Defending Free Speech With the 14th Amendment

A potentially pathbreaking new federal lawsuit against the University of Michigan claims the school’s speech code not only violates the First Amendment rights of students but is so “unconstitutionally vague” that it infringes on their due process rights as well. Filed by Speech First, a new organization that defends campus free speech, the lawsuit challenges the university’s Orwellian-named “Bias Response Team,” which was created to stomp out any “expression of bias” that might evoke “bothersome” or “hurtful” “feelings.” Violators of the code can face punishment, ranging from mandatory “unconscious bias” re-education courses to outright expulsion.

Because the speech code is so vague, Speech First is challenging it not just on free speech grounds but also as a violation of the 14th Amendment’s due process clause—another independent check on censorial bureaucrats. A 1972 case cited by the lawsuit, Grayned v. City of Rockford, warns that “[v]ague laws may trap the innocent by not providing fair warning” and deprive people of the opportunity “to know what is prohibited.” A curmudgeonly professor of mine once said that the university should be a “disturber of the mind’s peace,” a place where students are forced to confront new and uncomfortable ideas. Instead, university speech codes punish those who disturb peace of mind.

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