MEMORANDUM

To:
Joe Cohn, Legislative and Policy Director, Foundation for Individual Rights in
Education (FIRE)
From:
Colin Crossman, Senior Program Officer, FIRE
Date:
September 15, 2015
Re:
Speech Codes at the University of Memphis
I.

Introduction

FIRE rates a university as a “red light,” “yellow light,” or “green light” institution
depending upon the extent to which the university’s written policies restrict
constitutionally protected speech. We currently include the University of Memphis (UM)
in our Spotlight Database as a yellow light institution, since UM maintains six yellow light
policies. These are ambiguous policies that could ban or excessively regulate protected
expression and too easily invite administrative abuse and arbitrary application.
Fortunately, UM does not appear to maintain any speech codes that would earn FIRE’s
worst, red light rating, reserved for those policies that clearly and substantially prohibit
protected speech.
As a public institution, UM has both a moral and a legal obligation to uphold the First
Amendment’s guarantees of free speech and free expression. This memorandum will
discuss the free expression defects with each of UM’s current yellow light speech codes.
FIRE would be pleased to work with UM’s students, faculty members, and administrators
to address these shortcomings. By improving its policies, UM would send an unmistakable
signal to students, faculty, parents, alumni, and concerned citizens that the college values
unfettered expression and the free exchange of ideas on campus.1

1

See, e.g., FIRE, Purdue University Eliminates All of Its Speech Codes, Earns FIRE’s Highest Rating,
www.thefire.org/purdue-university-eliminates-all-of-its-speech-codes-earns-fires-highest-rating (last visited Sep. 11,
2015).

170 S Independence Mall W, Suite 510 Philadelphia, PA 19106
phone: 215-717-3473 fax: 215-717-3440
thefire.org  

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II.

Policy on the Recognition of Student Organizations

UM’s policy regarding the recognition of student organizations, the first yellow light policy,
flows from the Tennessee Board of Regents Policy 3:01:01:00. The policy states, in relevant
part:
No student organization may carry on any activity on the campus of an
institution or school unless the organization has been officially registered by
the institution or school.
The United States Supreme Court recognized in NAACP v. Alabama that the freedom of
association is contained within the freedom of speech: “It is beyond debate that freedom to
engage in association for the advancement of beliefs and ideas is an inseparable aspect of
the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which
embraces freedom of speech.” 377 U.S. 288, 307 (1964) (quoting NAACP v. Alabama, 357
U.S. 449, 460 (1958)).
A categorical ban on the ability of students to freely associate into voluntary organizations
without official recognition flies in the face of NAACP and numerous other precedents.
See, e.g., Roberts v. United States Jaycees, 468 U.S. 609 (1984); Hurley v. Irish American Gay,
Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995). While a public university may
withhold certain benefits and privileges from unrecognized student groups, the implicit
threat of disciplinary action for students voluntarily associating and engaging in “any
activity on the campus” is chilling in its overbreadth.
III.

Distribution Policy

The second UM policy that earns a yellow light rating from FIRE is contained in “UM1741 –
Access to and Use of Campus Property and Facilities,” and reads, in pertinent part:
Any group, organization or individual desiring to distribute literature must
submit a written application for registration of the proposed distribution at
least fourteen (14) days in advance (excluding weekends and holidays) to the
Assistant Vice President for Business Services, 371 Administration Building,
Memphis, TN 38152. The request shall be made on a Request for
Authorization to Distribute. . Written notice of approval or disapproval of the
proposed distribution shall be made available to the applicant within seven
(7) days (excluding weekends and holidays) from the time an application for
registration is submitted to the Assistant Vice President for Business
Services. Notice of disapproval of the proposed distribution shall include the
grounds for disapproval (see below for listing). Notices will not be mailed or
delivered; it shall be the responsibility of the applicant to inquire at the office
of Business Services (371 Administration Building, Memphis, TN 38152) as to

