James Madison University (JMU) has made a seemingly small change to one of its policies that actually has significant implications for student expression. Last year, JMU’s policy on “Obscene Conduct” stated that
No student shall engage in lewd, indecent or obscene conduct or expression on university property or in university-owned or operated buildings. (Emphasis added.)
This year, the policy states that
No student shall engage in lewd, indecent or obscene conduct or expression, regardless of proximity to campus. (Emphasis added.)
Given that “lewd” and “indecent” are—unlike “obscene”—terms that do not have a clear legal definition, this policy could easily apply to expression that is crude or vulgar but still constitutionally protected (as most crude and vulgar expression is).
What disturbs me is that between the last academic year and this one, JMU administrators made a conscious decision to prohibit more student speech. Why would administrators want to so drastically expand the reach of this policy? If I had to make an educated guess, I would say they want the ability to reach online student expression, which may be posted by JMU students from their off-campus apartments or even farther from JMU’s campus. Punishment of online student expression is an increasing problem, the dangers of which Will highlighted just last week.
As I’m sure most users of sites like Facebook.com know, expression on these sites is often controversial and, yes, even lewd or indecent. But unless the expression rises to the level of one of the narrow categories of speech not protected by the First Amendment (such as obscenity or defamation), a public university like JMU cannot punish it. The earlier version of JMU’s policy, prohibiting lewd and indecent expression anywhere on campus, was itself a violation of students’ free speech rights, but this revision makes the policy far more overreaching and intrusive. Now, expression by a JMU student anywhere in the world is potentially subject to disciplinary action if discovered by JMU administrators. This is disturbing indeed, and we hope that JMU students will take notice and urge the administration to change the policy.