St. Louis' Washington University: Free Speech For All!* (*At The Sole Discretion Of School Administration)

from the all-speech-is-free,-but-some-speech-is-free-er-than-others dept

For some reason, institutes of higher education seem to have the urge to treat budding adults as guileless children, proactively covering their ears and eyes lest something offensive rear its ugly head and slap them soundly right in their shielded sensibilities. Critical thinking is a skill that's supposed to be cultivated throughout a person's formative years, but thanks to a variety of overprotective school speech policies (often ostensibly aimed at preventing bullying) that begin in grade school and continue throughout post-secondary education, many children are emerging into adulthood, fully unaware that the world meshes well with the cloistered existence they've enjoyed for the last 12-16 years.

The other strange aspect of these speech-restricting policies is that universities consider themselves champions of liberal (in the classic sense of the word) education, broadening horizons and opening minds while preparing the youth of today for the future. These days, hardly anything is "broad" or "open." Instead, students are placed on a narrow path that has been polished to a high sheen by misguided idealism.

FIRE (Foundation for Individual Rights in Education) has been tracking First Amendment-violating university speech policies for well over a decade. A lot of overly broad policies have been discussed, but few achieve the dissonance that St. Louis' Washington University's conflicting speech-related policies do.

Washington University is a private university, which gives it a bit more leeway in terms of restricting free speech. Despite this fact, the university has declared its students can enjoy freedom of expression while enrolled.

The introduction to the university's University Student Judicial Code (PDF) explicitly states:

Freedom of thought and expression is essential to the University's academic mission. Nothing in this Code should be construed to limit the free and open exchange of ideas and viewpoints, even if that exchange proves to be offensive, distasteful, disturbing, or denigrating to some.
If Washington U. had stopped here, there'd be no story. This is an admirable policy, one that guarantees students free expression, something many institutions are hesitant to do because free speech can often be "offensive, distasteful, disturbing or denigrating."

So, what's the problem? Well, it's tough to square the "essentialness" of freedom of thought and expression with other parts of Washington U's student policy handbook.

WUSTL's Residence Life Policies and Procedures define "harassment" as:
... any behavior or conduct that is injurious, or potentially injurious to a person's physical, emotional, or psychological well-being, as determined at the sole discretion of the University. Such behavior is subject to disciplinary action.
Washington U says "nothing in this code should be construed to limit the free and open exchange of ideas." I suppose that's technically true. This limitation of the "free and open exchange of ideas" occurs in a separate section of the student policies. This anti-bullying clause overrides the Student Code, turning it into an Animal Farm-esque piece of policymaking. "Students are entitled to freedom of thought and expression at the sole discretion of the University." Apparently, freedom's just another word for "THIS MESSAGE APPROVED BY THE ADMINISTRATORS OF WUSTL."

Not only is the message being sent to students completely schizophrenic, but this policy is nothing more than administrative abuse waiting to happen.
If you really think about the wording of WUSTL's policy, it allows the administration to punish an almost unlimited amount of speech and expression. Any conduct that is even "potentially injurious" to a person's "emotional ... well-being," as determined at the sole discretion of the university? How is any student supposed to ascertain what the university means by these terms? On their face, they could mean anything from hurt feelings to serious emotional distress. And who gets to exercise the "sole discretion" of the university? Is it always the same person, or might it vary case by case, depending on the parties involved? If I were a student in WUSTL's residence halls, I would be afraid to engage in any rigorous or controversial debate for fear of running afoul of this exceptionally broad policy.
By adding this broadly written policy, WUSTL will most likely will have no concerns about people "abusing" their "right" to free expression. This self-granted power is a preemptive attack on potentially offensive speech, with definitions so broad nearly anything said in a heated discussion could be included. FIRE asks how you can square one policy with the other. The fact is: you can't. One of these policies needs to go, and it's the policy that places students' right to free speech in the hands of ad hoc censors. Washington University can't have it both ways. Either it's for protecting free speech or it's for protecting students from being offended, but it simply cannot claim it's somehow doing both.



Reader Comments (rss)

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  1.  
    identicon
    Pixelation, Apr 10th, 2013 @ 11:12pm

    "Instead, students are placed on a narrow path that is a turd polished to a high sheen by misguided idealism. "

    FTFY

     

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  2.  
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    Zakida Paul (profile), Apr 11th, 2013 @ 12:07am

    The definition of 'free' is taking a bashing these days.

