Catching up with ‘Coddling’ part twelve: Protecting the brand and apolitical censorship — The 'big middle' of FIRE’s cases

EDITOR’S NOTE: This is part 12 of a multi-part series updating developments since the publication of “The Coddling of the American Mind: How Good Intentions and Bad Ideas are Setting up a Generation for Failure” (2018). 

Earlier in this series:
• Part One: Introduction
• Part Two: Trigger warnings, social media, and mental health
• Part Three: Censorship from the right
• Part Four: Political polarization
• Part Five: Paranoid parenting
• ‘Coddling’ Caveat #1: Social media
• Part Six: U.S. income stratification
• Part Seven: Paranoid parenting with Kate Julian
• Part Eight: Free play and childhood independence
• Part Nine: Bureaucratization, administrative bloat, and tuition
• Part Ten: Corporatism and free speech
• Part Eleven: Bias response teams

Future articles can be found here.

When I talk to people about FIRE’s work they’re often surprised when I say that a lot of FIRE’s cases involving students are not your stereotypical examples of right-on-left or left-on-right censorship of political or “politically incorrect” speech. While those kinds of cases certainly do exist, it’s extremely common for a case to involve speech with little political valence — so common that I call this the “big middle” of FIRE cases.

This dovetails directly from what I discussed in my tenth CUWC installment on the “Strong Corporatism Theory:” that “[h]igher education is harmed any time universities choose concerns like ranking, donations, staff morale, tuition dollars, federal grants, fear of liability, etc, over teaching and research goals.” In the following examples from FIRE’s case history and reporting from over the years, you won’t find an obvious pedagogical motivation, a motivation to please “customers” (i.e., students), or an attempt to impose a political orthodoxy. Here, you just have a university protecting its “brand” or punishing students and faculty that annoy or inconvenience its administrators.

Political and apolitical censorship collide at Collin College

If you’ve been following FIRE’s work for the past few months, you may have heard about the dumpster fire of administrative censorship that landed Collin College on our 2021 list of the 10 Worst Colleges for Free Speech. If not, buckle in. 

It started in October 2020, when faculty member Lora Burnett’s scathing tweets about Vice President Mike Pence went viral in right-wing media outlets. The school was then contacted by at least one state legislator urging her termination, which they were more than happy to oblige using a pretext FIRE is all too familiar with — we’re not firing her for speech, we’re just not renewing her contract. (When FIRE requested the records of correspondence with state legislators about Burnett via open records law, Collin College stonewalled, as corrupt university administrations are wont to do.)

What seems like political censorship could also be the university using a political excuse to excise inconvenient faculty.

So you had all the trappings of a classic FIRE case of politically-motivated censorship. But not so fast! As it turns out, Burnett had been a thorn in the side of Collin College’s administration, criticizing President H. Neil Matkin for the college’s reopening plan under COVID-19. Why do we think this contributed to her termination? The giveaway is that Collin College fired two other critics for criticizing the college’s COVID-19 reopening plan and union organizing at the same time.

Motives can be mixed in these cases, and what seems like political censorship could also be the university using a political excuse to excise inconvenient faculty. Or, if you’re unprincipled enough to fire a professor (or three) for speech, maybe you don’t care all that much about what kind of speech you fire someone for.

Shut up and let our Public Relations department do the talking

A number of brand-obsessed universities have had an idea that must have sounded brilliant in the boardroom: “What if we could keep our faculty and staff from speaking to the press and have the press talk to our public relations arm instead?” While it has obvious appeal from a marketing perspective, it does have the minor flaw that it’s wholly incompatible with the First Amendment and academic freedom. 

The dreaded “Media Policy” — As recently as January 2020, Central Washington University had a policy requiring prior approval for all questions before allowing student media to speak to a staff member — it now claims that it respects student media’s First Amendment rights but time will tell. Until reforming the policy with FIRE’s help in early 2019, Loyola University Chicago maintained a policy requiring all questions from media — including student media — for staff and faculty to be referred instead to University Marketing & Communications. In 2012, Chicago State University implemented a policy requiring all faculty communication with the media to go through CSU media relations. Arizona’s Pima Community College tried a similar policy in 2015.

