FIRE announces its Speech Code of the Month for October 2009: James Madison University.
JMU’s policy on “Obscene Conduct” provides that “[n]o student shall engage in lewd, indecent or obscene conduct or expression, regardless of proximity to campus.” (Emphasis added.) Torch readers may already be familiar with this policy, because we blogged about it several weeks ago. Our post caught the attention of student reporters at JMU, who have published several articles in the student paper The Breeze since our post first appeared. The first article, on Sept. 24, expressed FIRE’s concern that this broadly worded policy could be used to punish a great deal of student expression, including expression taking place online in e-mails or on sites like Facebook. Because “lewd” and “indecent” have no defined legal meaning, they could be interpreted to include almost any crude or vulgar language that someone found offensive, most of which would nonetheless be constitutionally protected. The policy allows for punishment of lewd and indecent expression on or off campus, so virtually everything that students say or write is fair game—and I would venture to guess that college students use plenty of crude and vulgar language on Facebook and elsewhere.
In the same article, JMU Director of Judicial Affairs Josh Bacon sought to allay concerns that this policy would be applied to expression. He said that a recent change to the policy’s language, extending its reach to off-campus activities, was a response to “an off-campus incident last semester that left the judicial council unable to charge the student offender. The student in question was reportedly as peeping into off-campus students’ windows and masturbating in front of them.” Others have been charged under the new policy for urinating in public. While JMU may certainly discipline students for engaging in illegal conduct like that described, Bacon’s comments raised the inevitable question of why, if all the university wants to do is regulate conduct, the policy explicitly refers to “conduct or expression.” JMU student John Scott raised this concern in his Breeze editorial of September 28, noting that although Bacon (whom Scott also interviewed for his article) had assured him that the university was only interested in regulating conduct, “personal guarantees do not hold the same legal weight as written policy.” Indeed. As Scott asks, if “Judicial Affairs experiences staff changes, will the new staff interpret the policy in question the same way the current staff does?” No one can know the answer to that question. That is why, so long as a university maintains written policies that restrict protected expression, students’ rights are dangerously insecure.
Again, the key question here is this: if all the university wants to do is regulate conduct, why does the policy apply to both conduct and expression? The most stunning answer to this question comes from the now-familiar Josh Bacon of JMU’s Judicial Affairs office. Today, Bacon told the Breeze that “It’s an interpretation of how you say expression; is it physical expression? Again, to me, it says obscene conduct, not obscene expression.” But of course, as anyone who can read the policy knows, what it says is “obscene conduct or expression.” It is impossible to know why the JMU administration is digging in its heels and standing behind this language if its only true interest is in prohibiting already illegal conduct such as public masturbation and urination. Eliminating two words—“or expression”—from this policy is a simple change that would leave the administration with full power to punish the kinds of activities it is ostensibly concerned with, and at the same time remove the threat to free expression. The fact that the administration seems unwilling to do so—and is instead resorting to verbal chicanery to try and convince concerned students that the policy doesn’t actually prohibit free expression—should be of great concern to anyone who cares about student rights. We hope that JMU students will find Bacon’s answer as unsatisfactory as we do and will keep the pressure on the administration to revise this unjust policy. For these reasons, JMU is our October 2009 Speech Code of the Month.
If you believe that your college or university should be a Speech Code of the Month, please e-mail firstname.lastname@example.org with a link to the policy and a brief description of why you think attention should be drawn to this code. If you are a current college student or faculty member interested in these issues, consider joining FIRE’s Campus Freedom Network, a loose affiliation of college faculty members and students dedicated to advancing individual liberties on their campuses. And if you would like to help fight abuses at universities nationwide, add FIRE’s Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.