National rights group writes letter to SHSU President, gets response

September 23, 2011

The box-cutter wielding professor and SHSU University Police Department are the targets of a letter sent to University President Dana Gibson by a national civil rights group.

The Foundation for Individual Rights in Education (FIRE) tells Gibson the group is "deeply concerned" by the actions taken by both the professor and the UPD at the "Free Speech Wall" protest on Sept. 22. Students organizing the event were protesting the proposed SHSU Social Media Policy and Procedures Manual.

The "Wall" was a collection of wooden boards, covered with white parchment paper, that spanned the width of the Lee Drain Building atrium on the second floor. Event organizer Morgan Freeman, president of SHSU Lovers of Liberty, said students were allowed to write "whatever they want[ed]."

According to event organizers, at approximately 2:30 p.m. math professor Joe Kirk became upset at the phrase "Fuck Obama" that was written predominantly on the sign. Below that section another student wrote, "Fuck Bush." Several other profane phrases were scattered all about the sign.

In a report filed by Freeman, Kirk told students that he would take measures into his own hands. She said Kirk then left and returned with a box-cutter before carving out the word, "Fuck." It was quickly replaced by another student.

Freeman said the student organizations quickly called UPD on the advice of  an employee in the Dean of Sciences’ Office. After officers showed up, they took statements from students and the math professor. 

University Police Chief Fitch said officers returned and told the organizations they has three options: censor the word "fuck," put up new paper, or take the sign down completely. Failure to do so, officers said, would result in the groups being cited for Disorderly Conduct, a misdemeanor. 

Ultimately, the group chose to comply with the officers’ request due to the excessive use of the word in question. Kenneth Hendrickson, faculty adviser for SHSU Lovers of Liberty, said that any attempt to censor the words would leave virtually no room for any additional writing.

The charge is listed in Section 42.01 of the Texas Penal Code:

"A person commits an offense if he intentionally or knowingly; (1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace."

Students had permission from the Dean of the College of Sciences’ Office to hold the protest in the atrium.

Adam Kissel, Vice-President of Programs at FIRE, who wrote the letter to Gibson, said there are only "very few exceptions" to free speech statutes, and that the students did not violate the law.

"The professor was the only one who decided to take it upon himself to breech the peace, and it wasn’t immediate," he said.

In his letter to Gibson, Kissel cites several United States Supreme Court cases as a defense of the organizations.

They included:

Texas v. Johnson: "[i]f there there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Papish v. Board of Curators of the University of Missouri"the mere dissemination of ideas-no matter how offensive to good taste-on a state university campus may  not be shut off in the name alone of conventions of decency."

Kissel made one of his biggest points in the case of Cohen v. California.

"As a public university, SHSU cannot lawfully ban ‘four-letter words’ no matter how offensive some may find them," Kissel said. "[Cohen v. California] made clear that the First Amendment protects shocking or offensive expression, including the use of expletives in the communication of core political speech."

The 1971 case revolved around an incident in which Paul Cohen, a Vietnam veteran, walked into the Los Angeles Courthouse wearing a jacket that read "Fuck the Draft." He was arrested for "maliciously and willfully disturb[ing] the peace."

The case was upheld by the California Court of Appeals. The U.S. Supreme Court then grant a writ of certiorari Cohen after the California Supreme Court denied a review.

Cohen won his case in a 5-4 decision. "[A]bsent a more particularized and compelling reason for its actions," Justice John Marshall Harlen III said in the decision, "the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense."

Kissel said this exempts students from the disorderly conduct citation.

"Indeed, the Supreme Court has held that the Constitution protects many kinds of expression arguably much more than what was printed on the free speech wall," he said.

FIRE is a non-profit, non-litigation civil rights group that deals specifically with higher education students.

"Instead they are successful by drawing public attention to a case and by laying out the facts for, usually, the President to fix the problems caused by lower level administration and police," Kissel said. "We lay out the facts and legal precedent, and we ask the president to resolve the issue."

"We often find," Kissel said, "as Justice Brandeis said, ‘Sunlight is one of the best disinfectants.’"

Richard Eglsaer, Ph.D., Associate Provost of Academic Affairs, said that there will be more discussions about the incident.

"The question is what is the appropriate way to respond if there is something wrong," Eglsaer said. "What’s being looked at is what caused this event to occur. I think there could have been mistakes made on both sides."

University President Dana Gibson said in a response that the university respects the principles of the rights to free speech.

"In addition, the university supports the rights of individuals and organizations to exercise freedom of speech," Gibson said. "The incident that occurred on Thursday, September 22nd between a member of the faculty and the student organizations that sponsored the "Free Speech Wall," is currently under investigation."

Eglsaer said that the university cannot comment on how it handles internal discipline matters. Freeman said she filed a report with the University Police.

Freeman said prior to the sign being taken down, there was a large support from students.

"A ton of students came out to write on it," Freeman said. "We had a tremendously positive response from most of the students."

The SHSU Lovers of Liberty sponsored the event, along with the Young Democratic Socialists, Bearkat Democrats and College Republicans in response to the proposed social media policy that they say diminishes free speech.

Kris Ruiz, Associate Vice-President of Marketing and Communications, who directed the project that the policy was a result of, will be speaking to the faculty senate on Thursday, Sept. 29, about the policy. 

The faculty senate also passed legislation in response to the policy. The bill, introduced by chemistry professor Paul Loeffler, said that all policy affecting students, faculty, and staff must now go before additional review processes.

At this time, the organizations are not certain how they will act next. University officials  said the incident is under investigation.

Schools: Sam Houston State University Cases: Sam Houston State University: Faculty Member Takes Box Cutter to Students’ Free Speech Wall; Police Threaten Students with Misdemeanor