On The Threat to the First Amendment in Higher Education

By March 28, 2008

I recently co-authored a political satire of a familiar campus publication, The Monthly Rag, which I titled The Monthly Bag. The appearance of our satire was handled in a manner which in many ways approximated to, say, the way Wahhabbi Islam hunts down apostasy. Apostasy, for the interested party, is the ultimate crime in Islam: an apostate is one who has known the true faith and deviated from it, and his punishment for this shall be death.

The college opens for business at 8 am. By 8:30 am on the day of publication, I observed security forces tearing down our satire. Wow. Who would have the power and zeal to initiate such a crackdown? I’m not sure, but all I can say is the Chinese Communist Party would be proud.

Having offered myself up to “the authorities” immediately after receipt of a mass email of denunciation by the President of our College, I was then informed that we would face charges in the Student Conduct Committee. I’d love to tell you more about that proceeding, but I’m not at liberty to do so. I will tell you this, though: it was deadly serious. It was an open-ended procedure which could have led to any punishment up to expulsion. It was a corrupt and biased proceeding which inspired in me a terror I’ve not felt for many years, and constituted a cruel and unusual punishment in and of itself, which I suspect was its intent.

I had two options. The first: to act especially contrite and affirm the school’s authoritarian response in the hope of leniency. The second: to take a stand on principle. I chose the latter. You may wonder why I would take such a risk. I remember walking around campus during the week before my “trial” and getting long-faced looks of sympathy and concern from acquaintances. Comments like “you’re in big trouble” came my way. It became clear that the people who would utter such nonsense had already been beaten into submission by the fascist culture I was up against. This only hardened my resolve.

Why do I use the word “fascism” to describe the culture of politically correct censorship? Because it is just that. In Azar Nafisi’s novel, Reading Lolita in Tehran, she tells the story of a reading group she led in post-revolutionary Tehran in which she covertly taught banned western literature to young women. The justification offered by the Ayatollahs for banning these books was that their content hurt the feelings of the good Muslims of the Islamic Republic of Iran.

Hyper-sensitivity in service to a purported greater good became the justification for an authoritarian lock-down on speech. It’s the same logic every time: the state comes down hard on behalf of “community.” Changing the rhetorical justification only masks the tyranny. The effect of this on citizens, in the words of John Adams, is “reducing their minds to a state of sordid ignorance and staring timidity.”

The Amendments to the Constitution are numbered. We can reasonably infer from that fact that the Authors of it put forth those Amendments first about which there was absolutely no disagreement. I submit to you that the Amendment we are here discussing is The First Amendment. It reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…

You are doubtless asking yourself, what has the Supreme Court held regarding anonymous speech? After all, a substantial part of the charges against me were based in the assumption, encouraged by the President, that anonymous speech is not a protected form (we can leave aside for now the fact that The Monthly Rag is also undertaken with a degree of anonymity). In fact, the Court has repeatedly and unequivocally upheld the right to anonymous speech.

I refer you to Talley v. California, 1948, Justice Earl Warren presiding. In this case, the city of Los Angeles had passed a law requiring all printed materials being distributed publicly for any purpose to bear the names of their authors. The court ruled that the law was unconstitutional. In the leading opinion, authored by Justice Hugo Black, the court found the following:

These [pamphlets and leaflets] indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest…Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind…the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes…

Fifty-three years later, in 2001, the University of Texas attempted to ban an anti-abortion group from handing out fliers stating simply “Life is beautiful-choose life.” The students were punished under a college statute which similarly demanded proof of authorship. The case, Justice For All v. Faulkner, went to the US Court of Appeals for the Fifth Circuit, which found unambiguously for the anonymous pamphleteers. The opinion of the Court, authored by Justice E. Grady Jolly, found as follows:

As a general proposition, anonymous speech is protected by the First Amendment….Moreover, the Court observed in [McIntyre v. Ohio Elections Commission] that “anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent”, which “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular”.

In both of these cases, an unpopular opinion was at stake. In Talley the pamphleteer was attempting to organize minorities around union and civil rights issues. In Justice For All a group was attempting to express their opposition to abortion. My case involves a similar principle. I expressed what, for my inquisitors, is a profoundly unpopular opinion, namely this: if radical feminism is given a voice in our bathroom stalls, so then should “traditional” masculinity be given the same voice.

