JMU Revises Free Speech Policy
September 24, 2009 • By Amanda Caskey and Amanda Herman,
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Five little words can make all the difference when it comes to students’ right to free speech.
Before the start of this semester, James Madison University made a change to section J24-100 in the Student Handbook. Previously, the policy read, “No student shall engage in lewd, indecent or obscene conduct or expression on university property or in university-owned or operated buildings.”
The new policy, however, states that these actions and expressions cannot take place “regardless of proximity to campus.”
Essentially, this minor change limits free speech anywhere from the streets to the Internet. Obscene behavior is extreme or deeply offensive material based on current community standards of decency, according to Merriam-Webster’s Dictionary of Law.
The Foundation for Individual Rights in Education (FIRE) exposed this change in policy in a blog on Sept. 14.
The mission of FIRE is “to defend and sustain individual rights at America’s colleges and universities,” according to its Web site.
Samantha Harris, FIRE’s director of speech code research, wrote the post. Harris wants students to know their rights and what they can do when they are violated.
“The policy change means that JMU has made a conscious decision to prohibit more student speech,” Harris said, “which presumably means that they are also willing to punish more student speech.”
For example, authorities could now punish JMU students for comments they post to Facebook or other social networking sites. Harris said while it would be difficult for JMU to police all online activities, the policy gives JMU the ability to punish such expression if brought to an administrator’s attention.
“The intention is not to police social networking sites,” said Josh Bacon, director of Judicial Affairs. The main goal is to protect students from “people who have been exposing themselves off campus.”
However, according to Adam Goldstein, attorney advocate for the Student Press Law Center, the interpretation of these terms could mean the difference between right and wrong.
“We all have our own idea of what constitutes lewd or indecent, and the law doesn’t have a definition for it,” Goldstein said. “Part of the problem with the policy is that we picked words that are totally subjective.”
According to Goldstein, the policy does not give students adequate notice of what behavior is unwanted, making it “unconstitutional.”
“It’s both far too vague to be constitutionally enforced and a gross extension of authority beyond anything resembling reasonableness,” Goldstein said.
Bacon could not be reached for further comment Wednesday to respond to the policy’s possible unconstitutionality.
Harris agrees that the problem lies within the wording of the policy.
“The problem with the policy is that it covers not only lewd and indecent, but also lewd and indecent expression, which could very easily include crude or vulgar remarks that may be offensive but are also constitutionally protected,” Harris said.
As a public university, James Madison must legally protect its students’ right to free speech. However, Bacon feels this new policy does not curb the students’ First Amendment rights.
Why the Change?
According to Bacon, the change is due to an off-campus incident last semester that left the judicial council unable to charge the student offender. The student in question was reportedly as peeping into off-campus students’ windows and masturbating in front of them.
Since the incident occurred off campus, under the previous policy the violator could not be punished.
“I don’t think the school’s judicial affairs system is the right place for an actual crime to be handled,” Goldstein said. “It’s the wrong policy, at the wrong place, at the wrong time.”
Goldstein believes that Judicial Affairs needs to “let police be police and stick to enforcing campus problems that police don’t address, like academic dishonesty.”
The Cases so Far
All of the cases in violation of the new policy have been urination-in-public charges. Most have occurred on campus, but others have been charged under the new policy.
Freshman Derek Sands is one such violator. Sands was caught urinating on public grounds while at a party off campus.
“[Police] came up and I wasn’t drunk, I just had to go to the bathroom,” Sands said. “They asked me a series of questions and gave me a low fine because I was sober.”
While he hopes that he won’t get a strike from the incident, Sands does not feel they violated his First Amendment rights.
“They have the right to charge me,” Sands said. “It’s just… I can see it both ways.”
Harris said it’s important for students to understand their rights and if there are threats to those rights.
“Students can be very effective at bringing about change when they know their rights and are willing to stand up for them,” she said.
According to Harris, the Foundation for Indivdual Rights in Education can help students write letters and editorials or hold peaceful demonstrations.
While FIRE encourages students to bring about change to the policy, some JMU students seem to be relatively unaware of the change.
A student judicial coordinator, senior Brittany Smith, was not completely familiar with the change in the policy.
“I know that one charge from last semester was brought up, but I don’t know if it’s going to take away First Amendment rights,” Smith said. “I don’t really have an opinion on it.”
As student judicial coordinator, Smith is in charge of putting together the student council for hearing the cases of supposed judicial violations.
The policy is presented in JMU’s Student Handbook, which is maintained by the Office of Judicial Affairs.
According to the Student Handbook, violation of the policy is a “Flexible Violation,” so the severity is based on individual circumstances.
Contact Amanda Caskey at caskeyap@jmu.edu and Amanda Herman at hermanac@jmu.edu.
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