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December 2020 Speech Code of the Month: University of Colorado Denver
(Editor鈥檚 note: This policy has since been revised. Please visit the University of Colorado Denver's entry in 果冻传媒app官方鈥檚 Spotlight Database for more information.)
Speech codes don鈥檛 just apply when college campuses are open. While many colleges are conducting classes remotely, the threat to free speech these policies pose remains, as they often target online expression. At the University of Colorado Denver, for example, students are banned from sending or storing emails with messages that could be 鈥渃onsidered offensive by an ordinary member of the public,鈥 as well as any other 鈥渋nappropriate matter.鈥 The policy is 果冻传媒app官方鈥檚 Speech Code of the Month for December.
Under CU Denver鈥檚 policy, emailing a link to Cardi B鈥檚 WAP video or even a photo of Michelangelo鈥檚 David would be punishable.
Next week, FIREwill release our annual Spotlight on Speech Codes report. The report covers the speech code ratings of the 478 colleges and universities included in our Spotlight database and discusses trends in policy reform over the past year.
Each year, we add a few schools to the Spotlight database based on student enrollment and ranking statistics, and one of those additions this year was CU Denver. Unfortunately, CU Denver鈥檚 sent the school straight to the 鈥渞ed light鈥 list 鈥 a rating reserved for policies that clearly and substantially restrict free speech.
In addition to banning anything that might be considered offensive, the policy directs students not to use email to send any 鈥渙ffensive 鈥 or otherwise inappropriate matter.鈥 Listed examples include 鈥渙ffensive comments鈥 about a range of topics, including race, gender, political beliefs, and even terrorism. I鈥檓 not sure what they鈥檙e trying to target by banning offensive comments about terrorism, but in any case, expression doesn鈥檛 lose constitutional protection just because it has offended someone, even 鈥渁n ordinary member of the public.鈥 And since the policy also says students can鈥檛 鈥渟tore鈥 messages that are considered offensive, they鈥檙e even on the hook for failing to immediately delete someone else鈥檚 offensive email.
The policy also bans 鈥渉yperlinks or other references to indecent or patently offensive websites and similar materials,鈥 so students could be held responsible for merely including a link or reference in an email that someone finds 鈥渋ndecent.鈥 While material that meets the stringent legal standard for obscenity is not constitutionally protected, expression can鈥檛 be limited merely because someone has found it indecent. Under CU Denver鈥檚 policy, emailing a link to Cardi B鈥檚 WAP video or even a photo of Michelangelo鈥檚 David would be punishable. This absurd result is impermissible at a public university.
Instead, the university should narrowly ban the use of email for conduct that is not protected by the First Amendment, such as harassment, or transmitting a 鈥渢rue threat.鈥
Instead, the university should narrowly ban the use of email for conduct that is not protected by the First Amendment, such as harassment, or transmitting a 鈥渢rue threat.鈥
For the regulation of obscene material, I recommend taking a look at Boise State University鈥檚 for model language. The policy narrowly bans 鈥淸v]isiting, viewing or distributing Internet sites or materials that contain obscenity, as defined under applicable federal and state law; and publishing, displaying, transmitting, retrieving or storing such obscene material.鈥 By using the term 鈥渙bscene鈥 (rather than the undefined term 鈥渋ndecent鈥) and by referencing that the term has an applicable definition from federal and state law, Boise State鈥檚 policy narrowly targets speech that is not constitutionally protected, rather than broadly sweeping in any speech found subjectively indecent like CU Denver鈥檚 policy.
As always, 果冻传媒app官方鈥檚 Policy Reform team stands ready to assist CU Denver and all other universities in revising their policies so that they better meet First Amendment standards.
In fact, FIRErecently worked with the University of Colorado Boulder in revising its policies, and welcomed the school to our list of 鈥済reen light鈥 institutions this summer. Three Colorado universities now earn the overall green light rating.
CU Denver should follow the Boulder campus鈥檚 lead by revising its restrictive policies, including this email policy. That way, CU Denver could make the green light list for next year鈥檚 Spotlight on Speech Codes report!
If you are a college student or faculty member interested in free speech, consider joining the FIREStudent Network or Faculty Network to connect with a coalition of college students and faculty members dedicated to advancing individual liberties at their institutions.
If you鈥檙e concerned about a potential violation of your rights, contact 果冻传媒app官方 for more information.
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