Tufts Defines Speech Limits

December 1, 2009

Nearly three years after Tufts University drew headlines for a student journal’s publication of a racially charged article, trustees have declared that "freedom of expression and inquiry are not absolute."

The university’s "Declaration on Freedom of Expression" calls free speech "fundamental to the academic enterprise," but outlines a series of broadly defined values that could limit what students can say and do. The statement notes, for example, that expression at Tufts should "respect the human dignity of others" and maintain a climate that does not interfere with students’ ability to "study, grow, and attain their full potential."

The declaration was crafted with the help of a Tufts panel of students, faculty and staff appointed by President Lawrence Bacow amid a heated First Amendment debate on the campus. The debate was sparked by two anonymously written pieces that ran in The Primary Source, a conservative journal that is primarily funded with Tufts’s resources. One of the pieces was a Christmas carol parody entitled "O Come all Ye Black Folk," which played on "O Come all Ye Faithful" in an attempted critique of affirmative action polices. Another article in the journal parodied advertisements for Islamic Awareness Week, highlighting the violent actions of radical fundamentalists. Both articles missed their respective comedic marks in the eyes of many, prompting substantial criticism — even as others defended the journal’s right to publish the material.

The trustees approved the declaration Nov. 7, but it was first reported on late last month in the Tufts Daily.

"When community values are not respected, every member of the Tufts community has an obligation to respond," the declaration states. "Those who are the target of such speech should not and must not bear the burden of responding alone. An affront against any member of our community is an affront to all of us."

The declaration does not overtly state that the writings in the Source would now be forbidden, although the chair of the panel said he believes the journal pieces clearly fell outside the bounds of the value system the declaration establishes. The declaration does not define any sanctions, however, other than to say the university "must hold accountable those who do not respect these values."

"There are some people that criticized us for [not outlining sanctions]; they always want the ‘What if,’ " said Jeswald Salacuse, chair of the task force and a law professor. "But I think that we took the position that if we state these values, that in of itself has a lot of effect."

The effect, however, is a loosely defined statement that punts on the major issues at hand, according to Will Creeley, director of legal and public advocacy for the Foundation for Individual Rights in Education (FIRE).

"It’s disappointing that Tufts simultaneously wants to declare very public support for the ideals underlying the value of free expression on campus but then gets squeamish when the principles become factual, when they actually have to be applied," he said. "What exactly does that [declaration] mean in practice? This doesn’t answer that. That’s the real when the rubber meets the road aspect of free expression. It’s easy to proclaim vague support for free expression.

"It doesn’t seem Tufts has done the hard work of actually committing to free expression on campus in a substantive way. Rather it seems like lip service."

Creeley said he was also troubled by the descriptions of speech and expression that Tufts now considers out of the bounds of its value system. While the declaration supports the ability for Tufts community members "to express themselves fully," it then "carves out" a series of limitations, he said. In so doing, the university creates a principle that particularly offensive speech isn’t protected, thereby undermining the very tenets of free speech rights, Creeley said.

"The First Amendment is at its absolutely most valuable when it is invoked to protect that speech with which the majority does not agree and would rather not hear," he said.

FIRE does not dispute that as a private institution Tufts is not bound by the First Amendment in the way a public institution would be, but the university’s president stated early on that it was his "intention to govern as president as if we were." Bacow said in an e-mail Monday that the declaration "accomplishes what I hoped it would."

"The declaration articulates clearly the paramount importance of education and community dialog in responding to offensive speech," he said. "It offers a strong statement of community values, and clearly reflects the input from the extensive community consultations in which the Task Force engaged."

In the wake of the Primary Source’s controversial piece on Islam, the Muslim Student Association complained to the Committee on Student Life, a group of faculty and student representatives that responds to complaints about student-run groups. The committee ruled that the publication’s work constituted "harassment," and further ruled that future articles would require bylines. The university’s dean of undergraduate education, however, overruled the committee’s byline requirement, saying it "can only be construed as punishment of unpopular speech." That decision rendered moot the only sanction the group had handed down, leaving the "harassment" label as a mere statement of disapproval.

There was a byproduct of the controversy, however, that may be useful if future speech issues arise, according to James Glaser, dean of undergraduate education. Tufts created a "public editor" position to serve as an ombudsman for all student publications, which Glaser says will stimulate more dialogue and perhaps fewer harassment complaints. The editor is a student, but a Boston Globe reporter has served as an adviser.

"We’ve put something into place as a way of encouraging freedom of speech without having to go through hearings and committees [in response to controversies]," Glaser said.

Duncan Pickard, the current public editor, said Tufts students often argue for stripping organizations of funding if they don’t agree with a group. Creating his position was a welcome departure from that tactic, he said.

"The answer wasn’t to shut down The Primary Source from using the Senate’s money," he said. "It was to add another voice to the conversation."

Primary Source staff could not be reached for comment.

Pickard, a former student body president and current representative to the trustees, said he likes the spirit of the speech declaration. But Pickard said the administration was too slow to respond to the journal controversy, and he said he hoped that wouldn’t be the case in the future.

"I hope the administration doesn’t believe this policy absolves them of responding to future controversies when students are hurt," he said. "I don’t want the administration to just hide behind the policy."

Schools: Tufts University Cases: Tufts University: Conservative Student Journal Found Guilty of Harassment