Free speech on college campuses is a hotbed issue. Controversial speakers are uninvited from delivering speeches after there are objections from a loud (and sometimes violent) opposing segment of the student body. Phrases such as “trigger warning” and “safe space” are now commonplace among college students. While shielding our future leaders from speech that may upset them arguably does not serve them well in their personal growth and development, that issue will not be resolved today. Indeed, many of us in the “real world” routinely shield ourselves from speakers and content with which we disagree. We simply call it “changing the channel” or “turning off the TV.” The difference, of course, is the difference between ignoring speech we find unpleasant, and using one’s discomfort at unpleasant speech as an excuse to ban it entirely, so that no one can hear it. In America, where free speech is supposed to be paramount, there should be a clear demarcation between wishing certain speech would go away, and actually using government to make it happen.
And further, we as decent human beings wish to protect our children from emotional hurt, even if we cannot or should not. And we also want everyone else to be decent human beings, even if some are not, and even if we cannot force them to be so. But can/should a university do these things?
In Feminist Majority Foundation v. University of Mary Washington, the Fourth Circuit Court of Appeals allowed a lawsuit to proceed against a university that affects students’ free speech rights. One of the UMW student organizations, Feminists United on Campus, spoke out against fraternities and a sexist and offensive rugby chant. Some people did not appreciate the group’s protests, and (in the typical despicable fashion for which the Internet is now known) began harassing the group online on a now-obsolete platform named Yik Yak that allowed anonymous messages. The group unsuccessfully complained to UMW, then to the U.S. Department of Education’s Office for Civil Rights, and then to the federal Courts, accusing UMW of discrimination that violated Title IX by deliberately ignoring their sexual harassment complaints.
The District Court dismissed the case, because UMW had limited, if any, control, over Yik Yak’s anonymous postings. But the Fourth Circuit recently reversed and reinstated the case, holding that because UMW could have blocked campus access to Yik Yak, and/or held “mandatory assemblies” or “anti-sexual harassment training,” then UMW maybe had enough control over the speech to be liable for the sexual and retaliatory harassment. Further, the Court found some of the speech to be unprotected threats and harassment by UMW students, over which UMW could have exercised control. The case has been sent back to the District Court for discovery and (presumably) trial, unless UMW seeks full Fourth Circuit and/or Supreme Court review.
An analysis from Samantha Harris at the Foundation for Individual Rights in Education (FIRE) argued in an amicus that the speech was constitutionally protected albeit offensive, and was therefore neither unprotected harassment or threatening.
And this raises questions, such as: Should the University be unmasking anonymous speakers who are harassing and/or threatening, and disciplining them? Who decides the line between a post that is offensive and one that is a threat? Even if the University can cut off the students’ access to the network, should it? What is the line between Title IX and the First Amendment? Does it matter that the online harassers are unknown and may not be UMW students? This case may ultimately provide some answers.
The Law Firm of David G. Sigale, P.C. was founded to serve the legal needs of the Chicago metropolitan area. Mr. Sigale has counseled and represented corporate and individual clients across the United States and internationally. He believes in protecting Americans from improper attempts by the government to infringe upon their constitutional rights. His firm services clients in Cook, DuPage, Kane, Kendall and Will Counties, and as well as reviews matters in other locations on a case-by-case basis. Contact the firm for a consultation.
