D.C. Council Considering Requiring Speech Code in City Parks and the University of District Columbia

The proposed law would mandate that public and charter schools, city parks, city libraries, and the University of District Columbia ban

any gesture or written, verbal or physical act, including electronic communication, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory handicap, or by any other distinguishing characteristic that: …

has the effect of insulting or demeaning any student or group of students in such a way as to cause substantial disruption in, or substantial interference with, the orderly operation of a school, university, recreation facility, or library.

Say, then, that someone puts on an event at a park that “has the effect of insulting or demeaning” Muslims or Scientologists or fundamental Christians or gays or men or women, if some of the insulted or demeaned group consists of “students” (whether school or university students). And say that this “cause[s] substantial disruption in, or substantial interference with, the orderly operation of” the park — perhaps by leading to a counterdemonstration, or maybe just by insulting some other park visitors. Under the policies that the proposed law would mandate, such speech would have to be banned. Yet that would be a pretty clear violation of the First Amendment as it protects free speech in a traditional public forum such as a park, see, e.g., Forsyth County v. Nationalist Movement (1992). And even on non-traditional-public-forum property, such as in a library or an indoor recreational facility, viewpoint-based restrictions would be unconstitutional; a ban on speech that demeans groups based on various criteria would likely qualify as viewpoint-based and therefore unconstitutional.

Likewise, the proposed law would require the University of District Columbia to punish UDC students who “insult[] or demean[]” such groups, so long as it is found that the speech “cause[d] substantial disruption” — and not just by its volume or its location, but by the “insulting or demeaning” viewpoint that it expresses. Yet that likewise would be inconsistent, it seems to me, with the many lower court decisions that strike down campus speech codes, see, e.g., McCauley v. University of the Virgin Islands (3d Cir. 2010). An article in a student newspaper, for instance, might “cause substantial disruption” because it leads to student protests or broad student upset (or even to fights among some students); but, given those lower court cases, the author and publisher of the article would remain constitutionally protected against government-imposed student discipline.

In public schools, such restrictions might be upheld, under Tinker v. Des Moines Indep. Comm. School Dist. (1969); Tinker did hold that speech that substantially disrupts school operations is constitutionally unprotected. But that case is focused on the special context of speech in K-12 educational institutions. It doesn’t justify similar restrictions in parks or at universities. (Thanks to Hans Bader for the pointer.)