Protecting speech on college campus

March 15, 2011

Should the University of Georgia be a campus where anyone – no matter how thin-skinned – can invoke disciplinary mechanisms for speech they find offensive?

UGA’s current anti-harassment provisions lack the precision the U.S. Supreme Court requires for the regulation of speech, "our most precious" freedom.

UGA’s policies are as flawed as the infamous University of Wisconsin and University of Michigan policies federal courts found to be unconstitutionally vague and overbroad.

President Michael Adams’ recent announcement that UGA’s restrictive Non-Discrimination and Harassment Policy (NDAH) is being reviewed is a positive development.

But last month’s revelation that student affairs officials want to add "bullying" to the anti-harassment section of the conduct code will further muddy an already-unclear provision.

UGA’s current policies are rife with ambiguous terms such as "verbal abuse" and "harassment," terms courts have found "can mean anything." Vague laws create a chilling effect by failing to provide people with a clear sense of the line between legal and illegal activity. Vague laws are also susceptible to arbitrary enforcement. As the judge in the Michigan case found, the university was "essentially making up the rules as it went along."

Like Michigan and Wisconsin, UGA has enforced its policies in an unprincipled manner. Consider the case of UGA student Jacob Lovell.

The UGA Parking Services website asks for "negative & positive" comments. Last August, Lovell submitted a complaint about the lack of scooter parking near Aderhold Hall. Lovell, a self-described pacifist, did not threaten anyone at Parking Services with violence, but he used two expletives in his message.

Speech critical of government, even with expletives, as the U.S. Supreme Court has repeatedly emphasized, is at the core of First Amendment protection.

Someone in Parking Services, though, found the expletives in Lovell’s message to be inappropriate and referred the matter to the Student Judiciary.

When the complaint was received, the Student Judiciary had the discretion to conclude that Lovell’s message warranted no further inquiry, but "if someone feels threatened," as Associate Dean of Students Kimberly Ellis told the Washington Examiner, "that’s going to push it through."

Ellis notified Lovell that a Student Judiciary inquiry had begun because he may have violated two UGA regulations by "disrupting parking services" with his "threatening" e-mail.

First Amendment doctrine distinguishes threats, which are protected expression, and "true threats," which may be punished. Courts apply an objective standard in "true threats" cases, asking whether, given the context, a reasonable person would interpret the speaker’s statements as a serious expression of intent to commit an act of unlawful violence. A listener’s claim of feeling threatened is not the determining factor.

An awareness of the limited meaning of "true threats," as well as recognition of the primacy of the right to criticize the government, should have prevented the Student Judiciary from even beginning its inquiry.

Then, there is the chilling effect of these inquiries to be considered. Lovell was told that unless he met with Ellis, his records would be flagged, and he would be unable to drop, add or register for classes. Lovell found the prospect of an inquiry to be daunting.

After receiving Ellis’ letter, Lovell wrote on Facebook that the Student Judiciary held his future in its hands, and he was willing to "tuck my tail between my legs and take it" just to complete his education.

By coincidence, Lovell’s Facebook posting was seen by an official at the Foundation for Individual Rights in Education (FIRE), a free speech advocacy group, who then wrote to President Adams that UGA’s investigation was an infringement of the First Amendment.

Ellis dropped the case after FIRE intervened. But given Lovell’s willingness to accept punishment, one wonders what would have happened if FIRE had not intervened.

The Washington Post’s education reporter Valerie Strauss commented on Lovell’s case by asking, "Why was it ever opened?" and added, "Put this in the ‘what-were-they-thinking’ category."

Last October, the University of Virginia transformed campus rules, eliminating a policy prohibiting "inappropriate" mailing list messages; the sexual harassment policy also was changed so that "teasing" and "jokes" are no longer punishable. Arizona State and the College of William and Mary also recently eliminated restrictive speech policies. UGA should join these schools instead of continuing to inhibit free speech.

William E. Lee is a professor in the Grady College of Journalism and Mass Communication at the University of Georgia. His teaching and research specialty is freedom of expression.

Schools: University of Georgia Cases: University of Georgia: Student Faces Charges for Complaint about Parking Services