Victory: Western Washington University Drops Investigation of Student Over Parking Ticket Remark
October 27, 2011
Western Washington University (WWU) student Jacob Ramirez recently found out he was the subject of a university investigation due to a comment he wrote on a parking ticket he received. After FIRE intervened, WWU quickly backtracked, dropping the case and clearing the student's record.
Jacob Ramirez's case began around September 30, when he was issued a ticket and $25 fine by WWU's Parking Services department. Annoyed, Ramirez paid the ticket with a personal check and, on both the check and the returned parking ticket, wrote the phrase "Fuck the Police"—a thought that at least in general terms has most likely occurred to nearly everyone who has received a parking ticket in recorded history.
On October 19, however, Ramirez was notified by WWU that he was being investigated for a possible violation of WWU's code of conduct on the basis of the remark. Specifically, Ramirez was being investigated under WWU's "Harassment and/or Threats of Violence" policy. WWU's letter to Ramirez stated, "Parking Services and the University Police reported you mailed them payment for a parking violation with the ‘F' word written on your check and on the parking ticket." Apparently, Ramirez's brief moment of protest had been considered an "unwanted and/or intimidating contact and/or communication of a threatening nature."
This argument is not just rubbish but dangerous: Speech can't be prohibited merely for containing profanity, even when directed at a law enforcement officer. To say otherwise is to place a dangerous amount of discretion in the hands of university administrators and law enforcement officials. And the argument that Ramirez's remark was in any way "intimidating" or "threatening"? Please. It's completely understandable that many people don't like "swear words," but the unavoidable fact is that the government doesn't have the power to punish you for simply for using them.
FIRE promptly intervened with a letter to WWU President Bruce Shepard last week:
The message on Ramirez's parking ticket is protected by the First Amendment. Simply using profanity towards the police does not rob expression of First Amendment protection. In Houston v. Hill, 482 U.S. 451 (1987), the U.S. Supreme Court held that "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." Similarly, in Lewis v. New Orleans, 415 U.S. 130 (1973), the Court struck down on First Amendment grounds a New Orleans ordinance that prohibited "curs[ing] or revil[ing] or  us[ing] obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty." In determining that the ordinance could only pass constitutional muster if "it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments," the Court reversed the Louisiana Supreme Court's judgment sustaining the conviction of a woman who had allegedly used profanity in criticizing a police officer who had stopped her vehicle. Id. at 134. The Court's clarity with regard to the use of profanity in criticizing law enforcement must be heeded by WWU, which, as a public institution, is of course both legally and morally bound by the Court's decisions.
WWU's characterization of Ramirez's speech as "unwanted and/or intimidating contact and/or communication of a threatening nature" is incorrect. Ramirez's expression fails to meet the exacting legal definition of a "true threat" articulated by the Supreme Court in Virginia v. Black, 538 U.S. 343, 359 (2003), in which the Court held that only "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" are outside the boundaries of First Amendment protection. The Court also noted in Black that speech only constitutes "intimidation in the constitutionally proscribable sense of the word" when "a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." Id. at 360. While the term "Fuck the Police" may be considered offensive by many, WWU strains credulity to its breaking point in claiming that writing such a phrase on a parking ticket is impermissibly "intimidating" or of a sufficiently "threatening nature" as to merit punishment.
Indeed, there's no shortage of Supreme Court cases making clear that coarse and offensive language is fully protected by the First Amendment. Just look at the Court's rulings in Cohen v. California, 403 U.S. 15 (1971), which overturned the conviction of a protester who wore a jacket bearing the message "Fuck the Draft" in a courthouse; and Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973), which affirmed the right of a student newspaper to distribute an article with the headline "Motherfucker Acquitted." This is not a close case.
Furthermore, when an allegation against someone, if true, would still have no merit as a disciplinary case, any investigation simply needs to end. As then-University of Alaska President Mark R. Hamilton wrote in a classic case of a disciplinary investigation of a professor's poem:
What I want to make clear and unambiguous is that responses to complaints or demands for action regarding constitutionally guaranteed freedoms of speech CANNOT BE QUALIFIED. Attempts to assuage anger or to demonstrate concern by qualifying our support for free speech serve to cloud what must be a clear message. Noting that, for example, "The University supports the right to free speech, but we intend to check into this matter," or "The University supports the right of free speech, but I have asked Dean X or Provost Y to investigate the circumstances," is unacceptable. There is nothing to "check into," nothing "to investigate."
WWU, fortunately, seems to have quickly realized it erred in investigating Ramirez's speech in the first place. Ramirez reports that in a meeting with University Judicial Officer Michael L. Schardein on October 25, the investigation was dropped and his record fully cleared.
I commend WWU for its quick about-face and its recognition that Ramirez's free speech includes the right to criticize WWU's police department. I only hope that the WWU police have learned a lesson from their mistake and that they won't continue to launch investigations of students who lodge such criticisms. If they do continue to intimidate students and chill speech at WWU in clear violation of the First Amendment, Ramirez's remark is going to start looking awfully fitting.