The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A large coalition of advocacy groups has asked the U.S. Department of Education Office for Civil Rights to pressure colleges to (1) punish students for their speech and (2) block student access to certain Web sites—especially sites such as Yik Yak, which allow students to anonymously post their views.
Now, some of the speech that the groups mention consists of true threats of violence, including threats of attack and even rape. Such speech is constitutionally unprotected. (Indeed, some of it—threats against people for speaking, for instance, in support of feminist causes—itself attempts to suppress speech.) It is rightly criminalized and can certainly be punished.
But the letter goes very far beyond just calling on universities to punish threats. Here are some other examples of speech that the coalition points to:
- "[S]uccessive invidious comments targeting African-Americans, such as 'Their entire culture just isn't conducive to a life of success. It just isn't. The outfits. The attitudes. The behavior.'"
- "Another comment" that said "Slavery was the worst thing to happen to this country, bringing them over here . . . ugh."
- A statement that "I would be completely ok with Clemson being an all white school. Except for football."
- A statement that "The only thing niggers are good for is making Clemson better at football."
- A statement that "Jesus I hate black people."
- A comment saying, "Guys stop with all this hate. Let's just be thankful we arn't black."
- Statements "target[ing] Indian students and East Asians, referred to as 'chinks,' in addition to LGBT students, Mormons, and women."
- "[S]tudents post[ing] dozens of demeaning, crude, and sexually explicit comments and imagery about three female professors."
All of this speech, offensive as it may be, is protected by the First Amendment. (There is no "hate speech" exception to First Amendment protection.) But despite that, the coalition is arguing that the speech should be restricted precisely because of the viewpoints it expresses, and the offense and "hostile environment" that those viewpoints cause. The coalition is citing an earlier Office for Civil Rights statement that, to be prohibited, "harass[ing]" speech "does not have to include intent to harm, be directed at a specific target, or involve repeated incidents." And the coalition is calling for the OCR to pressure universities (over which it has power, given its ability to cut off funding to universities) to, among other things,
- "initiat[e] campus disciplinary proceedings against individuals engaging in online harassment"—including, apparently, for saying things such as "[African-Americans'] entire culture just isn't conducive to a life of success"
- "geo-fenc[e] anonymous social media applications that are used to threaten, intimidate, or harass students"
- "bar the use of campus wi-fi to view or post to these applications."
Of course, if Yik Yak and the other applications listed in the letter are banned from campus networks—which would, of course, block access to all speech on the applications, whether the speech is threatening or not—then either (1) the ban will be ineffective, given students' ability to access those sites from their own cellular devices or (2) the speech will migrate elsewhere, onto new applications. Presumably universities would then need to ban access to those applications as well, running a constantly expanding Great Firewall of China American Higher Education. And since many states ban discrimination in education based on religion and sexual orientation as well as race and sex, the logic of the coalition's arguments would equally apply to speech that harshly criticizes certain religions or sexual orientations. (The second-to-last example I quoted from the coalition letter already implies this; and the first example shows that the coalition's objections aren't just limited to epithets but also include social and political arguments.)
The coalition's letter dismisses the First Amendment objections to this scheme as "vague First Amendment concerns." "[T]he First Amendment does not prevent schools from taking action to eliminate sex- and race-based harassment, whether that harassment occurs in-person or online." "Once a verbal act 'materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,'" the coalition says—quoting the Tinker v. Des Moines Indep. School Dist. standard applicable to K-12 education—"institutions may regulate or restrict student speech."
But though the Supreme Court cited this Tinker language in the college context, in Healy v. James (1972), the court in Healy made clear that
[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.
And since then, the precedents have become even clearer. In Papish v. Board of Curators (1973), the court noted that Healy endorsed a university's "authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination" ("time, place, and manner" restrictions is a label for content-neutral restrictions on speech) and not restrictions on speech of a "disapproved content" (emphasis in original). Likewise, the court in Papish concluded that "the First Amendment leaves no room for the operation of a dual standard in the academic community"—i.e., one that is more restrictive than outside colleges—"with respect to the content of speech."
Most recently, the court held in Christian Legal Society v. Martinez (2010), even speech said within government-funded and government-supported student groups is fully protected, notwithstanding whether it is "discriminatory":
Although registered student groups must conform their conduct to the Law School's regulation by dropping access barriers [i.e., the government may require that the student groups admit all students], they may express any viewpoint they wish—including a discriminatory one. Today's decision thus continues this Court's tradition of "protect[ing] the freedom to express 'the thought that we hate.'"
Yet another example of today's Anti-Free Speech Movement for American universities—unfortunately, one that fits well into the Education Department's attitudes. Fortunately, courts have firmly rejected these kinds of calls to restrict college student speech, though the OCR and the college administrations it pressures can get away with a lot of restrictions until the lawsuits are actually brought.
Here is the list of signatories to the coalition letter:
Feminist Majority Foundation
Advocates for Youth
American Association of University Women
Association of Reproductive Health Professionals
Black Women's Blueprint
Black Women's Health Imperative
Center for Partnership Studies
Center for Women Policy Studies
Clearinghouse on Women's Issues
End Rape on Campus
Human Rights Campaign
Institute for Science and Human Values
Jewish Women International
Leadership Conference on Civil and Human Rights
Media Equity Collaborative
National Alliance for Partnerships in Equity
National Black Justice Coalition
National Center for Lesbian Rights
National Coalition Against Domestic Violence
National Council of Jewish Women
National Council of Women's Organizations
National Disability Rights Network
National Domestic Violence Hotline
National LGBTQ Taskforce
National Organization for Women
National Women's Law Center
The Andrew Goodman Foundation
Turning Anger into Change
WMC Speech Project
Women's Media Center
Atlanta Women for Equality
Collective Action for Safe Spaces
DC Coalition Against Domestic Violence
DC Rape Crisis Center
Democratic Women's Club of Northeast Broward
Lincoln County Oregon Democratic Central Committee
National Organization for Women—Akron Area, Ohio Chapter
National Organization for Women—Beaver Valley, Pennsylvania Chapter
National Organization for Women—Boulder, Colorado Chapter
National Organization for Women—Brevard, Florida Chapter
National Organization for Women—Central Oregon Coast Chapter
National Organization for Women—Florida Chapter
National Organization for Women—Greater Orlando, Florida Chapter
National Organization for Women—Indiana Chapter
National Organization for Women—Maryland Chapter
National Organization for Women—Middlesex County, New Jersey Chapter
National Organization for Women—Ni-Ta-Nee, Pennsylvania Chapter
National Organization for Women—Oregon Chapter
National Organization for Women—Palm Beach County, Florida Chapter
National Organization for Women—Pennsylvania Chapter
National Organization for Women—Rhode Island Chapter
National Organization for Women—Shore Area, New Jersey Chapter
National Organization for Women—Tacoma, Washington Chapter
National Organization for Women—Tampa, Florida Chapter
National Organization for Women—Thurston County, Washington Chapter
National Organization for Women—Virginia Chapter
National Organization for Women—Washington Chapter
National Organization for Women—Washington, DC Chapter
Network for Victim Recovery of D.C.
PFLAG Oregon Central Coast
Women's Production Network (Florida)
Thanks to Hans Bader for the pointer, and for blogging extensively on the issue. I also hope to post soon on the "retaliation" charges being levied against Mary Washington University for publicly responding to a complaint brought against it.