Free Speech at Emory: Printable Version

Colleges and universities across the country are lauded as free markets of ideas where
students are free to debate and voice their opinions in pursuit of higher learning. However, many
colleges have instituted speech codes, which restrict students from voicing opinions or saying
words that should be protected under the First Amendment. Through a voluntary survey, this
paper explores how students at Emory University feel about the administration restricting speech
that concerns sensitive topics such as race, sexual orientation, and abortion.
The Foundation for Individual Rights in Education (FIRE) defines a speech code as any
university regulation or policy that prohibits expression that would be protected by the First
Amendment in society at large (FIRE). Beginning in the late 1980s, universities across
America began to establish regulations to combat a rise in hate speech, defined as verbal attacks
that target people on the basis of immutable characteristics, or any form of speech attacks based
on race, ethnicity, religious, and sexual orientation (Gould, 14). While supporters of these
speech codes cited the Fourteenth Amendments Equal Protection Clause and the Civil Rights
Acts of 1964 and 1990 as proof of their constitutionality, opponents called the restrictions on
speech unconstitutional under the First Amendment (2).
First Amendment in the Courts
The First Amendment to the Bill of Rights guarantees American citizens the right to free
speech. Throughout American history, when the legislative and executive branches enacted laws
that violated this right, citizens were able to challenge those laws in court against the text of the
Bill of Rights. From the onset, the Supreme Court has recognized that the right to speech is not
absolute, and that speech can be prohibited if it causes a clear and present danger. No citizen has
the right to yell "Fire!" in a crowded movie theater. While the Supreme Court has fluctuated in

allowing restrictions on free speech during times of war, today speech is understood to be one of
the most fundamental rights guaranteed to American citizens, especially speech that is related to
the political and social issues of the time.
Although the Bill of Rights initially only applied to the federal government, after the
passage of the 14th Amendment, specific rights were incorporated to apply to the state
governments as well. The First Amendment was incorporated in 1925 in the majority opinion of
Gitlo v. New York. In R.A.V. v. City of St. Paul the Supreme Court struck down a hate speech
ordinance that made placing "on public or private property a symbol, object, appellation,
characterization or graffiti...which knows or has reasonable grounds to know arouses anger,
alarm, or resentment in others on the basis of race, color, creed, religion or gender" a
misdemeanor. The ordinance was ruled over-broad and unconstitutionally content-based (Shiell,
82). State governments fund state universities. Therefore, they must abide by the rights that have
been incorporated by the Supreme Court. This is why public universities must create policies that
do not restrict the freedom of expression, that are not "over broad," aren't "content-based," and
don't create a "chilling effect." Emory University is a private school, so it does not have to abide
by the guarantees of the Bill of Rights.
Speech Codes in the Court
The first judicial challenge to the implementation of speech codes was Doe v. University
of Michigan. In reaction to leaflets found in dormitories that declared open hunting season on
all blacks and to a college radio show that encouraged racist jokes on air, University of Michigan
instituted its first speech code (Shiell, 18). The regulations specified three tiers of speech (19).
While speech occurring in student newspapers and public areas on campus was given the most
protection, speech in educational and academic centers, such as classroom buildings, libraries,

research laboratories, recreation and study centers was subject to stricter scrutiny (19). The code
stated
Any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis
of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age,
marital status, handicap or Vietnam-era veteran statuswhich involves an express or
implied threat, interferes with an individualsUniversity sponsored activities, or
creates an intimidating, hostile, or demeaning environment is prohibited (20).
The federal court struck down the code as being overbroad (subjected protected speech to
sanctions) and unduly vague (so ambiguous as to allow officials to arbitrarily enforce the
policy and violate due process rights) (75). The Court continued that the university could not
ban speech because it was offensive nor because it disagree[d] with the ideas or messages
sought to be conveyed (75). In the following years, the federal courts, including the Supreme
Court, would continue to strike down speech codes in colleges and municipalities as being
vague, overbroad, or an impermissible content regulation (Gould, 123).
Emorys Speech Code
Emory University does not have an official speech code. Rather, restrictions on student
speech are laid out in various discrimination and harassment policies. The Resident Life policy
on bias incidents threatens free speech the most. The Residence Life and Housing webpage
defines a bias incident as
Any act (oral, written, graphic, or physical) directed against any personincluding but
not limited to race, color, national origin, religion, sex, sexual orientation, gender
identity, gender expression, age, ability, or veterans status, that has the effect of creating
an offensive, demeaning, intimidating or hostile environment for that person in particular
or others who may see, hear, or otherwise witness the act. Furthermore, students use of
epithets or names in a derogatory manner will be constituted as a bias incident.
The Office of Equal Opportunity Programs institutes a discriminatory harassment policy for its
employees, which prohibits verbal, physical, or graphic conduct toward an individual that has the
purpose or affected of creating an "intimidating, hostile, or offensive" environment. Also,

according to Emory's Information Technology Conditions of Use, "limited and reasonable

personal use of Emory's IT resources is accepted and allowed as long as it does not "adversely
impact or conflict with any activities that support Emorys mission or operations; involve the
viewing or distribution of pornography, result in any measurable cost to Emory, reflect poorly on
the institution, or violate any other applicable University policies."
Emorys speech code is very similar to one that was struck down at Shippensburg
University in 2003. While Emory has a Freedom of Expression policy that states that it is
committed to an environment where the free expression of ideas and open, vigorous debate and
speech are valued, promoted, and encourage, later in that very policy Emory clarifies that
"harassment" speech is not protected. Harassment speech is not defined and instead it points to
the Equal Opportunity Policy outlined above. How can the university possibly clarify what type
of speech "has the effect" of creating a "hostile environment"? What is a "hostile environment?"
A situation where feelings are hurt during a legitimate discussion of gay marriage or of
affirmative action? It is impossible for Emory to create a coherent definition of "bias incidents,"
which is why it should be avoided altogether. Bias incidents are also handled at the complete
discretion of the Bias Incident Committee, and students have no guarantees of a fair trial or a
chance to defend themselves. The guidelines for speech are ambiguous and arbitrary, creating an
environment where no Emory student can be sure of avoiding punishment.
Research
My research consisted of a completely voluntary 10-question survey that was advertised
through Facebook. The first four questions were demographic questions specifying whether the
surveyor was an Emory student, his or her ethnicity, his or her gender, and his or her party
alliance. Out of the survey, approximately 60% of the respondents were Emory students. Out of

