Unconstitutional University Speech Policies Barikor 1

Unconstitutional University Speech Policies:

Review of the Speech and Expression Policies from the University of Northern Iowa

Naa-ep L. Barikor

University of Northern Iowa

Author Note

Research assistance courtesy to the UNI Department of Communication and the Rod

library.
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Abstract

While speech policies on college campuses has been a trend since the late 1980s, the legal

precedence against such policies have consistently grown. The University of Northern Iowa’s

speech policies show similarities to problem policies that have lost legal battles. There is a

pattern in the way university or college policies are written that leads to a lack of clarity and

potential for abuse. By the letter of the law in the U.S. Constitution, Bill of Rights, and Supreme

Court precedence, speech policies in higher education lack legality.

Keywords: Speech codes, speech policies, academic freedom, college campus, university,

universities, higher education, free speech, free expression, hate speech.

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Unconstitutional University Speech Policies:

Review of the Speech and Expression Policies from the University of Northern Iowa

The University of Northern Iowa Policies and Procedures found online lists a number of

different codes regarding speech and expression. The scope of literature examined includes: 3.02

Student Conduct Code; 9.54 Acceptable Use of Information Technology Resources; and 13.02

Discrimination, Harassment, and Sexual Misconduct Policy. Speech policies, also known as

speech codes, have grown in prominence since the 1980s, and these policies have also seen many

universities and colleges get taken to court on the grounds of the First Amendment. On the topic

of free speech and expression, the courts have cited the First Amendment and the Fourteenth

Amendment as granting people these rights in America. With the common trend of higher

education institutions losing legal battles over speech policies, it is important to recognize

beforehand what makes most speech policies unconstitutional, so no one’s rights are abused. The

UNI policies over speech and expression are unconstitutional because of vagueness and

overbreadth, and thus, these policies hurt the academic freedom and free expression of those to

whom the apply. First, the legal language of the policies will be examined to show the negative

implications on free speech. Second, the legal precedence against speech policies or institutional

speech will be contextualized to UNI. Lastly, the ideal of academic freedom within universities

and UNI will be reviewed. Prior to the critical analysis of the UNI speech policies, a term must

be clarified.

A speech policy or speech code is a policy or regulation in higher education that

“prohibits expression that would be protected by the First Amendment in society at large,”

according to the FIRE website. US Legal’s website also expands that definition to mean
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limitations, restrictions, or complete bans of free speech and expression that goes beyond the

narrow scope already established by the Supreme Court and the Constitution.

Speech Policies and Implications

The UNI speech policies explicitly contradict the First Amendment by their sheer

existence because it is an overreach of power. The language of the policies on include “the

creation or distribution of video, audio, or photographic files,” “writing offensive and/or

inappropriate language or symbols,” “unsolicited messages,” and “verbal, written, graphic,

threatening…conduct” (3.02, 9.54, 13.02). The Constitution protects all forms of speech and

expression in the Bill of Rights.

“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 (U.S. Const. amend. I).”

The right to free speech and expression is further protected in the Fourteenth Amendment.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws (U.S. Const. amend.

XIV, § 1).”

The abridging of free speech is not permitted to the federal or local governments. To suspend

such liberties that American society was built on would be a disastrous endeavor because

“…gagged language creates dissidents…” (Henninger, D. para. 21). Speech codes encourage the
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encourage the restriction of certain topics for discussion. “Whole classes of people… were

immunized against being the subject of critical speech,” through the enforcement of speech

codes in areas of higher education (Henninger, D. para. 18). In an IowaWatch news article,

James Hampton, an Iowa professor, expressed he thinks the exchange of new ideas should be

promoted freely in higher education and restrictions do not make sense (Fisher, N., Olsasky, C.,

Johnson, K., & Muller, L., 2016). The same article cited a national Gallup Poll that showed 8 out

of 10 collegiate aged students thought that colleges have a more important duty to allow

offensive speech than they do to prohibit forms of speech. The results also showed that 7 out of

10 adults agreed (Fisher, N., Olsasky, C., Johnson, K., & Muller, L., 2016). Despite the feedback

from Iowa students and professors, it seems that the trend of speech policies is resolutely

apathetic.

