence provokes an outrage in the community. Most of the court cases involving a
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university newspaper being censored result from administrators being personally
offended by article content or obscenities. Most comically, many of these censored
newspapers lampoon the administrators in the op-ed pages and in comic strips.
University administrators are motivated to suppress speech that makes them look bad, in
addition to speech that attracts controversy and negative publicity to the university and
makes it look bad.
Speech codes at public universities are unconstitutional if they are vague or
overbroad or if they allow prior restraint or viewpoint discrimination. Vague and
overbroad speech codes are unconstitutional because they chill legal speech and make
people afraid to speak out about anything controversial. An example of a vague and
overbroad speech code is one that prohibits a student or faculty member from creating an
“intimidating, hostile or demeaning environment” for another individual (cited in French,
70). Such a speech code is terribly subjective, and it prohibits speech that is offensive but
nevertheless constitutionally protected. Speech codes that allow prior restraint are a
serious threat to liberty because they squash dissent. Hence, prior restraint is almost
always illegal and public universities cannot pre-view or censor student newspapers.
Speech codes that allow viewpoint discrimination are unconstitutional because they
discriminate against selected groups. For example, a university cannot withhold funding
from religious groups because doing so discriminates against those who believe in
religion.
Legal speech codes at public universities are typically narrowly confined to
harassment, defamation, and hate speech. Those who seek to restrict another person’s
speech must typically prove that the speech threatens them, inhibits their ability to learn,
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or unduly burdens a member of a captive audience. University administrators are
motivated to foster a sense of community among students and to encourage students to
treat each other with respect, but university speech codes cannot compel kind speech or
censor constitutionally protected speech. As David A. French writes, “Having everyone
treat us pleasantly would be a wonderful thing, but it is certainly not a legal right”
(French, 81). Even private universities and colleges that have more leeway to restrict
student speech still must be mindful not to abridge students’ First Amendment rights to
expression. In particular, a school that bills itself as having intellectual freedom cannot
have a vague and overbroad speech code that makes it liable to charges of false
advertising.
PART 3: Arguments For and Against Speech Codes:
Constructing Sane Speech Policies
Speech codes at public universities are intended to promote tolerance and
diversity and to discourage offensive speech. Yet because so many speech codes are
vague and overbroad, they chill and censor constitutionally protected free speech.
Opponents of speech codes believe that public universities should be a “marketplace of
ideas” where free speech is a paramount right that outweighs all other considerations
(quoted in FIRE Policy Statement, 7). Proponents of speech codes believe that free
speech is a limited right that must be weighed alongside other important rights, including
justice, equality, and dignity. I will not take a position on whether or not public
universities should have speech codes, but I will argue that speech codes should be
narrowly constructed so that they are legally, ethically, and practically sound.
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From a legal perspective, it is clear that people have a general right to express
themselves even if they offend others; there is a right to freedom of expression and not a
right to feeling comfortable. But the issue of freedom of expression in the academic
community is complicated by the specter of hate speech. From an ethical perspective, it
is not entirely clear that universities should permit hate speech. As legal expert Mari
Matsuda writes, “Tolerance of hate speech is not borne by the community at large.
Rather it is a psychic tax imposed on those least able to pay” (quoted in Shiell, 30). Hate
speech disproportionately targets the most marginalized groups of society: minorities,
homosexuals, and immigrants.
Though hate speech is toxic, prohibiting it may be worse. As Timothy Shiell
writes,
[H]ate speech should be condemned wherever it’s encountered. But by banning it, we risk opening the floodgate to censors, self-righteous moralists, and other enemies of freedom…The essence of an education system that matters and counts is that people must be free to express ideas, even wrong ideas…The answer is more education, not regulation. (quoted in Shiell, 38)
Shiell’s belief is that it is preferable for people to express wrong ideas than to prohibit
them from expressing those ideas. That belief is explored in greater detail by Stephen
Smith, who writes the following:
Even if [hate speech codes] were constitutional, they cannot be effective. Proscribing the words does nothing to change the underlying thoughts and fears; hate speech does not express the unthinkable, only the unreasonable. In fact, suppression of speech often exacerbates and intensifies the sentiments of those silenced by law, while denying to everyone the opportunity to see and discover wisdom through debate and the clash of ideas…Hate speech is much like a canker sore on the body politic. Legal
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restrictions on hate speech only suppress the symptoms; they do not treat the underlying causes of the social disease. Applying the Band-Aid of a speech code might keep it from the sight of those who would be repulsed, but the infection would remain and fester. A better prescription would be to expose it to the air of speech and the light of reason, the healing antibiotic of counterargument. (Smith, 259-260)
Smith is arguing the speech codes only suppress hate speech and force it underground.
He would prefer that hate speech remain visible, where more open-minded people can see
it and try to respond to it and influence those who preach hatred. To Smith, speech codes
are varnishes that have the adverse effect of concealing ignorance, hostility, and
prejudice. He believes that the best way to get at the underlying causes of hate speech is
to allow conflicting ideas to clash out in the open. His view of the university is that it can
be a “debating club” whose debates serve to enlighten students (Shiell, 47). By contrast,
Matsuda is more concerned that the targets of hate speech feel safe and avoid
victimization. Her view of the university is that it is a potential safe haven for those who
have been historically oppressed.
