James Madison University Revises Speech Code of the Month After FIRE, Students Challenge Unconstitutionality

By October 29, 2009

We have good news from the front in the fight to eradicate speech codes from our nation’s campuses. James Madison University has revised its policy on Obscene Conduct, no longer banning "lewd, indecent or obscene…expression." Yet the university’s strained relationship with First Amendment principles has recently manifested itself in another way, with students charged with offenses for investigating newsworthy events on campus.

First the good news. Torch readers will remember that FIRE expressed concern in September that JMU’s policy on obscene conduct had been changed to include not only on-campus but also off-campus expression, threatening a large volume of student speechincluding online expression. The policy was already problematic, banning expression that could be constitutionally protected. (Can you say for certain what is lewd, indecent, or obscene expression as opposed to what is just offensive? Would you trust JMU to always agree with you? I didn’t think so.) The revision drastically expanded the policy’s reach, giving the administration the power to censor online and off-campus speech. Certainly, as Sam pointed out at the time, there’s a great deal of speech on Facebook and other sites that is lewd and indecent but does not reach the high legal standard for obscene expression. In fact, legal "obscenity" is a term generally reserved for hard-core pornography.

Sam’s post caught the attention of the JMU student paper The Breeze, which published an article on the policy change. Josh Bacon, director of JMU’s Judicial Affairs, told the paper that "the intention is not to police social networking sites," but to protect students from "people who have been exposing themselves off campus." The university may certainly have a legitimate interest in prohibiting such conduct, but as FIRE and JMU students pointed out, the policy need not prohibit "expression" to reach behavior like indecent exposure. Initially, the administration stuck to its guns; Mr. Bacon told The Breeze that "It’s an interpretation of how you say expression; is it physical expression? Again, to me, it says obscene conduct, not obscene expression." As Sam responded, "But of course, as anyone who can read the policy knows, what it says is ‘obscene conduct or expression.’" Why a policy that Bacon always insisted was meant only to reach conduct also originally included the word "expression" was never explained. After all, few people consider episodes of indecent exposure like public urination to be legitimate examples of expression.

JMU student and CFN member John Scott penned an excellent essay in The Breeze on the policy change, challenging the ethics and constitutionality of such a policy. The administration promised that the policy would never be enforced to censor protected expression, which was another way of saying it would never be enforced as written. Yet even if the current administration did respect student speech rights in practice, there’s no guarantee its successors would follow suit. As John writes, "This is exactly why personal guarantees do not hold the same legal weight as written policy."  

FIRE then added to the pressure by naming the policy its Speech Code of the Month for October, writing,

Eliminating two words"or expression"from this policy is a simple change that would leave the administration with full power to punish the kinds of activities it is ostensibly concerned with, and at the same time remove the threat to free expression. The fact that the administration seems unwilling to do so-and is instead resorting to verbal chicanery to try and convince concerned students that the policy doesn’t actually prohibit free expression-should be of great concern to anyone who cares about student rights. We hope that JMU students will find Bacon’s answer as unsatisfactory as we do and will keep the pressure on the administration to revise this unjust policy.

Today, we are pleased to say that JMU students did not stand down, the pressure continued, and the JMU administration has officially changed the offending policy, deleting "or expression" from the policy. In an e-mail sent to all students, the Office of Judicial Affairs wrote,

University Policy Obscene Conduct J24-101 has been revised and now states: No student shall engage in lewd, indecent or obscene conduct, regardless of proximity to campus.

For more information on this and all University policies please refer to the Student Handbook at: http://www.jmu.edu/judicial/handbook/index.html

The new policy can be viewed here. We are glad to announce the policy change and we commend the JMU administration for moving to preserve the constitutional rights of its students to free expression in its policies, just as The College of William & Mary and the University of North Texas, where coalitions of students have worked with FIRE to change their unconstitutional policies, recently did. We also congratulate the JMU students who have done so much to expose the unconstitutionality of the policy, and will be offering further analysis of the change in upcoming blog entries. If you would like to challenge the unconstitutional policies at your school, register for the Campus Freedom Network and contact us at cfn@thefire.org.

Yet this incident is unfortunately not the only way in which JMU’s administration has demonstrated a questionable understanding of students’ rights. Indeed, JMU Judicial Affairs–the office of the aforementioned Josh Bacon, in fact–is currently charging two student journalists from The Breeze for trespassing, disorderly conduct, and failure to follow the order of a university official while investigating a story about trespassing in one of the residence halls, despite the fact that it appears that they did not actually break any college regulations. If the reporters’ accounts hold up, JMU’s actions would constitute a clear violation of the freedom of the press by punishing student journalists who were investigating a story of general concern while following residence hall policies.

Liberty will not be secure at JMU as long as the administration is willing to unjustly punish student journalists. Unless the facts of the case are different than we have been led to believe (and JMU has provided no countervailing facts), the administration must immediately drop the charges against the students and cancel the hearing currently scheduled for November 5. 

Schools: James Madison University