    If 'free speech' comes with limitations, we cannot say that it is truly 'free'. That would be 'limited speech'.

     

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  3.  
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    Anonymous Coward, Apr 11th, 2013 @ 12:33am

    No doubt well meant, but someone forgot about the consequences...

     

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  4.  
    identicon
    Anonymous Coward, Apr 11th, 2013 @ 1:24am

    Re:

    a) the First Amendment only actually applies to governments- this is a private entity
    b) free speech has never been totally unrestricted. For example, harassment. Or bullying.

     

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  5.  
    identicon
    Anonymous Coward, Apr 11th, 2013 @ 1:37am

    this is actually pretty common; it's meant to stop the harassing kid claiming that the bullied kid is simply over-sensitive, or, for example, saying that their parents said it was ok. ( as for who gets to excercise the discretion, it's usually the teacher)

     

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  6.  
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    Uriel-238 (profile), Apr 11th, 2013 @ 1:45am

    I remember finding (and treasuring) a flyer from U.C. Berkeley exclaiming No Free Speech For Fascists! A local normative-something-supremecist group was wanting to speak at the campus and this flyer was encouraging students to protest the administrators who authorized its permission to assemble.

    It was like a page of pure irony.

    It seems that most folks treasure free speech so long as it's speech that doesn't personally offend them. But that's not very free speech.

    I had heard once that holocaust-denialist documentaries were released in theaters in Denmark (Danish film or otherwise--they're criminal almost everywhere else, so that's the only place in the world they can be shown) and this served as an example of the actual degree of freedom of speech there.

    Here in the US, we freak out over pubic hair, women enjoying sex overmuch, considering the option of abortion and God being too absent.

     

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  7.  
    identicon
    S. T. Stone, Apr 11th, 2013 @ 3:38am

    Re:

    You misunderstand the concept of Free Speech.

    Under the First Amendment, the government cannot deny you the right to say whatever you wish (save for extreme cases such as calls to violence and possessing/distributing child pornography). Any governmental entity that tries to stop you from expressing yourself will run afoul of the protections afforded to citizens via both the First Amendment and decades of SCOTUS decisions.

    In other words: if you want to call me a Nazi-loving jerkoff, not even the President can legally stop you from doing it.

    Private entities, on the other hand, can stop you from saying whatever you wish because they donít have to play by the same rule. Facebook can bar you from its service for sharing sexually-charged images, and you canít say it has truly Ďcensoredí your right to expression because it banned you. Facebook doesnít exist as a governmental entity, which means it can ban you from its service for whatever reason, and you have to suck it up and move on.

    The same goes for a living, breathing person who kicks you out of their home because you called them a Nazi-loving jerkoff: they havenít denied you the right to express yourself just because they donít want to hear you do it. You can go to another friend's house and call that first friend a Nazi-loving jerkoff, or go to Facebook and call that first friend a Nazi-loving jerkoff, or anywhere else that will allow you to say ĎNazi-loving jerkoffí, so you donít lack options for avenues of self-expression just because you got kicked out of that first friendís house.

    In other words: you have the right to express yourself, but you donít have the right to force someone to give you a place to do it.

     

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  8.  
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    PopeRatzo (profile), Apr 11th, 2013 @ 3:41am

    wrong question

    Is there really such a thing as "free speech"?

     

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  9.  
    identicon
    Anonymous Coward, Apr 11th, 2013 @ 4:46am

    Re:

    a) pubic hair being visible usually means the privates are also visible. I think that's why people freak out over it.

    b) women enjoying sex overmuch... well, I can see two situations where freaking out would be justifiable. 1) if you're in public. If so, then get a room... 2) if it's too loud. If you are keeping the neighbors awake, you should probably either find a way to keep quieter or soundproof the room.

    c) abortion- I agree with you on that- why is it an issue? if the fetus isn't viable, it's up to the mother, with the provisio that it should be made clear it isn't a decision to take lightly.

    d) god being too absent- this is an issue why? Church and State are supposed to be separate. Provided people are allowed to practice their religion freely, then god isn't too absent.

