In 2010, ‘Naughty’ Words Led to Outsized Prosecutions on Campus

By January 3, 2011

In my final blog of 2009, I wrote about the dramatic uptick in security fee-related cases at colleges and universities across the United States, including the University of Colorado at Boulder, University of Massachusetts Amherst, and University of California, Berkeley. Outside of my daily duties at FIRE, I can’t claim to be the most adept trend watcher, though even I couldn’t help noticing everyone and his mother reading Steig Larsson on the bus to work this year. So what did FIRE see a lot of in 2010? Well, at places like Clemson University, the University of Georgia (UGA), and Hinds Community College (HCC) in Mississippi, we saw the typical overreaction to "politically incorrect" speech extended into the realm of profanity and vulgarity, which (gasp!) are occasional features of the 21st century college campus.

At Clemson, student Wil Kirwan’s trouble started in May 2010 after he declined an invitation from Clemson administrator Laura McMaster for his group Central Spirit to participate in a fall student organizations fair. Doubting the usefulness of Central Spirit participating in the fair, Kirwan told McMaster, "I would trust the advice of six [former Central Spirit presidents] that have been in my shoes and given me the same advice over yours any day of the week and twice on Sunday." Kirwan also jokingly stated that McMaster had been "smoking crack" in her efforts to persuade the group to participate. Marty Kern, an administrator who was copied on the exchange, told Kirwan that his "language and tone [are] unacceptable in any setting," and demanded a meeting. Kirwan declined this meeting, butstrangelyKern decided to have the meeting without him anyway.

Days after this exchange, Kirwan received a disciplinary letter stating that he was being charged with "Disorderly Conduct," "Harassment," "Failure to Comply with Official Request," and "Computer Misuse." Kirwan was also told in the letter that he had sent an e-mail "that had the effect of creating a hostile work environment," though he was not told specifically which e-mail, or for whom it allegedly had created the hostile work environment.

FIRE wrote to Clemson President James F. Barker on May 24 and, thankfully, we were notified the next day that Clemson was dropping all charges against Kirwan.

A remarkably similar sequence of events took place at UGA just a few months later.

At UGA, graduate student Jacob Lovell sent an e-mail to UGA Parking Services on August 17, complaining about the availability of scooter parking on campus. "What the hell? Did you guys just throw darts at a map to decide where to put scooter corrals? Can I expect you guys to get off your asses … some point before I f—ing graduate and/or the sun runs out of hydrogen?" his e-mail stated, poking fun at the division. Four hours later, Lovell was notified in an e-mail from Parking Services that "Your e-mail was sent to student judiciary." On September 3, Lovell received a letter from Associate Dean of Students Kimberly Ellis informing him of several possible violations of UGA’s Code of Conduct. The list of charges was strikingly similar to what Kirwan received at Clemson, including "Disruption or obstruction of teaching, research, administration or other University Activities" and "Engaging in conduct that causes or provokes a disturbance." "Specifically," the letter stated, "it is alleged that Mr. Lovell engaged in disorderly conduct and disrupted parking services when he sent an email to them that was threatening."

(Side note: if there would be any bureau equipped to deal with arousing the occasional ire of the community it serves, wouldn’t you think it would be the department responsible for, among other things, issuing citations for parking violations?)

Again, FIRE got involved, writing a letter to UGA President Michael F. Adams on September 10. Again, the response was swift, with UGA notifying us on September 14 that it "did not find sufficient evidence to move forward" with charges against Lovell. UGA, however, has yet to revise its unconstitutional policy mandating that "[u]sers must not use profanity, obscenities, or derogatory remarks in electronic mail messages."

At least Clemson and UGA got their acts together quickly and refrained from punishing their students; Isaac Rosenbloom’s ordeal at Hinds Community College was another story.

Rosenbloom, a father of two who is pursuing training as a paramedic at HCC, was charged with–and found in violation of"flagrant disrespect" for uttering a single profanity after class, within hearing distance of his professor. This incident took place after Rosenbloom’s Oral Communication class, when a number of other students stayed behind with instructor Barbara Pyle to discuss their grades. Rosenbloom commented to another student that his grade was "going to f— up my entire GPA." Pyle then initiated a verbal confrontation with Rosenbloom, threatening him with "detention," which Rosenbloom replied was not a punishment at HCC. Pyle then filed a complaint against Rosenbloom, stating that "this language was not to be tolerated [and] he could not say that under any circumstances [including in] the presence of the other students."

For being found guilty of "flagrant disrespect," Rosenbloom was given twelve demeritsthree shy of the total number required for suspension, and was involuntarily withdrawn from Pyle’s course. Rosenbloom’s two subsequent appeals were denied. The ripple effect of Rosenbloom’s punishment was drastic; as a result of being forced out of Pyle’s class, Rosenbloom lost his financial aid. FIRE eventually helped Rosenbloom obtain the assistance of attorneys Robert B. McDuff and Sibyl Byrd, who secured a settlement in his favor, with his financial aid restored and the findings removed from his student file. Unlike Kirwan’s and Lovell’s cases, which were quickly resolved, HCC dragged its feet for nearly four months before resolving the case, allowing the specter of professional ruin to hang over Rosenbloom for his completely protected speech.

All is not yet resolved at HCC, either. Diving deeper into HCC’s policies, FIRE uncovered gallingly unconstitutional speech codes that remain a direct threat to student speech at HCC, which serves nearly 20,000 students per year according to its website. Most appallingly, HCC bans "public profanity, cursing, and vulgarity," with a fine of $25 for the first offense, $50 for the second offense, and suspension for the third offense. FIRE pointed this out to HCC President Clyde R. Muse in our April 27 letter, which received no response. HCC brought itself perilously close to an embarrassing legal defeat by punishing Rosenbloom. FIRE continues to watch HCC in the hope that it does not punish anyone again in violation of their rights. HCC must still reform its unconstitutional policies.

Rosenbloom’s case was one of the worst cases FIRE saw this year of students being punished or threatened with punishment for offending the selectively prim sensibilities of administrators. Yet these cases, taken together, have prompted some to ask why FIRE concerns itself with such cases when so many students face censorship for speaking up on various political, cultural, and religious issues. Isn’t it more productive for students to simply be polite and respectful? Frequently it is, but that concern misses the larger point. Here is what I wrote on Lovell’s case at UGA back in September:

After all, there is no need for a First Amendment if we intend only to protect popular speech-it is precisely unpopular or "offensive" speech that needs protection. The Supreme Court made this clear with its landmark opinion in Cohen v. California when it declared that "one man’s vulgarity is another’s lyric." In that case, the Court overturned the conviction of a man who protested the Vietnam war by wearing a jacket bearing the words "F*** the Draft" in a courthouse. Would this man have turned as many heads if his jacket politely stated his preference for not having a draft? Of course not. Profanity is broadly unnecessary, which is exactly why people use it: to drive home the passion and emotion behind their messages.

If Jacob Lovell can’t rely on the First Amendment’s protection when calling for better parking, why should anyone expect that it will be there for them when calling attention to the war in Afghanistan, the environment, "Don’t Ask, Don’t Tell," or U.S. immigration policy (the latter two topics being of particular concern to college students this past semester)?

Let’s hope that the message of free speech has more resonance among university administrators in 2011 than it did in 2010.