Question Time With Mo: Are Speech Codes Constitutional?

The Federal government and state governments are broadly forbidden by the First Amendment of the Constitution from restricting speech. See, e.g., Gitlow v. New York, 268 U.S. 652 (1925), De Jonge v. Oregon, 299 U.S. 353 (1937), Wolf v. Colorado, 338 U.S. 25 (1949), and Gideon v. Wainwright, 372 U.S. 335 (1963).  Generally speaking, the First Amendment prohibits governments from regulating the content of speech, subject to a few recognized exceptions such as defamation and incitement to imminent lawless action.  Even in cases where speech encourages illegal violence, instances of incitement qualify as criminal only if the threat of violence is imminent. This strict standard "prevents prosecution of many cases of incitement, including prosecution of those advocating violent opposition to the government, and those exhorting violence against racial, ethnic, or gender minorities." See, e.g., Yates v. United States, 354 U.S. 298 (1957), Brandenburg v. Ohio, 395 U.S. 444 (1969).

In the 1980s and 1990s, more than 350 public universities adopted "speech codes" regulating discriminatory speech by faculty and students. These codes have not fared well in the courts, where they have been frequently overturned as violations of the First Amendment. See, e.g., Doe v. Michigan, 721 F. Supp. 852 (1989), UWM Post v. Board of Regents of University of Wisconsin, 774 F. Supp. 1163 (E.D. Wis. 1991), Dambrot v. Central Michigan University, 839 F. Supp. 477 (E.D. Mich. 1993), aff'd, 55 F.3d 1177 (6th Cir. 1995), Corry v. Stanford, No. 740309 (Cal. Super. Ct. Feb. 27, 1995).

Governmental restrictions, including those imposed by an institution or entity receiving public monies, on constitutional rights that undergo strict scrutiny are most commonly, but not invariably found invalid.  Debate over the restriction of the nebulous definition of "hate speech" in public universities continues to resurface periodically with the adoption of anti-harassment codes covering discriminatory speech.  While the Court has refused to grant certiorari to any case involving speech codes and has allowed the rulings of the appellate courts to stand, the common position of the bar is that, eventually, the Court will rule on whether speech can be censored on campuses.  There are few other issues that aim straight at the heart of the Republic than the idea of parameters being placed on what constitutes permissible, protected speech and how those limits might be defined.  Broadly speaking, the Court has allowed restrictions where there exists speech that has a great possibility of inciting imminent lawless action, i.e., a riot.  Never has the Court restricted speech based on how words or expressions might affect the recipient of same.  Such a reconfiguration of how speech is determined to be legal based on the feelings of others will be a step toward the type of hate speech crime laws that have had an Orwellian effect on the people of Britain, Canada, and Europe.  As an aside, I ask you to familiarise yourself with the broad laws of those nations and imagine how they would play in the United States.  What would it mean to our political discourse bearing in mind that political speech, above all else, is the most critical to the continuance of the United States as a free society where the government serves at our pleasure?  Can you imagine being prosecuted for hate speech crimes because your scholarly work on, say, the demographic impact of Muslim immigrants in Michigan has offended a radical imam at a mosque in Dearborn?  Not only could it happen, it has in Toronto, Canada.

In order for a law or code restricting speech to be constitutional, it must survive strict scrutiny. Along with the lower standards of rational basis review and exacting or intermediate scrutiny, strict scrutiny is part of a hierarchy of standards employed by courts to weigh an asserted government interest against a constitutional right or principle that conflicts with the manner in which the interest is being pursued, United States v. Carolene Products Company, 304 U.S. 144 (1938). Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the Federal government, a state government, or a local municipality is at issue.  For a law or code restricting speech to survive strict scrutiny and be upheld as constitutional it must be 1) narrowly-tailored, 2) the state must also have a compelling governmental interest, and 3) the law or policy must be the least restrictive means for achieving that interest.

Strict scrutiny arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights and those the Court has deemed to be a fundamental right protected by the "liberty" or "due process" clause of the Fourteenth Amendment; or when the government action involves the use of a "suspect classification" such as race or, sometimes, national origin that may render it void under the Equal Protection Clause.  See Carolene, supra, at FN4.

Let's take each of the prongs and consider them in greater detail:

FIRSTLY, any restriction must be justified by a compelling governmental interest. While the Court has never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.  For an idea of what constitutes a bright-line test, see Miranda v. Arizona 384 U.S. 436 (1966), Goldberg v. Kelly, 397 U.S. 254 (1970), S.E.C. v. Chernery Corporation, 332 U.S. 194 (1947), Heckler v. Campbell, 461 U.S. 458 (1983), Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988), Sameena, Inc. v. U.S. Air Force, 147 F.3d 1148 9th Cir. (1998). 

