University Speech Code Bans ‘Mean’ Speech

We’ve moved on from using the term “hate speech” to describe wide swaths of speech we don’t like and have moved on to banning subjectively “mean” speech – at least at one northwestern university.

The University of Montana Western has been featured as the Foundation for Individual Rights in Education’s (FIRE) “Speech Code of the Month” for its supposed commitment to “civility” by banning subjective speech.

“The ‘Statement of Responsibility’ from the university’s Student Code of Conduct explains that all members of the campus community ‘have the personal responsibility to promote an atmosphere of civility,’ and that discussions ‘should never become mean, nasty or vindictive,’” wrote FIRE’s policy reform program officer, Laura Beltz.

Of course, this raises the obvious question of who gets to decide what speech is considered “mean, nasty, or vindictive.” If I were to take a guess, based on how speech and other matters are disciplined at other universities, I’d have to say the person who decides is the person most offended, rather than a reasonable person.

Intent, in these situations, is never important to colleges and universities. One student may say something to another without any ill intent, yet the second student may take it the wrong way and consider it “mean” or “nasty.” The second student is wrong, but that doesn’t matter, all that matters is their feelings.

As Beltz points out, this speech code could determine constitutionally protected speech as punishable, including tweets critical of the school, or even those who claim themselves “nasty women” based on the response to then-candidate Donald Trump’s description of Hillary Clinton.

“Our concerns are not hypothetical — FIRE has reported on increasing instances of faculty members being investigated or even punished over speech that is deemed to have lacked civility. And even if these civility policies aren’t applied to punish protected speech in practice, they’re still likely to have a chilling effect on speech, as students reading the policy will self-censor and avoid controversial expression rather than taking that risk,” Beltz wrote.

The University of Montana Western is a public institution, so it is bound by the constitution and the First Amendment. Beltz quotes from Texas v. Johnson, in which the Supreme Court ruled: “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.”

An earlier version of this article misstated the school's name. It is the University of Montana Western, not the University of Montana.

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