NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
Just hours after it was released on May 10, the Committee on Student Life’s (CSL) decision finding The Primary Source guilty of harassment and creating a hostile environment was thrust into the national media. For many free speech experts, it seemed to land with a dull thud.
“It’s very surprising, and troubling,” said Michael Hiestand, a Washington-based attorney and a consultant to the Student Press Law Center (SPLC), a nonprofit organization that offers legal guidance to campus media. “It really does open up the door to a great deal of administrative interference in what are typically very strong free speech concerns.”
Because Tufts is a private, rather than government, institution, its students are not subject to First Amendment protections from university interference, but Hiestand said that the CSL decision is still unusual.
“Had they found a university paper guilty of harassment and subject to the sort of discipline that you’re talking about here—threatening its funding—at a public university, this would have very clearly violated the First Amendment: It [would be] totally unlawful,” Hiestand said. “It’s only because Tufts is a private institution that there isn’t a clear First Amendment violation taking place here.”
Specifically, he took exception with Tufts’ definition of harassment. “That said, even if it’s a private university, to find somebody guilty of harassment when there is no individual being harassed is pretty extraordinary,” he said. “Harassment—typically, [it] requires there to be some individual person who feels victimized. You typically cannot harass an entire community.”
The Foundation for Individual Rights in Education (FIRE), a nonprofit organization with which the Source consulted in preparation for the hearing, offered a similar view in a statement sent to the Daily by Samantha Harris, its director of legal and public advocacy.
“The university’s definition of harassment is extremely overbroad and prohibits a great deal of constitutionally protected speech,” the FIRE statement reads. “The legal definition of harassment in the educational context is conduct ‘so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.’”
This terminology, taken from the 1999 Supreme Court ruling in Davis v. Monroe County Board of Education, is distinct from many colleges’ definitions of harassment, which set the bar lower.
“Tufts, for example, calls any behaviors ‘calculated to annoy, embarrass, or distress’ harassment, whereas in reality, most annoying, embarrassing, and even distressing speech is entitled to full First Amendment protection,” the statement reads, quoting The Pachyderm, Tufts’ student handbook, for the definition.
“The fact that the Committee on Student Life found that The Primary Source’s parodies meet the university’s definition of harassment demonstrates how completely inappropriate the university’s definition is,” it reads.
By contrast, New England’s Anti-Defamation League (ADL), a nonprofit advocacy organization that has followed the case, responded positively to the ruling. “We really applaud how Tufts has reacted to this. It sounds like the students and the administration and various [leaders] have been appropriately outraged by The Primary Source’s actions,” its Assistant Director Amanda Rosenfeld said. “I think it really shows how the community has come together against these hateful articles, and that’s really to be applauded.”
The ADL has been following the carol case since it was published last December. Soon after it was printed, the ADL issued a letter supporting the administration’s condemnation of it. “We thought it was clearly an appeal to racial bigotry. We perceived it to be an insult to the entire Tufts community,” she said.
She thought the carol, as well as the April article about Islam, did cross the line from being offensive to constituting harassment. “It sounds like in both instances, both the African-American and Muslim satire are horrific appeals to bigotry and [use] really insulting language,” she said. “So I would tend to concur that that’s harassing language.”
But she said the ADL does value free speech. “The ADL is very much committed to free speech and we’re not in support of stifling [the magazine],” she said.
At the same time, she said that magazines “absolutely do have the responsibility” to not give in to harmful stereotypes.
When distinguishing offensive from harassing content, some experts brought up the Hustler Magazine v. Falwell case. In this 1988 Supreme Court decision, prominent evangelist Jerry Falwell sued the racy Hustler magazine for running a parody liquor ad about him having drunken sex with his mother in an outhouse. Falwell sued for libel and intentional infliction of emotional distress, but the Court ruled 8-0 in the magazine’s favor, upholding its right to publish the parody.
“The Falwell case makes the point that satire, joking and caricature are part of the free flow of ideas in a democratic society,” said Stanley Fish, who writes the “Think Again” blog for the New York Times on education, politics and society. He is a professor of law at Miami’s Florida International University and dean emeritus of the College of Liberal Arts and Sciences at the University of Illinois at Chicago.
“Presumably, some people in the university who are members of minority groups would have felt insulted,” he said of responses to the Source articles. “But being insulted doesn’t mean you have any legal redress against those who have offended you.”
To this extent, he said that the administration should not have even denounced the carol, as it did immediately after its publication.
“They’re saying, ‘We’re good hearted. We’re good people. We’re on the right side, even though by law we cannot penalize them,’” he said. “[But] the university is not in the business … of policing the views or sentiments of its students. That’s not what it’s supposed to doing. It’s supposed to be delivering instruction and equipping them with the analytical tools necessary to perform research.”
Jon Gould, an associate professor of the administration of justice at George Mason University, has completed extensive research on hate speech and speech codes. He was interviewed before the verdict, but could not be reached for additional comment afterwards.
Gould has empirically tracked speech codes from the late 1980s to the present. Such anti-hate speech codes don’t usually arise from popular sentiment, but as a reaction to one instance, he said. “Generally there is some incident—racial, or ethnic or gender discrimination—on campus, or perceived discrimination,” he said. “It typically would lead to some sort of policy where administrators are concerned about the image they are setting for the campuses.”
While many schools have these speech codes, they are rarely enforced or invoked. “That said, the fact that they exist on campuses in some people’s minds creates a climate where they have symbolic influence,” he said.
Tufts is certainly not the only institution to grapple with the setbacks. “Typically what happens is it’s an organization on campus who doesn’t feel like they’re in the mainstream who enjoys poking their finger in the eye of the other people on-campus and usually [does] it in-artfully,” Gould said. “It then leads to people who get very upset. It’s the question of, what do you do with people who are juvenile with making an argument, and what do you do with people who feel that they need to be protected from all offensive speech? That’s a balancing test that I think Tufts is going to have to wrangle with.”
FIRE agreed that Tufts has plenty of company. “Unfortunately, Tufts is not alone in its censorship of constitutionally is protected but controversial speech,” its statement to the Daily reads. “This is a problem on campuses around the country. Given Tufts’ strong stated commitments to free speech, we would have expected better, but this is part of a nationwide pattern of censorship.”
Hiestand, of the SPLC, was also disturbed by the implications of the decision. “If you’re harassing an entire ethnic group, there’s no individual member of that group that’s going to feel threatened,” he said. “So I think we’re really talking about offending someone or hurting their feelings. And when you start punishing for that, it’s a real broad brush [with which] you’re painting.”
He said that this brush can be put to dangerous uses. “It certainly is something that if the university community really believes in free speech, they ought to be discouraged by this outcome,” he said.Download file "CSL hearing turns spotlight on controversial Source pieces"