The College of New Jersey
is violating your First Amendment right to
freedom of expression —
right now, even as you read this.
That’s a bold statement. How can I be so certain? Because TCNJ’s policies regulating expression fail the “South Park” test, which means that TCNJ students and faculty run the risk of punishment for constitutionally protected speech. That’s unacceptable–and illegal–at a public university, and TCNJ students shouldn’t stand for it.
I’ll explain. As most Americans of college age know, the hallmark of Comedy Central’s “South Park” is its bomb-throwing satire. The show is a celebration of sharp-edged snark, seemingly designed to offend as many sensibilities as possible. On that score, “South Park” has been successful, generating heated complaints over the years from Christians, Muslims, Scientologists, conservatives, liberals, and countless others. Love it or hate it, “South Park” is part of a venerable American tradition of satire, from Mark Twain to Dave Chappelle.
But don’t try retelling the jokes you heard last night on “South Park” to a friend while walking across campus. Those jokes violate TCNJ policy–and that’s why TCNJ fails the test.
For example, TCNJ’s Student Handbook prohibits “abuse,” defined to include “verbal assault” that “threatens or endangers” the “well being of any person or group.” So if an evangelical student overhears you retelling jokes from the episode where Cartman starts a Christian rock band–jokes which he or she may very well find horribly offensive–you run the risk of being found guilty of “abusing” your fellow student. After all, that joke threatened his or her “well being.” Never mind the fact that it’s protected by the First Amendment, that you meant no harm, or that it was just a joke. No, you’re guilty of “verbal assault.” See you at the disciplinary hearing!
In First Amendment jurisprudence, regulations on speech like TCNJ’s prohibition of “verbal assault” are unconstitutional for two reasons. First, the policy is “overbroad,” meaning that while it outlaws speech that isn’t protected by the First Amendment–like true harassment and threats–it also prohibits a significant amount of protected speech, like the jokes on “South Park.”
Second, the policy is impermissibly vague, because it leaves students guessing at what does and does not qualify as “verbal assault.” When students don’t know the precise boundary between a joke and “verbal assault,” they’re far more likely to self-censor. The resulting “chilling effect” on speech violates the First Amendment. Further, the policy doesn’t contain any requirement that a reasonable person would find the alleged “verbal assault” to be actually worthy of punishment, rendering the policy entirely subjective. As a result, everyone’s right to free expression only reaches as far as the most sensitive student’s “well being.”
Now, you may ask: What’s so bad about punishing speech that offends someone? Shouldn’t we be concerned about everyone’s well-being? That’s an admirable impulse, and a fine way to conduct one’s personal affairs. But the bustling marketplace of ideas central to our liberal democracy requires that all citizens be allowed to speak their mind, no matter how offensive, ignorant, or wrongheaded many or even most of us may find it. As the Supreme Court explained in the 1989 case Texas v. Johnson, which found burning the United States flag to be protected expression: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
This protection of unpopular, troubling or offensive speech is especially important on a public university campus like TCNJ, where students and faculty are engaged in a search for truth. History shows that ideas we today accept as scientific fact–that the world revolves around the sun, or that humans evolved–were at one time considered extremely dangerous. So on campus, just as in society at large, the best way to answer speech–especially speech with which one passionately disagrees–is by answering it with more speech, not censorship.
But what about those TCNJ policies? How can the College square its obligations under the First Amendment with its legal requirement to prohibit actual harassment on campus? The answer is surprisingly simple: by adopting the Supreme Court’s definition of harassment in the educational context. In a 1999 case entitled Davis v. Monroe County Board of Education, the Court found that for student conduct to constitute constitutionally unprotected harassment, it must be “so severe, persistent, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”
Under that narrow but effective standard, there’s no need for TCNJ students to guess about what speech is and is not prohibited. There’s no subjectivity problem. And there’s no way a “South Park” joke could be found to constitute “verbal assault.”
I urge TCNJ students to reform the Student Handbook to make sure that free speech is protected.
BY WILL CREELEY
Will Creeley is an attorney specializing in First Amendment issues and serves as the Director of Legal and Public Advocacy for the Foundation for Individual Rights in Education.