The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Foundation for Individual Rights in Education has the story. Some excerpts:
The [Sam Houston State University] 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 …" …
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.
And SHSU responded, by suggesting that it might do so:
SHSU appreciates the enormous public response in support of law enforcement. The university is a leader in educating many people who work in criminal justice and those who protect the civil liberties this country was founded upon, including free speech, whether we agree with that speech or not.
SHSU has a strong Student Code of Conduct. The student's remarks will be evaluated to determine if the code was violated following standardized due process. The university has an ongoing commitment to taking actions that strengthen dialog and understanding between our students and the law enforcement community.
Back to FIRE's story:
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….
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.
FIRE's analysis strikes me as exactly correct. Foy's Tweet, whether it was serious or not, is clearly protected by the First Amendment; there's no "speaking ill of the dead" exception to the First Amendment. The university is free to condemn the speech, but it should make clear that the speech can't lead to disciplinary action. And whenever a university suggests that such speech might be punishable, it sends a message that students had better avoid speaking out on controversial matters—not just the particular way that Foy expressed herself, but in lots of other ways, too. If you were an SHSU student, what other sentiments might you now be worried about expressing?
Thanks to Prof. Glenn Reynolds (InstaPundit) for the pointer.