The Volokh Conspiracy
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The Thomas Jefferson Center (with which I'm involved as a member of the board of trustees) has just released its yearly Jefferson Muzzles, so I thought I'd pass along the center's explanation of who the "winners" are this year. Note that the Ccnter supports academic freedom and free speech broadly, and not just those aspects that are legally protected by the First Amendment; so you'll see many private institutions mentioned here, even though the First Amendment as such does not restrict private entities, as well as the public institutions to which the First Amendment applies.
An epidemic of anti-speech younactivity swept across the campuses of American colleges and universities in 2015 and shows little sign of abating in 2016. Not long ago, these same institutions were at the vanguard of First Amendment issues; students demanded-then made powerful use of-expanded speech rights on campus, and administrators held academic freedom sacrosanct. These positions reflected a shared understanding that intellectual inquiry requires an environment in which debate is uninhibited, robust, and wide-open, even if it occasionally results in unpleasant or offensive exchanges. Today, however, the focus seems to be on limiting rather than promoting the open exchange of ideas. Students who once protested to have their voices heard now seek to silence those they disagree with or find threatening. Meanwhile, university administrators appear locked in a competition to determine which school will take the toughest stand against offensive, unpopular, and hurtful speech. First Amendment principles have given way to identity politics, trigger warnings, and so-called "safe spaces," and the Free Speech Movement has, at many colleges, become the Anti-Speech Movement.
Since 1992, the Thomas Jefferson Center has awarded Jefferson Muzzles to those individuals and institutions responsible for the more egregious or ridiculous affronts to free speech during the preceding year. Our usual practice has been to select eight to twelve recipients each year, reflecting the unfortunate reality that threats to free expression regularly occur at all levels of government. This year, however, we were compelled to take a different approach. Never in our 25 years of awarding the Jefferson Muzzles have we observed such an alarming concentration of anti-speech activity as we saw last year on college campuses across the country. We are therefore awarding Jefferson Muzzles to the 50 colleges and universities discussed below, both as an admonishment for the acts already done and a reminder that it is not too late to change course.
Before we reveal this year's "winners," it is worth noting that several schools actively pushed back against the tide of anti-speech sentiment in 2015. In January, the Committee on Freedom of Expression at the University of Chicago issued a free speech policy statement guaranteeing "all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn," and recognizing that "it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive." Several institutions, including Princeton, Purdue, American, and Winston-Salem State have since adopted the core tenets of the Chicago statement as their own. These schools are to be commended and we certainly hope that many more will soon follow their example, but until a great majority of college students and administrators come together to speak out against proponents of the Anti-Speech Movement, our most reliable bastions of free expression will increasingly be rendered unrecognizable.
The recipients of the 2016 Jefferson Muzzle awards are presented below, divided into the following five categories: Censorship of Students, Censorship by Students, Limiting Press Access on Campus, Threats to Academic Freedom, and Silencing of Outside Speakers.
Censorship of Students
If you want to single out a tipping point in the spread of anti-speech activity on campuses last year, look no further than the University of Oklahoma. In March 2015, a video emerged showing a busload of tuxedo-wearing Sigma Alpha Epsilon fraternity members singing a racist chant. Within 48 hours of the video going public, OU president David Boren severed all ties with the fraternity and expelled two students identified as leading the chant. Imploring other administrators to adopt the same zero tolerance policy against racist speech, Boren vowed that OU would be "an example to the entire country of how to deal with this issue." Unfortunately, he was right. Robert Shibley of the Foundation for Individual Rights in Education (FIRE) notes that "colleges have seized on the University of Oklahoma's unconstitutional actions as a signal that they have an 'all clear' to toss free speech and basic fairness out the window." Boren's actions were both clearly unconstitutional and extremely popular-a dichotomy that we will see repeatedly among this year's Muzzles. Most importantly, though, the OU expulsions set the bar for nearly every incident to come. Anything less than zero tolerance would be condemned by many campus communities as a tacit endorsement of exclusionary or inflammatory rhetoric.
