Free speech at center of nude-photo controversy

December 1, 2005

Controversy over the disciplinary fate of the Engineering junior who posted a photograph of two students apparently having sex in Hamilton College House centers on the issue of whether the photograph is protected under freedom of speech.

A determining factor in the debate is whether University disciplinary actions trump constitutional freedom of speech, and, so far, the answer is unclear.

Penn History professor and acclaimed First Amendment rights defender Alan Kors, however, says the answer is clear. The University Board of Trustees and former Penn President Judith Rodin established in the early 1990s that students would receive the same rights as public-school students, who have full constitutional rights, he said.

Therefore free-speech laws take precedence over University disciplinary policy.

The right to take a photograph in a public place is protected by the Constitution.

"If [Office of Student Conduct Director] Michele Goldfarb and the Office of Student Conduct have the authority to overturn the Board of Trustees and a presidential policy, I would be very interested in knowing from what that power was derived," Kors said.

But because the University is private, it is not obligated to maintain free-speech guidelines that match those in the constitution.

Penn Law professor Seth Kreimer, who specializes in First Amendment rights, said the University is not bound by the First Amendment.

"The receipt of government funding does not make the entity a state actor and therefore subject to federal constitutional constraints," Kreimer said.

Kors acknowledged this but said that, because the University self-imposed constitutional guidelines, it must now abide by them.

Robert Shibley, program director for the Foundation for Individual Rights in Education, said a private university has great legal ability to limit rights but will not generally choose to wield it.

"A university … can greatly restrict free-speech rights to nearly any extent under its own guidelines as long as it does not hold itself out as a place where freedom of expression and academic freedom are valued," he said. "Penn does advertise its commitments to academic freedom and a liberal education, however, so it may not contradict these promises."

Shibley also said that it would be appropriate for the University to drop the charges, since there is no reasonable expectation of privacy for students who have sex against a window in daylight.

OSC officials could not be reached for comment.

Schools: University of Pennsylvania