Just as the right wing efforts to silence speech about what they call critical race theory for lack of any meaningful description, fail to provide a sufficient precise and limited definition to pass constitutional muster, so too do efforts by the state, here by the University of Central Florida, in crafting a speech code to prohibit “discriminatory harassment.”
As Judge Kevin Newsom writes for a unanimous panel, the breadth of the UCF policy is “staggeringly broad.” How broad?
Discriminatory harassment consists of verbal, physical, electronic or other conduct based upon an individual’s race, color, ethnicity, national origin, religion, non-religion, age, genetic information, sex (including pregnancy and parental status, gender identity or expression, or sexual orientation), marital status, physical or mental disability (including learning disabilities, intellectual disabilities, and past or present history of mental illness), political affiliations, veteran’s status (as protected under the Vietnam Era Veterans’ Readjustment Assistant Act), or membership in other protected classes set forth in state or federal law that interferes with that individual’s educational or employment opportunities, participation in a university program or activity, or receipt of legitimately-requested services meeting the description of either Hostile Environment Harassment or Quid Pro Quo Harassment, as defined [below].
Discriminatory harassment may take many forms, including verbal acts, name-calling, graphic or written statements (via the use of cell phones or the Internet), or other conduct that may be humiliating or physically threatening.
But it’s not enough not to engage in prohibited conduct yourself, but prohibits the failure to intervene it when someone else does so.
There is one last piece of the discriminatory-harassment puzzle. Referencing the discriminatory-harassment policy, UCF’s Student Handbook states that “[s]tudents are prohibited” not only from engaging in the prohibited conduct themselves, but also from “[c]ondoning or encouraging acts of harmful behavior as defined [in the discriminatory-harassment policy] or failing to intervene during an act of harmful behavior while it is occurring.”
So what’s so wrong about all this? Judge Newsome explains.
The discriminatory-harassment policy is almost certainly unconstitutionally overbroad…. [T]he policy (1) prohibits a wide range of “verbal, physical, electronic, and other” expression concerning any of (depending on how you count) some 25 or so characteristics; (2) states that prohibited speech “may take many forms, including verbal acts, name-calling, graphic or written statements” and even “other conduct that may be humiliating”; (3) employs a gestaltish “totality of known circumstances” approach to determine whether particular speech, for instance, “unreasonably alters” another student’s educational experience; and (4) reaches not only a student’s own speech, but also her conduct “encouraging,” “condoning,” or “failing to intervene” to stop another student’s speech.
The policy, in short, is staggeringly broad, and any number of statements—some of which are undoubtedly protected by the First Amendment—could qualify for prohibition under its sweeping standards. To take a few obvious examples, the policy targets “verbal, physical, electronic or other conduct” based on “race,” “ethnicity,” “religion [or] non-religion,” “sex,” and “political affiliation.” Among the views that Speech First’s members have said they want to advocate are that “abortion is immoral,” that the government “should not be able to force religious organizations to recognize marriages with which they disagree,” that “affirmative action is deeply unfair,” that “a man cannot become a woman because he ‘feels’ like one,” that “illegal immigration is dangerous,” and that “the Palestinian movement is anti-Semitic.”
A strict reading of this policy would preclude, for example, any discussion of the merits of affirmative action, the right to an abortion or one’s feelings about Trump. Even worse, it would prohibit the failure to act if other people were discussing such controversial matters. Was this the intent of the policy, put forward by a state school and therefore imbued with state authority and limitations? These are all efforts to put into words the prohibitions that are unable to be explained, characterized and limited with sufficient precision to know what is, and what is not, prohibited.
Whatever the merits or demerits of those sorts of statements, they seem to us to constitute “core political speech,” with respect to which “First Amendment protection is ‘at its zenith.'” Because the discriminatory-harassment policy restricts political advocacy and covers substantially more speech than the First Amendment permits, it is fatally overbroad.
This courts language is somewhat understandable, yet disturbing and facile. It serves well to explain that the speech prohibited by the UCF policy is protected, but suggests that within the realm of protected speech, there is speech more protected than other speech. It strengthens the court’s rationale at the expense of the law, as all protected speech is protected, and “core political speech” receives no special protection that other protected speech does not.
Granted, it eliminates the argument that the speech prohibited is unworthy of First Amendment protection, as some contend that speech should be subject to a balancing test as to its worthiness or value to society. But that’s not the law, nor should it be. It’s not left to the government, academics or intellectuals to decide what speech is more worthy than other of protection. If speech does not fall into one of the traditional categories of unprotected speech, it is protected, whether scolds deem it worthy or not.
But isn’t the goal of the UCF policy to prohibit discrimination so that every student can benefit from the educational environment? Isn’t the elimination of discrimination a good thing?
Although the University may have a compelling interest in preventing students from disrupting its educational environment, its policy doesn’t seem to us to be narrowly tailored to that end. As already explained, the policy covers speech that pertains to any of a number of characteristics, can take any of a variety of forms (including “verbal acts” and “written statements,” and “other conduct that may be humiliating”), and that is deemed, by reference to a non-exhaustive seven-factor test, to “unreasonably … alter” another student’s educational experience—and, indeed, to the acts of “condoning or encouraging,” or even “failing to intervene” to stop another from speaking. That, with respect, is the opposite of narrow tailoring.
The purpose of policies framed as prohibiting discriminatory harassment may be well intended, just as the various laws intended to preclude teachers from “indoctrinating” students into woke identity ideology. But in all these instances, the bludgeon of words are used, too vague and imprecise to serve their intended purpose and invariably infringing on and chilling free speech.
The point isn’t to decide the “merits or demerits” of policy, but to recognize that enacting laws or policies that violate the First Amendment is not and never will be the solution to prohibiting the evils of the other side in the culture war. Whether right or left, words are inadequate to the task.
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