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I am currently attending college in Oklahoma and have run into a confusing policy. We have been warned that anyone living on campus who uses profanity in the dormitory lobby will be written up for a violation of residency agreement and the student code of conduct.

Nothing in either document clearly establishes what constitutes profanity, how it is a violation of the aforementioned notices, or why this is punishable at all. The only thing I found in their literature states that profanity is in poor taste and is thus not acceptable. This was immediately preceded by language demanding that students obey school policy as well as state and federal law.

So the codes say it is unacceptable, but I can find no case law to back this up. Cohen v Calif., Matal v. Tam, and People v. Boomer seem to be the most relevant in the discussion, but I find the jargon a bit dense.

This policy seems to be incongruent with federal interpretations of free speech and further work by the ACLU. If the language I use is not used to incite violence, issue a threat, or utter fighting words, can they enforce punitive action?

  • 1
    Since you invoke "free speech", can we assume this is a government-run school? – user6726 Feb 11 '18 at 14:52
  • And if not, is it by any chance a religiously affiliated institution? Those generally get treated differently, though I'm not sure if the difference is relevant in this case. – Nate Eldredge Feb 11 '18 at 15:46
  • The School in question is Southwestern OK State University. It bills itself as a public university, but anyone who works there is employed by the state. – Shiloh Williams Feb 11 '18 at 19:41
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As a state university, the institution would be subject to First Amendment restrictions on their restrictions. They cannot prohibit expression of religious or irreligious viewpoints, they cannot prohibit expression of racist or anti-racist viewpoints, and so on. That said, there may be some murk pertaining to anti-discrimination legislation and the concept of a hostile environment. See for example this statement from U. Michigan: the underpinnings of any such restrictions are pretty broad (see the USC statement, including titles VI and VII of theCivil Rights Act of 1964, Title IX of the Education Amendments of 1972, and so on – those sorts of concerns apply to private schools as well).

SWOSU has a long list of prohibited activities. The only rule that marginally looks like it could cover bad language is the ban on

General misconduct that adversely affects the student's suitability as a member of the university community such as immorality, commission of major crimes, inciting disorders, association with known criminals, peace disturbances, disorderly conduct, and all acts that recklessly endanger the students or others.

And that would be an incredible stretch.

The residence handbook states, pertaining to the rooms, that

Obscene material, including, but not limited to, pornographic literature, X-rated movies, and displays of profanity or language that is offensive to others may not be displayed.

I assume that someone would be offended by the B word, so you can't display that on a poster in your room. This does not apply to verbal profanity or profanity in the lobby. Since they don't make the residency agreement publicly accessible, I can't see what they might have said there that implies a no-profanity rule. I should mention that university employees often over-interpret their authority, so it is not guaranteed that this is actual university policy (even is distributed by the front desk in a dorm). It may, however, be necessary to sue the university in order to get a clear indication that this is official policy, and that the policy is not a violation of the First Amendment. I would expect that the rationale has to do with "hostile environment". A second runner-up would be that it's about "disorderly conduct", which is where Florida A&M places their anti-profanity rule.

  • This is not a 1st Amendment question. – A.fm. Feb 12 '18 at 21:05
  • It asks about restrictions on the content of speech in the context of a USA state university. It clearly requires mention of the First Amendment, even if that is eventually not a determining factor. Arguing on due process is pointless when the corrected version would be against 1A in the end regardless, if that is eventually the case. – Nij Feb 13 '18 at 6:49
  • OP said that to get a clear indication of what the official policy is, he suspects it may be necessary to sue the university. And the way to do that would be to claim a violation of due process (assuming OP or some other student is punished for the described behavior) in order to compel the university to defend it and/or issue a revised (and ostensibly, a more precise) version of the policy. That would achieve OP's goal of finding out what the policy is. A suit under the First Amendment would not obtain that goal. A holding there would likely eliminate or uphold the policy. That's not OPs goal – A.fm. Feb 13 '18 at 10:11
  • At no point on my post did I say I Intended or thought it necessary to sue the university. The issue being that the school prohibits profanity, among other things, but no one has set a clear standard for what constitutes profanity. The legal and text-based definitions I can find deal with treating something irreverently, and the online definition from Webster's simply says " socially offensive language". None of these is a clear justification of the policy, and the former is contradictory to US law by being over-broad and using a subjective metric for profanity. I'm just asking for clarity. – Shiloh Williams Feb 17 '18 at 0:13
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This is not about the First Amendment. It's about due process. If something is too vague to be defined, it is a violation of your right to "notice" to find yourself in trouble for something you did not know was not allowed.

As People v. Boomer states,

Finally, we would observe that the First Amendment does not protect obscene speech, Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 124, 109 S. Ct. 2829, 106 L. Ed. 2d 93 (1989), and the Legislature, if so inclined, could enact a properly drawn statute to protect minors from such exposure.[3] However, M.C.L. § 750.337, as currently drafted, impinges on First Amendment freedoms. In Reno v. American Civil Liberties Union, 521 U.S. 844, 874, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997), the United States Supreme Court, addressing undefined statutory provisions prohibiting patently offensive and indecent Internet transmissions to those under eighteen years, stated that "[g]iven the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection."

So, of course, the First Amendment was addressed, but the case concludes:

MCL 750.337 is an unconstitutional enactment in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution because the statute is facially vague.

It is a due process issue.

Therefore, not that this policy is necessarily enforceable and it's unnecessary for me to elaborate here on that, the policy may be refined to define what will be considered obscene.

  • You state that this is not a first amendment question, apparently because of People v. Boomer, but the case points out that the first amendment does not protect "obscene speech" while the question asks about use of profanity. The two are not synonymous; it's not clear to me that any and all profane language would necessarily constitute "obscene speech." – phoog Feb 12 '18 at 21:49
  • I say it's not a first amendment question because it is not. OP did not submit a specific word or words to consider. And while profane and obscene are not exactly synonymous, there is as much overlap as you can get without having the Venn diagram look like one single circle. – A.fm. Feb 12 '18 at 21:52
  • Actually, I take the above back. They are synonymous, according to a thesaurus. As is rude, vulgar, coarse, crude. – A.fm. Feb 12 '18 at 21:54
  • For one thing profanity encompasses religious expressions whereas Supreme Court tests for obscenity of which I am aware cover only material of a sexual nature. – phoog Feb 12 '18 at 21:55
  • A thesaurus listing does not mean that the words are synonymous in every context, only that there are some contexts in which one word might replace the other. In law, words are typically far more precisely defined than in general use, and this is certainly the case here, at least for "obscenity." Also, the existence of a due process question does not mean that there isn't also a first amendment question. – phoog Feb 12 '18 at 21:57

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