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Wednesday, April 01, 2015

Ongoing conflicts over campus speech

Short story in the Chronicle of Higher Ed on various new controversies over offensive speech on college campuses, including at Oklahoma, Penn State, Maryland, Bucknell, and Mary Washington.

I would suggest the last two paragraphs, involving three students expelled for using racist epithets on the campus radio station, captures the disconnect and the inherent contradcition (yes, Bucknell is private and can do whatever it wants as a First Amendment matter, but it illustrates the prevailing attitude towards expression):

In an interview Tuesday, Bravman, Bucknell’s president, said that he and his university strongly support free speech and due process. He would not comment on the context of the language, but said that no matter the context, the three students crossed a line.

“There’s no question about that,” Bravman said. “This was hate speech. We own the station and the equipment, and the students were acting as agents of the university. They violated our community standards, and that’s really what this comes down to.”

Posted by Howard Wasserman on April 1, 2015 at 04:06 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink



Could you explain what you mean by language being "threatening"? Looking in ye ol' Blacks Law Dictionary, we find that a threat is a "communicated intent to inflict harm."

Surely you don't think they are communicating an actual intent to have sex with a dead whore. Nor would any reasonable person hearing it think they were expressing any such intent.

So, in what way is it "threatening," and does "threatening" mean anything more than just "upsetting"?

Posted by: Derek Tokaz | Apr 3, 2015 9:41:57 AM

"No reasonable person would hear that song and then think that the rugby players are going to go out and attack someone."

This goes further than even the first comment -- "unsafe, ostracized, or threatened." Chanting about having sex with dead whores in crude language could be upsetting and threatening to some people.

I'm sorry if you think it ridiculous for some seventeen year old (and that's the age I was when I started college) girl to be at least somewhat threatened about guys chanting about f-ing dead whores and getting sore from it etc. especially given some real instances of sexual harassment and abuse, but it sounds credible to me.

Again, to belabor the point, I'm not agreeing with the punishment here. So, that isn't the proper response. But, your citation of Taylor Swift is overly cute. No, the lyrics of this song is a tad worse than Ms. Swift's song. Talking about, in language you are censoring about "f-ing" dead whores etc. is a tad worse.

Posted by: Joe | Apr 3, 2015 9:27:01 AM

Regarding whether or not the university could yank a radio show, we would need to look at the actual charter for station. It could very well be that they've been given editorial independence from the university specifically so that people couldn't later claim the university was endorsing any particular view that a radio host expressed.

Posted by: Derek Tokaz | Apr 3, 2015 7:42:06 AM

I think it's pretty obvious we are talking about the First Amendment (recognizing it does not apply at a private school such as Bucknell), which means public entities cannot exclude people from the community for failing to conform to preferred norms.

Posted by: Howard Wasserman | Apr 2, 2015 10:21:55 PM

So ... are we discussing "beyond the pale" as a question of constitutional ideology, the market for education, or social norms. I am not sure the claim holds in all situations, especially the latter. These schools have to sell themselves and clearly their reaction is necessary to maintain the product they are selling. So how are these conscious uncouplings of university and student problematic. Same on the social norms front. Maybe the marketplace for ideas orthodoxy has been supplanted by a civility(?) norm. If so, uncivilized rhetoric is grounds for exclusion. On these latter framings, I've heard no defense. If we are seeing a new norm dominate, we cannot take expression as a good, at least not one that trumps, without establishing that position.

Posted by: waves? | Apr 2, 2015 8:08:18 PM

If a public employee, on his last day on the job, engages in speech that would have justified firing him, the government can't arrest him or prohibit him from working for his new employer.

Posted by: Howard Wasserman | Apr 2, 2015 7:30:53 PM

What if the university wants to deter campus radio hosts from saying things the university doesn't like in a quasi-representative capacity, or simply wants to punish these students for the light in which they put the school when speaking in a quasi-representative capacity? You acknowledge that taking them off the air isn't much of a punishment given that it was their last show.

Posted by: Asher | Apr 2, 2015 6:45:45 PM


They absolutely could kick them off the radio station--although that would not have been much punishment here, since the students already had lost their show and were doing their final broadcast, which is why they got drunk and said stupid things. I am not sure I would call this university speech, but it at least is a sort-of-representative capacity, giving the school more leeway (because of a sort-of quasi-employment connection). The president described it as an agency situation and that might be accurate.

