Just A False Alarm?
September 28, 2009 • By John Scott,
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In 1798, James Madison wrote, “The right…of free communication among the people…has ever been justly deemed the only effectual guardian of every other right.”
That’s a hell of an argument for the protection of the First Amendment.
Recently, the university named after the father of the U.S. Constitution made a small revision to one of its judicial policies. The revised policy in question, J24-101, reads: “No student shall engage in lewd, indecent or obscene conduct or expression, regardless of proximity to campus.” Originally, the prohibition was limited to “university property or in university-owned or operated buildings.”
I couldn’t believe my eyes when I read it. It seemed James Madison University was trying to regulate free speech
outside of its borders. Can administrators even do that? Constitutionally and ethically, the answer is no.
Worried about the situation, I met with Josh Bacon, director of the Office of Judicial Affairs, last Thursday to have my questions answered. He informed me the policy was revised in June 2009 by Judicial Affairs to protect students from “people who have been exposing themselves off campus.”
Many students were concerned Judicial Affairs would trample their First Amendment rights with the new revised policy. I wanted to ensure indecent exposure was the only violation Judicial Affairs was trying to charge students with under this policy. Bacon concurred: “In terms of protected speech and online speech, we are not going to charge people with that.”
I hope Bacon’s statement about the policy’s interpretation is valid. However, if students can be charged under the revised policy based on individual circumstance, isn’t there a chance Bacon could renege his guarantee? Sure, indecent exposure was the original cause for the revision, but what if a different situation concerning the policy in question arises where Judicial Affairs feels the need to charge a student? This is exactly why personal guarantees
do not hold the same legal weight as written policy, as it should be.
Either way, I think this would have never been an issue if the Office of Judicial Affairs had considered a couple of points before revising the policy.
First, when I asked Bacon if there was any student input on the revision, he said, “[The Student Judicial Coordinators] have a chance to give feedback [on judicial policies] throughout the year.” He could not remember, however, whether the coordinators specifically gave feedback about the judicial policy in question. It is obvious students brought this to the public’s attention. Perhaps if a student had significant input in this situation, the revised policy would never contain such broad language, and most importantly, would have never frightened students.
Second, Judicial Affairs’ interpretation of the policy and the literal interpretation of the policy are completely different. Judicial Affairs only wants to regulate students exposing themselves in the JMU community, which includes the surrounding Harrisonburg area. Bacon informed me that Judicial Affairs has no intention of regulating outside of the JMU community, much less the entire world. However, the literal interpretation of the policy originally panicked students. In my previous column, I suggested the same principle to Sunchase apartments: Write what you mean.
Finally, if this policy survives and Judicial Affairs experiences staff changes, will the new staff interpret the policy in question the same way the current staff does? What if the new staff followed the literal interpretation? Obviously, a literal enforcement of this policy would be a nightmare.
In closing, students should be wary of the obscene conduct policy, not for its definition but its interpretation. With that said, the type of judicial discretion Judicial Affairs wields is simply unethical. I encourage Judicial Affairs to immediately rewrite the policy using language that reflects their true intentions.
John Scott is a senior writing, rhetoric & technical communication major.
Contact John Scott at scott2ja@jmu.edu
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