ANALYSIS: CMU’s First Amendment Problem (UPDATED)

bill of rights

UPDATE: General Counsel Manuel Rupe has responded to the concerns raised by FIRE. Read below for what he had to say. 

By Wyatt Bush

It might seem outlandish to suggest Central Michigan University could make students take posters off their walls simply because they are deemed “offensive.”

Yet on this week 13 years ago, CMU did just that when it forced students in Emmons Hall to remove items such as American flags and patriotic posters from their doors., citing a policy against potentially offensive speech.

A recent analysis conducted by the Foundation for Individual Rights in Education, a non-partisan civil liberties and freedom of speech advocacy organization, found that the university still has the power to do something like that today. FIRE analyzed the speech codes of CMU and other universities and concluded numerous university policies impose significant violations of speech and buck students’ First Amendment freedoms.

CMU is not alone. FIRE’s 2014 Speech Code Report found only 16 of 427 schools received a “green light” rating, meaning FIRE was not aware of any serious threats to students’ free speech rights in only 3.7 percent of surveyed American institutions.

FIRE found 250 schools, or 58.6 percent of those studied, have at least one policy that “both clearly and substantially restricts speech,” including CMU.

Azhar Majeed, the director of FIRE’s Individual Rights Education Program, criticized two codes as blatant speech violations, in addition to a third that potentially restricts limited speech:

1. Computing and Network Resources Policy

In order to use the Internet at CMU, students must first agree to its Responsible Use of Computing Policy.

The policy bans, according to FIRE,  the use of “foul or obscene language, posting obnoxious or inappropriate announcements, or making defamatory statements.”

Majeed said the university’s restrictions on using “foul or obscene language” are dangerously broad and vague.

“’Foul or obscene language’ could mean everything from profanity to just something you say that somebody else finds offensive,” Majeed said.

He said the clause banning “obnoxious or inappropriate announcements” is troublesome, as well.

“I find myself wondering who decides what is obnoxious or inappropriate speech,” Majeed said.

Without further clarifications, he said administrators might subject speech to arbitrary censorship.

Majeed said the policy could be found unconstitutional if pursued in court.

“Based on past legal cases, if you were to take this policy to court and challenge it on First Amendment grounds, I am very certain that it would be struck down on that basis,” Majeed said. “The same goes for the Bias Incident Response Team policy.”

CMU General Counsel Manuel Rupe did not comment on this policy in an email to Insider.

2. Bias Incident Response Team

CMU’s Bias Incident Response Team is charged with acting as a resource for individuals who experience abuse or discrimination at CMU.

Majeed warned the policy might stifle polarizing or radical speech, as it is supposed to report “expressions of hate or hostility.”

“If students are reported for any time they engage in any speech which somebody else deems to be hateful or to contain hostility, you’re going to be cutting out a lot of social and political commentary on issues that might be divisive or people disagree about,” Majeed said.

Rupe told Insider that the the team can only respond to unlawful abuse and discrimination via educational training.

“To the extent incidents may arise that may not be unlawful, the team may respond with educational programming and campus communication, etc.,” he said. “The answer to speech with which one does not agree is more (not less) speech.”

3. Code of Student Rights, Responsibilities and Disciplinary Procedures

Among other duties under CMU policy, responsibilities of students attending CMU include not engaging in the bullying, hazing, harassment, or stalking of any person or groups of persons.

Majeed praised the university for its commitments against those actions but said the code fails to establish what constitutes some of those acts.

“It doesn’t really define what ‘bullying’ means,” Majeed said. “Could that mean very strongly stated or passionate speech or even verbally abusive speech? Sure, but much speech that falls under those categories is still protected by the First Amendment. “

Majeed said the First Amendment does not protect harassment as properly defined and institutions such as CMU have moral and legal obligations to prohibit such activity. However, he said speech in an email or text message that offends another person is not harassment but could be found as such by the university.

“I do not have any concerns with the Code,” Rupe told Insider.

What CMU gets right

When compared with most other universities, Majeed said CMU has a small number of speech codes in breach of the First Amendment.

In comparison to the 11 other schools FIRE surveyed in Michigan, CMU is tied for the second fewest potential violations, standing at three.

“When I say it only has three speech code violations, that to me is pretty doable in terms of getting those policies fixed,” Majeed said. “It’s a lot easier than many other universities that may have seven or more codes.”

Student concerns

Some students, including Sam McNerney, president of College Democrats at CMU, are concerned that several of CMU’s speech policies allow for what effectively amounts to censorship.

“The university has always been thought of as a bastion of free speech and expression,” McNerney said. “Certainly in the modern age, I don’t think that’s what it is. Now it’s a place where we are treated as less than adults.”

Ottorino Schincariol, the chairman of College Republicans at CMU, said the university needs to better clarify and change its speech codes. Not doing so might result in acts of censorship, he said.

“(CMU) really needs to go into more detail when it comes to these policies,” Schincariol said. “The university has a role to ensure that the First Amendment rights of its students on all sides of the spectrum are not violated.”

McNerney said college students are individuals who are allowed to maintain their rights at the university.

“Just because you enroll into a university to learn doesn’t mean you suddenly lose your freedom of speech rights,” McNerney said.

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