As a private institution, Texas Christian University is not legally bound by the First Amendment. The school nevertheless claims to "firmly support the rights of all members of the University community to express their views." In practice, however, TCU abandoned its commitment to free speech after one student's comments on social media prompted complaints from a non-student in Maryland and her followers. TCU student Harry Vincent regularly used his personal Facebook and Twitter accounts to comment on a variety of current events and topics including ISIS, protests in Baltimore, and global terrorism. These postings came to the attention of a woman in Maryland who, in an April 2015 Tumblr post, described Vincent's commentary as "racist" and "disgusting." The woman, identified online only as "Kelsey," went on to encourage her followers to contact TCU and complain about the content of Vincent's speech. Within 24 hours of Kelsey's post, TCU charged Vincent with violating two provisions of the student conduct code: "Infliction of Bodily or Emotional Harm" and "Disorderly Conduct." FIRE reports that prior to any determination of guilt, TCU officials ordered Vincent "to write a letter of apology for his posts and detail the punishment that he felt would be appropriate for his speech." Vincent was ultimately suspended and placed on probation for the remainder of his time at TCU, during which he was barred from campus residence halls and all non-academic facilities, and prohibited from participating in any extracurricular activities. He was also required to attend sensitivity training, complete 60 hours of community service, and meet with university officials regularly until graduation. TCU administrators upheld the sanctions against Vincent in July 2015, but after the matter received widespread media attention, the school relented, reducing Vincent's punishment to one year of probation, community service, and sensitivity training.
Like our previous example, the University of Tulsa is a private institution that, while not subject to traditional First Amendment constraints, still professes a commitment to free expression on campus. That commitment didn't stop university administrators from suspending a student over someone else's Facebook posts and threatening student reporters who wrote about the incident. Just two months before he was set to graduate with a theater degree from TU, George "Trey" Barnett was banned from campus for more than a year and informed that, should he return, the university would not issue him a degree in the major he was only 16 hours away from completing. The basis for these extraordinary sanctions was a series of Facebook posts written by Barnett's husband, Chris Mangum. In the posts, Mangum criticized two TU theater professors and made disparaging remarks about the physical appearance of one of Barnett's classmates. Each post originated from Mangum's personal Facebook account but appeared on Barnett's Facebook page where they were visible to others, including the professors and student in question. TU officials insisted that regardless of who wrote the posts, Barnett was "responsible for taking reasonable steps to prevent further attacks against the University of Tulsa faculty and students on his Facebook page," noting that the individuals discussed in the posts "expressed great distress, intimidation and dread at the mere thought of working alongside" him. Administrators then doubled down on their "commitment to free expression" by threatening editors of the school newspaper with disciplinary action if they continued to report on the incident. TU officials informed editors of The Collegian that aspects of their reporting constituted prohibited dissemination of confidential information. The school refused to elaborate on the nature of the confidentiality or to specify which documents might be subject to confidentiality. Furthermore, officials declined a request by the paper to identify a specific provision of the TU's disciplinary policies that would be violated by publishing the information in question.
In addition to the examples described above, university-initiated efforts to limit student speech were also observed at the University of California, which encouraged a system-wide campaign to combat "microaggressions" on its campuses, and at Youngstown State, where administrators directed the removal of "straight pride" posters from around campus. At Old Dominion University, administrators promised "zero tolerance" in its investigation of banners hung from an off-campus fraternity house. On-campus use of the social media app Yik Yak was banned at Norwich Unviersity and Utica College, while a Colorado College student was suspended for a Yik Yak post claiming that black women are "not hot." Kutztown Universityimplemented a campus-wide ban on Confederate flag imagery, and George Washington University suspended a Jewish student for displaying a souvenir Indian swastika on his residential hall bulletin board. "Offensive" partying came under fire at the University of Mary Washington, where an entire rugby team was suspended for singing a bawdy song, and at UCLA, where a "Kanye Western" themed party led to the suspensions of the fraternity and sorority that hosted it. Finally, campus police were keeping a close eye on speakers last year. At the University of Missouri, officers encouraged the reporting of any incidents of "harmful or hurtful" speech, while at the University of Oregon, police warned a street preacher who had been harassed on campus against making any future statements that might upset students.