It is possible for a university speech code to both allow for healthy debate and at
the same time provide a safe haven for students. Though Swarthmore is a private
college, its speech policy is particularly instructive because the policy balances free
speech rights with the goal of creating a community that is tolerant, respectful, and
caring. The policy states the following:
Swarthmore College seeks to maintain an environment of mutual respect among all its members. All forms of violence, assault, intimidation, and harassment, including that based on sex, race, color, age, religion, national origin, sexual preference, or handicap, undermine the basis for such respect and violate the sense of community vital to the College’s educational enterprise. This
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statement of policy should not be taken to supersede the College’s commitment to academic freedom, which it hereby reaffirms. The reasoned expression of different views plays a particularly vital part in a college community. Freedom of expression, fundamental to an exchange of views, carries with it corollary responsibilities equally basic to reasoned debate. (College Life, 6)
This policy discourages harassment and disrespectful speech and at the same time affirms
the College’s commitment to academic freedom and the expression of different points of
view. The policy leaves readers with the sense that Swarthmore College will do
everything in its power to encourage mutual respect in the community without infringing
upon free speech rights. The policy goes on to clearly define harassment so that the term
is not vague, explaining that harassment must intended, reckless, repeated, and persistent
because “first, the College wishes to have the opportunity to educate those who may not
realize that certain expression constitutes harassment; second, by requiring that the
expression be repeated and persistent, the College helps establish intent or recklessness”
(College Life, 6). Swarthmore would rather educate than punish those who harass others.
By contrast, the policies at many large universities allow students to be punished after a
single offense and without any sort of hearing. The comforting message is that
Swarthmore will be careful not to punish students whose speech may not have been
intended to harass. Once again, the policy makes clear that it holds free speech rights in
high esteem:
However, before any expression can be considered for possible formal grievance procedures, it must be clear that no substantial free expression interests are threatened by bringing a formal charge of harassing expression. This strict criterion for possible formal grievance procedures must be imposed to ensure that the College does nothing that would tend to diminish free expression or compromise principles of academic freedom in the vigorous and
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often contentious examination of criticism of ideas, works of art, and political activity that marks Swarthmore College…Without vigorous and controversial discussion and debate, the College cannot survive; without respect and civility, however, it cannot thrive. (Faculty Rights and Responsibilities, 3-6)
By bending over backwards to ensure that it does not abridge free speech rights,
Swarthmore College prevents there from being an educational atmosphere that chills free
speech. At the same time, the policy makes it abundantly clear that Swarthmore is a
community where respect for others is of paramount importance and where hate speech
will not be tolerated.
Where there is clear regard for free speech and for tolerance and respect in a
community, there is the best of all possible worlds. Students and teachers will avoid
making hateful, unthinking comments, and they are able to speak their minds and say
what they fear might be controversial. Hate speech will not be driven underground, but it
will be limited. Speech codes like the one that Swarthmore has are proof that speech
codes can allow for free debate and for safe havens. The key is that they present
guidelines for respectful community speech while continually reaffirming the First
Amendment rights of students and professors. By contrast, the worst speech codes
prohibit speech in a way that is vague, overbroad, and illegal. Many of these speech
codes are well-intentioned, but they have the ill-effect of inhibiting speech. The best
speech codes are narrowly constructed and still have the effect of fostering tolerance and
respect and deterring offensive speech.
As it stands now, college students and professors at public universities can feel
secure in their free speech rights. College newspapers can print what they want without
fear of censorship, college professors can offend their students so long as they are
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offending their students in order to teach them, and college students can say what they
think, when they think, within reason, as limited by their circumstances. By contrast,
high school students have speech rights that are much more limited. Theoretically, high
school students have the right to free expression in most circumstances. In reality,
though, a high school newspaper can be censored if the school views that the paper is
disruptive or if the newspaper’s contents go against the school’s educational mission.
The de facto effect of prior restraint in a high school setting is censorship, which will
occur whenever an administrator fears a risqué article will create controversy, whenever
an administrator is being criticized, or whenever an administrator capriciously decides
that an article is not acceptable. It does not make sense to me to limit the speech rights of
minors simply because they are minors. Elementary and high school students are the best
example of a captive audience in the sense that they are legally required to go to school
for approximately six hours a day, 180 days a year. If anything, they should have the
most generous right to free speech, not the most restrictive. I do not agree with the US
Supreme Court’s decision in Hazelwood School District v. Kuhlmeier (1988) because I
reject the notion that the free speech rights of minors are in any way less valuable than
those of adults. Sane speech policy is most needed not in public universities, where
speech is already amply protected, nor in private colleges, where students choose to
attend, but rather in public high schools. As a society, we need to do a better job of
ensuring that the expression of young people is not stifled in schools.
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Works Cited
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French, David A. (2005). F.I.R.E.’s Guide to Free Speech on Campus. Philadelphia: Foundation for Individual Rights in Education
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U.S. Supreme Court, “Tinker v. Des Moines School District, 393 U.S. 503 (1969).” Last accessed 12/1/05.http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=393&invol=503
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Works Perused but not Cited:
American Library Association. (2005). “Notable First Amendment Court Cases.” Last accessed 12/1/05.http://www.ala.org/ala/oif/firstamendment/courtcases/courtcases.htm
Bernstein, David E. (2003). “Free Speech? Not on Campus.” Last accessed 12/1/05.http://www.cato.org/dailys/10-28-03-2.html
Committee Opposed to Militarism and the Draft. (2002). “High School Students’ Rights.” Last accessed 12/1/05.http://www.comdsd.org/pdf/hs_1.pdf
Kors, Alan Charles. (1999). The Shadow University. Harper Paperbacks.
Kravets, David. (2005). “Judge: Pledge of Allegiance Unconstitutional in Public Schools.” Last accessed 12/1/05.http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2005/09/14/state/n120155D66.DTL
Maricopa Community Colleges. (2005). “The Constitution and Classroom Speech.” Last accessed 12/1/05.http://www.maricopa.edu/legal/dp/inbrief/classpeech.htm
McMasters, Paul K. (2005). “When School Grounds Become Free-Speech Battlegrounds.” Last accessed 12/1/05.http://www.firstamendmentcenter.org/commentary.aspx?id=15390
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