Johnson C. Smith University to students accused of criminal conspiracy: You have the obligation to remain silent

At North Carolina’s Johnson C. Smith University, students accused of a widespread “criminal conspiracy” are being told that they cannot speak to anyone about it, chilling their right to speak out publicly — or privately to an attorney — about a matter of public controversy.

At issue are more than 300 transactions, potentially involving dozens of students, in which money was added to students’ meal cards, rather than deducted. An anonymous student concerned by the charges contacted a local television station to share the email they received:

You are under investigation regarding allegations that you participated in a criminal conspiracy by which you illegally received funds from Red Mango and/or Burger King at JCSU, using your (flex dollars) identification card. Please be advised that this conduct is in violation fo the laws of the United States and North Carolina as well as the JCSU Standards of Conduct. As such, criminal prosecution and disciplinary action may result.

You will be contacted between today and the beginning of classes in August to meet with me to discuss this matter. YOU ARE HEREBY NOTIFIED THAT YOU MUST NOT DISCUSS THIS MATTER WITH ANY OTHER PERSON. Doing so will have a negative impact on your case.

Not allowed to speak to anyone about their university accusing them of a serious crime? That’s a breathtaking restriction on speech. Although the university is a private institution and not bound by the First Amendment’s protection of freedom of expression, Johnson C. Smith University promises its students the “right to . . . speak freely on any subject in accordance with the guarantees of the state and federal constitutions.”

There is no defensible purpose for such a broad restriction on speech. Restricting students from talking about a matter of public controversy — a matter the university believes these students participated in — impermissibly chills their speech at a time when they may most need to speak to someone. Standing accused of involvement in a “criminal conspiracy,” students may be discouraged from speaking to an attorney. As we explain in our letter to the university’s president today:

The right to counsel is so fundamental that our Constitution requires the state to provide an attorney to certain defendants who cannot afford to retain one. Gideon v. Wainwright, 372 U.S. 335, 342 (1963). The “right to the aid of counsel,” the Supreme Court has observed, is of “fundamental character.” Powell v. Alabama, 287 U.S. 45, 68 (1932). Likewise, the right to counsel is inextricably bound with the right to communicate with counsel, and courts have observed that the potential chilling effect on speech between client and counsel is of particular importance. See, e.g., Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1209 (9th Cir. 2017) (noting courts analyze attorney-client communications “under various constitutional principles, including the First Amendment right to freedom of speech”).

These rights are closely guarded for good reason. Criminal charges bring the possibilities of confinement, arrest records, interrogation by law enforcement, and the potential for ruinous financial, psychological, and emotional costs. There is also the risk that an arrest record will impact a student’s employment or educational opportunities. And these are just some of the costs that may arise before charges are filed, or if a defendant is ultimately cleared of charges.

Universities cannot promise students the right to freedom of expression, then revoke it when it might serve the university’s interest in investigating potentially criminal conduct. The ability to speak out about the possibility of prosecution or punishment is when the need to protect speech is, perhaps, at its highest.