Campus Speech Is Free… As Long As It Isn’t “Biased”

Longwood University where campus speech is free... as long as it isn't biased.

Longwood University, site of the 2016 vice presidential debate, where campus speech is free… as long as it isn’t biased.

The Foundation for Individual Rights in Education (FIRE) has published its 2016 ratings of free speech in U.S. college campuses. Despite all the publicity given “safe spaces” and microagressions,” formal campus speech policies are getting somewhat less restrictive nationally, FIRE reports. Three Virginia universities stand among a small minority of institutions that do not threaten free speech. The rest are problematic.

Red Light (policies that clearly restrict free speech):
Norfolk State University

Yellow Light (policies that can be interpreted as restricting free speech):
Christopher Newport University
James Madison University
Longwood University
Mary Washington University
Old Dominion University
Radford University
Virginia Tech
Virginia State University

Green Light (policies do not seriously threaten free speech):
College of William & Mary
George Mason University
University of Virginia

While some universities are shifting away from restrictive speech codes, many have begun implementing “bias reporting” systems that encourage students to report one one another, and faculty members, whenever they subjectively perceive that someone’s speech or expression is biased. The FIRE report gave Longwood as an example:

Bias response systems, adopted by hundreds of institutions across the country, solicit reports of bias, which most universities explicitly define to encompass speech protected by the First Amendment. In some cases, the university realizes that it cannot impose speech codes, yet does so under the guise of providing “education” to offending speakers—through administrators.

Longwood University in Virginia, for example, recognized that “courts have not upheld … overly broad” speech codes. Instead, Longwood created a bias response system with a broad definition of bias: “a tendency or inclination; irrational preference or behavior that prevents unprejudiced consideration of people, events, or situations”—including “political or social affiliation.”

In an attempt to avoid the problem of unconstitutionality that Longwood recognizes, the policy provides that while “specific prohibitions” related to bias may be constitutionally problematic, the university will “include appropriate education sanctions when a student is found responsible.” Moreover, the policy leaves open the possibility that bias incidents could be subject to more severe sanctions under the university’s conduct policies, noting that bias incidents “may fall under the ‘Abuse to Persons’ violation” of Longwood’s conduct code.

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17 responses to “Campus Speech Is Free… As Long As It Isn’t “Biased”

  1. What happened to Liberty and Regent?

      • Good reasons for McAuliffe to address some of his budget problems by recommending a freeze in compensation for all public college and university management employees. Freeze compensation until common sense returns to administrators. Gitlow v. New York, 268 U.S. 652 (1925) held the First Amendment’s guarantee of free speech applies to the states. Why is this an issue?

  2. Doesn’t surprise me. Actually in a way it does: I figured it would be a lot worse.

  3. ” FIRE surveyed publicly available policies at 345 four-year public institutions

    and 104 of the nation’s largest and/or most prestigious private institutions.

    ” The percentage of private universities earning a red light rating, which stood at 60.6 percent last year, fell slightly to 58.7 percent. While private universities are generally not legally bound by the First Amendment, most make extensive promises of free speech to their students and faculty. Where such promises are made, speech codes impermissibly violate them.”

    geeze…

    just to remind – most of these “private” institutions DO benefit directly from student loans ….

  4. yet another right wing group that does not reveal who funds them…

  5. So, I admittedly have not done a deep dive into this topic, but the article implies that these “bias response” systems are deemed to jeopardize free speech in some non-specific way.

    So tell me this, when did the right to free speech acquire with it the right NOT to have your speech repeated to anyone?

    • Rowinguy1, can you clarify this statement? I’m not sure what you’re driving at.

      So tell me this, when did the right to free speech acquire with it the right NOT to have your speech repeated to anyone?

      • Sure, Jim. I was focused on this passage:

        “Bias response systems, adopted by hundreds of institutions across the country, solicit reports of bias, which most universities explicitly define to encompass speech protected by the First Amendment.”

        Which I interpreted to be a criticism of someone reporting another’s speech that the listener found offensive, i.e., repeating to someone else (presumably someone in authority) what some speaker had actually said.

        If Speaker A says something that Listener B regards as offensive and then Listener B repeats that remark to the Dean or whoever, how has Speaker A’s free speech right been abridged?

  6. no one is entitle to speak whatever they want anywhere they want anytime they want.

    I would guarantee you that if you went to a BOS meeting and got up and started speaking about some subject you wanted to – that you would be “quieted”.

    ditto at DMV as well as Church or even Walmart… and any number of public venues…

    more right wing idiocy… from groups whose funding is kept secret.

