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American University is among the recent rash    in response to ongoing campus tensions over the Israel/Hamas conflict. Like many of those schools, ��֭���� wrote AU to explain that reacting to campus tensions with authoritarian tactics like censorship is not the way to build a lasting peace on campus — it also violates a number of their own policies protecting student rights to free expression. 

Perhaps on brand, AU has not responded to our concerns, which grow with each day that AU students’ expressive rights are burdened under these new policies.

Meeting speech with censorship

In mid-January, AU found itself staring down a federal complaint  it failed to adequately respond to campus antisemitism. Among the allegations appear to be instances of true threats or discriminatory harassment that, if proven, AU can already punish under its existing misconduct policies.

Disappointingly, however, AU  new rules on Jan. 25 that will suppress a wide range of campus expression and burden free association — while failing to clarify how these overly harsh restrictions on  will serve the university’s goals of cracking down on antisemitism-related misconduct. The  include a vague and overbroad ban on all indoor protests, harsh restrictions on campus postings, and new burdens on student groups’ associational rights — including giving administrators broad control over membership decisions.

In our letter to AU after it announced the policies, we explained that the dual goals of creating a safe environment for students and honoring their expressive rights need not be in tension. Yet AU’s new speech bans incorrectly suggest that curbing students’ basic right to express themselves is the requisite fix. As we explained, that position is not only deeply misguided, but AU’s new vague and overbroad policies violate its longstanding, clear  to student and faculty expressive rights.

AU’s new policies are vague and undermine its speech promises

AU  students freedom of speech and expression on par with the First Amendment, stating it will remain “committed to protecting free expression for all members of its community.”

Yet each of AU’s new restrictions violates its overarching commitment to free expression.

The new protest policy, for example,  in “spaces used for educational activities, events, or university operations.” Likewise, the new  restricts the content of posted materials for campus events to “an event’s purpose, the sponsoring organization’s purpose, or logistical details for an event.”

These mandates violate the First Amendment’s prohibition against speech regulations that are vague and overbroad. Policies are impermissibly vague when they fail to give a person of ordinary intelligence sufficient information about which conduct is prohibited. The protest policy, for example, never defines the word “protest,” leaving unclear for students what kind of expressive conduct will run afoul of the new regulation. Does wearing clothing espousing specific political stances, such as a black armband, constitute a form of protest? Does that answer change if intentionally worn collectively by students in the same course? Or if the students wearing the armbands ascribe one meaning to them, but other students take away a different message?

A safe campus and free expression are not mutually exclusive. AU can enforce its existing policies to address unprotected expression, while respecting students’ core expressive rights

The policy also sweeps within its ambit too much protected speech, making it overbroad. Also, when entities that promise free expression regulate speech in this manner, students (and faculty) expect the institution to narrowly tailor the rules to achieve a compelling interest – and here, AU has failed to state how these broad bans will meet their student safety goals.

And when it comes to student safety, AU already has  barring actual misconduct — true threats, vandalism, discriminatory harassment, and more — the new policy serves only to confuse students regarding the scope of their expressive rights. 

Additionally, AU’s  restricts the content of posted materials for campus events to “an event’s purpose, the sponsoring organization’s purpose, or logistical details for an event,” with the goal of “promoting inclusivity.” But this restricts a great deal of speech by severely limiting the scope of permissible content on flyers and other promotional material. And the absence of a definition of “purpose” or guidance on how to interpret it will allow administrators to engage in content discrimination and to censor disfavored expression.

Finally,  infringes the right of free association by prohibiting student organizations from having membership requirements unless they are “germane, relevant, and directly connected to the group’s purpose” – without defining those terms. In conjunction, it announces a new administrative position to review student compliance with the rules, suggesting that that administrator’s subjective judgment, troublingly, may serve as the relevant metric. Implementation of this policy will accordingly place authority to govern student organization membership in the hands of a new administrator who appears to have unlimited discretion to shut down any club deemed insufficiently “welcoming.”

AU should uphold its promises

FIRE continues to call on AU to uphold its commitment to students’ free speech rights by clarifying that protected speech in university buildings will not result in punishment, that AU will regulate posted materials on campus (if at all) on a content-neutral basis, and that student organizations have the authority to set their own membership criteria as they see fit.

A safe campus and free expression are not mutually exclusive. AU can enforce its existing policies to address unprotected expression, while respecting students’ core expressive rights at the same time. Rescinding these ill-advised policies is a necessary first step.