With students having shifted to online learning in the wake of COVID-19, FIRE is highlighting the college and university policies nationwide that most seriously restrict students’ online speech. This is the first in a multi-part series pointing out the country’s worst IT policies. Policies selected for this series either broadly apply to students posting/sending online content on or off campus, or specifically target students' social media use.
Today, we’re dissecting the "Social Media/Social Networking" policy at Macalester College, a top liberal arts college in Minnesota, which bans students, on or off campus, from posting “inappropriate” or “objectionable” material on their social media. Violations can subject students to harsh punishment, including expulsion or even criminal charges.
While Macalester is a private institution, not bound by the First Amendment, private schools are contractually and morally bound to uphold the promises they voluntarily make. And Macalester makes some extremely strong promises of free expression. The preamble to Macalester’s student handbook boldly states that “Macalester College exists for the transmission of knowledge and the pursuit of truth,” and “Free inquiry, free expression and responsibly free activity are indispensable to the attainment of these goals.” Its student handbook likewise declares that “Students and student organizations are free to examine and discuss all questions of interest to them and to express opinions publicly and privately.”
Macalester’s social media policy fails to live up to these grand promises.
The fact is that Macalester students most definitely are not able to “examine and discuss all questions of interest to them” or “express opinions” on social media without risking repercussions. Consider: A student posting a meme or Snap or Tiktok runs a risk that a viewer could — for any reason, from wearing a MAGA hat to concluding the post with #MeToo — find it subjectively “inappropriate.” Students on either side of heated debates — whether it be pro-life vs. pro-choice, arguments about transgender pronouns, the 2020 presidential election, or nearly anything else — could have their views dubbed “racially, sexually, ethnically or religiously objectionable.” If that scenario seems unlikely, consider that FIRE routinely sees colleges selectively enforce policies to silence students with unpopular or controversial views.
The policy, a subsection of Macalester’s Computer Use guidelines, gets FIRE’s worst free speech code rating in our Spotlight Database — a “red light.” Red light policies are those that clearly and substantially restrict free expression. Macalester’s policy reads as follows:
5.12 Social Networking/Social Media
Students accessing social networking/social media services such as Facebook, Instagram, Snapchat, Twitter, and others should carefully read the terms and conditions set forth by such services. Students are solely responsible for the content of their sites. Neither ITS nor Macalester College assume any responsibility for what students place there. Inappropriate material placed on social networking sites is subject to Macalester College's Responsible Use policy, the Student Conduct Process and the College's Harassment and Grievance Procedures.
In addition to violation of College policy, the posting of inappropriate material may subject students to criminal and civil penalties. As referenced in the terms and conditions of these networking services, students should refrain from posting material that is deemed to be criminal; harassing; racially, sexually, ethnically or religiously objectionable; defamatory; obscene; invasive of anothers [sic] privacy; or infringing of copyright.
This policy is problematic because it is both vague and overbroad.
Vague policies fail to properly define their terms, leaving students unable to decipher what kind of conduct is off limits. For example, what kinds of speech constitute “inappropriate” material, or “racially, sexually, ethnically or religiously objectionable” material? “Inappropriate” and “objectionable” are highly subjective terms that mean different things to different people.
Vague policies are often found to be overbroad, as well. Precisely because terms like “inappropriate” and “objectionable” can’t be defined, policies that employ these kinds of terms limit too much conduct. While they may legitimately be targeting unlawful conduct like harassment, banning all “objectionable” material necessarily includes protected speech.
The consequences for violating Macalester’s policy are also severe, with their threats of serious institutional punishment and even criminal charges.
This toxic combination of vagueness, overbreadth and unreasonably serious consequences is a recipe for chilled speech. Students will likely self-censor before risking running afoul of this policy. For its overreach, in both substance and scope, FIRE has singled out the Macalester’s as one of the worst policies of its kind in the nation.
The good news is that policies of this kind can be fixed. Indeed, there are schools that get it right.
Consider the University of North Carolina at Charlotte. That institution that earns FIRE’s highest, overall “green light” speech code rating, and its “Standard for Responsible Use” IT policy properly defines its terms, and narrowly limits its sweep to punish only unprotected speech. The policy bans technology use that “interferes with the work of other students, faculty, or staff or the normal operation of the university’s computing systems,” as well as use that constitutes “invasion of privacy, harassment, defamation, threats, intimidation, or discrimination on a basis prohibited by federal or state law.” UNC Charlotte’s policy is a great example of how to narrowly target the sort of speech and conduct that is not protected by the First Amendment.
These types of policies continue to impact student speech — even when students aren’t on campus. We’ll be highlighting more of them in the coming weeks.
As always, FIRE is here to help. If you’re a school administrator, student or faculty member who wants help with crafting or fixing a policy at your institution, give us a shout at email@example.com.