     

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  10.  
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    Stephen Feingold, Apr 11th, 2013 @ 4:47am

    Free speech

    The writer submits that the Wash U's policy sends an ambiguous message about free speech. And chides institutions of higher learning for treating adults like children. But I can't help wondering if the writer is not looking for some "cause" Even the Supreme Court says fee speech does not mean screaming "fire" in an auditorium. In our current culture harassment and bullying are significant issues that are prevalent at many colleges.
    Yes, I agree that as written the policy could be used to suppress legitimate speech. But there is no evidence of any such abuse at Wash U. As a private institute I will give them a pass until there is some evidence of abuse. At the very least I would save such harsh words until I heard that when asked about the seeming contradiction the reply showed some lack of awareness of the thin line they are walking. But to lash out when the positive intent behind the "contradiction" is so obvious suggests to me a lack of sensitivity about harassment and bullying.

     

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  11.  
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    Ninja (profile), Apr 11th, 2013 @ 5:25am

    Re:

    Here in the US, we freak out over pubic hair, women enjoying sex overmuch, considering the option of abortion and God being too absent.

    You forgot imaginary threats. It's a sad state of affairs.

    Also, good for Denmark but can they remain that good with that anti-free-speech tide?

     

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  12.  
    identicon
    The Real Michael, Apr 11th, 2013 @ 5:43am

    Re:

    A student at a school (not a college, incidentally) was recently suspended for having a certain haircut.

     

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  13.  
    identicon
    Anonymous Coward, Apr 11th, 2013 @ 6:07am

    Re: Re:

    Yes, this true while on campus ... but then they attempt to extend their "privateness" to student activities off campus in an ill advised exercise in futility.

     

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  14.  
    identicon
    Anonymous Coward, Apr 11th, 2013 @ 6:59am

    Re: wrong question

    It's a concept, very difficult to achieve irl.

     

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  15.  
    identicon
    Anonymous Coward, Apr 11th, 2013 @ 6:59am

    At least WUSTL has a policy that says it's capricious and arbitrary to be enforced at the discretion of the Politically Correct Police.

    Most other universities say the first and then do what ever they want.

     

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  16.  
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    Anonymous Coward, Apr 11th, 2013 @ 7:05am

    As seen extensively across the planet, weasel words are employed when brutality is defended. Not sure why policies at institutions of higher learning should be given a free pass.

     

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  17.  
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    Anonymous Coward, Apr 11th, 2013 @ 9:26am

    Fuck.

    Damn it, I've done it now, looks like they'll have to ban Techdirt from their network. :(

     

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  18.  
    identicon
    Anonymous Coward, Apr 11th, 2013 @ 9:51am

    Re:

    But in college, you are dealing with adults. Presumably if somebody is harassing them they should get a restraining order, sue for emotional distress, etc.

    The problem here is the vaugeness of the rule.

     

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  19.  
    identicon
    Anonymous Coward, Apr 11th, 2013 @ 9:59am

    And copyright.

    I peeked at their handbook. This, from the copyright section, is worth noting:

    "The Internet, and WU Copyright law applies to all intellectual works (including articles, software, html code, computer graphics, sound recordings, movies, web pages, etc.). If you are the author/creator, you are the copyright owner. ONLY the copyright owner has the right to reproduce, distribute, perform, or display a particular work. This means that if you can see it, hear it, and/or touch it ó it may be protected. So if you werenít the author/creator, you donít have the right to share it, modify it, or download it to your computer. Sharing copyrighted materials without the ownerís permission violates copyright law, with or without any money changing hands. So, if you didnít write it, you donít own it. If you donít own it, you canít share it, upload it, or download it."

    Holy cow. They blew right past ignoring fair use and actually ignored that someone may have permission to use software they didn't write.

    Please note, students! Do not update your Flash player, because you didn't write it; and if you didn't write it, you don't own it; and if you don't own it, you can't download it!

     

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  20.  
    identicon
    Anonymous Coward, Apr 11th, 2013 @ 10:17am

    Another badly worded section or two

    Who WROTE this thing?

    "No one asks to be sexually assaulted and sexual assault
    is never the fault of the survivor."

    There are, unfortunately, many cases where the "survivor" of the assault is in fact the one at fault. And I'm not talking about cases where the first part of that statement is false.

    "All students are expected to comply with requests from University staff members (RAs, RCDs, police, etc.). This includes inquiries with regard to identification, behavior modification, sanctions, and the like."

