NKU and Free Speech

I have been effusively praising the president of Northern Kentucky University, Jim Votruba, for his understanding of the true nature of free speech and the way he handled the situation where a teacher led her students in destroying an anti-abortion display on that campus. But FIRE, which is rapidly becoming an indispensible organization at fighting for freedom on college campuses, points out that NKU still has a vague and highly problematic speech code, bad enough that FIRE has given them a "red light" rating in that regard. I'll post a long excerpt from their post on the subject below the fold:

Unfortunately, as ACTA pointed out yesterday, NKU has several speech codes that are inconsistent with its demonstrated commitment to free speech, codes that earn NKU a "red light" rating on FIRE's Spotlight.

NKU's disciplinary regulations prohibit "making an offensive coarse utterance, gesture or display," as well as "annoying" another person. As has been explained in cases too numerous to mention, however, it is unconstitutional for a public university such as NKU to suppress free speech on the grounds that it is subjectively offensive to some listener. As one federal appellate court recently put it, there is "no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive...." Saxe v. State College Area School District, 240 F.3d 200, 206 (3d Cir. 2001). The U.S. Department of Education even wrote to colleges and universities in 2003 specifically to clarify that harassment "must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive."

NKU also maintains a Posting Policy that provides that "[a]ll posters, flyers, handbills and banners must be authorized and stamped by the Dean of Students designate." This regulation is an impermissible prior restraint on free speech, because it gives administrators unfettered discretion to refuse permission to students who wish to engage in expression through the distribution of leaflets, handbills, or flyers. According to the U.S. Supreme Court, "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151 (1969). NKU's posting policy, which requires a "license" from the university in that it prohibits the distribution of flyers or handbills without the university's prior approval, includes none of these "narrow, objective, and definite standards," and is therefore unconstitutional.

NKU's response to the Jacobsen affair clearly demonstrates that the university values free speech and takes its First Amendment obligations seriously. It is our hope, therefore, that NKU will stand behind its commitment to free speech by removing these noxious policies from its books.

I could not agree more. President Votruba clearly understands the importance and true nature of free speech. I hope that he will take the next step and remove such vague and easily abused language from the university's policies.

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As much as I like the basic idea behind FIRE, it always concerns me to see them talking about "intellectual orthodoxy on campus" and the like, because it turns into fodder for the Horowitzes out there.

Their "speech code" ratings are also something of a joke in many cases. I mean, really, can these be considered "speech codes"? A "red light" for policies like that is just completely ridiculous and it makes it hard to take their ratings seriously.

They are obviously correct in this situation, but I would hardly call them "indispensible". "Useful", probably.

By brokenlibrarian (not verified) on 22 Apr 2006 #permalink

brokenlibrarian wrote:

As much as I like the basic idea behind FIRE, it always concerns me to see them talking about "intellectual orthodoxy on campus" and the like, because it turns into fodder for the Horowitzes out there.

FIRE does not support Horowitz' "academic freedom" plan, nor do I. In fact, I pretty much thoroughly despise Horowitz as a total fraud. It's not a simple dichotomy where one either has to support hate speech codes or they are in Horowitz' camp.

Their "speech code" ratings are also something of a joke in many cases. I mean, really, can these be considered "speech codes"? A "red light" for policies like that is just completely ridiculous and it makes it hard to take their ratings seriously.

I disagree. A policy that forbids verbal statements that "personally describe or are personally directed at a specific individual or group of identifiable individuals" and "are not necessary to an argument for or against the substance of any political, religious, philosophical, ideological, or academic idea" clearly is a speech code. Certainly, a policy that forbids "Gratuitous comments of a sexual nature such as explicit statements, questions, jokes or anecdotes" is also a speech code. It is entirely too vague and prone to abuse and is clearly unconstitutional under numerous precedents.

Ed:

FIRE does not support Horowitz' "academic freedom" plan, nor do I. In fact, I pretty much thoroughly despise Horowitz as a total fraud. It's not a simple dichotomy where one either has to support hate speech codes or they are in Horowitz' camp.

No, of course not. It's just a concern that FIRE's activities give ammo to Horowitz and his ilk. This doesn't make them in any way on Horowitz's "side"; FIRE is not responsible for the abuse of their work.

I just feel that FIRE could stand to be more explicit in their neutrality. For example, they should stop reproducing articles which use terms like "neo-Stalinist" on their website. That sort of thing could make someone unfamiliar with FIRE assume that it's on the side of the townhall.com folks, when I think everybody here knows it's not.

I disagree. A policy that forbids verbal statements that "personally describe or are personally directed at a specific individual or group of identifiable individuals" and "are not necessary to an argument for or against the substance of any political, religious, philosophical, ideological, or academic idea" clearly is a speech code. Certainly, a policy that forbids "Gratuitous comments of a sexual nature such as explicit statements, questions, jokes or anecdotes" is also a speech code. It is entirely too vague and prone to abuse and is clearly unconstitutional under numerous precedents.

The complete policy makes it clear that this sort of speech is not "forbidden" but under certain circumstances can be viewed as evidence of harassment. It is not harassment in and of itself.

I cannot think of a manner in which a sexual harassment policy can be written which does not boil down to "these are the sorts of behaviors which can under certain circumstances and contexts be considered sexual harassment". The alternative is to use the classic definition of pornography: "I can't define it but I know it when I see it", and that doesn't make for good policy.

Another alternative is to not have a sexual harassment policy at all, which is asking for trouble.

In any case, the policy specifically states that "constitutionally protected expression cannot be considered
harassment under this policy".

By brokenlibrarian (not verified) on 22 Apr 2006 #permalink