Free Speech Off Campus Must Be Protected

Michael Morgenstern for The Chronicle

February 05, 2012

Hard cases, as Justice Oliver Wendell Holmes cautioned in a 1904 Supreme Court opinion, make bad law. What ­Holmes meant is that cases with distasteful facts and unlikeable parties tempt judges to back into the desired outcome without regard for the broader legal principles at stake. When that happens, future parties with more sympathetic cases become collateral damage.

Tatro v. University of Minnesota is one of those hard cases. If the justices of the Minnesota Supreme Court lose sight of the larger constitutional issues, the outcome in the case could give colleges virtually limitless authority to silence speech critical of their programs, no matter where it is uttered.

The case began in 2010 when Amanda Tatro was called before the student-conduct board at the University of Minnesota over a series of postings on her personal Facebook page. On her Facebook wall, Tatro had joked about how she and her fellow mortuary-science students had nicknamed their laboratory cadaver "Bernie," and about stabbing someone with a dissecting knife (a reference, her friends knew, to an ex-boyfriend).

A classmate forwarded the postings to University of Minnesota authorities. A criminal investigation concluded that Tatro had no intent to harm anyone, but the university imposed disciplinary charges anyway, including a failing grade and a mandatory psychiatric exam.

Tatro challenged the penalties, unsuccessfully, before the Minnesota Court of Appeals. She is appealing to the Minnesota Supreme Court, which is scheduled to hear arguments on February 8. The university's amicus defenders include the head table of academe: the American Council on Education, the Association of American Universities, the Association of Public and Land-Grant Universities, and others. My organization, the Student Press Law Center, co-authored a brief in support of Tatro.

What is important about the Tatro case is not what Amanda said, but why the University of Minnesota believes it may regulate what students say on social-networking pages on their personal time.

The university argues—and the Court of Appeals accepted—that Tatro's speech was unprotected by the First Amendment because it prompted "disruptive" complaints from supporters of the mortuary-sciences program whose families had donated their bodies for dissection or pledged to do so.

The "disruption" standard is derived from Tinker v. Des Moines Independent Community School District (1969), in which the Supreme Court ruled that schools may regulate speech only if it portends "material and substantial disruption" of their activities. Lawyers nationwide are attempting, with some success, to persuade courts and legislators that, because the Internet makes off-campus speech theoretically viewable anywhere, speech about a school or college is equivalent to speech inside of the institution.

But there are crucial differences. A speaker on school premises is talking exclusively to a school audience. On Facebook, the audience may include hundreds of outsiders. Enabling a college to dictate what is acceptable on Facebook means that it may interfere with messages that no student ever sees. What's more, speech on a social-networking page—unlike in a classroom—is entirely avoidable. Offended audience members may easily avert their eyes.

While Amanda Tatro is nobody's idea of a journalist, it is impossible to craft an intelligible legal standard that makes "bad" speech punishable and leaves "valuable" speech protected. Thus, disciplinary cases against social-network users will set the standard for all off-campus speech, including journalistic speech. (Indeed, the University of Minnesota characterizes what Tatro did as "blogging.")

The ruling that colleges seek—that they may punish speech, on campus or off, that they deem likely to undermine donor support—should alarm all of us.

There is no legally meaningful distinction between a remark on Facebook and a letter published on a newspaper's Web site, an interview with a TV journalist posted on the station's site, or an address to the Board of Trustees that is streamed over the Internet. All of it, if higher-education leaders have their way, will become subject to content-based government regulation.

While colleges clearly may discipline students for off-campus criminal behavior, the idea that colleges have free-floating good-citizenship authority to punish lawful behavior that administrators subjectively deem "disruptive" is breathtaking in its potential for abuse.

There are times when "disrupting" the relationship between a university and its supporters is not just unavoidable, but proper. In recent months, for example, the student newspaper at Florida A&M University, The Famuan, has been at the vanguard of investigative reporting on the tragic loss of a freshman band member whose death has been attributed to hazing. And there are times when speech ought to cause the public to question the legitimacy of entire academic programs, as the University of Minnesota claims Amanda Tatro's writings did.

If speech loses its First Amendment protection because it causes so many grantors to withdraw their support that a program's viability is threatened, which is the legal standard that the university is asking the court to adopt in the Tatro case, then no student may ever feel safe, in any venue, blowing the whistle on wrongdoing.

To envision how colleges will use blank-check authority over the content of speech, look no further than the case of Ronald Zaccari, who in 2007 used his authority as then-president of Valdosta State University to summarily expel—with no notice and no hearing—a pesky student environmentalist who crusaded on the Web against Zaccari's pet parking-garage project. Cases like Zaccari's are why the First Amendment must furnish a meaningful check against retaliatory discipline.

If colleges genuinely believe that students' writing indicates violent intent, then the proper response is, of course, to investigate. But once the investigation is complete and the speech is found to be an unthreatening joke, discipline not only is unjustified, but self-defeating. (In the Minnesota case, it was the disciplinary proceeding itself that caused Tatro's writings to come to the attention of UM donors.)

An uncensored student voice is essential for the well-being of the entire campus community. Since the Supreme Court has denuded public employees of most of their free-speech rights, untenured faculty and staff no longer can safely speak out about waste and inefficiency. If administrators can prevent students from exposing the shortcomings of their institutions, then the public may never find out.

To be sure, there is no First Amendment impediment to punishing speech that is genuinely illegal or that misuses school and college computer networks. But if the conduct is merely disagreeable and not unlawful, then colleges should do what they do best: Educate. Discuss. Counsel.

"Hard cases" may be Justice Holmes's most enduring quote, but his most important comes from the case of United States v. Schwimmer, involving the legality of a loyalty-oath requirement for naturalization. In that case, Justice Holmes instructed that "if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate."

Public universities should be the last institutions to need a remedial lecture in the importance of freedom to think.

Frank D. LoMonte is a lawyer and executive director of the Student Press Law Center, a nonprofit legal-assistance organization serving student journalists.