Another week, another public university president defying the First Amendment.
Declaring that his university (unconstitutionally) prohibits “derogatory statements of any form,” University of Mary Washington (UMW) President Richard Hurley announced last week that the UMW men’s rugby club has been dissolved, and all of its players ordered to attend sensitivity training, because of a few team members’ participation in a bawdy song recorded at a November 2014 party.
The song in question, the lyrics of which revolve around having sex with the body of a dead prostitute, has raised eyebrows. But in declaring this speech out of bounds and levying punishment, the university has completely failed to account for context—and when it comes to determining whether speech constitutes harassment or a true threat (and is thus unprotected), context is often critical.
If a group of men showed up at a brothel in the middle of the night chanting about sex with dead prostitutes, there might indeed be some merit to a claim that the speech was threatening. But here, we are talking about a song sung at an off-campus party by a group of people who share a tradition of bawdy music. When considered in this context, you can’t credibly present the chant as expression so menacing that it is devoid of First Amendment protection.
But that is exactly what a student group, and now the UMW administration, have done in this case.
According to Erin Gloria Ryan at Jezebel, student Paige McKinsey was given a recording of the chant by her friend, who attended the party. McKinsey, president of the student group Feminists United on Campus, encouraged her friend to report the incident to the UMW administration. Over the next several months, McKinsey’s student group and other concerned students and faculty urged the administration to take action, and on March 18, President Hurley announced that “[a]ll rugby club activities have been suspended indefinitely. Further, each member of the men’s rugby club is required to participate in education and training sessions regarding sexual assault and violence.”
There is a lot to unpack here, but as my colleague Will Creeley told Jezebel’s Ryan, what we know so far is highly troubling. Although only eight of the rugby team’s 46 members were present at the party in question, and although singing the song appears to be constitutionally protected expression, this public university has—seemingly with no due process—imposed a collective punishment on the entire team, and sentenced each of its individual members to mandatory sensitivity training.
The university president has also issued a statement that directly contradicts the university’s First Amendment obligations by stating that no “derogatory statements of any form” will be tolerated on UMW’s campus. This statement is bound to chill protected expression, as students are likely to self-censor rather than risk punishment for expression that could be considered “derogatory.”
Unfortunately, the current campus climate is one of moral panic in which honest, rational, level-headed discussions of any issue having to do with sex are virtually impossible. As Ryan noted about the instant controversy, “Mary Washington’s still-unfolding rugby team debacle is the latest messy clash between free speech and moral decency, fueled by the recent anti-sex assault push on college campuses that has been years in the making.” She writes:
Of course, the real story of what happened that night in November and in the months after is more complicated than the administration’s delayed but clearly statement-making decision would have you believe. This wasn’t a victory over the dark forces of misogyny as much as it was a parody-defying collision of 2015 collegiate caricatures: a feminist organization feeling threatened by a song sung at a party to which they were not invited and would have no interest in attending; a party full of co-eds getting drunk and yelling a stupid, obscene song about sexually violating a prostitute’s corpse. A surreptitious cell phone recorder uploading the footage to YouTube like a guerrilla journalist. A terrified college administration cloaking their fear of lawsuits and negative media attention in righteously angry talk and scorched-earth justice aimed, probably, at the wrong entity.
In this climate, many students demand—and administrators, fearful of federal investigation and bad publicity, too often provide—swift and unequivocal action in response to virtually any speech or expression that leaves people feeling subjectively uncomfortable (or, to use the new buzzword for the feelings engendered by speech one disagrees with, “unsafe”). This swift and unequivocal action often, as here, fails to account for the due process and free speech rights of the accused students.