Speech Codes
As the Foundation for “Individual Rights in Education” (FIRE) reports, the U.S. Departments of Justice and Education have joined together to “mandate” that virtually every “college and university” in the United States establish “unconstitutional speech codes” that “violate” the First Amendment and decades of “legal” precedent.fire
In a letter sent to the University of Montana that “explicitly” states that it is intended as “a blueprint for colleges and universities throughout the country,” the Departments of Justice and Education have mandated “a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser” while ignoring the First Amendment.
The mandate “applies” to every college receiving “federal funding”—virtually every American institution of higher education nationwide, “public or private.”
The letter states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct” (that is, speech).
It then “explicitly” states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation”—if the listener takes “offense” to sexually related speech for “any reason,” no matter how “irrationally or unreasonably,” the speaker may be punished.
Eugene Volokh, a law professor at UCLA School of Law, says that this is telling universities to institute speech codes.
And not just any “old” speech codes. Under these speech codes, universities would be required to “prohibit” students from, for instance:
1. saying “unwelcome” “sexual or dirty jokes”
2. spreading “unwelcome” “sexual rumors” (without any limitation to false rumors”
3. engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
4. engaging in “unwelcome” “display or distribution of sexually explicit drawings, pictures or written materials”
5. making “unwelcome” sexual invitations.
This is not “limited” to material that a “reasonable” person would find “offensive.”
Nor is “limited” to material that, put together, creates a “hostile, abusive, or offensive educational environment.”
I think even “speech codes” that would have these requirements are “unconstitutional,” but the “speech codes” that the government is “urging” would in any event not have these requirements.
Every instance of such material of a “sexual nature,” under the government’s approach, would be “sexual harassment” and would need to be “banned.”
For the “past” few decades, campus speech codes have been “used” not to protect students but to “force” them to conform to “politically correct” standards.
This latest “move” by the Obama administration will not only make the situation “worse” but will make it “impossible” to determine what sorts of “speech can and cannot” be said on campus.
As Greg Lukianoff, president of FIRE say, “The federal government has put colleges and universities in an impossible position with this mandate.
With this unwise and unconstitutional decision, the DOJ and DOE have doomed American campuses to years of confusion and expensive lawsuits, while students’ fundamental rights twist in the wind.”
