1995
Speech Code Ruled Unconstitutional: Grey Interpretation Struck Down by Superior Court
by Thorvin Anderson
Volume XIV, Issue 3: March 1995

Robert Corry (Click for larger image)

After years of receiving intense criticism from the student body, Stanford's controversial speech code has fallen. On Tuesday, February 27, Santa Clara County Judge Peter G. Stone ruled in favor of a coalition of students and alumni who challenged the speech code's constitutionality and its legality under California state law.

Stanford's speech code, formally termed the "Fundamental Stanford Interpretation: Free Expression and Discriminatory Harassment," proposed by Professor Thomas Grey, has loomed over campus debate since its approval in 1990 by the Student Conduct Legislative Council and then-President Donald Kennedy. It prohibits insults based on the sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin of an individual or small number of individuals.

In a lengthy 43-page decision the Honorable Judge Stone placed an injunction against the speech code, barring the University from enforcing it. In a press conference last Friday, the plaintiffs released the judgment order for permanent injunction of the code, a document they themselves had written, and later submitted to Judge Stone for approval. "IT IS HEREBY ORDERED, ADJUDGED, AND DECREED," reads the order, in part, "that Defendants and Defendants' officers, agents, servants, employees and attorney, and all participation with tem or any of them are herby perpetually enjoined and restrained from in any manner...executing and disciplinary action under, promulgating, enforcing, interpreting, or marinating any Speech Code (including all attachments contained in the "Grey Interpretation")..."

Due to the absence of President Gerhard Casper and other important administration figures at the time the ruling was made, the University has issued no official statement. The University has responded to the ruling simply by striking the code form its books. "The Grey interpretation is gone," said Terry Shephard, Directory of University Communications. "We're back to the Fundamental Standard alone."

Law School alumnus Robert Corry and second-year Stanford law student Scott Kupor, in conjunction with seven other plaintiffs, filed the lawsuit in April of last year, charging that the University's speech code violated First Amendment rights, as well as a piece of recently-passed legislation, California Education Code [section] 94367, commonly known as the Leonard Law. This law guarantees students at private universities rights to free speech identical to those they would enjoy off-campus.

"What is more important than your ability to speak out if you're at school?" Mr. Corry asked in an interview last week. "I think the only acceptable speech code is the First Amendment to the United States Constitution."

Mr. Corry sees the plaintiffs as "a small rag-tag group" which confronted a leviathan. "We were taking on some of the finest lawyers in the state of California," he said. "It's so significant that we were able to win, because, if you look at the amount of legal talent Stanford had on their side, versus our side, even given that great imbalance, we were able to prevail."

The University attempted to defend the speech code, claiming that it did not infringe upon eh First Amendment rights of the plaintiffs, as it specifies "fighting words" as a requisite ingredient of a violation of the Interpretation. Even if the speech code were incongruous with the First Amendment, the University claimed, that should not be grounds for striking it as the Amendment does not apply to private actors.

Judge Stone found neither argument sound. He described the Grey Interpretation as "overboard," and prohibits speech that does not qualify as "fighting words." "[The] speech code fails to meet the 'fighting words' standard," he wrote in his decision. By upholding the Leonard Law, Judge Stone established the First Amendment's protection of students at private institutions.

Prof. Grey finds his interpretation defensible against the charges that it restricts speech. "I think the decision was wrong," he stated in an interview last week. "[The Interpretation] is not a speech doe; it is a general provision of discouraging harassment."

Mr. Kupor disagrees. "That is not what the speech does," he responded to the notion that speech code was merely intended to address harassment. "It is a fallacy to suggest that speech was not the target of the code."

The University has 90 days to file an appeal. "I think they'll appeal it," said Mr. Corry. "I don't want them to, but if they do, we're prepared to fight them, and they're going to have an uphill battle. This trial court's decision is very explicit and eloquent."

As the speech code has never been used to prosecute a student, some argue that the lawsuit is almost moot. The plaintiffs, however, believe the speech code has squelched speech, due to potential ambiguity in the code's interpretation. "Any rational student is going to stay away from the boundaries of the code," stated Mr. Kupor, adding that this necessarily results in inhibited discussion.

Mr. Corry concurs. "It takes a lot of hard work" to get into Stanford, and students, realizing the peril of speaking out under a speech code, "are going to be overly cautious not to be expelled," he argued. "The effect of these provisions is to chill our speech before it even happens."

Prof. Grey believes a new interpretation could hold up in court if it addresses harassment directly, rather than restricting what is considered harassing speech. He sees the lawsuits ushering in more perilous times for free speech at Stanford. While the Grey Interpretation "was a very narrow, well-defined provision," Prof. Grey predicts that, "This so-called speech code is more speech-protective than what will succeed it" in the form of a broader harassment prohibition.

Senior Aman Verjee, one of the plaintiffs in the lawsuit, believes a legally robust harassment-prevention policy is possible. "I wouldn't have a problem with the policy if they simply enacted time, manner, and place restrictions," he said. Mr. Kupor sees the free-speech debate tainted by political agendas, causing those who believe they can gain by suppressing speech to support speech codes. "It's been a political issue," he said, adding that, correctly viewed, "this is an ideological issue, rather than political."

He added that a speech doe is no necessary element of a civil campus structure. "Students self-censor themselves," he said. The ruling on Stanford's speech code has the potential for instigating change at other institutions of higher learning as well. "I think students and schools around the country are going to stand up and take notice of this decision," Mr. Corry. "Stanford has always maintained that their speech code was precise enough that it didn't offend the Constitution. If a speech doe like that goes down, then other, less carefully drafted speech codes around the nation are also in jeopardy." Mr. Corry stresses the precedent-setting role of this case. "It's the first time a private university has been enjoined from using a speech code. In the past, they were always public schools," he said, stressing the profound new implications of the Leonard Law. "They thought that private status insulated them from the First Amendment."

"This is a resounding victory," stated Mr. Cory. "This winds of freedom are blowing again."

Page last modified on Thursday, 02-Mar-2006 00:14:50 MST.