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CSU Ruling on Student Editorial Respects First Amendment Limits on Government Action

Foundation for Individual Rights and Expression

Yesterday, Colorado State University’s (CSU’s) Board of Student Communications (BSC) issued a ruling admonishing J. David McSwane, editor of The Rocky Mountain Collegian, for violating the newspaper’s code of ethics by using an expletive in a September 21 editorial critical of President Bush.

Specifically, the BSC wrote:

The Board of Student Communications admonishes you for violations of two standards specified by the BSC Manual that resulted from publication of the editorial published September 21 by the Rocky Mountain Collegian.]

The Board of Student Communications determined you violated:

1) Code of Ethics, Student Media, Colorado State University, (Appendix A) -- specifically Item 29: Profane, Vulgar Words, Explicit Sexual Language, subset, "Profane and vulgar words are not acceptable for opinion writing";

2) Rocky Mountain Collegian Code of Ethics (Appendix A1), specifically Item 6: Be Professional, subset, "Profane and vulgar words are not acceptable for opinion writing."

Please refer to BSC Manual Appendix B, Section V-G for appeal procedures.

By definition, the September 21 editorial was an expression of opinion, which we regard as protected by the First Amendment.

As editor-in-chief of the Collegian, you are ultimately responsible for publication.

The editorial has caused harm to the Collegian, Student Media, and the university community.

It is our judgment that your decision was unethical and unprofessional.

In so ruling, it is crucial to note that the BSC respected the fact that under well-established Supreme Court precedent, McSwane’s editorial was protected by the First Amendment. As Greg discussed last week, no matter how disagreeable, unprofessional or offensive the BSC found McSwane’s writing, the First Amendment forbids a state actor like the BSC from punishing or censoring McSwane.

The BSC’s choice to admonish McSwane—rather than fire, censor, or otherwise punish him—indicates the BSC’s recognition of the constitutional limits on regulating speech imposed upon government actors. While the BSC is free to admonish McSwane for actions it deems unprofessional, it has no legal authority to punish or censor him for speech published by the Collegian, with extremely few exceptions. Since the BSC is part of the government, the Constitution refuses the BSC that power—a point we made in our October 3 letter to CSU.

Indeed, while we at FIRE are gratified that the BSC did not overstep its constitutional boundaries, we remain disappointed that the BSC subjected McSwane to a hearing with the possibility of other disciplinary action at all. Again, as a government actor, the BSC has no legal power to do anything but admonish McSwane, and to pretend otherwise was wrong.

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