The University of Northern Colorado (UNCO) has decided it’s time to prohibit "Bias Motivated Incidents." When you hear about a “bias motivated incident,” maybe you’re thinking about a cross burning, or something of that nature. But at UNCO the “bias motivated incident” could simply be an "inappropriate joke" that is motivated by some form of bias.
The UNCO policy also says that “Any discriminatory act is a violation of the Housing & Residence Life Student Code of Conduct.” Well, what do they mean by “any discriminatory act”? According to the UNCO handbook this includes, but is not limited to, “racism, ageism, sexism, and/or homophobia.” And (get ready for this!) included in the definition is “intentionally, recklessly or negligently causing physical, emotional, or mental harm to any person.”
In my view, there are at least three fundamental dangers associated with the UNCO speech code.
First, and perhaps most obviously, it empowers people to trump the speech of others by simply becoming offended. So it really protects and defends the speech of those least able to protect and defend their own speech through reasoned discourse. It is not often that the speech of the emotionally frail has much merit. People who fall apart emotionally in response to protected speech are unlikely to have the intellectual firepower needed to articulate ideas from which the rest of us can benefit. They are simply being empowered to trump the speech of their emotional and intellectual superiors.
Second, it empowers people to trump the speech of others by pretending to be offended. When this occurs, the speech code is rewarding more than just the intellectually inferior – it is rewarding the morally inferior. It is using faux outrage to cancel honest opinion.
Finally, as the Foundation for Individual Rights in Education (FIRE) points out, laws must "give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). If people do not know what is prohibited there will be a dramatic chilling effect on free speech.Those who must live under UNCO's policy cannot know what could cause another person "emotional" or "mental" harm. That is because the policy does not require that the speaker intends to cause the alleged harm. The fact that someone subjectively feels "emotionally harmed" by the speech is enough for UNCO. So the speaker who correctly imagines that just about any idea is bound to offend someone, somewhere, is deterred from speaking on any potentially controversial topic.
This reminds me of a university, which formerly had a speech code banning “challenging” speech. That university apparently wanted students to go off to school for four years without ever being challenged. Does UNCO want an educational environment characterized by, and only by, discourse that could never be deemed controversial by anyone?
College administrators often fail to distinguish between speech that is severe and persistent enough to constitute harassment and simple isolated expressions of protected speech. It appears as if they are utterly unable to write a code that could pass constitutional muster. More likely, they are fully aware that they can sustain the code through the twin threat of internal formal sanction and social stigmatization. Many would like to defeat such a patently illegal policy. Few wish to be dubbed racist, sexist, or homophobic in the process.
There are many things that can be done to defeat such a policy. I intend to start by sending the following “inappropriate joke” to the Dean of Students at UNCO.
A: Ten. You need nine to write the code and one to take offense at logical coherence and constitutional orthodoxy.
But there is something serious that students at UNCO can do about this policy. They can begin to bombard the Dean of Students with all kinds of inappropriate jokes. For example:
Q: What do you call an Irish communist?
Hopefully, someone in the UNCO Dean of Students Office will be Irish, communist, or will simply have made a public profession of faith in Barack Obama as his Lord and Savior. In other words, hopefully someone will be offended. And, hopefully, UNCO will decide to bring charges against the offender!
When that happens, you can just email me at email@example.com. I’ll make sure you get a lawyer. And for those who believe your college or university should be publicly chastised for an unconstitutional speech code, please e-mail firstname.lastname@example.org with a link to the policy and a brief description of why you think attention should be drawn to the code.
After FIRE is done critiquing the code, I will, if necessary, seek a plaintiff to have it overturned in a court of law. We need both humiliation and litigation to solve the speech code issue. Otherwise, our college campuses will continue to be crude and inappropriate jokes.