Dartmouth's Speech Codes: FIRE Responds to Challenge

Yesterday, in his blog entry discussing the difficult road facing petition candidates for governing board positions at Harvard University and Dartmouth College—and the substantial hostility they face if elected—Kyle provided an excellent overview of the independent campaign, tenure, and eventual dismissal of former Dartmouth Trustee Todd Zywicki. As Kyle usefully recounts, Zywicki, a professor of law at George Mason University School of Law, was elected to Dartmouth's Board of Trustees in 2005 as a petition candidate after running on a free speech platform. Once elected, Zywicki and his fellow elected petition candidates followed through on their campaign promises by leading a successful effort to eliminate Dartmouth's speech codes and thereby uphold Dartmouth's stated commitment to free speech, eventually earning Dartmouth a "green light" ranking from FIRE. Earlier this month, Dartmouth's newly stacked Board voted not to reelect Zywicki to a second term.

Following his dismissal, Zywicki posted an open letter to the Dartmouth community, in which he argued that he "was denied reelection either because of the content of my speech or for some unnamed reason for which [he] received no notice or opportunity to respond." In response, John Engelman, an executive board member of Dartmouth's Association of Alumni, protested in a letter to the editors of The Dartmouth that Zywicki's open letter contained "distortions, misstatements of facts and outrageous accusations." Venturing further still, Engelman wrote:

Zywicki resurrects the canard that a speech code existed at Dartmouth prior to the election of T.J. Rodgers ‘70 to the Board. This is not true. I challenge anyone to produce a copy of that "speech code." If it existed, it had to be somewhere in print - in the student handbook, the rules and regulations of the College - somewhere. But no one has been able to find it. Please point it out to us, or drop this unfounded accusation.

We at FIRE are only too happy to accept Engelman's "challenge."

First, as a matter of definitional clarity, FIRE considers any campus regulation that punishes, forbids, heavily regulates, or restricts a substantial amount of protected speech, or what would be protected speech in society at large, to be a speech code. This definition is necessary because colleges rarely label restrictions on speech as "speech codes" in handbooks and institutional policies.

Until at least January 2005—FIRE announced Dartmouth's abandonment of its speech codes in May 2005—Dartmouth's residence hall harassment policy stated:

The residential community is not a place for behavior that is demeaning or humiliating, creates a hostile living environment, produces or could be expected to produce mental or physical harm, or that demonstrates intolerance or disregard for another person's dignity or well-being. Such behavior will be addressed in a prompt and serious manner by Residential Life staff. (Emphasis added).

There can be no question that this policy restricted speech, on threat of "prompt and serious" punishment, that would be protected outside of Dartmouth's campus. The policy has a number of infirmities. First, the vast majority of speech that may be objectively considered "demeaning" and "humiliating" is protected by the First Amendment—and that's if we're talking about speech that a reasonable person would find to be "demeaning" and "humiliating." Unfortunately, this policy has no such objectivity requirement, leaving student speech only as protected as the most unreasonable student's sensitivities may allow. Making matters yet worse, the policy incorporates vague, subjective terms like "mental harm," "intolerance," and "disregard," leaving students to guess at what behavior is and is not subject to punishment. As a result, students have an incentive to self-censor, lest they cross an imperceptible line, resulting in a chilling effect on student speech.

Similarly, open letters sent in May of 2001 to the Dartmouth community from President James Wright and former Dean of the College James Larimore made clear to students the narrowly restricted contours of acceptable speech at Dartmouth and thus served as de facto speech codes. Wright and Larimore issued their letters to explain the punishment of Zeta Psi, a Dartmouth fraternity banned from campus after publishing a private newsletter that insulted specific Dartmouth students. (The newsletter was retrieved from Zeta Psi's fraternity house and out of a trashcan by a non-fraternity member, then made publicly available.) Since Zeta Psi was banned from campus without seeming to have broken a single published rule or regulation, the letters from Wright and Larimore illustrated the unwritten rules that nevertheless governed conduct and justified punishment at Dartmouth. As such, the restrictions on student speech outlined in these letters were, in effect, statements of policy.

Wright's letter stated:

We do not have a speech code at Dartmouth, but a related speech issue illustrates the way we need to confront tensions between individual rights and the values of the community. Over the past few months, some members of the Dartmouth community have revived an old debate regarding the use of the Indian symbol. In a community such as ours, one that depends so much upon mutual trust and respect, it is hard to understand why some want still to insist that their "right" to do what they want trumps the rights, feelings, and considerations of others. We need to recognize that speech has consequences for which we must account. (Emphasis added.)

The "consequences" of speech were only too clear for members of Zeta Psi. Wright's letter was an unmistakable warning for Dartmouth students: Speech that does not take into account the "feelings and considerations" of others is subject to punishment.

Larimore's letter included similar language. Explaining the grounds for Zeta Psi's punishment, Larimore wrote:

Zeta Psi prepared and distributed, on at least three occasions, "newsletters" intended to be humorous. Those newsletters, however, specifically targeted fellow students for abusive comments of a demeaning nature. While these "newsletters" were intended to be kept secret, they in fact came to the attention of some of the victims. This was the second significant instance of such institutionalized misconduct; in 1987, the organization1s [sic] recognition was suspended for a year for similar behavior. (Emphasis added.)

Again, Larimore's explanation leaves no doubt that "abusive comments of a demeaning nature" would be subject to punishment—despite the fact that, as outlined above in the discussion of the residence hall regulation, this vague and overly broad restriction of protected speech would not pass constitutional muster outside of Dartmouth. Taken together, as obviously intended, Wright and Larimore's statements constitute a speech code. Engelman writes that Dartmouth's speech code "had to be somewhere in print - in the student handbook, the rules and regulations of the College - somewhere." But, in what would be an incredible violation of the right to due process of law at a public university, Zeta Psi found out the hard way that Dartmouth's unwritten, unpublished speech code was just as binding as any published policy. Furthermore, the letters punishing Zeta Psi and establishing these speech restrictions were published on Dartmouth's website for years. Indeed, their removal from the Dartmouth website was one of the primary reasons FIRE decided to change Dartmouth's rating from a "red light" institution to a "green light."

In sum, Engelman's contention that Dartmouth did not maintain a speech code is the real "canard." Prior to 2005, Dartmouth maintained policies that restricted protected speech.