After facing criticism for expelling a student over controversial art featured on the student’s social media account, Kansas City Art Institute has further limited students’ free speech rights by revising its social media policy to prohibit large swaths of protected expression that could make others uncomfortable.
KCAI’s previous social media policy, which was already far from ideal, prohibited “inappropriate use of electronic media” to send “inappropriate...[or] annoying...messages or communications.” The school's month-old new policy expands the electronic media provision from one paragraph to three and now prohibits "bullying" (without defining the term) with examples of other banned communications, such as those that may "intentionally or unintentionally" inflict "distress on others."
This policy change comes less than two months after FIRE wrote KCAI in July when it expelled incoming student Ash Mikkelsen after receiving complaints about Ash’s pseudonymous Twitter account, which featured sexually-explicit Japanese-style cartoons called hentai. To its credit, KCAI quickly reinstated Mikkelsen following FIRE’s criticism. However, its attempt to further limit students’ protected expression by implementing a new restrictive social media policy does not give us at FIRE much hope that the school learned its lesson.
As FIRE often points out, the First Amendment does not require private institutions to promise students free expression — though we strongly believe they should. However, once an institution makes those promises, as KCAI has done by committing to support “free speech and open assembly,” it may not backtrack and prohibit otherwise protected speech. (And when an institution promises “free speech,” it is reasonable for students and faculty to interpret that in line with the protections the First Amendment provides.)
Here, KCAI’s new policy attempts to give the school the authority to punish speech based on the subjective belief that it inflicts “distress on others,” whether that is intentional or not. Some people may find certain speech distressing while others think it must be expressed — that’s the point of free speech. As renowned Supreme Court Justice John Marshall Harlan said in the landmark First Amendment case Cohen v. California, “one man’s vulgarity is another’s lyric.” Further, any expression the institute might properly wish to prevent under the umbrella of “bullying” would have to qualify as peer harassment, as defined in Davis v. Monroe County Board of Education.
It appears KCAI’s policy change seeks to create more space to punish students for their speech. If, however, this was KCAI’s attempt to improve its policy to prevent further censorship in the future, there are much better ways to fix this problem. FIRE has a team of lawyers ready to help administrators write and implement improved policies to protect students’ free speech rights, free of charge.
We stand ready to help KCAI and any other school find the issues with their current policies and craft new speech-protective policies that best serve both the students and the school. We encourage KCAI to take us up on this offer and again revise its social media policy, this time to protect rather than impede students’ right to free expression.
FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).