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Speech Codes |
Note: Given the nature of some of the speech given rise to the cases noted on this page, some may be offended. These cases illustrate the constitutional protection given to offensive language. The language must be presented if the cases are to be understood.
Selected Law Review Articles
ACA Academic Freedom Page (access to wide range of information on speech codes and related issues)
Fighting Words
OFFENSIVE WORDS
Hate Speech Codes on College Campuses
The UO Student Conduct Code
Doe v. University of Michigan
R.A. V. v. CITY OF ST. PAUL
WISCONSIN v. MITCHELL
SIGMA CHI v. GEORGE MASON UNIVERSITY
Corry v. Stanford Univ.
Oregon: Enhancement/harassment
There has been a great deal of controversy over the use of speech codes on campuses as a means of creating a positive learning environment. As you consider this question, remember that all speech codes are not the same. The UO Code (below) is modeled on the fighting words doctrine. Compare it to the U. of Michigan or the U. of Wisconsin code, both found to violate the First Amendment. Also compare it to the Stanford U. code, which a trial court recently found unconstitutional.
OAR 571-21-030
Disciplinary action may be initiated by the University and sanctions imposed against any student or student organization found guilty of committing, attempting to commit, or intentionally assisting in the commission of any of the following prohibited forms of conduct:
(1) Dishonesty...academic cheating....
(2) Forgery, alteration of...university documents...
(3) Intentional disruption...with the process of instruction...
(12) Disorderly conduct...unreasonable noise...
(17) Violation of regulations...approved by the Student Conduct Committee...
(19) Harassment on University property or at University-sponsored or supervised activities, because of another person's race, color, gender, national origin, age, religion, marital status, disability, veteran status, or sexual orientation, or for any other reason accomplished by:
(a) Intentionally subjecting another person to offensive physical contact other than self-defense; or
(b) Specifically insulting another person in his or her immediate presence with abusive words or gestures when a reasonable person would expect that such act would cause emotional distress or provoke a violent response.
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Policy on Discrimination and Discriminatory Harrassment of Students in the University Environment (1988)
Three tier system:
public parts of campus - speech not restricted
student publications - not subject to regulations
"Educational and academic centers, such as classroom buildings, libraries, research labs, recreation and study centers.
The policy prohibited individuals, under penalty of sanctions, from "stigmatizing or victimizing" individuals or groups on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status. [also addressed "sexual advances, requests for sexual favors, and verbal and physical conduct that stimatizes or victimizes..on basis of sex or sexual orientation.]
Hearing Procedure: If informal mechanisms don't work, then formal procedure -- Discrimination officer conduct investigation - hearing before panel of 4 students & tenured faculty member -- officer presents charges -- student has opportunity to call witnesses and cross examine - right to appeal
Sanctions: restitution to expulsion.
Doe: A graduate student in biopsychology -- certain theories posit biologically-based differences between races and men and women.
Might be perceived as sexist and racist by some students and thereby could lead to at the very least the instigation of a proceeding under policy.
University guide - example - "Women just aren't as good in this field as men creates a hostile learning atmosphere for female classmates."
Overbreath:
"as applied by Univ, over the past year consistently reached protected speech
Homophobic limerick read during class public-speaking exercise - informal process - student agreed to attend "gay rap" session, write a letter of apology to student paper, and apologize in class.
Student at orientation class for difficult denistry class stated that "he had heard that minorities had a difficult time in the course and that he had heard they were not treated fairly." Minority faculty member filed complaint -- student "counseled"
Court: behind persuation was subtle threat of formal sanctions.
Vagueness:
"Looking at the plain language of the Policy, it is simply impossible to discern any limitation on its scope or any conceptual distinction between protected and unprotected conduct."
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The Supreme Court's decision in R.A.V. raises serious questions about the constitutionality of all speech code regulations, no matter how narrowly drawn.
R.A. V. v. CITY OF ST. PAUL, (U.S.S.C., 1992)
After allegedly burning a cross on a black family's lawn, petitioner R. A. V. was charged under, inter alia, the St. Paul, Minnesota, Bias- Motivated Crime Ordinance, which prohibits the display of a symbol which one knows or has reason to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.''
Held:The ordinance is facially invalid under the First Amendment...
(a)[T]he ordinance unconstitutionally prohibits speech on the basis of the subjects the speech addresses.
(b) The government may not regulate categories of speech based on hostility, or favoritism, towards a nonproscribable message they contain. Thus the regulation of fighting words' may not be based on nonproscribable content.
(c)The ordinance, even as narrowly construed by the State Supreme Court, is facially unconstitutional because it imposes special prohibitions on those speakers who express views on the disfavored subjects of race, color, creed, religion or gender.'' Moreover, in its practical operation the ordinance goes beyond mere content, to actual viewpoint, discrimination.
(d) [T]he ordinance's content discrimination is not justified on the ground that the ordinance is narrowly tailored to serve a compelling state interest in ensuring the basic human rights of groups historically discriminated against, since an ordinance not limited to the favored topics would have precisely the same beneficial effect.
464 N.W.2d 507, reversed and remanded.
SCALIA: opinion, in which Rehnquist,
C. J., and Kennedy, Souter, and Thomas, JJ., joined.
WHITE: Concur, in which Blackmun and
O'Connor, JJ., joined, and in which Stevens, J., joined except as to Part I-A.
BLACKMUN: Concur
STEVENS: Concur, in Part I of which White and Blackmun, JJ., joined.
