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.
Even a hypothetical well-intentioned bureaucrat trying to enforce Michigan’s bias code will inevitably sweep up innocent students who can neither predict nor control their fellow students’ emotional reactions. In just the last year, the Bias Response Team has investigated some 150 “bias” incidents, according to the lawsuit. We don’t know the details, but campus free-speech group FIRE reports that bias incidents from campuses across the country include complaints about student Halloween costumes, a snow sculpture some said looked phallic (if you squint), defending Chick-Fil-A on campus, and the phrase “on the other hand” because it’s “ableist.” It’s dangerous to give a university official the power to punish students for others’ emotional reactions.
Michigan should lose under the free speech clause. But it is not always the perfect tool for reining in speech-censoring bureaucrats—whether at state-run universities or in townhall—in part because the government often claims it isn’t really regulating speech or targeting a particular speaker or philosophy. Indeed, the Michigan speech code doesn’t just punish biased speech, but also bias-motivated conduct. This dodge-and-weave is designed to give the government an upper hand in court, since (allegedly) non-speech government regulations typically receive more deference from judges.
On the other hand, the due process clause can catch bureaucrats who arbitrarily enforce broad, vague delegations of power. A recent concurrence by Supreme Court Justice Neil Gorsuch provides a strong originalist defense for why the due process clause should foster skepticism toward vaguely worded laws. “Vague laws,” Justice Gorsuch warned in Sessions v. Dimaya, “invite arbitrary power.” To borrow from Justice Gorsuch’s Dimaya opinion, the Michigan code is so vague it leaves students in the dark about what the code demands and allows university bureaucrats “to make it up” as they go along.
Bureaucratic use of vaguely worded laws to punish disfavored speech isn’t just a problem on campuses, either. Take the ubiquitous “sign codes” omnipresent in nearly every municipality in America. Putting up a sign is one of the cheapest, oldest, and most direct ways to send a message, be it political, religious, or commercial. But throughout the country, cities have adopted vaguely-worded sign codes that require people to get government permission before speaking through signs. But these sign codes are frequently so broad and vague that bureaucrats can use them to punish speakers they don’t like. Hell hath no fury like a bureaucrat scorned.
Consider Jim Roos, who fought St. Louis, Missouri, over the city’s threat to use eminent domain to forcibly take his property. During the legal battle, Jim painted “END EMINENT DOMAIN ABUSE” on the side of his own building. But the city told him that his message was unlawful because he hadn’t gotten a permit required by the sign code. When he applied for one, the city department he was fighting over eminent domain weighed in against his permit—and surprise, the city denied the permit. Eventually, Jim was vindicated by the 8th Circuit in a lawsuit brought on his behalf by my organization, the Institute for Justice—but it took years.
Gorsuch’s careful concurrence shows that the “weight of the historical evidence” establishes that the due process clause empowers courts to reject laws that are so vague that they invite the arbitrary exercise of power. Gorsuch’s compelling and dense survey of jurists who support this reading of the due process clause comes across as a “Who’s Who” of judges—from the esteemed 17thcentury English jurist Sir Edward Coke, to 18th and 19th century American jurists like Chief Justice John Rutledge and Justice Joseph Story, to Gorsuch’s own predecessor, Justice Antonin Scalia.
By embracing the long historical pedigree of constitutional skepticism toward vague laws, Gorsuch’s opinion represents what columnist George F. Will recently called the “ascendant” judicial philosophy of “judicial engagement.” Judicial engagement rejects knee-jerk judicial deference to the government—such as here, where a statute is not “plainly and clearly” written. This judicial philosophy ought to worry Michigan’s Bias Response Team and any other bureaucrats who hope a “restrained” judge will give them a free pass to punish speakers and ideas they just don’t like.
