A Small Distinction with a Large Difference

This article has been written by guest author Erica Goldberg, B.A., Tufts University, 2002; J.D., Stanford University, 2005.

Earlier this month, the Foundation for Individual Rights in Education (FIRE), a nonpartisan nonprofit organization where I serve as the Justice Robert H. Jackson Legal Fellow, announced that Arizona State University (ASU) had become one of only 14 colleges and universities across the nation to receive our “green light” rating with regard to policies governing speech on campus. This distinction, earned by seemingly small revisions in ASU policy language, means that ASU no longer maintains any university policies that clearly and substantially restrict speech protected by the First Amendment. ASU joined the ranks of universities without unconstitutional speech codes by shifting its advertising policy applicable to student organizations from a mandatory requirement to an aspirational goal. Although the changes in verbiage were slight, they signify the difference between a constitutional and an unconstitutional speech policy.

ASU’s advertising policy formerly required that “[a]ll advertising must avoid the promotion of excessive use of alcohol and must make reasonable effort to avoid demeaning, sexual or discriminatory portrayal of individuals or groups.” (Emphasis added.) This policy was an unconstitutional speech restriction. Supreme Court cases dating back almost 40 years, including the recently decided Christian Legal Society v. Martinez, — U.S. —, 130 S.Ct. 2971 (2010), affirm that public universities like ASU, bound by the dictates of the First Amendment, must not promulgate speech restrictions that discriminate against students and student organizations on the basis of viewpoint. See Healy v. James, 408 U.S. 169, 187-88 (1972) (“The College, acting here as the instrumentality of the State, may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent.”).  University policies, including those governing student organizations, must therefore be viewpoint-neutral.

ASU’s former policy restricted those who wished to espouse particular viewpoints or engage in controversial expression. For example, as FIRE wrote in a letter to ASU President Michael M. Crow, the student group “Voices for Planned Parenthood,” whose stated goals include “promoting sexual education and health,” might run afoul of this policy if its advertisements included sexual content–as they very well might. Moreover, because the policy’s restrictions are unduly vague, the university could selectively enforce the policy against groups with controversial viewpoints about, for example, religion and gender roles, or against groups with particular political stances. While ASU is legally required to prohibit and respond to instances of truly discriminatory harassment, and while universities may prohibit acts of discrimination in the form of exclusionary conduct on the basis of protected class status, ASU cannot prohibit student organizations from engaging in pure, protected speech that expresses “demeaning, sexual or discriminatory portrayal of individuals or groups.”

This does not mean that universities must endorse viewpoints that they deem objectionable. Although a public university cannot forbid certain types of protected speech on the basis of viewpoint, it may engage in its own speech that communicates a particular viewpoint. See Three’s a Crowd: Defending the Binary Approach to Government Speech, 124 Harv. L. Rev. 805 (2011). Universities may also create aspirational policies expressing the way it would prefer students to communicate. (For example, a university can articulate that it prefers students to treat each other with civility and respect). So long as these aspirational goals are not perceived as enforceable mandates, and so long as a university does not appear to be using its power to penalize or substantially chill particular points of view, a university can lawfully create policies that articulate the types of expression it would like to encourage.

Fortunately, ASU quickly appreciated the difference between mandatory requirement and expression of preference. Now, ASU’s advertising policy provides that advertising “should be consistent with ASU’s policy of discouraging demeaning, sexual or discriminatory portrayal of individuals or groups.” (Emphasis added.) ASU General Counsel José Cárdenas has assured FIRE that students cannot and will not be punished under the policy for engaging in speech protected by the First Amendment. Other schools, including Penn State University and the University at Buffalo, have also revised their speech policies to reflect the constitutionally significant difference between mandatory and aspirational policy.

Justice Robert H. Jackson, for whom my fellowship at FIRE is named, once eloquently wrote that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W.Va. St. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). That sentiment applies just as much to the unconstitutional school policy in Barnette, which required public school students to salute the American flag in order to promote patriotism during World War II, as to equally well-intentioned policies mandating how student organizations on university campuses represent themselves and advertise their activities. On university campuses comprised of adults, even more so than in high schools and lower levels of education, students must be free to voice dissenting or controversial views that may be unpalatable to their peers.