According to Yale University political science lecturer Jim Sleeper, undergraduate universities are “civil societies on training wheels” within the “guardrails and guidance that are set by deans and faculty.” It is at universities that students start defining their beliefs and exposing themselves to different perspectives, and it is at universities where undergraduates learn to engage in civil discourse. Some may consider “guardrails and guidance,” such as posting policies and campus speech codes, tools to cultivate students’ ability to engage politely. However, it has the opposite effect. Posting policies and campus speech codes limit students’ freedom to express different perspectives on campus.
Case Western Reserve University is no exception to this issue. In August, the Foundation for Individual Rights in Education (FIRE) chose the following portion of our university’s posting policy as “Campus Speech Code of the Month: “[posting] of any derogatory, obscene, or offensive message, either explicitly or implicitly, is strictly prohibited.”
FIRE, a non-profit organization that promotes individual rights in higher education, argues that CWRU’s posting policy is too ambiguous. Although the university aims to create an inclusive and welcoming community, FIRE’s concern with the policy’s ambiguity is valid. Susan Kruth, JD, a senior program officer at FIRE, will be a guest speaker for the university’s Constitution Day forum, “Freedom of Expression on Campus,” at the CWRU Law School Moot Courtroom from 4 to 5:30 p.m. on Monday, Sept. 18.
“Derogatory” and “offensive” are overbroad terms. Anything could be deemed “derogatory” or “offensive.” Not providing conditions or definitions for these two adjectives leads to vagueness and lack of clarity. Therefore, CWRU’s policy guideline is not useful. It creates a “chilling effect” on freedom of expression for student organizations and individuals because they fear facing punishment for posting materials that another student would find objectionable.
Proponents of the university’s posting policy might argue that the university has an interest in fostering an inclusive and welcoming environment for its students. However, unclear categorization of protected expression promotes the silencing of groups and individuals. There is a legitimate interest in preserving safety and order on campus, but offensive speech is a constitutionally protected form of expression under the First Amendment.
In Brandenburg v. Ohio (1969), the Supreme Court found that speech is not protected if it is “directed at inciting or producing imminent lawless action” and it is “likely to incite or produce such action.” Cohen v. California (1971) extended the Brandenburg decision. In Cohen, the Court upheld the display of expletives as a protected form of expression. While expletives could be considered an offensive form of speech to some, Justice John Marshall Harlan wrote that “one man’s vulgarity is another’s lyric.”
If the university wishes to attain an inclusive and diverse environment, it should favor methods which intrude less on students’ freedom of expression. Ambiguity and lack of clear guidelines in policy creates an overreach.
For freedom of thought and expression, the university must create policies and host programs that encourage students to engage with each other and to challenge their own beliefs. In West Virginia State Board of Education v. Barnette (1943), Justice Robert Jackson wrote that the role of schools in society is to “educate the young for citizenship.”
While universities might be considered “civil societies on training wheels,” this posting policy is a set of “training wheels” that students no longer need. Just as training wheels are steadily removed as a child learns to bike, some unnecessary restrictions must be eased or eliminated to help students eventually become thoughtful, active citizens in society.