New York appellate court ratifies Syracuse’s worthless free speech promises in Theta Tau litigation

Late last week, a New York appellate court upheld Syracuse University’s punishment of several former Theta Tau fraternity members over a private, satirical skit they performed in 2018. The litigation, and this latest result, demonstrates SU’s continued hostility toward its students’ free speech rights. 

SU suspended the former members of the Theta Tau fraternity chapter after their private, satirical roast was publicized by the student newspaper, causing campus outrage over the derogatory language used by students. At their disciplinary hearing, and later in their lawsuit, the students argued the same point FIRE has explained to SU in our many letters over the years: SU’s prominent, explicit policies promising free speech would lead any reasonable student to believe that their university will uphold their expressive rights. Private universities like SU are not bound by the First Amendment, so they don’t have to afford students freedom of speech. But when they promise to do so publicly, clearly, and in writing, they must adhere to this commitment. 

It is difficult to imagine free speech thriving at SU when students are disciplined for “mentally harming” others.

SU has shown that it will not abide by its commitments to uphold its students’ expressive rights, and this litigation has thus far demonstrated that SU evidently will not face any legal consequences for it. 

After the Jefferson County Supreme Court’s contradictory 2019 ruling acknowledging that the students’ speech falls within SU’s protections for free speech yet still upholding their punishment, the Appellate Division, Fourth Department affirmed on Nov. 13, 2020, that SU was within its power to punish them. The court found that SU’s ban on “conduct that threatens the mental health” of others encompasses the students’ expression despite the absence of any intent to cause harm, the presence of only willing listeners, and the sardonic context of the event.

Not all of the judges rubber-stamped SU’s treatment of its students—in a dissenting opinion, Associate Justice Patrick H. NeMoyer took issue with SU’s ban on mentally harming others, asking: “What on earth does that actually mean? . . . [I]s the accused guilty whenever anyone feels threatened based on his or her subjective impressions of the accused’s conduct – even if the claimed feeling is wholly irrational and untethered from any objective conception of threatening conduct?” NeMoyer added:

Indeed, the staggering breadth of the provision is matched only by its indefiniteness, and it effectively serves as a systemic instrument for the suppression of any viewpoint that falls outside the zone of permissible opinion decreed by the most strident and self-righteous of the campus community. To convict petitioners under such a vague and standardless diktat is, to my mind, the very embodiment of arbitrary and capricious administrative decision-making that should be annulled . . . .

It is difficult to imagine free speech thriving at SU when students are disciplined for “mentally harming” others. Divorced from any meaningful notion of free speech—or common sense—SU’s speech codes amount to a general prohibition on subjectively offensive expression. 

Just this year, it investigated a professor who wrote “Wuhan Flu or Chinese Communist Party Virus” on his course syllabus, and it pledged to hold student bystanders responsible merely for witnessing “bias-related incidents” and “hate speech.” 

FIRE is disappointed at this decision, which ratifies SU’s abdication of its free speech promises. We look forward to the day that SU finally decides to live up to its commitments, and we stand by ready to help with the necessary policy changes. But until that time, the SU educational community should heed this litigation as a cautionary tale of a university that doesn’t believe students deserve free speech rights.

You can read the appellate court's full decision here: