Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes

Abstract:     
Colleges and universities across the country have enacted speech codes severely restricting student expression on campus, despite the fact that courts have clearly indicated that these policies violate the First Amendment rights of students - and have uniformly struck down speech codes facing constitutional challenges.

In this article, I examine institutional policy and practice to illustrate that speech codes are often enforced against clearly protected speech and additionally chill expression by their very existence. Speech codes thus detract from the university’s paramount function as a true “marketplace of ideas.” The article then responds to various arguments that proponents of speech codes have put forth to justify their continued existence, by demonstrating that speech codes do not offer the benefits that their proponents claim and that, rather, their harms strongly counsel against their presence on campus.

The article further uses available data to demonstrate that, contrary to assertions made by some commentators, speech codes remain prevalent at colleges and universities nationwide. It concludes by offering several potential solutions aimed at removing speech codes permanently and thereby restoring student speech rights to a strong position.

Number of Pages in PDF File: 64

Keywords: speech codes, First Amendment, freedom of speech, higher education, harassment law, college, university

Accepted Paper Series