I chose satire to make my point, and I chose anonymity because I feared that I would face persecution for daring to voice a heretical view. I have been called “sexist,” “misogynist,” “homophobic,” and if I recall correctly, even “racist” and “classist,” among others. So, my fears have been confirmed. In essence, the politically correct orthodoxy which controls discourse on campus exposed its authoritarian tendencies in a way I would have never dreamed it could. Stay tuned for next week’s installment, “What is Political Correctness?”

To illustrate how unambiguously protected my publication is by the constitution, I point to the fact that The Supreme Court has ruled that anonymous speech is protected with or without fear of retribution. In McIntyre v. Ohio Elections Commission the Court found that “[t]he decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible…Accordingly, an author’s decision to remain anonymous…is an aspect of freedom of speech protected by the First Amendment.”

Our inquisitors sought to punish us based upon several provisions in the Pathfinder which are carefully crafted to be so vague that they will permit the college to punish anything it feels like punishing. Over the years, the Court has repeatedly struck down such laws. The specific codes in question undoubtedly constitute an overbreadth violation of the First Amendment. Here’s a sampling:

Special Provisions

Colorado College reserves the right to suspend or dismiss any student whose conduct is regarded as being in conflict with the best interests of the college or in violation of its code of conduct.

College Value – Respect

Verbal Abuse – Verbal abuse includes spoken or written attacks of a vulgar or disrespectful nature intended to demean, embarrass, or intimidate another person.

College Value – Integrity

Deception – Students may not act in ways that are deceptive or manipulative. This includes knowingly misrepresenting oneself, involving others in violations without their knowledge, or manipulating people or processes.

Honesty – Students are expected to communicate honestly and demonstrate a respect for the truth. It is prohibited to knowingly furnish false, falsified or forged information.

You don’t need a world-class legal mind to see that in each of these statutes, it is impossible to ascertain definitively whether the Monthly Bag is a violation. They require the adjudicating body to make an arbitrary judgment regarding nonspecific terms such as “intended” or “best interests.” The Court has consistently struck down regulations of this sort, as it did in Hill v. Colorado where it found:

“[a] statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.”

The CC conduct code statutes under which we faced prosecution plainly meet both of those independent reasons.

What then, is the effect of arbitrary and vague statutes on free speech? This is perhaps the most critical part of my argument. They create what the Court has called a Chilling Effect on speech. By elevating the feelings of the listener to super-protected status in the form of potential disciplinary action against me, these college statutes have chilled the willingness of others to participate in controversial speech.

The simple fact that we were brought before a Soviet-style show trial has already sent a message to campus, and it is a clear one, namely that every other potential bearer of heterodox views should think long and hard about expressing them for fear of ending up in the same situation as us. In order to avoid even the possibility of offending one group or another, nobody outside the “approved” ideological categories will say anything.

This is precisely the chilling effect that the First Amendment is specifically designed to guard against, and to sanction it is a fundamental violation of the mission of this college. Transparently selective enforcement against ideologically disallowed speech is categorically the same as those abhorrent thought-control missions carried out by the Saudi Ministry of the Propagation of Virtue and the Prevention of Vice, a perfect example of what John Adams called “the most mischievous of all doctrines, that of passive obedience and non-resistance.” It’s Orwell and Kafka, together at last.

Here’s the catch. Colorado College is a private institution, which means that from a legal standpoint it can do whatever it wants regarding speech. It can enforce political positions it regards as sacrosanct with legal impunity. But should it? Do you as a student think CC should be a campus with less protection for free speech than Pikes Peak Community College? Do you think that CC should arrogate to itself the right to create a standard for speech independent of and lower than that affirmed by the highest court of the land? Should we revoke the very principles that allowed a thing like The Monthly Rag to be printed in the first place, forging instead ideological weapons of oppression aimed at a satire of it?

If you can’t answer those questions in the negative, I can only ask you to consider the words of Benjamin Franklin. “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

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Schools: Colorado College Cases: Colorado College: Students Found Guilty for Satirical Flyer