The State of Free Speech on Campus: Johns Hopkins University
March 23, 2009
Throughout the spring semester, FIRE is drawing special attention to the state of free speech at America's top 25 national universities (as ranked by U.S. News & World Report). Today we review policies at Johns Hopkins University, which FIRE has given a red-light rating for maintaining policies that clearly and substantially restrict free expression on campus. Johns Hopkins, as those who follow FIRE's work may know, is one of only five institutions on FIRE's Red Alert List, a designation reserved for those universities that, in FIRE's estimation, have acted with severe and ongoing disregard for the fundamental rights of their students and/or faculty members.
Johns Hopkins is a private university, so our first task is examine what commitments the university has made to protecting the right to free speech. The university's Student Conduct Code requires all students to "protect the university as a forum for the free expression of ideas"; if students can be disciplined for failing to protect this "forum for free expression," they can certainly expect to have the right to free expression themselves. Elsewhere, the Student Handbook also provides that "Fundamental to the University's purpose is the free and open exchange of ideas." Finally, Hopkins' very motto is "The Truth Shall Make You Free"; since the search for truth is impossible without the freedom to explore all points of view—no matter how controversial—restricting the right to free speech and free inquiry would violate the core principle of the university. Sadly, the university's policies do just that.
Johns Hopkins Principles for Ensuring Equity, Civility and Respect for All ("the Principles") prohibit any "rude, disrespectful behavior" on Hopkins' campus. The Principles were introduced by former Hopkins President William Brody in 2006 in the midst of a free-speech controversy on campus, making their insidious purpose even more clear. In November 2006, Hopkins meted out a truly draconian punishment against student Justin Park for posting Halloween party invitations that some students found offensive on Facebook.com. Park's original punishment (which was subsequently reduced, but not eliminated, after weeks of intense public pressure) included suspension from the university for one year; completion of 300 hours of community service; an assignment to read 12 books and to write a reflection paper on each; and mandatory attendance at a workshop on diversity and race relations. It was in the midst of this controversy that former President Brody introduced the Principles, and also published an article in the December 11, 2006, issue of The JHU Gazette in which he explicitly stated that speech that is "tasteless" or that breaches "civility" will not be tolerated at Hopkins.
Perhaps the most eloquent recent explanation of why requiring civility and respect violates the right to free speech was written by Judge Wayne Brazil in the case of College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1003 (N.D. Cal. 2007). Although we have quoted it many times on these pages, there remains no better way to explain it:
Speakers, especially speakers on significant or controversial issues, often want their audience to understand how passionately they feel about their subject or message. For many speakers on religious or political subjects, for example, having their audience perceive and understand their passion, their intensity of feeling, can be the single most important aspect of an expressive act. And for many people, what matters most about a particular instance of communication is whether it inspires emotions in the audience, i.e., whether it has the emotional power to move the audience to action or to a different level of interest in or commitment to an idea or cause. For such people, the effectiveness of communication is measured by its emotional impact, by the intensity of the resonance it creates.
How is all this relevant to our review of the University's civility requirement? Civility connotes calmness, control, and deference or responsiveness to the circumstances, ideas, and feelings of others. [...] Given these common understandings, a regulation that mandates civility easily could be understood as permitting only those forms of interaction that produce as little friction as possible, forms that are thoroughly lubricated by restraint, moderation, respect, social convention, and reason. The First Amendment difficulty with this kind of mandate should be obvious: the requirement "to be civil to one another" and the directive to eschew behaviors that are not consistent with "good citizenship" reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause. Similarly, mandating civility could deprive speakers of the tools they most need to connect emotionally with their audience, to move their audience to share their passion.
In sum, there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.
While the Principles alone would be sufficient for a red-light rating, they are not the only restrictions on free speech at Hopkins. The university's Information Technology Use Policies prohibit "Harassing others by sending annoying, abusive, profane, threatening, defamatory, offensive, or unnecessarily repetitive messages." While a prohibition on true harassment would be legitimate, true harassment by definition does not include speech that is merely "annoying" or "offensive." In fact, courts have held time and again that the fact that speech is offensive—even deeply offensive—is not a legitimate reason to prohibit it under the First Amendment. By prohibiting electronic communications that others find offensive, the university is cutting off discourse on controversial subjects over e-mail, which is one of the primary methods by which students and faculty communicate with one another on the modern university campus. This is wholly impermissible at a university that claims to value free expression and the search for truth.
The university's Student Technology Services Policies also prohibit "sending unsolicited e-mail." Although this policy is content-neutral, is it so vaguely worded that it is susceptible to abuse. Any e-mail that is not sent in response to another e-mail—that is, any e-mail communication initiated by the sender—is an "unsolicited e-mail," so while this policy may be intended to address spam, it could be applied against virtually any communication. FIRE has recently seen—in the case of Michigan State University—that even seemingly innocuous, content-neutral policies can be abused to silence controversial speech. Therefore, we recommend that bulk e-mail guidelines and other content-neutral e-mail policies be carefully drafted so as not to allow for an abuse of discretion like the one that happened at MSU.
The state of free speech at Johns Hopkins University is, unfortunately, very poor. However, the university has a new president—Ronald Daniels—whom FIRE hopes will value free speech more than his predecessor. One of President Daniels' first acts in office should be to revise the university's restrictive speech codes and to issue a statement that going forward, controversial and even offensive speech will not be silenced on Hopkins' campus. Perhaps President Daniels could announce this change in The JHU Gazette, the same publication in which former President Brody announced his disdain for free speech.
Stay tuned next week for information on the state of free speech at Cornell University.