Public universities must tolerate students’ off-campus speech even when it offends some, or most, of the student body. Recent incidents at Old Dominion University (ODU) and The Ohio State University (OSU) serve as reminders that this is not always what happens.
At both universities, students adorned their off-campus residences with signs offering a less than wholesome welcome to new and returning students. The banners at ODU read, “Rowdy and fun – Hope your baby girl is ready for a good time,” “Freshman daughter drop off,” and “Go ahead and drop mom off too.” Signs at an OSU apartment, which were taken down after move-in day, read, “Dads, we’ll take it from here,” and “Daughter daycare 2.0.” The offending students at ODU have also removed their banners after being contacted by their administration, and may face repercussions from their fraternity, Sigma Nu.
While these incidents may mark the first time in the new academic year that students at ODU and OSU encounter speech they find offensive or insulting, they will undoubtedly not be the last. As Tyler Kingkade shows in The Huffington Post today, suggestive signs like these are hardly uncommon in the university setting.
In a worrying response to the banners, the ODU administration published a statement warning students that “[m]essages like the ones displayed yesterday by a few students on the balcony of their private residence are not and will not be tolerated” and that “[a]ny student found to have violated the code of conduct will be subject to disciplinary action.” An OSU spokesperson made a similar threat, claiming that “student code violations go with a student regardless of whether it is on or off campus.”
These statements are troubling. ODU and OSU are welcome to take part in the marketplace of ideas and to criticize the messages on these banners, but they must do so without threatening the students with punishment for protected speech.
ODU and OSU, like all public universities, are not the arbiters of what students can and cannot say off campus. They can’t even ban crude speech on campus. If students are found to be in violation of student codes of conduct solely for the content of these banners, ODU and OSU will have run afoul of the constitution.
In Papish v. Board of Curators of the University of Missouri (1973), the Supreme Court held that students cannot be punished simply because their speech contradicts a university’s “conventions of decency.” And in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (1993), the U.S. Court of Appeals for the Fourth Circuit, the jurisdiction of which includes ODU, ruled that even crude student speech enjoys First Amendment protection. In these rulings, the courts held that the University of Missouri and George Mason University could not punish students simply because others were offended by their speech. Likewise, neither can ODU or OSU.
Additionally, universities do a disservice to their students when they censor controversial speech. If nothing else, these banners could serve the very useful purpose of helping students avoid places and people with whom they might rather not associate. Students who find the ideas behind these banners offensive can more easily avoid the people who espouse them when they are literally proclaiming the ideas on their houses.
While addressing the issue in a letter to the campus community, ODU President John Broderick shared a student’s reaction to the banners:
A young lady I talked to earlier today courageously described the true meaning of the hurt this caused. She thought seriously about going back home.
But she was heartened, she explained, when she saw how fellow students were reacting to this incident on social media. She realized this callous and senseless act did not reflect the Old Dominion she has come to love.
This is what more speech looks like, and it’s always the better alternative to censorship. Suggestive banners have been around for a long time, and they show no sign of fading away. Demanding the removal of these banners is not the same as refuting the ideas behind them. College students will never be able to avoid speech or ideas they find offensive, but they will benefit from and take part in the discussion that frequently results from the controversy surrounding such expression.