    That's right, you must comply with ALL "requests" from university staff. It doesn't even say all reasonable requests or all legal requests. ALL requests. And they managed to get that section in there TWICE, just in case you missed it the first time.

     

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  21.  
    identicon
    Anonymous Coward, Apr 11th, 2013 @ 10:32am

    Guilty even if proven innocent

    The following is a violation of university policy:

    "Formally charged with, convicted of, or found guilty of a crime such that the student's continued presence on the University Campus poses a substantial threat to the ability of others to continue their normal University functions and activities."

    Combine that with this:

    "Disciplinary proceedings at the University will not be subject to challenge on the ground that criminal charges involving the same incident have been... dismissed"

    So. If you are charged with a crime, that in itself is an offense, and you MAY NOT challenge it in the grounds that the charges were dismissed. Because the offense was that you were charged, not that you were actually guilty of anything.

     

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  22.  
    identicon
    Anon, Apr 11th, 2013 @ 11:21am

    school

    At my state Uni, you were allowed to watch porn on their public computers, but if someone was offended, you would have to change to a computer that they could not see.

    Any "political" rule that you broke at the Uni would get your kicked out, but not before you got a trial with a jury of other students.

    The student government had a lot of power, even the power to control a large percentage of the Uni's budget for non-essentials, like money spent on marketing, beautification, sports, extra-curricular stuff, etc.

    Bad student reviews could and have gotten teachers demoted from teaching graduate students to remedial classes.

     

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  23.  
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    Uriel-238 (profile), Apr 11th, 2013 @ 11:34am

    Examples of indoctrination in movies.

    My examples of those things to cause us to freak out are specifically things that rank a movie NC-17 by the MPAA, not public behavior. The sex issues are noted from the documentary This Movie Has Not Been Rated (2006).

    The abortion issue had been noticed because in the eighties e.g. Fast Times at Ridgemont High (1982) abortion was considered and discussed frankly. Contrast to Knocked Up (2007) and its "shmashmortion" moment, which isn't singular.

    The God thing is odd. Providence is a running theme throughout cinema and atheist characters invariably suffer from a fall from grace which drives them from spirituality to atheism, and then usually are challenged in the story regarding their doubt. Contact (1997), generally regarded as an atheist-friendly movie serves as an epitomal example.

    Of course, in fictional cinema, there is a literal god, specifically the scriptwriter.

     

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  24.  
    icon
    Uriel-238 (profile), Apr 11th, 2013 @ 11:58am

    Re: Re:

    S. T. Stone, you're absolutely right that there are limits to how the bill of rights is interpreted today. Generally, it's decided the state cannot suppress speech or religion (or search your lockers without a warrant or whatever), but that private entities are allowed to do so at their leisure.

    Also, it's been similarly decided, especially in recent years, that the state doesn't owe those rights to foreigners. A non-US Citizen or non-US publication can be freely silenced. Non-citizens don't have 4th or 5th amendment protections, and we can even commandeer their houses to accommodate troops. (If we wanted to.)

    But a number of our framers, Jefferson and Madison specifically, would note that these rights rest in the individual, not in the duty of the state. They would not only apply to foreigners and citizens, but would apply to any institution that would act to suppress those rights.

    So whether or not it's illegal for an academic institution to regulate the speech of its students, it is certainly unethical or more accurately it certainly gives the institution the capacity to use their silencing power unethically, much like the DMCA is often used to censor.

    The examples I've seen of this have not been by St. Louis' Washington University, but I've heard of (usually religious) schools expelling people for blaspheming against God or against the school or expressing doubt. And that sounds kinda unethical.

    I've heard of people getting fired for being linked to opinions expressed online (not necessarily against the company for whom they work). And that's pretty darned unethical.

    And in another arena, Electronic Arts is quite fond of revoking Origin accounts (and all the games on them without renumeration) if someone says something disparaging EA whether or not it is on their own forum. And that sort of thing is fucking unethical.

    Now we know that bullying is a problem, but this is, I suspect, where 9th amendment protections interact with the first. It's a more sophisticated situation.

    And way too often once someone has a hammer, too many of his problems start looking like a nail.