    • As well as exceptions for such things as obscenity, child pornography, incitement to riot, some libel and slander, courts have allowed certain restrictions on time and place. Larry’s example of interrupting a government meeting is a good illustration. And, in many cases, there can be restrictions on private property.

      However, the concept of restrictions based on the content of the speech is extremely dangerous and generally prohibited. Public institutions of higher learning cannot be permitted to regulate the content of speech based on content – period. It’s no different than the Neo-Nazis marching through the streets of Skokie, Ill. Offensive, but protected.

  7. Well… it’s a total misunderstanding of free speech.

    You’re ENTITLED to free speech – no question about it – but you are not entitled to exercise it anywhere, anytime and any place without restrictions and that includes ALL “Public” places.

    Try standing up in the middle of court and express your views about something and see where your “free speech” gets you.

    Try walking into a College Classroom or Library or some event in an auditorium and stand up and express yourself.

    There ARE “rules” – everywhere…

    basically you’re entitled to express yourself – but not any any venue you want to.

    And if you REALLY want to see how that process is playing out these days – visit some social media like Twitter or Facebook and see if even there you have a “right” to say “anything”….

    • Larry, your points are well taken — generally. It is permissible to impose content-neutral time and space regulations on speech. You could be prohibited from using a bullhorn at 2 am next to a hospital in a residential neighborhood from extolling the benefits of public school education, Terry McAuliffe, or the ACA – or vice versa. What cannot be done and must not be done is to allow some speech on the library steps, but prohibit the next guy from delivering his opposite views on the same subject. For example, the state cannot allow A to argue the evils rising from the South’s defense of slavery during the Civil War, while prohibiting B from arguing the world would have been better had the South prevailed. C cannot be allowed to speak for a liberal amnesty program for illegal immigrants who have not been convicted of an offense, while prohibiting D from arguing against such amnesty.

  8. re: ” What cannot be done and must not be done is to allow some speech on the library steps, but prohibit the next guy from delivering his opposite views on the same subject. ”

    I agree. Is there a claim that – that’s what is being restricted?

    Do you think that a University has the right to decide who can come speak at a sponsored event on campus?

    If a group of students invite some wacko who says the holocaust and Sandy Hook were not real – just govt-staged events or some fool who wants to show how to do religious animal sacrifices – to speak – and the University says no – is that restricting fee speech?

    what I’m trying to elicit here is an admission that not anyone is entitled to come speak at an event that provides a venue … yes they can come speak on the steps – but can they speak to a group that has reserved a University venue?

    • Larry, it depends on the type of event. A person does not have a First Amendment right to disrupt any event. But I think an authorized college or community group has a right to invite the speaker of choice to an event. And that can include someone who denies the Holocaust or Sandy Hook. Similarly, a college has the right to invite a speaker of choice to a college-sponsored event. Then law professor Ruth Bader Ginsburg spoke at my law school graduation. There was not a Q&A session that accompanied the speech. Nor was someone conservative invited to balance Ginsburg.

      Similarly, I think people have a First Amendment right to picket an event peacefully. But, as noted above, they don’t have a right to disrupt the event. Similarly, I believe it is impermissible for a public institution to allow groups to invite left-leaning speakers, but not right-leaning speakers. Or to cancel a speaker because some students disagree with the speaker’s views.

      Likewise, where there is Q&A or a time for audience comments, there should be no discrimination based on content.

  9. TMT – do you think a group of college kids could go to the administration and reserve a venue for anyone they wanted to invite who would speak on anything?

    Do you think they could invite a guy who would show them how to make bombs or harass people on social media or best ways to bully or intimidate people?

    come on TMT – admit it… there are going to be “rules”.

    You’d be one of those folks who would be outraged at certain kinds of “speech” that pushed the envelope…

    right?

    • Students should be able to access a venue for any type of discussion or lecture. If there are costs involved and other similar groups/entities have been charged fees, the requesting students should be charged the same fees.

      The courts have held that publishing directions to make a bomb is protected by the First Amendment unless the facts show the author/speaker is really trying to incite someone(s) specific to take unlawful action. Similarly, I think it would be protected speech to tell people how they can post on social media without being identified. If, on the other, hand this is really a plot to stalk an individual(s), it may well be a punishable crime.

      There’s lots of speech that irritates the hell out of me. Virtually everything the WaPo editorial board writes about Virginia sends my blood pressure up since it is so often based on lies or lack of knowledge due to employee laziness. But I think the Post has a right to publish and to argue whatever it wants. I believe in the First Amendment.

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