SECONDLY, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (Overbreadth Doctrine) or fails to address essential aspects of the compelling interest (Under-Inclusive Doctrine), then the rule is not considered narrowly tailored. 

Overbreadth Doctrine.  A statute doing so is overly broad if, in proscribing unprotected speech, it also proscribes protected speech. Overbreadth is closely related to vagueness; if a prohibition is expressed in a way that is too unclear for a person to reasonably know whether or not their conduct falls within the law, then to avoid the risk of legal consequences they often stay far away from anything that could possibly fit the uncertain wording of the law. The law's effects are thereby far broader than intended or than the Constitution permits, and hence the law is overbroad.  The esteemed constitutional scholar, Lewis Sargentich, first analysed and named the doctrine in his famous note in the Harvard Law Review, The First Amendment Overbreadth Doctrine (83 Harv. L. Rev. 844). Then, citing Sargentich's note, the Court in Broadrick v. Oakland, 413 U.S. 601, explicitly recognized the doctrine in 1973. 

Under-Inclusive Doctrine.  An under-inclusive law is not necessarily unconstitutional or invalid. The Court has recognised that all laws are under-inclusive and selective to some extent. If a law is substantially under-inclusive, however, it may be unconstitutional.  If a law infringes on constitutionally protected free speech, press, or associational rights, it may be unconstitutionally under-inclusive if it is based on the content of the speech or somehow regulates ideas. In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Court struck down a hate speech ordinance that prohibited "the display of a symbol which one knows or has reason to know 'arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.'" A youth in St. Paul, Minnesota, had been prosecuted under the ordinance for burning a cross in the yard of an African-American family. The Court held that the law was unconstitutionally under-inclusive under the First Amendment because it punished only certain speech addressing particular topics; the law addressed the content, rather than the manner, of the speech.

A law is not necessarily invalid just because it is under-inclusive. For example, a statute that prohibited the use of loudspeaker systems near a hospital might be under-inclusive for failing to prohibit shouting or the use of car horns in the same area. This type of under-inclusiveness concerns only the manner of delivering speech, however, and is therefore more likely to pass constitutional scrutiny than a statute that prohibits speech on particular subjects. 

THIRDLY AND FINALLY, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.  The "least restrictive means," or "less drastic means," test is a standard imposed by the courts when considering the validity of legislation that touches upon constitutional interests. If the government enacts a law that restricts a fundamental personal liberty, it must employ the least restrictive measures possible to achieve its goal. This test applies even when the government has a legitimate purpose in adopting the particular law. The "Least Restrictive Means Test" has been applied primarily to the regulation of speech. It can also be applied to other types of regulations, such as legislation affecting interstate commerce.

In Shelton v. Tucker, 364 U.S. 479 (1960), the Court applied the least restrictive means test to an Arkansas statute that required teachers to file annually an Affidavit listing all the organisations to which they belonged and the amount of money they had contributed to each organisation in the previous five years. B. T. Shelton was one of a group of teachers who refused to file the affidavit and who, as a result, did not have their teaching contract renewed. Upon reviewing the statute, the Court found that the state had a legitimate interest in investigating the fitness and competence of its teachers, and that the information requested in the affidavit could help the state in that investigation; however, according to the Court, the statute went far beyond its legitimate purpose because it required information that bore no relationship to a teacher's occupational fitness. The Court struck down the law because its "unlimited and indiscriminate sweep" went well beyond the state's legitimate interest in the qualifications of its teachers.

Two constitutional doctrines that are closely related to the least restrictive means test are the Overbreadth Doctrine, supra, and Vagueness Doctrine. These doctrines are applied to statutes and regulations that restrict constitutional rights. 

The least restrictive means test, the Overbreadth Doctrine, and the Vagueness Doctrine all help to preserve constitutionally protected speech and behaviour by requiring statutes to be clear and narrowly drawn, and to use the least restrictive means to reach the desired end. 

Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because popular perception is that most laws subject to this standard are struck down. An empirical study of strict scrutiny decisions in the federal courts, however, conducted by Adam Wrinkler found that laws survive strict scrutiny over 30% of the time. In one area of law, religious liberty, laws survived strict scrutiny review in nearly 60% of applications.

Three Landmark Cases:

Students' free speech rights sometimes clash with schools' interest in maintaining control of public education. Students' First Amendment liberties were affirmed by the Court in the landmark case, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). In Tinker, the Court ruled that public school students could not be penalised for wearing symbols, such as black armbands, to protest the Vietnam War. Such bans violated the free speech and expression rights of the students.