“Broadly written speech codes adopted by public institutions — and private institutions

adhering to First Amendment standards — are unconstitutional. The legal parameters are

becoming so well settled that enforcement of those codes may expose public-college

administrators to personal liability for violating clearly established constitutional rights”

(Pavela, G. 2006. para. 2).

UNI is gambling with legal precedence and its students constitutionally given rights to free

speech and expression.

Legal Precedence

There have been many hallmark Supreme Court cases that further elaborate the freedoms

of speech and expression. One close to Iowa is the Tinker v. the Des Moines Independent

Community School District. There the Court found:

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“First Amendment rights, applied in light of the special characteristics of the school

environment, are available to teachers and students. It can hardly be argued that either

students or teachers shed their constitutional rights to freedom of speech or expression at

the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50

years (393 US 503).”

But despite this ruling, UNI’s various policies restrict such freedoms by applying them to anyone

on university grounds or using university internet services:

“Key prohibitions include: Sending unsolicited messages, including unsolicited

commercial email (“junk mail”) or other advertising material, to individuals who did not

specifically request such material,” (9.54).

While it would seem positive to restrict forms of expression found to be unwelcome, the law

clearly does not give institutions the right to restrict such expression.

“The First Amendment prevents government from punishing speech and expressive

conduct because it disapproves of the ideas expressed… Government has no authority ‘to

license one side of a debate to fight freestyle, while requiring the other to follow the

Marquis of Queensbury Rules,’” (R.A.V. v. City of St. Paul).

This is particularly important to note for students living in on-campus residence halls because

policy 3.02 specifically restricts their speech on the basis of disapproval of ideas: “Writing

offensive and/or inappropriate language or symbols on dry erase boards, bulletin boards, posted

signs, door decorations, skywalks, or other public areas are not permitted.” The issue of

offensive speech can easily be misunderstood, but the courts have established a distinct

difference between offensive speech, and even hate speech, and fighting words. Offensive

speech that does not qualify as fighting words are protected: “Any measures that restrict such
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expression are unconstitutional on the grounds of overbreadth and/or vagueness,” both of which

a present in the policy 3.02 (Gould, J. 2001 p. 351). There is great caution to be taken in regards

to attempts to silence or suppress offensive speech. Justice Hugo Black stated in a dissenting

opinion,

“I do not believe that it can be too often repeated that the freedoms of speech, press,

petition and assembly guaranteed by the First Amendment must be accorded to the ideas

we hate or sooner or later they will be denied to the ideas we cherish,” (367 U.S. 1).

This also includes policies meant to protect special classes. The UNI policies explicitly name

several protected classes:

“…age, color, creed, disability, ethnicity, gender identity, genetic information, marital

status, national origin, political affiliation, pregnancy, race, religion, sex, sexual

orientation, veteran or military status, or any other protected category under applicable

federal, state, or local law…” (13.02).

But the language surrounding these classes prohibits behavior based on “actual or perceived

membership in a protected class,” making the matter fully subjective to those involved (13.02).

Gould refers to policies of this nature as skirting the line of constitutionality, “as verbal abuse

falls into the common law category of harassment, which itself is a narrow, subjective basis to

restrict expression.” He further states that codes that distinguish verbal abuse by specific classes

“almost certainly contradict current law,” (Gould, J. 2001. p. 351). Gould also stated it was

unsurprising that higher education takes this stand, but it does go against the apparent standard of

academic freedom.

Academic Freedom
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UNI President J.W. Maucker made won the Alexander Meiklejohn Award for upholding

academic freedom in 1968, and is still the only Iowa university with that award, but the ideal of

academic freedom today still struggles to be accepted fully in higher education (Alexander

Meiklejohn award for academic freedom). The origins of academic freedom are “descended from

the German idea of Lehrfreiheit (freedom of the teacher),” and have since, “evolved as a

professional ideal within American universities” (Chang, A.W. 2001, p. 919). The American

Association of University Professors (AAUP) has issued statements on academic freedom as

early as the 1915s according to Chang (p. 919). One of the ideals of academic freedom is the

freedom for students and professors to express ideas. In a hallmark Supreme Court case for

academic freedom, the Court stated:

“These are rights which are safeguarded by the Bill of Rights and the Fourteenth

Amendment. We believe that there unquestionably was an invasion of petitioner's

liberties in the areas of academic freedom and political expression — areas in which

government should be extremely reticent to tread,” (354 U.S. 234).