Censorship by Students
Shortly before Halloween, the Intercultural Affairs Committee at Yale sent an email to students cautioning them against wearing costumes that could be perceived as "culturally unaware or insensitive." When one professor had the temerity to gently and respectfully suggest that students might be capable (and perhaps even better off) navigating these waters themselves rather than relying on university oversight, she was condemned, shouted down, and ultimately chased off campus. Erika Christakis was a well-respected instructor at Yale. Her husband Nicholas served as "master" of one of the school's undergraduate residential colleges, responsible for shaping the college's academic, intellectual, and social life. After reading the Intercultural Affairs Committee email and discussing the issue with some of her students, Erika Christakis composed an email of her own and shared it with the college at large. "This year," she wrote, "we seem afraid that college students are unable to decide how to dress themselves on Halloween. I don't wish to trivialize genuine concerns about cultural and personal representation, and other challenges to our lived experience in a plural community. I know that many decent people have proposed guidelines on Halloween costumes from a spirit of avoiding hurt and offense. I laud those goals, in theory, as most of us do. But in practice, I wonder if we should reflect more transparently, as a community, on the consequences of an institutional (bureaucratic and administrative) exercise of implied control over college students." Drawing on her own expertise in early childhood education and noting the difficult line-drawing problems associated with applying one's personal standards and motives to another's choice of costume, Christakis concluded that students would benefit both intellectually and socially from being allowed to work any costuming disputes out among themselves: "If you don't like a costume someone is wearing, look away, or tell them you are offended. Talk to each other. Free speech and the ability to tolerate offence are the hallmarks of a free and open society." The student response to Christakis' email was swift and severe. Student's called the email "disrespectful" and "dangerous." Angry students surrounded Nicholas Christakis, cursing at him and calling him "disgusting," while several students told reporters that they could no longer bear to live in the college. A formal letter was quickly drafted calling for the Christakis' removal. Yale's president, along with dozens of professors at the school expressed support for the Christakis' expressive rights, but their support failed to quiet campus critics. In December 2015, Erika Christakis announced that she would no longer be teaching at the university.
Despite frequently heard claims to the contrary, there is no First Amendment exemption for so-called "hate speech." Rather, the constitution protects all expression that does not fall into a few well-defined categories, such as obscenity, libel, and true threats. Still, attempts to ban racist, sexist, and other offensive speech are common, especially on college campuses. Student protesters at Duke sought to enact such a ban last year through a list of demands that threatened not only the expressive freedom of the students, but the academic freedom of the faculty as well. In response to a series of racist and homophobic incidents on campus, student activists began aggressively pushing the administration to rectify what many saw as Duke's systematic failure of minority communities. During a student-organized forum established to discuss these issues, the president and other members of the administration were presented with a document titled "Demands of Black Voices." Among the group's ten demands were mandatory bias/sensitivity training for all students and faculty (with extra training for all fraternity and sorority members), sanctions against students determined to have worn culturally-offensive costumes as well as those who hosted or attended an offensive party, and loss of employment for any Duke employee whose speech threatened the safety or potential academic success of students of color.
Speech related demands were all the rage at Amherst as well, where a student collective calling itself Amherst Uprising issued a list of 11 preliminary demands following a campus sit-in last November. Although the group insists that "the movement . . . by no means intends to stifle free speech," their demands explicitly do just that. In addition to calling for a zero-tolerance policy towards racial insensitivity and hate speech, the collective insisted that Amherst publicly condemn the unidentified students who placed "All Lives Matter" and "Free Speech" posters on campus. Such students, the group wrote, must be subject to the school's disciplinary process and "required to attend extensive training for racial and cultural competency."
Student-censors were active on a number of other campuses last year as well. A particularly bold approach was adopted by activists at the University of Mary Washington, where a Title IX complaint alleged that administrators failed to protect feminist students from sexist and derogatory comments. Students also filed a Title IX complaint against a Northwestern professor who published a journal article critical of bans on student-faculty relationships. Social media was a popular target of campus activists: Students at Clemson, Emory, Hamilton College, and the University of San Diego all sought to ban the anonymous messaging app, Yik Yak, and the Student Bar Association at the University of Missouri School of Lawimplemented an "Orwellian" social media policy applicable to all students. Students called for censorship of content appearing in campus newspapers at Brown and Wesleyan, while editors at UCLA's Daily Bruin endorsed enhanced content policing of off-campus parties. Campus art displays came under fire at SUNY Buffalo, where a black art student installed "Blacks/Whites Only" signs around campus, and at Santa Barbara Community College, where protesters demanded the removal of an art project teepee.
Limiting Press Access on Campus
In one of 2015's most unforgettable moments, Melissa Click, an assistant professor of mass media studies at the University of Missouri, was captured on video attempting to prevent press coverage of a public protest on campus. Click, who herself had put out calls on social media for national media coverage of the protests just two days earlier, was shown asking "Hey, who wants to help me get this reporter out of here?" and calling for "some muscle" to help remove a student photographer filming the incident. Click was fired in February 2016.
