FIRE supporters may remember the egregious 2002 case of Steve Hinkle, a student at California Polytechnic State University (Cal Poly) who posted a flyer that was considered to be “of an offensive racial nature” and was then charged with “disrupting” a “campus function” after students confronted him about the poster. The poster simply advertised a speech by Mason Weaver, author of the book It’s OK to Leave the Plantation, by displaying the title of the book, the time and place of the event, and a picture of the author. Hinkle ultimately sued the university with FIRE’s help. After Cal Poly suffered national embarrassment due to this incident, the university reached a settlement with Hinkle in which Cal Poly agreed to clear the incident from Hinkle’s disciplinary record and pledged not to interfere with Hinkle’s right to post promotional flyers. Cal Poly also formally repudiated its overbroad definition of “disruption” and agreed that “disruption” must actually be willful and must “materially and substantially disrupt a University activity or the orderly operation of the University.”
Unfortunately, Cal Poly is at it again. This time, the victims are the students in the improvisational comedy troupe Smile and Nod, who posted a constitutionally protected image on flyers advertising their upcoming comedy show. Smile and Nod posted the flyers in late September or early October of 2007. The flyers included information such as where and when the performance would occur and the cost of admission. They also included an image of a black man with his mouth open wide and wearing a straw hat. According an October 25 article in the Mustang Daily, theatre department officials began removing the flyers because the flyers could be “construed as racist.” Smile and Nod was required to remove remaining flyers, “send a formal apology to all students via the Mustang Daily, and participate in a sensitivity meeting with faculty and staff from the theatre department and the ethnic studies department.”
In addition, Smile and Nod was prohibited from performing during the fall term. After requesting that they be allowed to hold performances on November 3, Smile and Nod was permitted to hold only these performances during the term. Moreover, theatre department chair Tim Dugan told the Mustang Daily that the theatre department will engage in prior review of future posters, saying, “We will have posters sent to us weekly to ensure that checks and balances occur, and to ensure that negligence doesn’t happen again.”
This result is exactly backwards: Rather than punish Smile and Nod, it would be appropriate for some disciplinary action to have been initiated against the Cal Poly officials who removed the flyers because they disliked the content. At the least, the censors should have been notified that suppressing protected speech has no place at a university. While the right to communicate that something seems offensive should be vigorously defended, attempts to obstruct or remove protected speech should not be tolerated. Moreover, prior review of posters in terms of content also violates the right to freedom of speech. What is so shocking about this case is that Cal Poly decided not to punish the censors, but to punish the students.
In addition to ignoring their constitutional responsibilities, the censors broke Cal Poly’s moral and contractual obligations to its students as stated in its “Policies On The Rights & Responsibilities of Individuals,” which state that “[e]ach faculty member is expected to recognize the right of free expression of other members of the university community; intolerance [is] unacceptable.” Likewise, they broke Cal Poly’s obligations as stated in its Code of Student Conduct, Rights, and Responsibilities, which states that “[s]tudents have the right of freedom of speech … on campus,” and which also protects student organizations in that they “shall be free to examine and to discuss all questions of interest to them and to express opinions publicly or privately.”
Even worse in this case is the fact that the Smile and Nod students simply exercised free creative expression in distributing the posters, not intending to communicate any idea involving race or racial stereotypes (which would have been constitutionally protected anyway). No campus that claims to take seriously the free speech rights of students may retaliate against students because others on campus felt offended by fully protected speech. The problem here is especially egregious because Smile and Nod does improvisational comedy, and the sanctions against them produce a chilling effect whereby they now have to second-guess everything they say. Their punishment undoubtedly hurts the spontaneity of their performances—and threatens the free speech of every other student group.
Cal Poly should overturn its rulings and punishment against Smile and Nod and the students in the troupe, expunge any derogatory information from their records, desist from engaging in prior review of flyers and student publications, take serious corrective action to make sure that all students understand that Cal Poly supports their rights of free expression, and apologize to Smile and Nod. If not, these matters might become the subject of another national scandal for Cal Poly, and it would be a great shame if Cal Poly waited for one lawsuit after another to force it to repudiate its unconstitutional actions and policies, one by one.
Writer and academic Yascha Mounk argues that a new set of ideas about race, gender, and sexual orientation have overtaken society, giving rise to a rigid focus on identity in our national debate. In his new book, "," Yascha seeks to take these...