Of saltines and speech codes

Bias Response Teams were in the news last month after a 2016 incident at Wake Forest University became the subject of national attention. For administrators at Wake Forest, a student being called a “mayonnaise monster” is sufficient grounds to investigate speech and remind students of the need to be “respectful.”

According to the Old Gold & Black, Wake Forest’s student newspaper, in October 2016, Wake Forest student Ryan Wolfe filed a report with his school’s BRT because he believed that a group of students violated the school’s Code of Conduct by harassing him because of his race and political views.

FIRE is very familiar with BRTs and their impact on students’ expressive rights. In fact, last year we published the first-ever nationwide survey of BRTs where we warned that “a Bias Response Team’s practice of broadly defining and identifying ‘bias’ may expose a wide range of protected speech to punishment.” We also explained that “Bias Response Teams create—indeed, they are intended to create—a chilling effect on campus expression,” and found that the incidents reported to BRTs “span[ned] the ideological spectrum.”

The trouble at Wake Forest started in October 2016 when Wolfe, then president of the school’s College Republicans, organized a panel discussion titled “The Future of the GOP” with several other student groups. Some students criticized the panel because all four students on it were white, with one posting a photo of four saltine crackers on Facebook with the caption “loving the lineup” and another student referring to Wolfe as a “mayonnaise monster.”

After the event ended, another student handed Wolfe a box of Saltine crackers. That student then posted a photo of her handing the box to Wolfe on Twitter with the caption “Today, I handed the saltiest Republican a box of Saltine crackers.” (The tweet has subsequently been deleted.)

With the encouragement of school administrators, Wolfe filed a report with Wake Forest’s BRT, and met with the Dean of Students a few weeks later. The dean gave Wolfe several options: request a no contact order, mediate his dispute, or open a judicial case against the students. Wolfe elected to pursue all three remedies against various students. Administrators then held a meeting with the students who were the subject of Wolfe’s complaints. Per the Old Black and Gold, eventually the students who were reported to the BRT “spoke with administrators about keeping actions respectful and were asked to reflect on how they had responded to Wolfe’s political views.” That meeting evidently lasted for more than two hours.

The issue seemed to have faded away until the Wake Forest Review published a story on February 26. Wolfe explained to the Old Gold & Black:

“If we had it my way we would just abide by the First Amendment and we wouldn’t have all these rules,” Wolfe said. “But if we’re going to have these strict rules and this Bias Reporting System, then everyone needs to be held accountable in the exact same way . . . regardless of your identity, regardless of your politics, regardless of national political events.”

Wolfe later appeared on Tucker Carlson Tonight, where he again explained that “[w]e have pretty strict rules about harassment at our school which you know clearly don’t abide by the First Amendment, but we were trying to hold all students to the same standards so I reported the conduct.”

Wolfe is correct that Wake Forest’s policies don’t respect its students’ expressive rights. (Wake Forest is a private school that is not bound by the First Amendment, but the institution does have a legal obligation to protect students’ free speech as a matter of contract law because it promises to do so.) Wake Forest is a “red light” school in our Spotlight database. We’ve rated its Verbal Abuse and/or Harassment Policy a red light because the policy both clearly and substantially restricts freedom of speech, and we’ve given its Bullying/Cyberbullying Policy a yellow light because the policy could too easily be used to restrict protected expression.

Unfortunately, the fact that Wake Forest has a BRT that is empowered to investigate speech makes matters worse. The institution’s BRT FAQ explains that “[t]he expression of an idea or point of view some may find offensive or inflammatory is not necessarily a bias-related incident.” But despite insisting that “Wake Forest values freedom of expression and the open exchange of ideas,” Wake Forest still conducted an investigation into its students’ speech.

Speech doesn’t have to be respectful or civil, and it often won’t be. For example in, College Republicans v. Reed, a student complained about an “Anti-Terrorism Rally” thrown by the College Republicans at San Francisco State University. During the rally, “members of the College Republicans placed the paper depictions of the Hamas and Hezbollah flags on the ground and began stepping on them.” The student’s complaint led to a months-long investigation into whether College Republicans’ had violated provisions in the school’s handbook that required civility. Though the complaint against the College Republicans was dismissed by the school, they filed suit alleging that their school’s policies were overbroad. In granting the College Republicans a preliminary injunction, Magistrate Judge Wayne D. Brazil of the United States District Court for the Northern District of California wrote that “[s]peakers, especially speakers on significant or controversial issues, often want their audience to understand how passionately they feel about their subject or message.” Judge Brazil continued:

The First Amendment difficulty with this kind of mandate should be obvious: the requirement “to be civil to one another” and the directive to eschew behaviors that are not consistent with “good citizenship” reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause. Similarly, mandating civility could deprive speakers of the tools they most need to connect emotionally with their audience, to move their audience to share their passion.

In sum, there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.

The Wake Forest students who were reported to the BRT have evidently “learned” that they should engage in “respectful” speech out of fear of their speech being investigated by a university body. That’s a shame because as the Reed court so eloquently explained, what can be lost in civility is emotion and passion. And more broadly, the proliferation of BRTs will only serve to chill students’ expressive rights as students continue to see their speech investigated.