The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Emory University's Standing Committee for Open Expression—an official university body—has just issued a broadly speech-protective opinion interpreting the Emory Open Expression Policy. (Note that my brother and co-blogger Sasha Volokh, a professor at Emory Law School, is on the committee.) The opinion, of course, is constrained by the terms of the policy, but I think it faithfully interprets the policy as offering broad protection for student speech. The opinion has no formal precedential value, as I understand it, but I suspect that in practice it will be quite influential. An excerpt:
Here are the facts as understood by the Committee: On February 22, 2015, after securing space in front of the Dobbs University Center, Emory Students for Justice in Palestine (ESJP) erected a temporary wall display that expressed political views on the Israeli-Palestinian conflict. In response to the ESJP's expression, at least two Emory community members vandalized the display on at least two occasions during the succeeding 48 hours.
It appears that the vandals were motivated by political animus. These acts infringed upon the open expression rights of ESJP and its members while hindering legitimate speech and debate among the broader Emory community.
No extenuating circumstances justified this vandalism. While Emory affirms the values of diversity, inclusion and community, these values may not be used to justify the suppression of speech based on its expressive content. The rights of Emory community members to dissent are made clear in the Open Expression Policy: "The University is fundamentally committed to open inquiry, open expression, and the vigorous discussion and debate upon which the advancement of its multifaceted mission depends. Civility and mutual respect are core values in our community, and we ask all members of the Community to weigh these carefully when exercising their fundamental right to open expression." The vandalism to the ESJP display was a violation of this policy….
To be sure, the Respect for Open Expression Policy, in addition to affirming the values of open expression and dissent, also acknowledges "the challenges of the creative tensions associated with courageous inquiry in an ever changing community." The Policy also states that "Emory University also affirms values of diversity, inclusion, and community." But these values cannot support suppression of speech based on its expressive content, whether by a University official or anyone else.
The very paragraph that begins with affirming "diversity, inclusion, and community" ends with a statement that "[c]ivility and respect are core values in our community, and we ask all members of the Community to weigh these carefully when exercising their fundamental right to open expression."
The hierarchy is clear: "open expression" is a "fundamental right," while "[c]ivility and respect" are merely to be "weigh[ed] … carefully." Assuming for the sake of argument that some content on the Wall violated the values of civility, respect, diversity, inclusion, or community—for instance, because of some viewers' subjective feelings of offense—none of this would trump Community members' "fundamental right to open expression," including their "rights … to assemble and demonstrate peaceably." …
Finally, the Policy states that Community members "violate other policies of the University … and are no longer operating within the spirit of Open Expression at Emory if … [t]hey cause harassment." The term "harassment" is not defined in the Policy, nor (as far as we can tell) is it explicitly defined anywhere else in Emory's policies. Fortunately, the term (or a similar term) is defined in several provisions of Georgia law to refer to various one-on-one communications, and in other places in Georgia law the term is used in a context that is clearly limited to one-on-one communications. We use these legal definitions to clarify the exception in the Policy. Expression directed at the world at large, as the displays in this case, cannot be harassing as understood in Georgia law or in the Policy.
For the sake of completeness, we address whether ESJP's expression could count as "discriminatory harassment" within the meaning of another Emory policy, the Equal Opportunity and Discriminatory Harassment Policy (EODHP). The EODHP uses the term "discriminatory harassment" instead of "harassment," and divides it into discriminatory harassment "of a sexual nature" and (as relevant here) "of a non-sexual nature."
Expression on subjects of social and political interest cannot be "discriminatory harassment." This is because discriminatory harassment requires-at a minimum -that the conduct "denigrate or show hostility or aversion to an individual or group" on the basis of various characteristics; and that the denigration, hostility, or aversion be "gratuitous"; and that the conduct "serve no scholarly purpose appropriate to the academic context." The expression here showed aversion to a country on the basis of its policies, not to people. In light of the Open Expression Policy's clear statement that –
Emory University is committed to an environment where the open expression of ideas and open, vigorous debate and speech are valued, promoted, and encouraged. As a community of scholars, we affirm these freedoms of thought, inquiry, speech, and assembly.
—and the Senate's affirmation that the Open Expression Policy "is paramount to other policies of the University that may conflict, except those grounded expressly in local, state, or national law," it is apparent that expression on social or political topics cannot be said to be "gratuitous," nor that it "serve[s] no scholarly purpose appropriate to the academic context." The Policy explicitly extends its full protection to impromptu, Emory Community-initiated expression and identifies the entire Emory community as "a community of scholars"; nowhere does the Policy suggest that its protections extend only to classroom activity, formal teaching, commentary by experts with doctorates, peer-reviewed publications, or academic research in a narrow sense.
Sounds quite right to me—and, of course, these principles apply to speech on all topics and from all political perspectives, not just the anti-Israel speech in this particular incident.