Mitchell addresses the use of hate speech as evidence of motive in "enhancement" statutes. The Court accepted as meaninful a distinction between punishing the speech and using speech as evidence of motive. The Oregon Supreme Court has accepted the same distinction in State v. Hendrix, 813 P. 2d 1115 (1991).
WISCONSINv. MITCHELL No. 92-515, 1993 U.S. LEXIS 4024 (U.S., 1993)
OPINION: CHIEF JUSTICE REHNQUIST
In 1989, a group of young black men who had just watched "Mississippi Burning," attacked and rendered unconscious a young white man. Prior to the attack, Todd Mitchell, one of attackers, asked the others, " 'Do you all feel hyped up to move on some white people?... You all want to fuck somebody up? There goes a white boy; go get him.' "
Mitchell was convicted of aggravated battery. Wis. Stat. @@ 939.05 and 940.19(1m) Because the jury found that Mitchell had intentionally selected his victim because of the boy's race, the maximum sentence for Mitchell's offense was increased to seven years under @ 939.645. That provision enhances the maximum penalty for an offense whenever thedefendant "intentionally selects the person against whom the crime . . . is committed . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person . . . ."
The State Supreme Court, relying on R. A. V. v. St. Paul, reversed, holding:
a. The statute violates the First Amendment by punishing what the legislature has deemed to be offensive thought and rejected the State's contention that the law punishes only the conduct of intentional victim selection.
b. It also found that the statute was unconstitutionally overbroad because the evidentiary use of a defendant's prior speech would have a chilling effect on those who fear they may be prosecuted for offenses subject to penalty enhancement.
c. Finally, it distinguished antidiscrimination laws, which have long been held constitutional,on the ground that they prohibit objective acts of discrimination, whereas the state statute punishes the subjective mental process.
Held: Mitchell's First Amendment rights were not violated by the application of the penalty-enhancement provision in sentencing him. Pp. 4-12.
a. the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because they are protected by the First Amendment. Nothing in R. A. V. v. St. Paul, supra, compels a different result here. The ordinance at issue there was explicitly directed at speech, while the one here is aimed at conduct unprotected by the First Amendment.
b. Because the statute has no "chilling effect" on free speech, it is not unconstitutionally overbroad. The likelihood of such as effect is too speculative a hypothesis to support this claim.
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The barrier to content-based university regulations is seen in Sigma Chi.
SIGMA CHI v. GEORGE MASON UNIVERSITY
, 993 F.2d 386; 1993 U.S. App. LEXIS10579, (4th Cir., 1993)
"Mission Statement" of the University:
"George Mason University is committed to promoting a culturally and racially diverse student body . . ."
During Sigma Chi's "Derby Days" the fraternity held an "ugly woman contest" in which members dressed up in costumes that were degrading and insulting to women and especially to African-American women. The University took action against the fraternity for "created a hostile learning environment for women and blacks, incompatible with the University's mission."
Fraternity members conceded during the litigation that the contest was sophomoric and offensive, but claimed a First Amendment right to be sophmoric and offensive.
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1. Speech or Action?
Johnson Test
"The punishment was meted out to the Fraternity because its boorish message had interfered with the described University mission. It is manifest from these circumstances that the University officials thought the Fraternity intended to convey a message."
"Some students...were entertained. What the Fraternity did not anticipate was the reaction to their crude humor by other students on campus and University officials who opposed the racist and sexist implications of the Fraternity's skit."
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2. Viewpoint Neutrality
"The First Amendment generally prevents government from proscribing . . . expressive conduct because of disapproval of the ideas expressed." R.A.V. v. City of St. Paul, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992)
"As evidenced by their affidavits, University officials sanctioned Sigma Chi for the message conveyed by the 'ugly woman contest' because it ran counter to the views the University sought to communicate to its students and the community."
Held: The University's sanctioning of the fraternity and its students violated the First Amendment.
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In a recent speech code decision, a California Superior Court found that Stanford University's speech code is unconstitutional. The case is of special interest since Stanford is a private university.
Corry v. Stanford Univ. Superior Court, Santa Clara County, #740309, 2/27/95
Oregon: Enhancement/harassment
State v. Hendrix, 1991), 107 Ore. App. 734; 813 P.2d 1115 (1991) During the attack, which lasted about two minutes... "Talk in English, motherfucker," "white power" or "white pride," "Knock it off with us white boys," "They're just Mexicans," "They're just fucking wetbacks."
No person is subject to punishment under the Intimidation Law merely for holding or expressing opinions that are inimical to others because of their race, color, religion, national origin or sexual orientation. The focus of the statute is to forbid a result: physical injury. The fact that speech, writing or conduct may be used to prove unlawful motive does mean that the statute violates Article I, section 8....
Although some conduct, such as flag burning during a political demonstration, is "expressive" and, therefore, protected by the First Amendment, United Statesv. Eichman, U.S. , 110 S Ct 2404, 2409, 110 L Ed 2d 287 (1990); Texas v.Johnson, 491 U.S. 397, 109 S Ct 2533, 2539, 105 L Ed 2d 342 (1989), we areaware of no case, and defendant has cited none, that holds that the act of inflicting physical injury on another, however motivated, is constitutionallyprotected expression. If fighting words are not worthy of First Amendmentprotection, Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S Ct 766, 86 LEd 1031 (1942), the fight itself must be equally unworthy.
