The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
1. In Doe v. Rector & Visitors of George Mason University, decided last Thursday, a federal district court (among other things) struck down a George Mason University speech code. That code provided, in relevant part,
Acts of misconduct include … [a]ll hostile, threatening, or intimidating behavior that by its very nature would be interpreted by a reasonable person to threaten or endanger the health, safety or well-being of another. Examples for such behavior may include … [c]ommunicating … either directly or indirectly … by … electronic or written communication in a manner likely to cause causes [sic] injury, distress, or emotional or physical discomfort is also prohibited [sic].
The court held that the second sentence was unconstitutionally overbroad—and thus invalid, without regard to the particular speech in said by the particular student in this case—unless it is read as limited to constitutionally unprotected true threats and fighting words:
The first half of the provision cited above clearly evidences an intent to ban "true threats," which constitute a well-settled exception to the freedom of speech protected by the First and Fourteenth Amendments. Indeed, the first half of the provision in issue is tailored to be entirely consistent with the Fourth Circuit's law on true threats, in that Code 2013.9 prohibits only behavior (including speech) that "an ordinary reasonable recipient who is familiar with the context … would interpret as a threat of injury."
The constitutional problem presented here arises from Code 2013.9.B, which "also prohibit[s]," [among other things], "[c]ommunicating … by electronic communication in a manner likely to cause causes [sic] injury, distress, or emotional or physical discomfort." There can be no doubt that this language is susceptible to an interpretation that "[pen]alizes a substantial amount of protected expressive activity," e.g., offensive speech. Indeed, Code 2013.9.B's plain language imposes no "reasonable person" limitation and covers such vague effects as "distress" or "emotional … discomfort."
In that respect, under a reasonable interpretation of Code 2013.9.B, the provision penalizes speech that an individual finds offensive or disagreeable. As defendant [Brent Ericson, an Assistant Dean of Students and Director of the Office of Student Conduct at GMU] expressed in his deposition, in his view Code 2013.9.B is broad enough to permit disciplinary action against a student who expresses a racist view that African-Americans should not be permitted to enroll at GMU and thereby upsets an African-American student. Yet, it is well established that racist speech, even on a university campus, is constitutionally protected. See, e.g., Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 393 (4th Cir. 1993) (recognizing that despite a university's "responsibility" to maintain "an educational environment free of discrimination and racism," such goals should be accomplished "in some fashion other than silencing speech on the basis of its viewpoint").
Although Code 2013.9.B's plain language reaches beyond the true threats exception, defendants alternatively argue that the restriction is justifiable in light of Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969). [Footnote: At the motion to dismiss stage, the question whether Tinker applies in this case was reserved pending a more developed factual record. This decision assumes, [for the sake of argument], that Tinker applies in the context of post-secondary education. Although the Fourth Circuit has cited Tinker as authority in post-secondary education speech cases, the Fourth Circuit has not squarely addressed whether and to what extent Tinker applies in such contexts. And moreover, the Supreme Court's post-Tinker jurisprudence casts some doubt on whether Tinker and its progeny apply to post-secondary schools. See, e.g., Healy v. James, 408 U.S. 169, 180 (1972) ("[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.").]
Under Tinker, a public school may proscribe speech without running afoul of the constitutional right to free speech if necessary to protect students or to support the educational mission. Thus, public school officials may suppress student speech if they "reasonably conclude that it will 'materially and substantially disrupt the work and discipline of the school.'" As the Third Circuit has persuasively illuminated, the exact manner in which Tinker applies in the university setting "is difficult to explain" and likely evades "any broad categorical rules." Instead, the teachings of Tinker and its progeny in the elementary and secondary school settings should be "scrutinized carefully" before being applied to universities, "with an emphasis on the underlying reasoning of the rule to be applied."
This sensible conclusion recognizes the many differences between post-secondary institutions on the one hand and elementary and secondary schools on the other; that which might "materially and substantially disrupt" an elementary or secondary school could be fundamental to universities…. ["I]ndividual sovereignty … can only be attained by encouraging the individual to think independently. Independent thinking, in turn, can only be developed through constant questioning, the expression of new, untried and heterodox beliefs and the willingness to tolerate experimentation—in sum, the traditions upon which the first amendment rests. It follows that our schools, particularly our universities, must serve as great bazaars of ideas where the heavy hand of regulation has little place. Like other bazaars, they may seem rude, cacophonous, even distasteful at times; but they are necessary predicates to the more orderly market of ideas in our public life.["]
In short, controversial and sometimes offensive ideas and viewpoints are central to the educational mission of universities. It follows that university students cannot thrive without a certain thickness of skin that allows them to engage with expressions that might cause "distress" or "discomfort," which is precisely the type of speech that Code 2013.9.B seeks to suppress. The coddling of the nation's young adults by proscribing any expression on a university campus that is likely to be distressing or discomforting does not protect "the work … of the school;" such rules frustrate the mission of the university….
[The First Amendment] analysis properly focuses on the extent to which a regulation prevents interference with the functions of the university. In engaging in the required analysis, it is helpful to bear in mind, as the Third Circuit has articulated, the unique aspects of post-secondary institutions that set them apart from elementary and secondary schools. For instance, there are "differing pedagogical goals" for each; post-secondary institutions do not operate in loco parentis; the disciplinary needs of post-secondary institutions differ; post-secondary students are adults with greater maturity; and "many university students reside on campus and thus are subject to university rules at almost all times."
