University of Delaware Response to Campus Police Gaffe: No Harm, No Foul

May 10, 2016

FIRE recently wrote a letter to University of Delaware (UD) Acting President Nancy Targett to inform her of an April 13 incident (above) in which a UD campus police officer directed students to censor speech that was clearly protected by the First Amendment. Targett wrote us a short response letter saying, in so many words, “That’s too bad. Thanks for letting us know!”

Too bad, indeed.

During the April 13 incident, UD students Jason Stewart and Aaron Cooper, members of the Young Americans for Liberty UD chapter, stood at a table in a large outdoor area of campus, advertising an event and inviting passing students to write messages on a giant beach ball. Their “free speech ball” attracted messages of all varieties, including a drawing of and the written word “penis.”

Stewart and Cooper were approached by an officer from the UD Department of Public Safety, who told the students they needed to “monitor what people write” for messages that might be offensive to others. He suggested that the penis drawing was a violation of UD’s sexual misconduct policy to which, as an officer, he must respond, and encouraged the students to scribble it out. After the officer left, Stewart and Cooper decided to leave the drawing in place, and continued to invite others to write on the ball for several more hours.

In our April 15 letter to the acting UD president, FIRE raised several significant concerns stemming from this, by all accounts, civil encounter:

First, we noted that it is long settled in First Amendment jurisprudence that a government actor cannot suppress expression just because others may find it disagreeable or offensive. As the U.S. Supreme Court wrote in Terminiello v. Chicago, 337 U.S. 1, 4 (1949), “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

Second, we raised concerns about the officer’s reference to the sexual misconduct policy, noting that such an application of the policy against clearly protected expression—a depiction of a penis that was, at worst, juvenile—is unconstitutional.

Third, we pointed out that this unconstitutional application is not entirely surprising, given that the definition of sexual harassment in UD’s policy is so broad as to easily encompass merely juvenile or offensive speech. UD maintains this policy despite the fact that the U.S. Court of Appeals for the Third Circuit, the jurisdiction of which includes UD, struck down a nearly identical policy at Temple University in 2008 because it was unconstitutionally overbroad.

In her response to FIRE’s letter, Targett starts:

The University of Delaware understands and values its students’ right to free speech. We would like our campus to be a place where individuals feel welcome to engage in critical thinking and to freely express their views and values. We take seriously our students’ right to speak freely within the bounds of the law, but as educators we also want them to consider and appreciate the impact their words may have on others—not just on campus, but across the globe. Indeed, as we both know, the fact that speech may be protected by the First Amendment doesn’t mean it won’t be hurtful to others.

Targett concedes that the officer “was not accurate when he suggested that the single drawing of a penis” constituted sexual harassment in violation of the sexual misconduct policy. However, she notes, “Our police officer was well-intentioned in his conversation with the students.” She notes that the officer “never threatened to stop them from engaging in their activity or to censor the words on the ‘Free Speech Ball’ himself.” Targett was apparently unmoved by the concern we raised in our letter that “most if not all students will self-censor” when given this type of warning by a police officer. Noting that Stewart and Cooper declined to self-censor, Targett observes that “they apparently continued tabling without any further interactions with University officials.”

Overall, Targett’s response focuses on the narrow facts of the free speech ball encounter and entirely ignores the underlying issues they highlight. She effectively says: Yes, the officer made a mistake, but the students didn’t listen to him anyway. No harm, no foul.

Unfortunately, by ignoring the underlying problems, Targett ensures they will persist to cause harm in the future.

Targett first fails to address the fact that the officer’s concerns over the free speech ball were not limited to the penis drawing and its violation of the sexual misconduct policy. The officer instructed Stewart and Cooper to monitor what students wrote on the ball for messages that could offend, provoke, or hurt others, who might see such content and “want something done about it.” Targett’s letter does not address this admonition to screen for content that could include virtually anything—for who can predict all that might offend, provoke, or hurt another?—or FIRE’s point that such overbroad directives are plainly unconstitutional under long-established law. The officer’s conversation with Stewart and Cooper reveals a fundamental misapprehension of student free speech rights that should be alarming to the UD administration. Accordingly, Targett’s silence on the issue should be alarming to UD students.

Next, while Targett acknowledges that the officer wrongly invoked UD’s sexual misconduct policy during the April 13 encounter, she fails to address the fact that the source of his confusion could easily come from the policy itself. The policy defines sexual harassment to include “verbal … conduct of a sexual nature when … such conduct has the purpose or effect of … creating an intimidating, hostile, or offensive working, living, or academic environment.” (Emphasis added.) In 2008, the Third Circuit ruled that a nearly identical definition of sexual harassment at Temple University was unconstitutionally overbroad, in violation of the First Amendment, because it could easily be applied to punish protected speech. In this encounter between officer and students, we see that very scenario play out. Yet Targett declines to offer any explanation for why her institution continues to maintain a policy that has already been held unconstitutional by a court UD is legally bound to obey.

Finally, Targett displays a worrying lack of concern for the fact that the students here avoided a violation of their rights only by disregarding the warnings of a police officer. This encounter was not with an “educator” encouraging the students to “consider and appreciate the impact their words may have on others.” This was a law enforcement figure who, “well-intentioned” or not, threw around words such as “investigate” and “hate crime.” That Stewart and Cooper, who were engaged in a free speech demonstration, had better knowledge of their rights than the officer does not excuse the situation. And Stewart and Cooper’s knowledge won’t help the next time an officer tells a different UD student she has to shut down a provocative display and she complies with the order—whether because she takes his incorrect application of UD policy at face value or, even knowing the officer is incorrect, fears the potential cost of noncompliance. A campus police officer’s use of authority to direct students to censor themselves while misstating the law and university policy deserves a response with more gravity than Targett’s letter offers. UD students should rightly expect campus police officers to be appropriately trained on their rights.

FIRE’s April 15 letter to Targett was not just about a single penis drawn on a giant beach ball. It was about a public university’s obligation to uphold its students’ First Amendment rights and its responsibility to ensure campus police officers enforcing university rules do the same. We again pose the question to Targett: What will the UD administration do to ensure that a campus police officer does not direct students to self-censor protected speech in the future?

Schools:  University of Delaware

Cases:  University of Delaware: Students Told by Campus Police to Self-Censor ‘Free Speech Ball’