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the decision concerning the distribution, the time and location in which the
distribution is authorized.
Any group, organization or individual whose Request for Authorization to
Distribute Literature by Non-Student Organizations is denied shall have the
right to appeal that denial to the Vice President for Business and Finance or
designee. Notice of appeal shall be made in writing during normal business
hours of the University no later than five (5) days (excluding weekends and
holidays) prior to the time of the proposed distribution. The decision of the
Vice President or designee shall be made at least four (4) days before the time
of the proposed distribution, and shall be the final decision.
...
7. The various considerations potentially leading to a denial of an application
shall include, at minimum, the following:
(a) The property or facilities have been previously reserved by another group,
organization or individual with equal or higher priority,
(b) Frequency of previous use during an academic period in comparison to
that of a contemporaneous applicant,
(c) Use of the property or facilities requested would be impractical due to
scheduled usage prior to or following the requested use, or due other
extenuating circumstances,
(d) The applicant or sponsor of the activity has not provided accurate or
complete information required on the application for registration,
(e) The applicant or sponsor of the activity has been responsible for violation
of institutional policy during a previously registered use of campus property
or facilities,
(f) The applicant has previously violated any conditions or assurances
specified in a previous registration application,
(g) The facility or property requested has not been designated as available for
use for the time/date,
(h) The anticipated size or attendance for the event will exceed building/fire
codes, established safety standards, and/or the physical or other limitations
for the facility or property requested,
(i) The activity is of such nature or duration that it cannot reasonably be
accommodated in the particular facility or area for which application is
made,
(j) A determination that the size and/or location of the requested use would
cause substantial disruption or interference with the normal activities of the
institution, the educational use of other facilities or services on campus or
the flow of vehicular or pedestrian traffic,
(k) The activity conflicts with existing contractual obligations of the
University,
(l) The activity presents a clear and present danger for physical harm,

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coercion, intimidation, or other invasion of lawful rights of University's
officials, staff, faculty members, or students, the damage or destruction, or
seizure and subversion, of University's or school's buildings, other property,
or for other campus disorder of a violent or destructive nature. In
determining the existence of a clear and present danger, the responsible
official may consider all relevant factors,
(m) A determination that the requested use would be contrary to local, state,
or federal law, regulation, or the policies or regulations of the Tennessee
Board of Regents, or University.
This policy requires that students submit to prior restraint for the mere distribution of
literature on campus, with the implicit threat of disciplinary action if they speak without
express permission. In Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976), the
Supreme Court noted that “prior restraints on speech and publication are the most serious
and the least tolerable infringement on First Amendment rights.” At a public institution,
this type of prior restraint is indefensible.
Additionally, as the Supreme Court has made clear, “subjecting the exercise of First
Amendment freedoms to the prior restraint of a license, without narrow, objective, and
definite standards to guide the licensing authority, is unconstitutional.” Shuttlesworth v.
Birmingham, 394 U.S. 147, 150–151 (1969) (emphasis added). While UM does, unlike some
schools, attempt to define and state review criteria, the university’s recitation of conditions
for denial is presented in the form of a minimum standard, leaving open the possibility of
unstated conditions being applied.
In order to remedy this policy, UM should clarify that the mere distribution of noncommercial literature (such as petitions, religious proselytizing materials, issue advocacy,
and more) is not covered by the prior approval elements of this policy and is allowed in the
open, publicly available areas of campus.
IV.

Sign Policy

The third policy that earns a yellow light rating from FIRE, also contained within “UM1741
– Access to and Use of Campus Property and Facilities,” states, in pertinent part::
Signs, banners, posters, and other materials may only be used to provide
general information, promote and advertise an on-campus activity or event,
advertise student elections and candidates, or serve as a temporary direction
or location of an activity or event on campus.
A statute or law regulating speech is unconstitutionally overbroad “if it sweeps within its
ambit a substantial amount of protected speech along with that which it may legitimately
regulate.” Doe v. University of Michigan, 721 F. Supp. 852, 864 (E.D. Mich. 1989), citing

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Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). While the university can legitimately place
some regulations on campus signage, this policy makes an impermissible content-based
distinction between, for instance, political activity related to the student body and political
activity in the broader community. UM would do well to eliminate these content-based
restrictions and limit its policy to permissible, content-neutral regulations on signage.
V.

