‘The Chalkening’ Spreads, Tests Universities’ Commitment to Free Speech

It started with Emory University, but quickly spread to other schools across the country. “The Chalkening,” as some are calling it, is a combination of loosely-coordinated and spontaneous acts of students expressing support for presidential candidate Donald Trump—often in chalk on campus sidewalks. These chalkings wouldn’t be newsworthy if it weren’t for the responses they have received, with some likening such expressions to mass murder, and schools responding with promises of cracking down on speech.

In addition to Emory, The Chalkening has also struck the University of Illinois, Ohio University, the University of California, Santa Barbara, DePaul University, the University of Michigan, the University of Kansas, the University of Connecticut, the College of William and Mary, and Tulane University.

Professor Eugene Volokh of The Washington Post’s “Volokh Conspiracy” reported last night on the latest campus to get caught up in the hysteria: the University of California, San Diego (UCSD). According to Volokh, the controversy—again—stems from “pro-Donald Trump sidewalk chalking.” USA TODAY reports that the chalkings included “make America great again,” “build the wall,” “deport them all,” and “f--- Mexicans”—all of which were still visible for UCSD’s “Triton Day,” when accepted students tour campus. USA TODAY also notes that some students believe the messages were intended to make Mexican students feel unwelcome on campus.  

Professor Ivan Evans, a UCSD provost, sent an email to students expressing disgust with the chalkings and a promise that “any violation of UCSD’s Code of Conduct will be treated with the greatest seriousness and draw the fullest sanctions that may apply,” according to Volokh.

Except, as Volokh explains, there’s one problem:

The university, as owner of its property, might have the power to prohibit all chalking on that property… . But UCSD policy expressly provides that chalking is permitted “on sidewalks of the university grounds that are exposed to weather elements and not covered by a roof or overhang.”

That said, Volokh acknowledges it is likely that this chalking incident is less about what the actual policy is and more about the content of the chalking:

Of course, maybe the provost’s statement should be read—especially in light of the general policy allowing chalking—as suggesting that this particular chalking violated the Code of Conduct because it was “offensive,” tried “to sow division by stigmatizing certain populations or communities,” and contained “gross insensitivity” and lack of “greater multicultural understanding.” But any attempt to punish the chalking precisely because of its viewpoint would clearly violate the First Amendment.

FIRE agrees with Volokh’s analysis that if the school punishes chalking based on content, it violates the First Amendment. That is, the institution must enforce a chalking policy without respect to the expressed viewpoint.

When asked if UCSD would comment on whether it would punish students for the chalk messages, UCSD spokesperson Judy Piercey referred FIRE to a published statement from the UCSD administration. It reads, in full:

A series of incidents occurring on college and university campuses across the United States have reflected our nation’s current divisive political climate. Unfortunately, late Friday evening graffiti promoting the deportation of undocumented immigrants and the construction of a wall on the border of Mexico was discovered chalked on UC San Diego’s campus sidewalks. This graffiti runs counter to our campus values of equity and inclusion. We value diversity and respect for all cultures.

UC San Diego is steadfast in the commitment to our Principles of Community which reflect a collective dedication to a campus where we uphold each individual’s right to dignity, justice and respect. We affirm the Principles of Community as the guide for all campus citizens as we move forward to foster the best working and learning environment.

The statement sheds little light on how the university will handle any students found responsible for the messages. Thankfully, other colleges and universities seem to understand their First Amendment obligations more fully. At the University of Illinois, for example, the interim chancellor and provost co-wrote an email to students stating that the university “value[s] respectful discourse while also recognizing that offensive speech is protected by the First Amendment.”

That doesn’t mean The Chalkening can’t be met with condemnation—indeed, the response to offensive speech should be more speech. But public universities like the University of California, San Diego cannot respond to such expression with “the fullest sanctions.” Instead, they should respond with the fullest application of the First Amendment.