FIRE Director of Legal and Public Advocacy Will Creeley provides some useful analysis of the state of free speech at The College of New Jersey (TCNJ) in an op-ed written for the TCNJ student publication The Perspective. Be sure to check it out to get Will’s take on the First Amendment problems in TCNJ policy and the ways in which students at the public institution are currently being deprived of their full free speech rights.
Will’s op-ed takes aim primarily at TCNJ’s definition of "abuse" in its "Violations of Community Standards" policy, found here. The policy defines "abuse" as follows:
Abuse—Physical and/or verbal assault or conduct that threatens or endangers the health, safety, or well being of any person or group.
As Will writes, this provision not only abridges First Amendment rights, to which students at TCNJ are fully entitled, but also it fails the basic "South Park test":
As most Americans of college age know, the hallmark of Comedy Central’s "South Park" is its bomb-throwing satire. The show is a celebration of sharp-edged snark, seemingly designed to offend as many sensibilities as possible. On that score, "South Park" has been successful, generating heated complaints over the years from Christians, Muslims, Scientologists, conservatives, liberals, and countless others. Love it or hate it, "South Park" is part of a venerable American tradition of satire, from Mark Twain to Dave Chappelle.
But don’t try retelling the jokes you heard last night on "South Park" to a friend while walking across campus. Those jokes violate TCNJ policy-and that’s why TCNJ fails the test.
For example, TCNJ’s Student Handbook prohibits "abuse," defined to include "verbal assault" that "threatens or endangers" the "well being of any person or group." So if an evangelical student overhears you retelling jokes from the episode where Cartman starts a Christian rock band-jokes which he or she may very well find horribly offensive-you run the risk of being found guilty of "abusing" your fellow student. After all, that joke threatened his or her "well being." Never mind the fact that it’s protected by the First Amendment, that you meant no harm, or that it was just a joke. No, you’re guilty of "verbal assault." See you at the disciplinary hearing!
Whle it may sound silly, the "South Park test"—which I often bring up when speaking on FIRE issues before students and campus groups—is a useful (and, for college students, comprehensible) barometer to use when analyzing the First Amendment flaws in campus speech codes. After all, FIRE’s case archives are filled with cases that remind one of the sort of satire and offensive-yet-protected expression one finds on the show.
If that’s not the way to convince you, however, Will’s op-ed discusses how the TCNJ policy fails the First Amendment doctrines of both overbreadth and vagueness:
First, the policy is "overbroad," meaning that while it outlaws speech that isn’t protected by the First Amendment-like true harassment and threats-it also prohibits a significant amount of protected speech, like the jokes on "South Park."
Second, the policy is impermissibly vague, because it leaves students guessing at what does and does not qualify as "verbal assault." When students don’t know the precise boundary between a joke and "verbal assault," they’re far more likely to self-censor. The resulting "chilling effect" on speech violates the First Amendment.
Read on in Will’s op-ed to find out just how damaging this state of affairs is to the marketplace of ideas that a university campus is supposed to be. As he writes, however, the solution isn’t that far off, and TCNJ students should have their school’s First Amendment compliance within their sights:
How can the College square its obligations under the First Amendment with its legal requirement to prohibit actual harassment on campus? The answer is surprisingly simple: by adopting the Supreme Court’s definition of harassment in the educational context. In a 1999 case entitled Davis v. Monroe County Board of Education, the Court found that for student conduct to constitute constitutionally unprotected harassment, it must be "so severe, persistent, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit."
Under that narrow but effective standard, there’s no need for TCNJ students to guess about what speech is and is not prohibited. There’s no subjectivity problem. And there’s no way a "South Park" joke could be found to constitute "verbal assault."
I urge TCNJ students to reform the Student Handbook to make sure that free speech is protected.
Given that TCNJ is a red-light institution, I really hope its students take Will’s words to heart and work to restore full First Amendment rights at the college.