Western Kentucky Removes Restrictions on Social Media, but Policy Remains a ‘Red Light’

Western Kentucky University (WKU) has revised a "red light" policy in its Student Handbook regulating student use of social media, according to the WKU student newspaper the College Heights Herald. The move is a boon for WKU students' free speech rights, who will now enjoy greater freedoms when using Facebook, Twitter, and other social media. We are pleased to report this development, and we commend WKU's administration for taking this step to uphold students' rights in this ever-expanding area of expression.

However, problems remain with the policy, labeled "Information Technology." (You can find it beginning on page 39 of WKU's Student Handbook (.PDF).) WKU has not completely removed the provisions that earn it a "red light" speech code rating from FIRE, and these restrictions will continue to hamper and chill student speech on campus. We urge WKU to finish the job it has started and revise the rest of the policy. As the lone "red light" policy at WKU, it is the only thing standing in the way of WKU improving to an overall "yellow light" rating as an institution.

WKU's policy on Information Technology previously read, in relevant part:

Communications on sites such as Facebook, etc. will not be actively policed; however, students should be aware that the information posted on the internet can be viewed by university officials at any time. Accessible communications deemed inappropriate may lead to disciplinary action.

As we have discussed before, this policy threatened students' use of social media by stating that "inappropriate" communications "may lead to disciplinary action." Not only is the term "inappropriate" far too vague and amorphous (after all, what is inappropriate speech to one person may be perfectly acceptable to another, making WKU administrators the ultimate arbiters of appropriateness), the policy ignored that most "inappropriate" speech is nonetheless entitled to constitutional protection. As a public university morally and legally bound by the First Amendment, WKU fundamentally violated its students' rights by maintaining this policy. For good reason, then, FIRE designated it as a "red light" policy, meaning it both clearly and substantially restricted freedom of speech.

Happily, the Herald reports that this part of the policy has now been scrapped. It has been replaced by a provision on "Threats, Coercion, Harassment, Intimidation, or Hostile Communication," which states, in pertinent part:

The University embraces and strives to uphold the freedoms of expression and speech guaranteed by the First Amendment of the U. S. Constitution and the state Constitution.

[...]

In determining whether student conduct violates the local, state and federal laws or rights of others, all relevant facts and circumstances shall be considered. Careful examination of the Student Code of Conduct will be exercised prior to any action in order to preserve freedoms of speech, and expression, as articulated in current legal standards.

This is much better. I hope that WKU takes its newly declared commitment to freedom of speech seriously, and that students do not face unconstitutional restrictions when using social media platforms.

Unfortunately, however, WKU's revisions will need to go further in order to get rid of the Information Technology policy's "red light" rating. That's because the policy still contains these problematic provisions:

Use of University e-mail resources is a privilege that may be revoked at any time for inappropriate conduct. Examples of inappropriate conduct include, but are not limited to: ... Transmitting statements, language, images or other materials that are reasonably likely to be perceived as offensive or disparaging of others based on race, national origin, sex, sexual orientation, age, disability, religious or political beliefs. ... Using abusive or harassing language in either public or private messages. ... Sending or forwarding chain letters. ... Distributing or forwarding unsolicited commercial e-mail. ... Soliciting money for religious or political causes, or advocating religious or political opinions.

[Emphases added.]

By continuing to ban expression "reasonably likely to be perceived as offensive or disparaging of others based on" listed traits, WKU ignores that speech cannot be curtailed simply because is found to be offensive or because it disparages others (particularly on the basis of a non-immutable characteristic such as political beliefs). The prohibition on "abusive" language is similarly untenable at a public university bound by the First Amendment. Finally, the policy bans "advocating religious or political opinions" entirely, striking down a wide swath of social and political commentary that, in fact, lies at the core of the First Amendment's protections.

These provisions, unfortunately, mean that WKU's policy on Information Technology continues to earn a "red light" rating, as they clearly and substantially restrict students' freedom of speech. WKU will need to address these restrictions if it wishes to truly uphold students' rights to express themselves online.

The good news is that, as the Herald article notes, and as we noted ourselves a few weeks back, there is some positive momentum toward speech code reform at WKU, in the form of Student Government Association (SGA) senator Christopher Costa. Costa introduced a resolution in the SGA and met with university administrators to discuss improving WKU's free speech rating, paving the way for the policy revision we highlight today. Hopefully, Costa and others on WKU's campus can work with the administration some more in order to fully revise WKU's lone "red light" policy, thereby allowing the university to improve its overall free speech rating. Of course, FIRE stands ready to assist as needed.