Activists at Smith College took similar steps to limit press coverage of demonstrations on their campus. Rather than banning media access outright, student-organizers said only those journalists who agreed in advance to explicitly support the movement in their articles would be permitted. Students claimed that the conditions were necessary to create a safe space free from potential insensitivity from the news media.
Similar incidents occurred at Emporia State University in Kansas, where officials temporarily ejected reporters from a public forum on race relations, and at Loyola, where student protesters invited-then blocked-press coverage of a public demonstration.
Threats to Academic Freedom
Louisiana State University demonstrated its feeble commitment to academic freedom last year when the school fired a tenured professor over her occasional use of profanity and sexual humor in the classroom. Teresa Buchanan taught at LSU for nearly two decades and by all accounts her scholarship and service to the university was exceptional. She was known for her open rapport with students and for speaking her mind in the classroom. Buchanan acknowledges that she occasionally used profanity in her lectures as well as jokes, some of which were sexual in nature, but assumed that her adult students were mature enough to handle adult conversations. As she put it, "I'm not teaching Sunday school." One student, however, felt differently and reported Buchanan's language to school administrators. Charged with sexual harassment and creating a hostile learning environment, Buchanan found herself subject to 18 months of hearings, reviews, and appeals, before finally losing her job in June 2015. LSU's decision to terminate Buchanan was all the more surprising since a faculty committee convened to investigate her conduct specifically ruled out termination as a possible consequence, recommending instead that Buchanan simply agree to refrain from using such language in the future. Buchanan is currently suing the school for violating her free speech and due process rights.
Northwestern promises its faculty and students "full freedom in research and in the publication of the results," but administrators at the university's Feinberg School of Medicine failed to live up to that pledge when they censored a faculty-produced bioethics journal based on the content of one issue and demanded that all future articles be reviewed by the administration prior to publication. The Winter 2014 issue of Atrium featured numerous contributions centered around a "Bad Girls" theme. Among these was an essay by a Syracuse University professor in which he wrote about becoming paralyzed decades earlier, recalling a series of consensual sexual encounters he had with a nurse during his treatment. According to the Foundation for Individual Rights in Education, administrators worried that the "Bad Girls" issue might hurt the Northwestern "brand" and that of the corporation that oversaw the university hospital system. School officials pressured Atrium's publisher to remove the offending issue-and all back issues-from the website where they were hosted. Access to Atrium was only restored 14 months later, one day after the Feinberg School professor who edited the "Bad Girls" issue threatened to publicize the university's censorship. Despite this positive step, Northwestern has informed Atrium editors that a newly formed oversight committee will begin reviewing the journal's content prior to future publications.
These examples are far from isolated instances. Administrators failed to uphold academic freedom at Butler University, where unflattering coverage in the student newspaper led to the paper's faculty advisor being removed and replaced with a member of the school's public relations department. A faculty advisor for the student paper at Northern Michigan University was similarly ousted. And at the Community College of Philadelphia, an adjunct professor was suspended after speaking at a Black Lives Matter rally on campus.
Censorship of Outside Speakers
Students at numerous universities attempted to exclude certain viewpoints from being heard on their campuses in 2015. Such efforts do all members of the community a disservice by stifling open debate and the ability of others to hear and challenge controversial ideas. One constant feature of this category of campus censorship is that it is embraced by students of all political ideologies. Outside speakers were challenged in equal number by the right and left, and while not all attempts were ultimately successful, each served to diminish free speech principles on their respective campuses.
Commencement speakers were challenged and/or disinvited at Southern Illinois University-Carbondale (Bruce Rauner), the University of North Texas (Greg Abbott), Kean University (Common), Le Moyne College (Timothy Dolan), andSt. John Fisher College (Rudolph Giuliani). Elsewhere, students and faculty alike attempted to prevent invited guests from participating in campus events at Williams College (Suzanne Venker), the University of California-Berkeley (Nicholas Dirks), Saint Louis University (Robert McCulloch), Duke (Asra Nomani), Texas Tech University (Angela Davis), Oberlin College (Christina Hoff Summers), Harvard (Robin Steinberg), UCLA (Cornel West), Alma College (Ben Carson), theUniversity of Southern California (Luis Gutierrez), Princeton (Big Sean), and the University of Minnesota (Moshe Halbertal).