the Emory students, 66% of the respondents were white, 3% were black, 3% were Hispanic, and
31% were Asian or Pacific Islanders. 60% of the respondents were female and 40% were male.
Finally, 18% were closer allied to the Republican party, 28% were closer allied to the
Democratic party, 18% were equally close to both parties, and 35% do not think of themselves as
independent nor allied to either party.
In the next part of the survey, I created four different hypothetical scenarios, many of
which were based on real events. In the scenarios, I asked the respondents if the Emory
administration should get involved to forbid a certain kind of speech. The scenarios confronted a
student's right to express his or her feelings on gay rights, immigration policy and race, abortion,
and sex. 58.82% of the Emory respondents reported that they would support a restriction on
students hanging anti-gay marriage flyers around campus. Only 41.18% of students would
support the Emory administration restricting the publication of a comic that has been cited for
racism in its confrontation of Obamas amnesty plan. 55.88% and 15.15% were in favor of
restrictions of pro-life flyers of aborted fetuses and pro-anal sex advertisements on campus,
respectively. Finally, 56.26% of students believed Emory had a speech code, while 59.28% of
respondents believed that it should.
The data also broke down by party, ethnicity, and gender. An analysis of the data by
party reveals that Republicans and Democrats are split on the most basic level of the speech code
debate. While Republicans believe Emory should not have a speech code and that no speech
should be restricted based on its content, Democrats believe that Emory should have a speech
code and should use it to restrict speech they deem offensive, such as speech against
homosexuals and abortion. While minority ethnicities supported more restrictions on kinds of
speech at Emory, they were split over whether Emory should have a definite speech code. In

contrast, the majority of Caucasians did not believe in restricting speech in the racial scenario or
the sexuality scenario. However Caucasians were evenly split on restricting speech against
homosexual marriage and abortions. While 65.7% of Caucasians believed Emory already has a
speech code, only 52.8% believe Emory should. Finally, the majority of females believed speech
could be restricted against anti-gay marriage speech and anti-abortion speech. A slight majority
of females believed that Emory should and does have a speech code. Males were equally split on
restricting anti-gay marriage speech and a slight majority favored restricting anti-abortion
speech. A substantial majority of males believed that Emory does have a speech code, while a
lesser majority believed that it should.
Analysis
The most surprising part of the data was that the majority of Emory students believe that
Emory should have a speech code. Although only 59.9% were in favor of a speech code and they
faced a sizable opposition of 40%, the fact is that the majority of college students today believe
in restricting speech that should be protected by the First Amendment. It was also surprising that
56.3% recognize Emory has a speech code. It is not that students are unaware or don't care that
their civil liberties are being violated; it's just that they support the mandated restriction of
speech rights. Of course, a more extensive survey would serve to provide a more accurate and
descriptive look at the opinions of Emory students regarding the presence of speech codes, and
what types of speech they think should be prohibited. My survey is limited in respondents and is
not truly random because of its voluntary nature.
Conclusion
The ramifications of this study should not be overlooked. Even though Emory is not a
public school and does not legally have to abide by the First Amendment, one would hope that

students would demand respect of their natural rights nonetheless. However, they do not. The
one-sided nature of the modern university has molded students into believing that there is one
correct way to view an argument. Any argument that goes against the societal norm or could
possibly be seen as insulting should be removed from academic circles. In the article, Free
speech is so last century. Todays students want the right to be comfortable Brendan ONeill
of The Spectator describes how he was prevented from representing the pro-life side of an
abortion debate at Christ Church, Oxford because students threatened to protest. Brendan
describes how they they said it was outrageous that two human beings who do not have
uteruses should get to hold forth on abortion identity politics at its most basely biological
and claimed the debate would threaten the mental safety of Oxford students (Brendan). Just as
the majority of Emory students believed a pro-life student should not be able to promote their
views around campus, these Oxford students did not believe that Brendan had the right to voice
opinions that dont fit prevailing groupthink (Brendan). These students believe they have the
right to feel comfortable and that the idea that in a free society absolutely everything should
be open to debate has a detrimental effect on marginalized groups (Brendan).
As a culture, universities need to reaffirm the importance of free speech. Speech should
not be restricted because it makes someone uncomfortable, hurts their feelings, or because they
disagree. Students should be pushed to recognize the validity of arguments they may not agree
with so they can combat them with better arguments that support their positions. And if they are
not willing to do so, perhaps they should change the Bill of Rights to only protect speech that
does not harass.

Works Cited
Calvert, C. "Hate Speech and Its Harms: A Communication Theory Perspective." Journal
of Communication 47.1 (1997): 4-19. Web.
Gould, Jon B. Speak No Evil: The Triumph of Hate Speech Regulation. Chicago: U of
Chicago, 2005. Print.
Shiell, Timothy C. Campus Hate Speech on Trial. Lawrence, Kan.: U of Kansas, 1998.
Print.
"What Are Speech Codes? - FIRE." FIRE. N.p., 27 June 2013. Web. 14 Dec. 2014.