     

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  25.  
    identicon
    Rekrul, Apr 11th, 2013 @ 2:27pm

    Critical thinking is a skill that's supposed to be cultivated throughout a person's formative years, but thanks to a variety of overprotective school speech policies (often ostensibly aimed at preventing bullying) that begin in grade school and continue throughout post-secondary education, many children are emerging into adulthood, fully unaware that the world meshes well with the cloistered existence they've enjoyed for the last 12-16 years.

    So when they leave school, the world in general fits well with the cloistered existence they had in school? Or does the phrase "meshes well" mean something else that I'm not aware of?

     

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  26.  
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    toyotabedzrock (profile), Apr 11th, 2013 @ 9:46pm

    Bill Maher Slams Paul Ryan, Rand Paul For 'Ruining' Libertarianism: 'I Didn't Go Nuts, This Movement Did' http://huff.to/10DuKW3

    If you can't deal with polite society then leave.

     

    reply to this | link to this | view in thread ]

  27.  
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    btr1701 (profile), Apr 12th, 2013 @ 12:18pm

    Re: Re: Re:

    > But a number of our framers, Jefferson
    > and Madison specifically, would note that
    > these rights rest in the individual, not
    > in the duty of the state. So whether or
    > not it's illegal for an academic institution
    > to regulate the speech of its students,
    > it is certainly unethical

    Nonsense. If you're going to claim it's unethical for a private entity to silence speech it doesn't like on its own property, then you're infringing on *their* free speech rights, because the right to free speech also includes the right not to speak and to not have your property used for speech with which you don't agree.

    Using your logic, it would be unethical for Walmart to kick out a protest group that showed up and started marching up and down the aisles of the store chanting "Walmart sucks!" You're essentially saying the protesters' free speech rights are superior to the rights of the business owner.

     

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  28.  
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    btr1701 (profile), Apr 12th, 2013 @ 12:21pm

    Re:

    > I had heard once that holocaust-denialist
    > documentaries were released in theaters in
    > Denmark (Danish film or otherwise--they're
    > criminal almost everywhere else, so that's
    > the only place in the world they can be shown

    They're not illegal in the U.S. They could be shown here.

     

    reply to this | link to this | view in thread ]

  29.  
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    btr1701 (profile), Apr 12th, 2013 @ 12:24pm

    Re: Free speech

    > Even the Supreme Court says fee speech does
    > not mean screaming "fire" in an auditorium.

    Actually, that case was overruled by a later Supreme Court decision and is no longer valid law. I have no idea why people constantly use that as an example of the current state of 1st Amendment jurisprudence.

     

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  30.  
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    Uriel-238 (profile), Apr 15th, 2013 @ 8:08pm

    Re: Re: Re: Re:

    Using your logic, it would be unethical for Walmart to kick out a protest group that showed up and started marching up and down the aisles of the store chanting "Walmart sucks!"

    I just found this update in my inbox...

    Actually they are kicked out not for what they're saying but for being unruly, which is, yes, a limit on speech. You cannot demonstrate against a business in such a way that the business is impaired from conducting itself. It's a product of the strike laws.

    But a protest group could wear "Walmart Sucks" shirts and walk around the store as if they were shopping, provided they didn't cause the store to become overcrowded. This has, in fact, been an anti-walmart tactic.

    But I were kicked out of a pizzeria for talking (at a normal volume to my friends) about my gratefulness for Obamacare, I might actually have a discrimination case.

    If I were refused service on account that I was an atheist, I might actually have a discrimination case.

    When a store requires that they search through your belongings to make sure you're walking out with just the things you bought (or brought it) it can be interpreted as violation of your fourth amendment rights. Just the same way that if a private security force decides to cavity-search you (at threat of force) without undue cause (e.g. you have brown skin) that is a violation of your fourth-amendment rights.

    Otherwise, states that wanted to bypass probable cause could just hire private security companies to conduct searches that were questionably legal.

    And fuck that's a scary-easy loophole to exploit. Academi / Xe / Blackwater wouldn't have to rent out to hot zones to keep their business going.

     

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  31.  
    icon
    Uriel-238 (profile), Apr 15th, 2013 @ 8:11pm

    Re: Re: Re: Re: Re:

    Blurg.

    ...if a private security force decides to cavity-search you (at threat of force) without due cause...

    I've been too quick with the submit button lately.

     

    reply to this | link to this | view in thread ]


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