In two subsequent cases that dealt with censorship, the Court took a more restrictive judicial view of students' right to free expression where funding for school newspapers was provided by the institution. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, (1988), the Court ruled in favour of a public school principal, who removed several articles from a student newspaper. The articles dealt with a teen's pregnancy and her feelings about her parents' divorce. The Court held that a school newspaper is not a public forum. Since it is not a public forum and funding comes from the institution, school officials have the right to determine what type of student speech is appropriate and it may regulate such speech.

In Planned Parenthood v. Clark County School District, 941 F.2d 817 (1991), the court used Hazelwood to uphold the school's ban of advertisements from Planned Parenthood in a public high school newspaper.

The latter two holdings are, primarily, based on the fact that the school funds the newspapers. They are in contrast to Tinker that saw a prohibition in a school's dress and behaviour code struck down as unconstitutional because it failed to survive strict scrutiny and infringed on a student's free speech and expression rights.

As mentioned in the introduction, the Supreme Court has yet to grant certiorari for a case involving speech codes or hate speech in an educational institution.  If and when the Court agrees to hear a speech code or hate speech case, I think that it will likely build on Hazelwood, supra, and Planned Parenthood, supra, by adding Christian Legal Society v. Martinez, 08-1371 (2010). Christian Legal was a recently decided case involving a Christian law student group at Hastings Law School. Homosexuals wanted to be admitted to the group, but did not wish accept the tenets of the Christian faith as they apply to homosexuality. Furthermore, the gay students were offended by the religious scriptures against homosexuality and the personal faiths of the heterosexual students.  The Court ruled that, not unlike in Hazelwood, as long as a student group is getting funding from the university, the educational institution can decide what speech or practises that may be discriminatory it will allow.  The student group must abide by the speech and behaviour code of the educational institution. The Court focused on funding, not freedom of speech or religion.

Before we move on, I would like to comment on the ruling in Christian Legal Society. The holding in the case has troubled many of us, who specialise in constitutional law.  The qualms raised are not necessarily fact specific to the instant case; instead, the possible implications for future proceedings are unknown and troubling.

Probably one of the most difficult positions in which we find ourselves in the law and one that we, needless to say, try to avoid is a situation where it is necessary to either balance competing constitutional rights or to elevate one individual's rights over that of another.  In Christian Legal Society, the first set of rights to evaluate is that belonging to the Christian students.  Obviously, they have rights of freedom of speech, religion, and association.  Had the group raised its own funding for its meetings, literature, etc., the Court would have likely found for the religious group.  Because the university funded the group, however, it had the right to mandate the rules for sanctioned groups.  Hastings Law School has both a non-discrimination policy and speech code.  For this reason, the meetings must be open to all students.  Now, this case applies to other university funded groups, as well.  The LGBT group must admit Christians.  The school's chapter of NOW must admit the Muslim Men's Society.  That's the law.  Hopefully, the competing groups will remember that just because you can do something doesn't mean that you should.  On a more serious note, let us hope that the Court maintains the funding basis for this decision.  If funding foundaton is ever stripped away, the fears all of us that cherish the First Amendment and, indeed, the Constitution as a whole, will become very real, very quickly.  And, for those that dream of speech codes to prevent the feelings of some from being hurt, you seek that which you do not know and you will rue the day that you find it.

Speech Codes and Behavioural Policies and the Workplace:

One final area that we must address is how speech codes or behavioural policies affect employees.  Obviously, each place of employment will have its own rules and regulations and one must familiarise herself with what is expected of her while on the job and, in some cases, outside of the workplace.  Having said this, two areas are of special importance and must be considered.

One of the areas where the government, including public universities, has wide latitude in censoring speech and information involves the internet. In 1996, Virginia became the first state to pass a law that “restricts access by state employees to lascivious sexually explicit material on computers owned or leased by the state.” In Urofsky v. Gilmore, 216 F.3d 401 (2000), the 4th U.S. Circuit Court of Appeals held that the speech at issue — “access to certain materials using computers owned or leased by the state for the purpose of carrying out employment duties” — was clearly made in the employee’s role as employee. Therefore the statute “does not affect speech by [the professors] in their capacity as private citizens on matters of public concern” and thus “does not infringe the First Amendment rights of state employees.” 

One caveat to the general rule that speech is unrestricted and protected can be found in Title VII of the Civil Rights Act of 1964. Employers may sometimes be prosecuted for tolerating "hate speech" by their employees, if that speech contributes to a broader pattern of harassment resulting in a "hostile or offensive working environment" for other employees. See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), Patterson v. McLean Credit Union, 491 U.S. 164 (1989).  These cases do happen frequently and you should be very familiar with the policy of your workplace and, as an employer, it is critical that you protect both your employees and your business.



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