Universities tried to head off possible embarrassment by restricting RAs and other staff members from speaking to members of the press.

COVID-19 press restrictions — As colleges started bringing students back to campus and faced public scrutiny for their public health protocols, a number of universities tried to head off possible embarrassment by restricting RAs and other staff members from speaking to members of the press. We heard of restrictions of this kind at University of Missouri, Louisiana State University, University of Virginia, University of North Carolina at Chapel Hill and Frostburg State University. To their credit, after FIRE reached out, UVA and UNC (both “green light”-rated schools) along with Mizzou changed or clarified their policies to make clear RAs could speak to the press without censure. Read more about COVID-19-related speech restrictions in FIRE’s excellent report on COVID’s impact on free speech rights on campus.

Attack of the parking case

A “genre” of apolitical case we often see is the “student was mean about parking and needs to be punished” case. While many of them haven’t been public cases (FIRE keeps many cases private either at the request of the student or professor or because we believe publicity would not make a just outcome more likely), here’s a sampling of some of the parking cases we have taken public.

Valdosta State University — If you’ve read my work, you’re likely familiar with this 2007 case, as I used as the centerpiece of my 2012 book, “Unlearning Liberty,” but it bears repeating because it’s a classic illustration of the petty, image-obsessed, and censorious administrator. Environmentalist and student Hayden Barnes found himself unceremoniously expelled and removed from his dorm. His crime? Protesting the construction of a new parking garage by posting on Facebook a collage that included calling it the “Zaccari Memorial Parking Garage.” While the comment was a sarcastic reference to Valdosta President Ronald Zaccari saying the parking garage will be part of his legacy, Zaccari claimed the “memorial” part was a threat and that Barnes was a “clear and present danger” to the campus. Barnes was eventually reinstated after intervention from the Board of Regents and, after an 8-year legal battle, received a $900,000 settlement.

If you get summoned to a student conduct meeting for paying a parking ticket with nickels, you annoyed someone who definitely deserved it.

University of Georgia’s 2010 “Scootergate” email and Western Washington University’s 2011 “Fuck Tha Police” personal check memo are two great parking-related cases that I won’t recount in full here, as I mentioned them very recently in my article about a podcast I did with Iona Italia and Audible’s censorship of the profanity section in the audio version of my book “Unlearning Liberty” (note: Audible is looking into it!)

And check out the admirable pettiness of this student at Wichita State University who was summoned before Student Conduct and Community Standards in 2018 for paying a parking ticket with (in part) 600 nickels. This was not a FIRE case, as it resolved in the student’s favor before our intervention was necessary, but I salute the student nonetheless — if you get summoned to a student conduct meeting for paying a parking ticket with nickels, you annoyed someone who definitely deserved it.

Censorship via trademark abuse

In the genre of cases most obviously about the protection of branding and corporate identity at the expense of student speech, we’ve seen all manner of cases where universities misapply trademark law to crack down on critics or to distance themselves from student groups. Trademarks exist to prevent confusion in the marketplace, and in the higher-ed context, trademarks can be used to ensure people do not misrepresent themselves as speaking on a university’s behalf or to be its official representatives, but you won’t find that in these cases.

Iowa State University — ISU hastily drew up a trademark policy in 2012 to keep members of the university’s student chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) from making a t-shirt saying simply “NORML ISU Supports Legalizing Marijuana.” The policy was meant to keep student groups from associating the ISU name with promoting “dangerous, illegal or unhealthy products, actions or behaviors” and “drugs and drug paraphernalia that are illegal or unhealthful.” The shirts, which advocated a political position, were firmly protected by the First Amendment, and did not run afoul of ISU’s legal trademark rights. But don’t just take our word for it — in 2014, the students filed suit with FIRE’s help and were victorious, winning nearly $1 million in damages and fees.

Universities misapply trademark law to crack down on critics or to distance themselves from student groups.

