In Texas, First Amendment Imperiled in 2008
January 1, 2009
by Adam Kissel
I’m not sure what happened down in Texas in 2008, but administrators at several schools have been unusually cowardly about even the slightest challenges to their ideas of good order on campus. During the election season there was the Great Non-Riot of 2008 at the University of Texas at Austin (UT), where two students faced punishment equivalent to suspension or expulsion for posting political signs on their dormitory-room window, which inspired students across campus to vow to do the same in solidarity and in a noble exercise of the right to freedom of expression. Once student outrage reached a high enough volume, President William Powers Jr. lifted the ban on signs posted on dorm-room windows. As FIRE’s Will Creeley wrote in October:
[W]hat significant government interest does this dorm signage ban further? Graves [Jeffery L. Graves, Associate Vice President for Legal Affairs] seems to suggest that UT has a general desire to maintain an aesthetic order, rather than allow signs being “plastered around campus willy-nilly.” I’m not at all sure that this generalized desire for order counts as a significant government interest …
Then, shortly before Halloween, Temple College faced the horror of a quotation from Friedrich Nietzsche: “God is dead.” The line, posted in German on Professor Kerry Laird’s office door, was deemed some kind of religious harassment by Mark Smith, Interim Vice President of Educational Services and Chief Academic Officer. Smith wrote, “Simply posting a cartoon or note on a door that can be considered offensive, insightful [sic], and/or controversial is not a part of academic freedom and does not reflect well on Temple College and has the potential of creating a hostile or intimidating learning/work environment.” Smith had ordered that the posting be removed. Just days earlier, Lesley B. Keeling-Olson, then the Interim Director of the Division of Liberal Arts (she recently resigned), also had ordered that Laird remove a poster lampooning an Old Testament tale: “KIDS: DON’T FUCK WITH GOD OR BEARS WILL EAT YOU.” After FIRE intervened and pointed out that a variety of Christian sayings were posted around campus without facing any such censorship, President Glenda Barron reversed the censorship and announced to all faculty and staff that such censorship had been inappropriate.
Students at several other colleges in Texas, however, have not been so lucky.
In the spring, the South Campus of Tarrant County College (TCC) declared that wearing empty gun holsters, even during an officially sanctioned protest in the school’s tiny free speech zone, was too much for its fragile students to bear in this scary, post–Virginia Tech massacre world. TCC student Brett Poulos had notified administrators that his group would be engaging in an “Empty Holster Protest,” collaborating with Students for Concealed Carry on Campus (SCCC), a national organization that “supports the legalization of concealed carry by licensed individuals on college campuses.” SCCC promoted a coordinated national protest for April 2008 in which students would peacefully attend class and perform other daily tasks while wearing empty holsters to signify opposition to state laws and school policies denying concealed handgun license holders the same rights on college campuses that they are granted in most other places.
In an April 10 response Juan Garcia, Vice President for Student Development, “granted” Poulos’ request to stage a protest on the South Campus, but he changed the fundamental nature of the protest by banning the protesters from wearing empty holsters anywhere on the South Campus, including in the designated free speech zone. The tiny free speech zone on the South Campus, according to Poulos, is an elevated, circular concrete platform about 12 feet across. Poulos met with Garcia on April 18 and was told that TCC would take adverse action if SCCC members wore empty holsters anywhere, strayed beyond the campus’s free speech zone during their holster-free “empty holster” protest, or even wore t-shirts advocating “violence” or displaying “offensive” material.
Later, in a May 29 radio interview with the National Rifle Association on NRA News, Garcia explained that after the Virginia Tech and Northeastern Illinois shootings, students were “on edge,” so “any kind of equipment for guns” was something that TCC would not accept because it was “threatening” and would “disrupt our learning environment.” Garcia admitted that no students had said they were afraid of empty holsters and also said (seeming to contradict himself) that the VT/NIU incidents had “nothing to do with Brett Poulos.” Nevertheless, Garcia said, corralling the student protesters in the free speech zone was appropriate because “we want students in an area where we can provide security for both sides” and TCC would not allow protests anywhere on campus without knowing about it because that would just create an “open field” for anyone to protest anywhere.
It bears mentioning that TCC was the only public college in the country that banned empty holsters from campus during the nationwide protest.
If you think that case is nuts, take a look at what happened this fall at Lone Star College–Tomball, which used an even crazier rationale for censoring a tongue-in-cheek “Top Ten Gun Safety Tips” flyer during a student activities fair. After college officials banned the Young Conservatives of Texas (YCT) from distributing the flyer, the general counsel for the entire Lone Star College System invoked the specter of the Virginia Tech shootings, suggesting that even a “mention of firearms and weapons” is inherently a “material interference” with the school’s operations. The new group’s status as a student organization was even threatened simply because of the flyer, although recently FIRE learned that the group would be allowed to exist after all. We await word from school administrators, however, about whether the flyers will remain censored.
After we took a closer look at Lone Star’s policies, we realized that the state of liberty there is poor indeed. In fact, we named the Lone Star College System’s policies our Speech Code of the Month for December 2008. The most vague and overbroad of these policies, found in the system-wide Student Code of Conduct, prohibits any “vulgar expression” on any Lone Star College campus, including in electronic communications. This policy is unconstitutionally vague; students have no way of knowing what exactly is prohibited, since what is “vulgar” depends entirely on who is hearing or viewing the expression in question. It is also overbroad, explicitly prohibiting the very kinds of “vulgar” satire, parody, and social commentary that the Supreme Court has repeatedly held are protected by the First Amendment.
Indeed, FIRE opened and closed 2008 with Texas on our mind. In January, Texas Southern University was FIRE’s Speech Code of the Month. Texas Southern’s Student Code of Conduct prohibits “intentional mental or physical harm,” which it defines as follows:
Knowingly or recklessly causing or attempting to cause by acts and/or threats, emotional, mental, physical or verbal harm to another person (which includes but is not limited to faculty, staff, students, visitors, etc.). This includes intimidation, emotional force, embarrassing, degrading or damaging information, assumptions, implications, remarks, or fear for one’s safety.
As FIRE’s Samantha Harris wrote at the time, this policy piles one vague proscription on top of another, making it difficult if not impossible for students to know what is actually prohibited—thus allowing the university to punish students for virtually any expression that someone else finds hurtful. The first vague prohibition is the prohibition on “emotional,” “mental,” or “verbal harm”—to say these phrases elude precise definition is an understatement. What, exactly, is emotional harm? Does emotional harm occur if a student feels hurt, insulted, or even simply miffed by another student’s speech? How is emotional harm distinct from mental harm? How are those two distinct from verbal harm? Compounding the problem, the policy follows up this vague prohibition with a set of equally vague examples of prohibited conduct, namely: “emotional force”; “assumptions”; “implications”; and, perhaps most bizarrely, “remarks.” How can the university conceivably regulate whether students make “assumptions” about one another? What kind of “remarks” are prohibited? And what is “emotional force”? Finally, the policy prohibits not only “causing” these harms, but merely “attempting to cause” them. The U.S. Supreme Court has held that laws must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,” or else they are unconstitutionally vague (see Grayned v. City of Rockford). Good luck figuring out this policy at Texas Southern.
If you’re from Texas and you’re feeling pretty good that you’re not from one of these schools, just wait. Texas A&M, Texas Tech, Rice University, and several other schools all have a “red light” in our database of speech codes. A red-light school has at least one policy that both clearly and substantially restricts freedom of speech. At public colleges, such restrictions violate the First Amendment. Come on, Texas, start defending individual rights!