April 20, 2012
President Richard L. McCormick
Office of the President
Old Queens Building, Room 203
New Brunswick, New Jersey 08901
Sent via U.S. Mail and Facsimile (732-932-8060)
Dear President McCormick:
As you can see from the list of our Directors and Board of Advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, due process, legal equality, voluntary association, religious liberty, and freedom of speech on America’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities.
FIRE is concerned about the threat to freedom of expression presented by Rutgers University’s announcement of a “bias incident” investigation due to the printing of a satirical article by a campus publication. Suggesting that such protected expression may be subject to discipline causes an unacceptable chilling effect at a public university such as Rutgers, which is legally and morally obligated to uphold the First Amendment.
This is our understanding of the facts. Please inform us if you believe we are in error.
Each year, student humor newspaper The Medium prints an annual April Fools’ Day issue designed to mimic and satirize the The Daily Targum, Rutgers’ main campus newspaper. This year’s April Fools’ Day issue states that it is a “comedic and satiric publication.” One item in it is a column clearly satirizing the columns of a well-known student journalist for The Daily Targum, Aaron Marcus, who is known on campus for writing about Israeli-Palestinian relations. Although the parody jokingly identifies Marcus as its author, no reasonable person would believe that the fake column, titled “What about the good things Hitler did?”, represents Marcus’ views.
Marcus filed a bias complaint with the university, and outside organizations including the Anti-Defamation League and the Zionist Organization of America have called on Rutgers to take action in response to the parody. On April 6, 2012, you publicly announced that Rutgers was investigating the publication of the parody as a “bias incident.” Then, on April 11, the Student Press Law Center reported:
Rutgers spokesman E.J. Miranda said through email that the university is investigating the event as a bias incident. The event will only warrant discipline if it violates laws or portions of the student conduct code.
The satirical content of The Medium is protected by the First Amendment, and Rutgers may not punish the newspaper, its editors, or any of its writers simply due to the offense it has caused Marcus and others.
That the First Amendment’s protections fully extend to public universities like Rutgers is settled law. The principle of freedom of speech does not exist to protect only non-controversial speech; indeed, it exists precisely to protect speech that some members of a community may find controversial or offensive. The right to free speech includes the right to say things that are deeply offensive to many people, and the Supreme Court has explicitly held, in rulings spanning decades, that speech cannot be restricted simply because it offends people. Indeed, much protected expression-including parody and satire-exists precisely to challenge, to amuse, and even to offend, and such speech is unambiguously protected under the First Amendment. In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Supreme Court ruled that the First Amendment protects even the most blatantly ridiculing, outlandishly offensive parody-in that case, a satirical advertisement suggesting that the Reverend Jerry Falwell had been interviewed and had stated that he lost his virginity in a drunken encounter with his mother in an outhouse. Under such a standard, there can be little question that The Medium‘s parody of Marcus’ columns, which have made him well-known throughout the Rutgers community, is fully protected
Additionally, please be aware that the parody, though it offended Marcus, fails to meet the Supreme Court’s carefully crafted description of student-on-student hostile environment harassment in the educational context in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999). That is, in order for student behavior to be actionable harassment, it must be conduct that is (1) unwelcome; (2) discriminatory; (3) on the basis of gender or another protected status, like race; (4) directed at an individual; and (5) “so severe, pervasive, and objectively offensive, and … [that] so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” No more and no less than this standard is required to protect student expression while meeting universities’ obligations to address true harassment. Far more than the single parody in The Medium would be required to determine that Rutgers must address a hostile environment with respect to Marcus or anyone else on campus.
Of course, Rutgers is free to continue expressing the view that the parody is “repugnant,” “vicious,” “hurtful,” and “despicable.” Yet, Rutgers may not leave the impression in the Rutgers community that parodies such as The Medium‘s are punishable. Rutgers must clarify that it will not pursue any punishment of The Medium or the students involved with the parody, consistent with its obligations under the First Amendment.
Please spare Rutgers the embarrassing prospect of a fight against the Bill of Rights. We ask for a response by May 11, 2012.
Assistant Director, Individual Rights Defense Program
Gregory S. Blimling, Vice President for Student Affairs
Elizabeth O’Connell-Ganges, Executive Director of Student Life
Mark S. Schuster, Senior Dean of Students