Viewed against the backdrop of these principles, Code 2013.9.B is … unconstitutionally overbroad …. Code 2013.9.B purports to cover all student speech—regardless whether it occurs on campus—and uses entirely subjective standards such as "distress." … Accordingly, the natural incentive under a regime like that created by Code 2013.9.B is to speak less for fear of "distress[ing]" or "discomfort[ing]" another.
It is untenable to suggest that a regulation as broad as Code 2013.9.B is necessary to "prevent interference" with the normal operations of a university. Nor can defendants proffer a justification for a regulation that sweeps so broadly. Code 2013.9.B does not advance the university's pedagogical goal of serving as a "great bazaar[ ] of ideas;" rather, it is likely to stifle the expression of unpopular opinions for fear that another will become "distress[ed]" or "discomfort[ed]."
In essence, Code 2013.9.B attempts to impose a civility code upon university students—students who are adults with full rights of participation in civic life, for whom the university does not stand in loco parentis, and who can never escape "the heavy hand of a regulation" that purports to apply wherever they speak. As the Second Circuit has observed, even in elementary and secondary schools the administration's power to "teach students the boundaries of socially appropriate behavior" limits the punishment of "threatening" speech to instances that "occur[ ] publicly at school or a school-related event." A university's power to promote "socially appropriate behavior" among its students, who are adults expected to shape society, is surely even weaker. Thus, it is clear that Code 2013.9.B, if given a meaning in accord with its plain language, rises to the level of an unreasonable infringement of the freedom of speech wholly unrelated to the university's interest in performing its educational mission….
[But] the Fourth Circuit has made clear that a court "will not strike down a [regulation] as facially overbroad if its constitutionality can be preserved through a 'limiting construction' … capable of 'removing the seeming threat or deterrence to constitutionally protected expression.'" … Such a limiting construction is readily apparent with respect to Code 2013.9.B. By the plain language of Code 2013.9.B, the communications proscribed are "[e]xamples" of behavior prohibited as a true threat, i.e., speech "that by its very nature would be interpreted by a reasonable person to threaten or endanger the health, safety or well-being of another." Thus, it is fully appropriate here to construe Code 2013.9.B as prohibiting only true threats or fighting words,27 both categories of speech that fall beyond the freedom of speech and both of which could be covered under the broad language of Code 2013.9.B.
Seems clearly correct to me.
2. The specific speech in the case was unusual for such speech code cases: the plaintiff sent a text message to an ex-girlfriend "in which plaintiff said that if [the ex-girlfriend] did not respond, plaintiff would obtain a gun and shoot himself in the chest." And true threats of criminal conduct, aimed at coercing the target into complying, are indeed constitutionally unprotected. But the court concluded that threats of suicide don't qualify; and, though a university could investigate threats of suicide to see whether they are serious, and detain the students who are making such threats for their own protection, the university couldn't punish such threats on the grounds that they are distressing.
Now whether threats of suicide should be treated similarly to threats of criminal conduct—not just in universities but anywhere—when both are aimed at coercing listeners into doing something, strikes me as a more complicated question. I'd say the same about whether solicitation of suicide by a specific person should be punishable alongside solicitation of a specific crime, and whether intentional incitement of likely imminent suicide should be criminally punishable alongside intentional incitement of likely imminent crime.
On one hand, suicide isn't a crime (the perpetrator is beyond the reach of the law), and even attempted suicide generally isn't treated as a crime. On the other hand, suicide is still seen by the law as quite harmful, even though the person committing suicide is willing to die; and threats of suicide can be quite coercive (not as coercive as threats of murder, to be sure, but perhaps more so than, say, threats of vandalism). It's possible that a rule that specifically bars coercive threats of suicide could be seen as constitutional; and perhaps, if the court was narrowly construing the Mason rule, it could have construed it to cover such threats as well as unprotected threats of crime.
Still, the court's core point, which is that the Mason rule is unconstitutionally overbroad on its face (since it isn't at all facially limited to threats), remains correct.
3. By the way, here's a passage from Assistant Dean Ericson's deposition:
Q. Sure. Let's take an easier hypo. Student one who is an atheist says to student two, you're Catholic. I hate Catholics and I think the Pope is the devil. Student one says, I said that to specifically upset student two. Student two says at a hearing, it upset me very much. Is that enough to constitute a violation of 2013.9B?
A. I don't know.
Q. Why not?
A. These things don't occur in a vacuum. We're in a vacuum right here in this room, but these things occur in context. I would say no. If you want me to answer the hypothetical, I'd say no.
Q. Same question with respect to race. Somebody—student one who is white says to student two who is black, you are black, I hate black people, I don't believe black people belong at George Mason. Student one says, I said that specifically to upset the student. Student two says, yes, that upset me deeply. Is that enough to constitute –
A. Then we may have a problem.
Q. Under 2013.9B?
A. I mean, yeah. You're giving me hypothetical situations. I would say that that would be actionable.
Q. Thank you….
4. The case has much more interesting material, on sexual autonomy and substantive due process, but that is a story for another blog post (likely coming later today).