God Save America

by Samantha Harris

Foundation of Idividual Rights in Education (FIRE) announces its Speech Code of the Month for May 2007: Texas A&M University.

Texas A&M’s policy on Student Rights and Obligations provides, in relevant part, that:

The rights of students are to be respected. These rights include respect for personal feelings, freedom from indignity of any type…. No officer or student, regardless of position or rank, shall violate those rights; no custom, tradition or rule in conflict will be allowed to prevail. (Emphasis added).

This policy literally prohibits hurting someone’s feelings at Texas A&M University.

Legally speaking, this policy is not worth the paper it’s written on. It is unconstitutionally overbroad, because it prohibits a tremendous amount of constitutionally protected speech. (Most deeply hurtful speech is also entirely constitutionally protected. For an example, take a look at the case of Hustler Magazine v. Falwell, in which the U.S. Supreme Court upheld Hustler Magazine’s right to publish a satirical advertisement suggesting that the Rev. Jerry Falwell’s first sexual experience was a drunken tryst in an outhouse with his own mother!) The policy is also unconstitutionally vague, because ordinary people will have to guess at its meaning. For example, might a classroom criticism of Creationism hurt the “personal feelings” of an evangelical Christian student? Might a classroom criticism of affirmative action hurt the “personal feelings” of a minority student? These are examples of both constitutionally protected and socially important speech, but students at Texas A&M must guess at whether they might face punishment for expressing those opinions, and are thus likely to refrain from speaking out for fear of engendering hurt feelings. Finally, this policy unconstitutionally conditions the permissibility of speech on subjective listener reaction—i.e., on whether the speech hurts someone’s feelings, whether or not the person’s hurt feelings are reasonable. The only prerequisite for punishment seems to be whether or not someone felt hurt by someone else’s speech. Time and time again, courts have held that these types of regulations are unconstitutional.

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