University of California, Los Angeles — In 2009, UCLA asserted trademark rights to get a critical websites (ucla-weeding101.info and ucla-weeding101.com) taken down, citing a constitutionally-dubious California state law that ostensibly grants state schools total control over use of their names or acronyms. After intervention from FIRE, the university backed down… only to do the same song and dance targeting the same websites in 2018, implying that the URLs were an unlawful use of UCLA’s trademark, and stating that their attention was brought to the matter via an “inquiry.” Not exactly a plot twist: A public records request from FIRE revealed that that inquiry came not from a confused member of the public, but from UCLA’s External Affairs team, with the subject line “Protecting the Brand.” UCLA refused to clarify they would not attempt to enforce their trademark against the site, but the site does still seem to be up, so take that as you will. 

University of California, Los Angeles redux — In 2018, UCLA hosted a conference put on by the national organization Students for Justice in Palestine, to significant protest and even over a Los Angeles City Council resolution that UCLA cancel the conference. For its part, the university refused to cancel the conference, but before the show went on, UCLA attempted to enforce its trademark to keep the conference from using its acronym (despite how hard that might make it to locate the conference) and remove the bear from a conference poster (despite sharing no visual similarity with the UCLA mascot other than being, you know, a bear). Unlike the others on this list, you could argue this was political censorship through an apolitical method, but I personally suspect that UCLA was more motivated by fear of their brand being associated with a controversy on a hot-button issue than a desire to censor a specific political viewpoint.

Patrick Henry College — In 2012, the anonymous author of a Facebook page called “Queer at Patrick Henry College” found themself on the receiving end of a scary message from a chancellor of the college who claimed that the page violated the college’s trademarks and threatened that, unless they removed the name of the college from the page, the college would soon begin legal proceedings to uncover the author’s identity and to seek damages. This all occurred despite no reasonable person taking the Facebook page as speaking on behalf of Patrick Henry College itself. The college dropped it shortly after the situation became public.

Just throw those papers in the trash

As FIRE has to explain with demoralizing frequency, newspaper theft is both theft (yes, you can steal something given to you for free — try going to your favorite local restaurant and taking all of their paper menus, see how they feel about it), and censorship. And like other kinds of censorship, a good amount is done by administrators (particularly admissions staff around admitted students weekends) to protect the university’s brand image.

Radford College — In 2019, a Radford administrator stole around 1,000 copies of the student newspaper, allegedly because of an insensitive photo used for a cover story about a recently-deceased professor. This photo was unlikely to cause any real offense, as it was provided by the professor’s widow herself. Nevertheless, the university has refused to reveal the identity of the censorious administrator, calling it a “personnel issue.”

Newspaper theft is both theft and censorship

University of Massachusetts - Boston — In 2019, members of the admissions office allegedly stole 200 copies of the student newspaper after failing to get the newspaper to delay publication of an embarrassing story about a dorm hazmat incident until after an admitted students event. When an editor tried to refill another rack, she found the papers flipped over and covered with a jacket.

Baylor University — In 2019 (yes, 2019 was an especially bad year for newspaper theft), tour guides removed stacks of newspapers with a cover story about a “fifth alleged rape” that the tour guides indicated reflected “badly” on the university.

Apolitical cases challenge popular narratives about free speech on campus

Media attention can be the difference between a student having their rights vindicated or not.

Apolitical cases of these and other types are a big part of FIRE’s workload. In some years, they might make up the majority of cases that FIRE works on. But, unless you follow FIRE’s website or social media religiously, you’d be forgiven for having no idea that these kinds of cases even exist, because they get almost no media attention. You generally won’t read about these cases in The New York Times or see them on Fox News, even though those outlets often cover campus censorship stories. Because they typically only cover cases when the story fits into a culture war, left vs. right narrative, apolitical cases more often miss out on the kind of sunlight that Justice Louis D. Brandeis called “the best disinfectant.” That’s a real shame because media attention can be the difference between a student having their rights vindicated or not.

So what conclusions should you draw here? 

• Remember that the situation on campus is complicated and defies easy narratives. 
• Be skeptical of anyone who tries to tell you campus censorship is simple or only goes one way. 
• Remember that colleges act like big corporations and often act out of corporate interest rather than a pedagogical one. 
• Most of all, listen and try to help when students tell you there’s a problem, even if it won’t score a win for your side of the culture war.