[lg policy] Linguistic Hygiene: Rights foundation gives New York university its dubious award for restrictive speech code

[Harold Schiffman]

Rights foundation gives New York university its dubious award for
restrictive speech code
December 10, 2009 by donal brown

Filed under 1st Amendment News, Freedom of Speech / Press, News & Opinion


The Foundation for Individual Rights in Education has made the speech
code of the State University of New York Brockport its “Speech Code of
the Month.” The foundation says the code is “unconstitutional on many
levels.” -DB

FIRE
Foundation for Individual Rights in Education

December 3, 2009

SUNY Brockport’s “Internet/Email Rules and Regulations” state that All
uses of Internet/e-mail that harass, annoy or otherwise inconvenience
others are not acceptable. This includes, but is not limited to …
offensive language or graphics (whether or not the receiver objects,
since others may come in contact with it).

This policy is unconstitutional on many levels. First, the university
cannot prohibit speech that merely “annoys” others—the fact that
expression is annoying does not deprive it of constitutional
protection. Rather, having to deal with annoyance is just one price we
pay for living in a free society. We probably all have that Facebook
friend who constantly posts highly “annoying” status updates about
what she’s eating for lunch, but we can’t turn to the government
(including an agent of the government like a state university) to shut
her up—that’s what the “Hide Posts From…” button is for.

The university also may not prohibit all online expression that
“inconvenience[s] others”; such a prohibition is both impermissibly
vague and impermissibly overbroad. It is impermissibly vague because
it could mean almost anything, forcing students to guess at what might
lead to punishment under the provision. (Do you know what kind of
e-mail might “inconvenience” someone? I certainly don’t.) And it is
impermissibly overbroad because a great deal of expression that
someone might find an “inconvenience” is nonetheless entirely
constitutionally protected. Many people, for example, find it
inconvenient when others disagree with them!

To make matters worse, the policy provides specific examples of
violations including “offensive language.” As has been explained in
cases too numerous to mention, however, it is unconstitutional to
suppress free speech on the grounds that it is subjectively offensive
to some listener. As one federal appellate court put it, there is “no
question that the free speech clause protects a wide variety of speech
that listeners may consider deeply offensive….” Saxe v. State College
Area School District, 240 F.3d 200, 206 (3d Cir. 2001). Worse yet, the
language in question doesn’t even have to offend the message’s
recipient; rather, it is punishable if it is deemed offensive by some
unspecified party (presumably the university administration) “since
others may come in contact with it” and be offended. So, under this
policy, sending an off-color joke or expressing a controversial
opinion in an e-mail to a consenting friend is worthy of disciplinary
action, since that e-mail could someday fall into the hands of someone
who might be offended by it. Truly unbelievable.

What makes this policy all the more remarkable is the fact that SUNY
Brockport has already been sued once over its unconstitutional speech
codes. In 2004, students filed a federal lawsuit challenging several
of the university’s speech codes, and the university repealed those
speech codes in a settlement with the students, marking a significant
victory for free speech. It is almost inconceivable that an
institution which has already been through the time and expense of a
First Amendment lawsuit would once again risk liability by maintaining
a ridiculous policy such as this one. For these reasons, SUNY
Brockport is our December 2009 Speech Code of the Month.

Copyright 2009 Foundation for Individual Rights in Education

http://www.firstamendmentcoalition.org/2009/12/rights-foundation-gives-new-york-university-its-dubious-award-for-restrictive-speech-code/

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