Rutgers’ Bias Investigation of Satirical Newspaper is No Laughing Matter

Last week, we pointed to a piece penned by former FIRE intern Alex Lewis in The Daily Targum, Rutgers University's main campus newspaper, in response to a controversial "bias investigation" of The Medium, a weekly satirical Rutgers newspaper. Now, The Star Ledger (Newark, New Jersey) is covering the incident as well, in a piece that quotes Alex and draws further attention to the controversy. The Star-Ledger summarized the investigation:

The flap began when the campus satirical publication, the Medium, ran a parody of the work of a columnist at the Rutgers Targum. The columnist, Aaron Marcus, writes frequently on the Arab-Israeli conflict. The editors of the Medium, which publishes weekly, thought it would be fun to parody his column. They did so by creating a fake version in which the fake author says various good things about Hitler, such as that he created the Volkswagen. 

Rutgers University President Richard L. McCormick denounced the article, and announced that the university was conducting a bias investigation into the protected expression of The Medium. Further, the Student Press Law Center reported:

Rutgers spokesman E.J. Miranda said through email that the university is investigating the event as a bias incident. The event will only warrant discipline if it violates laws or portions of the student conduct code.

The Medium's satirical article is completely within the bounds of the First Amendment, and Rutgers has no ground on which to punish the paper or anyone associated with it on the sole basis of the offense it caused. Despite this, as FIRE Co-Founder and Chairman Harvey Silverglate tells the Star Ledger, Rutgers' response is all too indicative of the modern university's intolerance of satire and humor: 

University President Richard McCormick piled on, stating that even though the student media have First Amendment rights, "No individual student should be subject to such a vicious, provocative and hurtful piece."

When I ran that quote by Silverglate, he said McCormick's reaction is typical.

"When you hear this sort of thing, it's always accompanied by a line like, ‘Of course, students have free speech and academic freedom,' followed by a ‘but,'" he said. "When you see the word ‘but,' you should duck, because the censors are right behind the ‘but.'"

Indeed, this "but" often rears its ugly head at even the mildest satire poking fun at campus figures or gleefully slaying the many sacred cows of our culture. In fact, four of the six schools on FIRE's Red Alert list (Bucknell University, Colorado College, Johns Hopkins University, and Tufts University) are there for their unapologetic punishment of satirical expression. 

Rutgers' posturing compelled FIRE to write to President McCormick on April 20, reminding him of his duty to protect the First Amendment at Rutgers, and of the strong protections that satirical expression enjoys in society at large (see Hustler Magazine v. Falwell, 485 U.S. 46 (1988), for starters).

FIRE also took the opportunity to remind Rutgers that if it is investigating The Medium's protected expression, it had better have its facts straight on harassment as well. We wrote:

Additionally, please be aware that the parody, though it offended Marcus, fails to meet the Supreme Court's carefully crafted description of student-on-student hostile environment harassment in the educational context in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999). That is, in order for student behavior to be actionable harassment, it must be conduct that is (1) unwelcome; (2) discriminatory; (3) on the basis of gender or another protected status, like race; (4) directed at an individual; and (5) "so severe, pervasive, and objectively offensive, and ... [that] so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." No more and no less than this standard is required to protect student expression while meeting universities' obligations to address true harassment. Far more than the single parody in The Medium would be required to determine that Rutgers must address a hostile environment with respect to Marcus or anyone else on campus. (Emphasis added.)

This last sentence is crucially important, and routinely ignored by universities around the country. FIRE very commonly sees solitary acts of expression prosecuted as harassment despite the Supreme Court's exacting standards on the threshold that must be reached. A proper understanding of the Davis standard should make it abundantly clear that a single article in The Medium is protected speech. Rutgers University cannot let the impression linger that it is anything but.