You might remember that at the end of last year, FIRE President and CEO Greg Lukianoff dubbed 2014 “The Year of the Heckler.” There’s still a ways to go with 2015, but recent events are making a compelling case to dub it “The Year of the Tattler.”
We recently publicized, for instance, that Texas Christian University (TCU) suspended student Harry Vincent for postings Vincent made on Facebook and Twitter after a non-student living in Maryland complained to TCU about their content and rounded up an Internet posse to call for Vincent’s punishment. Now Sam Houston State University (SHSU), another Texas institution (though a public one), seems primed to follow suit.
The SHSU controversy was touched off by a tweet from student Monica Foy criticizing the response to the shooting death of Harris County sheriff’s deputy Darren Goforth on August 28. Foy’s tweet, posted yesterday morning, read, “I can’t believe so many people care about a dead cop and NO ONE has thought to ask what he did to deserve it. He had creepy perv eyes…” (Foy has since apparently deleted her Twitter account, and the Montgomery County Police Reporter writes today that she was arrested for an outstanding warrant on a charge unrelated to her speech.)
Given the freshness of Goforth’s death and its brutal nature, it’s predictable that Foy’s tweet might provoke passionate responses. Numerous people, however, took their distaste over Foy’s remarks further, demanding that SHSU punish her for her remarks.
— WhiskeyTangoFoxtrot (@aleykhat) September 1, 2015
People are free to lodge such complaints and call for such action, of course. But Foy’s speech is protected by her First Amendment rights, and SHSU cannot lawfully investigate or punish her for it.
Unfortunately, SHSU committed itself to doing just that in a statement posted to its Facebook and Twitter accounts:
— Sam Houston State (@SamHoustonState) September 1, 2015
Pay particular attention to this language: “SHSU has a strong Student Code of Conduct. The student’s remarks will be evaluated to determine if the code was violated[.]”
If SHSU is still figuring out what needs to be “evaluated” in Foy’s case, we’re happy to help. In a word, what needs evaluating is this: nothing.
Foy’s expression presents no conduct violations of any kind. Her speech is, without question, protected by the First Amendment, which, as a public institution, SHSU is bound to uphold. SHSU is free to use this controversy as an opportunity to clarify its own values, and to express its opposition to the sentiments of Foy’s remarks, as indeed it has already done. But SHSU cannot, consistent with its constitutional obligations, sanction Foy in any way due to her remarks or any offense caused by them. Doing so would result in, at best, a heap of public shaming (coupled with reminders of its past First Amendment misdeeds) that will chasten SHSU into respecting Foy’s rights. At worst, SHSU could find itself on the losing end of a costly First Amendment lawsuit, which Texas taxpayers will be none too pleased about having to pay for.
Unfortunately, even if SHSU ultimately concludes that Foy did not violate its Student Code of Conduct, the university has already done significant damage to its students’ First Amendment rights. By signaling to students that offending others on the Internet will result in a disciplinary investigation, SHSU has undoubtedly chilled its students’ willingness to participate in robust and open debate. After all, what student would want to risk the possibility of punishment when it is easier to simply keep quiet, or speak only to those who already agree with you? Regardless of its ultimate decision, SHSU has committed an egregious misstep in promising to launch an investigation.
And while there’s nothing to evaluate on Foy’s end, SHSU may want to use this controversy as an opportunity to check on its own policies to see how they stack up against its First Amendment obligations. As it turns out, unfortunately, not too well. Most troublingly, under its “Policies on Tolerance, Respect, and Civility,” students can be punished for “abusive, indecent, profane or vulgar language.” This is blatantly unconstitutional, and SHSU should know it: FIRE has warned SHSU about this problematic policy before. In fact, we made SHSU our Speech Code of the Month all the way back in October 2011 due to that precise language. It’s inexcusable, given how clearly defined college students’ First Amendment rights are, that SHSU ever put this policy into effect. It’s doubly inexcusable that SHSU has kept it on the books years after FIRE put the university on notice about the policy’s unconstitutional nature.
If there is a teachable moment to be pulled from this controversy, it seems it’s SHSU that has the most learning to do—on the necessity of standing up for its students’ First Amendment rights, on the need to maintain policies consistent with its constitutional obligations, and on the consequences of caving to an angry commentariat that would see the constitutional rights violated of those whose views they detest.
Hopefully this misstep doesn’t set the tone for things to come in the new academic year.