Violating the First Amendment · 13 July 2006

By Laura


Despite the fact that the majority of courts have struck down speech codes as being unconstitutional for overbreadth and/or vagueness, approximately 351 American universities, both public and private, are still enforcing such codes. This can be seen both in information collected by the Foundation for Individual Rights in Education (FIRE) as well as from the practicing college and university websites. The purpose of speech codes is to protect students from hearing words that may offend them. This protection comes at a high price: our fundamental First Amendment right of freedom of speech.

Although the Supreme Court has never decided a speech code case, the Tinker decision of 1969 provides some indication as to how the court would rule in such a case. In Tinker v. Des Moines, a few students planned to wear black armbands in protest of the Vietnam War. A source informed the school principals of the student's plan, and as a result, the principals enacted a policy prohibiting the wearing of armbands. The students wore the armbands anyway and the school suspended them.

In its decision, the Court noted, "…it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate." The only reason for suspending the students was the school officials' concern over the armbands possibly causing a disturbance. The Court, however, pointed out that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right of freedom of expression." The court held the limitation on free speech to be unconstitutional because there was no evidence that "might reasonably have led school authorities to forecast substantial disruption or material interference with school activities." Thus the Tinker test emerged.

A noteworthy case that applied the Tinker test to invalidate a speech code is that of Saxe v. State College Area School District (2001) written by Supreme Court Justice Alito while he was on the 3rd Circuit Court of Appeals. In Saxe, students and their guardians challenged the constitutionality of the anti-harassment policy imposed by the school district. The policy defined harassment as:

Harassment means verbal or physical conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment.
Examples of harassment given by the policy are "any unwelcome verbal, written or physical conduct which offends, denigrates or belittles an individual because of any of the characteristics described above."

The students and their guardians filed the case against the school district because the students feared that if they spoke out against homosexuality and declared it a sin, that their acts would be punishable under the anti-harassment policy. The district court previously declared that the anti-harassment policy only included acts which state and federal law already prohibited; therefore, the district court dismissed the claim. The Court of Appeals, however, disagreed.

The Court of Appeals noted that "there is no categorical 'harassment exception' to the First Amendment's free speech clause." The court further stated that "there is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another's race or national origin or that denigrate religious beliefs." The court cited the Supreme Court decision of Texas v. Johnson, "if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable." The court went as far as to say the policy "strikes at the heart of moral and political discourse."

Laura Ventura, a law student at Indiana University-Indianapolis, is an intern at Accuracy in Academia.