Can State Officials Condemn Without Censoring?

By on April 15, 2008

Over at Popehat, a FIRE friend (pseudonymously “Ken”) takes me to task for my response to Colorado College president Richard Celeste’s false contention that the students who published the first issue of “The Monthly Bag” were not sanctioned or punished. Celeste’s sentence was:

The students involved in creating this publication were found to have violated the college community’s standards, but they were not sanctioned or punished.

In response, I wrote:

The students were sanctioned and punished. Take a look at their letter of sanction by Dean of Students Mike Edmonds. Having a guilty finding on one’s record is a punishment. Having the letter put in each student’s file is a punishment. Being required to hold a “forum” is a punishment. Being publicly shamed in a mass e-mail from the president is a punishment.

Ken has made some important points regarding my response:

It is quite well established that official condemnation and criticism, and even formal “reprimands” and “censures,” don’t constitute violations of the right to due process or of First Amendment Rights… Courts have consistently found that a state actor’s condemnation, criticism, and even “official censure” of another does not violate rights unless it leads to a specific deprivation of something tangible-like a benefit… The seminal case in this line, Paul v. Davis, 424 U.S. 693 (1976), rejected a Section 1983 claim by a man who was depicted as a repeat shoplifter in a flyer; the Court held that damage to reputation, absent accompanying loss of something tangible like employment, is not a deprivation of liberty or property. Or consider a state case, the Vermont Supreme Court in La Flame v. Essex, in which the court rejected a claim that a school board violated First Amendment and due process rights by levying an official “censure” at a member.

There’s a very good reason that censure, condemnation, and criticism by government officials can’t constitute a violation of free speech rights. It would be inherently self-contradictory, an impossible paradox of speech. As the Nunez court said in rejecting a claim that official criticism violated free speech rights, “[I]t would be the height of irony, indeed, if mere speech, in response to speech, could constitute a First Amendment violation.” The entire theory behind modern free speech jurisprudence is that the best response to offensive speech is more speech. That underpinning is weakened if we attempt to hobble the response speech; it’s the equivalent of saying that that the first person to speak should get superior protection.

The apparent demand that the students hold an encounter group is clearly punishment that would violate the First Amendment and that should offend our expectations for a college. But Colorado College’s President’s official condemnation of the authors of The Monthly Bag, no matter how moronic and regrettable, is therefore not “punishment” in any way we should care about in a discussion of free speech. If anything, we should encourage official speakers to respond to offensive speech from the soapbox rather than with the censor’s pen in the hopes of normalizing that response.

Back in 2005, before I arrived at FIRE, I was making about the same point when I wrote:

[M]oral censure and negative social consequences are especially important punishments in educational institutions, where students come for some degree of moral education in addition to intellectual development. These punishments often fit the crime and can go a long way in teaching the perpetrators the appropriate lessons…. [W]hen Deputy Provost Ken Warren suggested that “external intervention” is sometimes necessary when thoughtless actions are committed, I hope he meant exactly what the University has done in the present case: to apply moral censure and encourage the community to reassert our values, complex as they are, but not to discipline anyone.

Back then and recently, I conflated some terms for the sake of conciseness. But for accuracy, I should present some important definitions. I should distinguish a sanction from a punishment and should distinguish a social sanction or punishment from an official sanction or punishment:

Sanction: a positive or negative social reaction to speech or conduct, implicitly or explicitly invoking moral norms, directed to the actor with or without the force of authority. (See also Britannica’s definition as well as Durkheim’s.)

Punishment: an always negative reaction to speech or conduct that is interpreted as having violated moral norms, directed in some way to hurt the actor, with or without the force of authority.

That is, in common language, a sanction is more or less a community’s expression of its moral norms in response to something somebody said or did. That expression becomes a punishment when it is meant to address a violation of those norms by hurting the violator. (For some legal definitions, try these for sanction and punishment. I’m not a lawyer, so these will have to do.)

Ken is right to suggest that we should never use these broad sociological definitions to declare that condemnation counts as an unacceptable punishment from a free-speech perspective. That would go against the principles we follow here at FIRE. That’s because, as Ken notes, we fully support people’s right to fight speech they dislike with more speech. Whether condemnation comes from regular folks in the community or from the President of the United States, to FIRE it is an exercise of free expression. What’s off limits, however, is official punishment for what the Constitution or other norms protect.

So, were the two Colorado College students sanctioned in a bunch of different ways? Yes, to be sure. Would FIRE act against sanctions that are merely official expressions of censure? No.

But in the Colorado College case, the president’s censure was followed by a three-hour trial in a kangaroo court, a finding of guilt for violence, a letter of sanction, placement of the letter in each student’s school file, and a requirement to hold a forum on particular topics by a particular date. Having a finding of violence in one’s official file is a very serious punishment indeed. As Greg wrote recently,

Try applying to grad school or finding a decent job after graduation with a letter in your file finding you guilty of campus-terrorizing “violence.”

Finally, let me be clear that a college official may publicly condemn speech he or she considers bigoted, offensive, demeaning (as here), or otherwise objectionable. The Colorado College letter, however, tied the censure to a finding of guilt for the serious offense of “violence” and for being in violation of official school rules. Also, the letter followed up the censure with punishments. One punishment Ken and I agree upon: requiring the students to hold a forum is a no-no. The other one, I must insist, is also a no-no: putting the letter about violence in the students’ school files. Administrators, not to mention potential employers, could see that Colorado College has declared the students guilty of a violent offense. The threat here is not just to reputation but also to future employment and future benefits at the college, since the letter goes beyond censure to find official guilt in breaking an official school rule in a purportedly serious matter.

I’ll throw in one more definition:

Justice: an appropriate sanction or punishment.

But let’s leave the definition of “appropriate” to another time. For now, let me thank Ken and Popehat for making some important points and encouraging me to make my points more precisely.

Schools: Colorado College