The paramount issue with all cases of speech codes is this recurring idea of government or

institutions of power not being allowed the authority to control what people say or how they

choose to say it. Sweezy v. New Hampshire also stated:

“Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and

students must always remain free to inquire, to study and to evaluate, to gain new

maturity and understanding; otherwise our civilization will stagnate and die,” (354 U.S.

234).
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Like the IowaWatch article discussed, higher education and college campuses specifically is the

area where people expect to have new ideas and even uncomfortable ideas shared. That

sentiment was also expressed in the Healy v. James case:

“The present case is minuscule in the events of the 60's and 70's. But the fact that it has to

come here for ultimate resolution indicates the sickness of our academic world, measured

by First Amendment standards. Students as well as faculty are entitled to credentials in

their search for truth. If we are to become an integrated, adult society, rather than a

stubborn status quo opposed to change, students and faculties should have communal

interests in which each age learns from the other. Without ferment of one kind or another,

a college or university (like a federal agency or other human institution) becomes a

useless appendage to a society which traditionally has reflected the spirit of rebellion,”

(408 U.S. 169).

The Court decision “maintained that the academic freedom of students entitled them to

unfettered exposure to diversity of thought…” (Chang, A.W. 2001, p. 919). The existence of

speech codes on college campuses threatens the ideal at the bedrock of the American higher

education experience.

Conclusion

The UNI speech policies existence goes directly against the legal precedence set by the

Constitution and the courts, and as such, it puts the higher education ideal of academic freedom

in jeopardy. The First Amendment and the Fourteenth Amendment affirm that at no level of

government is freedom of speech and expression allowed to be abridged. Multiple Supreme

Court cases have further developed the ideas of free speech and expression, and even cover the

issue within the realm of education. Although academic freedom is a lesser established court
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topic, it is championed by the AAUP and a noteworthy cause once at UNI’s forefront thanks to

former President Maucker. It would be remiss of UNI to wait until they are legally challenged on

their policies before reinstating privileges that American students can have outside of its

grounds. UNI should make the legally compliant move of removing all restrictive speech policies

and update their affirmation to the ideal of academic freedom.

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References

Alexander Meiklejohn award for academic freedom. AAUP. Accessed March 20, 2017.

Retrieved from https://www.aaup.org/about/awards/alexander-meiklejohn-award-

academic-freedom

Chang, A. (2001). Resuscitating the Constitutional "Theory" of Academic Freedom: A Search

for a Standard beyond Pickering and Connick. Stanford Law Review, 53(4), 915-966.

doi:10.2307/1229495

Communist Party of the United States v. Subversive Activities Control Board No. 12 367 U.S. 1

(1961)

Fisher, N., Olsasky, C., Johnson, K., & Muller, L. (2016, May 2). Search for civil speech on

college campuses collides with first amendment. IowaWatch.org Retrieved from

http://iowawatch.org/2016/05/02/search-for-civil-speech-on-college-campuses-collides-

with-first-amendment/

Gould, J. (2001). The precedent that wasn't: College hate speech codes and the two faces of

legal compliance. Law & Society Review, 35(2), 345-392. doi:10.2307/3185406

Healy v. James, 408 U.S. 169 (1972)

Henninger, D. (2002, May 17). Wonder land: How our age dumbed down even invective.

Wall Street Journal. Retrieved from

https://search.proquest.com/docview/398882453?accountid=14691

Pavela, G. (2006). Only speech codes should be censored. Chronicle of Higher Education, 53

(15), B14

R.A.V. v. City of St. Paul. (n.d.). Oyez. (2017, March 16). Retrieved from

https://www.oyez.org/cases/1991/90-7675
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Speech code law and legal definition. (2016). Retrieved from

https://definitions.uslegal.com/s/speech-code/

Sweezy v. New Hampshire, 354 U.S. 234 (1957)

Tinker v. Des Moines Independent Community School District, 393 US 503 (1969)

U.S. Const. amend. I

U.S. Const. amend. XIV, § 1

What are speech codes? (2013, June 27). Retrieved from https://www.thefire.org/spotlight/what

are-speech-codes/