Housing Policy; Disorderly Conduct Policy

The fourth policy that earns a yellow light rating from FIRE is from UM’s “Housing
Policies” and states:
Rowdy, boisterous, offensive, obscene or disorderly behavior is not
permitted. This includes any behavior considered to be aggressive or
threatening to others.
Similarly, in the “Code of Student Rights and Responsibilities,” another yellow light policy
prohibits:
Disorderly Conduct. Any individual or group behavior which is abusive,
obscene, lewd, indecent, violent, excessively noisy, disorderly, or which
unreasonably disturbs institutional functions, operations, classrooms, other
groups or individuals (e.g. public urination/defecation, participation in a
disruptive or coercive demonstration);
The main free speech problem with these two policies results from the use of the terms
“offensive” and “indecent.” A great deal of constitutionally protected speech— including
core academic discussion and social and political commentary—could be labeled
“offensive” or “indecent.” Consider, for example, the Supreme Court’s decision in Cohen v.
California, 403 U.S. 15 (1971), in which the Court famously overturned the conviction of a
man who wore a jacket bearing the words “Fuck the Draft” into a county courthouse. In
holding that his expression was entitled to constitutional protection, the Court wrote that
“one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental
officials cannot make principled distinctions in this area that the Constitution leaves
matters of taste and style so largely to the individual.” Id. at 25.
VI.

IT Misuse Policy

The sixth policy that earns a yellow light rating from FIRE is from the “Code of Student
Rights and Responsibilities” and states:
(bb) Abuse of Computer Resources and Facilities. Misusing and/or abusing
campus computer resources including, but not limited to the following:

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...
(5) Use of computing resources and facilities to send abusive or obscene
correspondence;
The Supreme Court has held that “the mere dissemination of ideas—no matter how
offensive to good taste—on a state university campus may not be shut off in the name alone
of ‘conventions of decency.’” Papish v. Board of Curators of the University of Missouri, 410
U.S. 667, 670 (1973). The Court has since reiterated that “[i]f 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.”
Texas v. Johnson, 491 U.S. 397, 414 (1989); See also Cohen, 403 U.S. 15. In light of these and
related precedents, UM may not ban any and all “abusive … correspondence” via computing
resources under the justification that they may be offensive to some or even many
individuals.
Likewise, the policy’s ban on “obscene correspondence” effectively stifles and chills online
discussion of sexually explicit literature—for instance, Lolita and Lady Chatterley’s Lover—
and topics that can be sexually explicit, such as reproductive choice, same-sex marriage,
and transgender rights. In FIRE’s experience, universities routinely enforce broad,
undefined bans on obscene language to censor and punish such discourse. Discussion of
these and other important issues of the day should not be censored at a public institution of
higher education, particularly when they are germane to course content and contribute to
classroom learning. As the Supreme Court has pronounced, “speech concerning public
affairs is more than self-expression; it is the essence of self- government,” reflecting “our
‘profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open.’” Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964)
(quoting Sullivan, 376 U.S. at 270). To better protect these rights, UM should narrowly
proscribe obscenity as defined under federal and state law.
VII.

Conclusion

UM includes a rather clear guarantee of Student Rights and Freedoms in its student code.
The policy states:
Academic institutions exist for the transmission of knowledge, the pursuit of
truth, the development of students, and the general well-being of society.
Free inquiry and free expression are indispensable to the attainment of these
goals. As members of the academic community, students should be
encouraged to develop the capacity for critical judgment and to engage in a
sustained and independent search for truth. Institutional procedures for
achieving these purposes may vary from campus to campus, but the minimal

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standards of academic freedom of students outlined below are essential to
any community of scholars.
The Tennessee Board of Regents, which promulgated this policy, has put a good deal of
thought into its overall acceptance and response to students engaging in free expression.
We are hopeful that UM will work with the same thoughtfulness to address the speech
codes discussed in this memo. Until then, those policies will continue to restrict student
speech and expressive activity on campus. FIRE would be happy to work with UM students,
faculty members, and administrators to make the necessary policy changes, and we stand
ready to help at any time.