FIRE announces its Speech Code of the Month for August 2012: the University of Delaware (UD).
UD's Code of Conduct prohibits "bullying," defined as
Any deliberately hurtful behavior, usually repeated over time, with the desired outcome of frightening, intimidating, excluding or degrading a person. This includes, but is not limited to, physical assault, verbal abuse, teasing, ridiculing and spreading of rumors or private information about a person and may be done by any method of delivery, such as verbal, written or electronic.
With this, UD is the latest university to implement a poorly drafted, overbroad bullying policy that threatens constitutionally protected speech. As we have pointed out before, virtually all of the conduct associated with bullying (harassment, threats, intimidation, stalking, and invasion of privacy) is not protected speech and is already prohibited by legitimate policies and laws. Beyond that conduct, a public university—no matter how good its intentions—simply cannot require its students to be nice to each other.
What's more, a great deal of protected speech, such as parody and satire, could be said to "degrade" or "ridicule" its targets. Ever watch The Daily Show? Indeed, it is settled law that speech cannot be prohibited simply because it is offensive—even deeply offensive—to others. See Texas v. Johnson, 491 U.S. 397, 414 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."); Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) ("[T]he mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.'"); Terminiello v. Chicago, 337 U.S. 1, 4 (1949) ("[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.")
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