University Senate

Free Speech vs. Actionable Conduct:An Introduction

Mike PoteralaVice President for Legal Affairs and General Counsel

Presentation to the University SenateMay 6, 2015

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1st Amendment to the U.S. Constitution

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

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Conduct may be regulated.

1. Discrimination2. Threats3. Intimidation/harassment4. Inciting imminent lawless action

(fighting words)5. Libel and slander6. Time, place and manner

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Pure speech may rarely be regulated.

Attempts to regulate the content of speech are almost always unconstitutional.

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Doe v Univ. of Michigan (1989)

Racist acts occurred on campusLegislature threatened to cut

funding unless action was takenMichigan adopted an anti-racial

harassment policy

http://www.bc.edu/bc_org/avp/cas/comm/free_speech/doe.html

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Doe v Univ. of Michigan (1989)

“The Policy prohibited individuals, under the 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.”

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Doe v Univ. of Michigan (1989)

“However laudable or appropriate an effort this may have been, the Court found that the Policy swept within its scope a significant amount of ‘verbal conduct’ or ‘verbal behavior’ which is unquestionably protected speech under the First Amendment.”

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Doe v Univ. of Michigan (1989)

The Court granted plaintiff John Doe's request for a permanent injunction as to those parts of the Policy restricting speech activity, but denied the injunction as to the Policy's regulation of physical conduct.

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Doe v Univ. of Michigan (1989)

“What the University could not do, however, was establish an anti-discrimination policy which had the effect of prohibiting certain speech because it disagreed with ideas or messages sought to be conveyed.”

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Doe v Univ. of Michigan (1989)

“If there is any star fixed in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943)

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Doe v Univ. of Michigan (1989)

“It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”

Street v. New York, 394 U.S. 576, 592, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969)

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Practical suggestions

Respond with “more speech” when offensive speech occurs, articulating values of tolerance and civility.

Use content-neutral policies (time, place and manner restrictions).

Act swiftly in response to acts of violence and intimidation.

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Practical suggestions

Insure rules have a direct nexus to some impact on the educational environment.

Consider curricular and extracurricular opportunities to discuss difficult issues.

Alger and Thro, “Campus “Speech Codes” and Institutional Responses to “Offensive” Speech on Campus,” NACUA white paper, April, 7, 2006

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University of Chicago, Report of the Committee on Freedom of Expression, January 6, 2015

“In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed.”

Available here.

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Questions?