Content-based Proscriptions and Viewpoint Neutrality

What if the university were to narrow what it means by abusive conduct to avoid a policy that is too over-broad?

Well, most universities have done exactly that with a combination of wordy anti-discrimination policies and a laundry list of codes detailing what typifies hate speech. While the Supreme Court has yet to rule on the constitutionality of these codes, very few (if any) would pass a facial challenge due to their content-based proscriptions and lack of viewpoint neutrality.

Such a mandate, in practice and in composition, is impermissible in that it restricts the free expression of ideas solely on the basis of their content and fails to remain neutral to less accepted positions on more controversial subjects. These content-based proscriptions have been found perverse to the right to free-expression, even within the scope of speech that might ultimately constitute “fighting words,” offensive speech, or a threat.

Suppose that a student or student organization expresses a view adverse to the university’s policy of respect for diversity. Regardless of whether or not the words uttered by the actors in this hypothetical constitute a personal attack, a university code restrictive of speech simply due to its subject being limited to those such as race, color, creed, religion, or gender greatly narrows both the views of and the subjects on which a student or group may express themselves despite certain views being held constitutionally protected.

Expressive conduct and speech that may cause offense solely as a testament of even the most deplorable beliefs with no intent other than protected free expression could conceivably be prohibited under these codes. One must also consider subjects on which a personal attack may be leveraged that are not typically listed in policies of this nature, but may be also deemed an act of discrimination that the “hate speech” code intends to prohibit: political affiliation, nationality, height, or any number of distinguishing features.