Last month, flyers advertising “Straight Pride Week” were posted at Youngstown State University (YSU) in Ohio, asking students to celebrate thusly: “Just … go about your day without telling everyone about how ‘different’ you are.” Reporting at the time indicated that the Student Government Association got in touch with administrators in order to receive permission to take the posters down, but email correspondence recently obtained through a public records request suggests that the YSU administration initiated the censorship itself.
It is still not clear who hung the flyers, but small text at the bottom said:
Brought to you by the students that are sick of hearing about your LGBT pride. Nobody cares about what you think you are, or what you want to have sex with. We have nothing against your sexual orientation. We just don’t give a fuck.
Some students and administrators objected to the message of the flyers and worked together to have them removed. YSU’s student government argued in a statement that the flyers were “problematic” and “miss the point of minority activism.” Meanwhile, the university stated publicly that “[o]fficials are investigating possible student code violations, and disciplinary action may follow” for the students involved.
Whether YSU directed students to take the flyers down or simply gave them permission, such university-sanctioned viewpoint-based censorship is unacceptable at a public institution like YSU. As FIRE’s Ari Cohn noted in speaking with YSU student newspaper The Jambar, “these posters, as distasteful as some may find them, don’t fall under any category of unprotected speech,” such as true threats or incitement to violence. And as constitutional law professor Eugene Volokh wrote in assessing the case, YSU can limit where flyers are posted generally, but it cannot restrict posters based on their message, as it has done in this case.
FIRE wrote to YSU on May 8 to explain that the under the First Amendment, the university may not censor or punish students for constitutionally protected expression like the “Straight Pride” flyers. (That was before this latest email correspondence, which only underscores our concern, was revealed.)
Statements from students and administrators involved in removing the flyers reveal serious misunderstandings about what freedom of speech means and what the First Amendment was designed to protect.
YSU’s Student Government Association (SGA) president, for example, said:
We have to be careful with the whole free speech issue. But then if you actually read through it, it seemed like it went way further than a free speech issue. There were swear words and took it a little further than the average free speech should go.
We at FIRE are not sure what “the average free speech” is, but we’re sure that the First Amendment doesn’t protect only “average” speech—and it definitely protects “swear words.” Freedom of speech must protect ideas that the majority finds highly unusual or even deeply disturbing. If the principle can be set aside in cases where some people simply think it’s “a little further than the average free speech,” it’s useless.
The SGA president-elect chimed in, too:
Everyone has a right to express their opinion on campus, but [the SGA and the administration] felt—especially considering the English Festival is about to start—that the poster’s language was obscene and should be taken down.
As I have explained multiple times here on The Torch, “obscenity” is not a catch-all for speech that upsets or disgusts someone. Although obscenity (as defined by the Supreme Court) is unprotected by the First Amendment, the flyers fail to meet nearly every element of what legally makes material obscene.
YSU’s public information officer Ron Cole said, “Reaction has ranged from concern to outrage. While we recognize the right to free speech, this is counter to our mission of being a diverse and accepting campus.” Unfortunately for Cole, the First Amendment means that diversity of thought and expression trumps any desire he may have to ensure that no student ever feel uncomfortable or unwelcome. As a public institution, YSU’s mission should be to foster open debate—and it can encourage inclusiveness, but it can’t mandate it at the expense of free expression.
FIRE has given YSU a “red light” rating, our worst, in our Spotlight database, in part for its harassment policy, which prohibits the “[d]isplay or distribution of material that is offensive to others.” This policy clearly and substantially restricts constitutionally protected expression. While the flyers evidently fall under this policy, it is unlawful for YSU to enforce it against the flyer’s creators (or anyone else).
And while YSU administrators disapprove of the flyers’ message, the posters serve as a public objection to expression that arguably falls under YSU’s sexual harassment policy. Examples of sexual harassment listed on YSU’s website include “commentaries about sexual activity, experience, or orientation.” This cannot possibly mean commentary about orientation only when that orientation is heterosexual. Of course, providing commentary on one’s own sexuality is constitutionally protected, just as the flyers are. But the fact that YSU has silenced complaints about what the university itself has deemed “sexual harassment” demonstrates that YSU’s policies and behavior are not only legally unsound but also incompatible with common sense.
Too many members of the YSU community apparently support freedom of speech only for ideas with which they already agree. That’s not support of freedom of speech at all.