But as you said, expulsion seems beyond the pale, because it goes beyond just protecting its station and equipment.

Posted by: Howard Wasserman | Apr 2, 2015 4:48:29 PM

Not sure what to make of this prosecution:


I despise the act, but if it wasn't directed towards any specific person then I'm not sure it meets the definition of "intimidation" under US Supreme Court precedent. These charges potentially carry a long prison sentence, much more significant than just expelling a student.

Posted by: Rigel | Apr 2, 2015 1:34:56 PM


It's important to distinguish between someone just being offended or upset, and someone genuinely fearing for their safety. No reasonable person would hear that song and then think that the rugby players are going to go out and attack someone.

And, if you were to somehow make a connection between that song and a genuine, reasonable fear for physical safety, does the same apply to other more popular songs? Ought a university be able to discipline a student for singing any of the follow: Blurred Lines, Don't You Want Me?, Taylor Swift's Blank Space, So What (the P!nk song with "I'm gonna start a fight"), Before He Cheats, Pumped Up Kicks, Rains of Castamere, or even the University of Alabama Fight Song (which references drowning GA Tech players)?

Posted by: Derek Tokaz | Apr 2, 2015 1:23:24 PM

I agree with you, Howard, that there is a significant amount of contradiction surrounding the issue of speech on campus. But I wonder whether this is the best example. There is a decent argument to make that the University is speaking through it's radio station, and therefore it may (or even ought to) police speech on the station including the viewpoints expressed on the station.
That said, expulsion seems to take this outside the idea of University as speaker . . .

Posted by: carissa | Apr 2, 2015 11:48:57 AM

Here is one citation of some of the lyrics:


I'm unsure if it would ruin the "unique culture" of rugby to not chant about having sex with dead prostitutes ("whores"). And, if it was deemed essential to their culture to do so, it would not be overly sensitive of some eighteen year old woman to feel somewhat threatened by it. It is not merely an "off color" song, but overlaps a certain mindset about the sexes. If some teenage boys chanted about f--ing whores, I assume if high school girls were upset and worried, it is merely a case of them being oh so over sensitive?

This is not a matter of agreeing that the suspension is okay. Jezebel had a nuanced discussion on this matter & I would link it but the url has a curse word in it (telling that we are self-censoring here & suggesting it is 'absurd' that concern was raised over the chant). But, jumping that to "it's just stupid to be concerned about this" or "it's just cultural" is a bit much. I assume it was "culture" to use crude words for gay people in chants too but flagging that as offensive to many students would not be wrong. But, maybe not!

Posted by: Joe | Apr 2, 2015 11:16:28 AM

The case at Mary Washington was laughably absurd. The school punished the rugby team because the members after a recording was leaked of them singing a song with (what the school deemed) violent, degrading, and sexist language. Without getting into too much detail, the song was primarily about "f---ing a whore," though it does end with "The moral of the story is never f--- a whore." The song (or the recording) also leads off by describing sexual acts with the devil.

In response to rugby players singing a song that was allegedly racist and sexist, the Mary Washington president said, "No student on our campus should feel unsafe, ostracized, or threatened."

It's not at all obvious how such a song would make anyone feel unsafe. The song doesn't threaten or even encourage violence. Similarly, no one ought to feel threatened by it.

As for being ostracized, when the university punishes its students for singing an off-color song, it is intentionally ostracizing them. But not just that, we have to look at what they're being ostracized for. Rugby is a game that has its own unique culture, which includes singing rowdy, off-color songs (the more well known one is Jesus Can't Play Rugby). Much of the culture is imported form Australia, which is very different from the US and Europe in terms of what is offensive (don't call a rugger "mate"). Is Mary Washington taking the position that Australian culture isn't welcome on campus? That seems to be a form of ostracization far worse than a few students singing a drinking song.

Posted by: Derek Tokaz | Apr 2, 2015 9:48:26 AM

Is the full text of the broadcast available? The linked article from IHE only has eight quoted words.

Posted by: John Steele | Apr 1, 2015 8:35:21 PM

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