Partial Victory for Free Speech at Florida Gulf Coast University

Harold Schiffman hfsclpp at
Tue Jun 10 13:44:58 UTC 2008

Partial Victory for Free Speech at Florida Gulf Coast University:

 Unconstitutional 'Speech Code of the Month' Revised, but Other
Troublesome Policies Remain

by Samantha Harris

June 9, 2008

In a victory for free speech on campus, Florida Gulf Coast University
has completely revised its "Personal Abuse" policy, which FIRE named
its April 2007 Speech Code of the Month. That policy previously
prohibited "lewd, indecent, racist, prejudice [sic], obscene, or
expressions deemed inappropriate." As we wrote in April 2007:

This policy is unconstitutional on so many levels that it is almost
hard to know where to begin. Let's start with what is perhaps the most
obvious problem: "expressions deemed inappropriate." Who gets to do
the deeming? Is it university administrators? If so, that's an awful
lot of discretion just waiting to be abused. Is it the listener, such
that the university is willing to punish anything that a particularly
sensitive listener deems inappropriate? You get the point. This policy
is so vague and so broad that it cannot be enforced across the board,
so it will necessarily be enforced arbitrarily. Moreover, even most
speech that a reasonable person would deem "inappropriate" is
nonetheless constitutionally protected, and cannot be prohibited by a
public university like FGCU.

The updated version of the "Personal Abuse" policy now prohibits only
"Violence, threat of violence or disregard of potential harm to others
or against oneself or actions which endanger any member or guest of
the University community, including physical, verbal, or sexual
assault and relationship/domestic violence." While "verbal assault" is
still somewhat vague, there is no question that this policy is a vast
improvement over its predecessor.

Though these revisions mark a step in the right direction, this
victory for free speech is not yet complete, as there are other
policies in place at FGCU that still unlawfully restrict students'
right to free speech. (Remember, FGCU is a public university, legally
bound to uphold the First Amendment.) For example, the university's
nondiscrimination policy prohibits, as harassment, "offensive or
demeaning language or treatment of an individual, where such language
or treatment is based typically on prejudicial stereotypes of a group
to which an individual may belong, such as, objectionable epithets,
threatened or actual physical harm or abuse, or other intimidating or
insulting conduct directed against the individual." This definition of
harassment is far too overbroad and vague to pass constitutional
muster. That's because any student making a good faith effort to
adhere to this policy would face two big problems: First, they'd be
left in the dark as to what speech in particular would qualify, in the
eyes of FGCU administrators, as "offensive" or "demeaning" expression.
That uncertainty means speech will be chilled at FGCU, as students
will almost certainly bite their tongues rather than face punishment.
Second, FGCU's policy prohibits constitutionally protected speech—such
as speech some listeners may find "insulting." That's just

Making matters yet worse, the Office of Housing and Residence Life
prohibits, among other things, "annoying" messages "sent via e-mail or
instant messenger, posted on Facebook, MySpace, blogs, or other
electronic media," as well as "rude" or "derogatory" comments.
Unfortunately, this prohibition suffers from the same problems just
outlined above.

So long as these outrageous policies are still in place, student
speech cannot be truly free at FGCU. We have seen—in the case of the
"Personal Abuse" policy—that FGCU is willing to reform its policies to
address free speech issues. Now it is time for the university to
undertake the same process with respect to its other unconstitutional
speech codes. Until then, it will continue to receive a poor, "red
light" rating on FIRE's Spotlight. The First Amendment demands better.

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