Policy to ‘Deal With Behavior,’ Not Speech, Judicial Says
October 1, 2009 • By Amanda Herman,
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HARRISONBURG, Va. — Judicial Affairs said it will not review its policies until spring unless JMU members want to discuss the change, especially to the policy regarding lewd and indecent expression.
Judicial Affairs changed policy J24-100 in the Student Handbook this year to limit lewd, indecent or obscene conduct or expression in any off-campus area, no matter how close to campus an incident occurs, compared to just on campus last year.
The change was “designed to deal with behavior,” according to Director of Judicial Affairs Josh Bacon.
Though Bacon denies the policy will be broadened beyond punishing students for indecent exposure and urination in public, the policy is wide and law advisers say it technically could be used to punish student speech online.
“If what you’re trying to regulate is conduct, why regulate expression?” said Samantha Harris, director of speech code research at the Foundation for Individual Rights in Education (FIRE).
Harris first exposed the policy on her blog on FIRE’s Web site.
“The policy caught our attention because of its scope,” Harris said.
Judicial Affairs reviews its policies annually in the spring. A committee of staff, faculty and student judicial coordinators make the policies that cover the entire university. Bacon said these policies are reviewed by this group, and not by other administration at JMU.
In response to recent scrutiny of the policy, Bacon said he had contacted legal counsel who told him “don’t charge anyone with speech or online speech” which, Bacon responded, “We won’t.”
Though Bacon said he would not charge for such incidents, if he left the office, another person would have the means to adhere to the policy as it is stated.
However, Bacon said that Judicial Affairs acts as one.
“The rest of the staff knows, and the rest of the legal counsel knows, so when it happened, we would be able to look at it as a part of our review this year,” Bacon said.
Judicial Affairs neither polices nor gathers evidence on any violations under its jurisdiction, said Bacon. It accepts reports from JMU police, off campus police and other student notifications. These are taken into consideration when they decide which cases to hear.
Bacon noted that police may or may not send all reports to his office.
This selective attitude towards the violations could be a problem for Judicial Affairs in the form of due process violations.
Adam Goldstein, attorney advocate of the Student Press Law Center, said that “it is not justice” if the policy “picks and chooses who it’ll go after.”
Goldstein suggests redefining lewd and indecent in some way at the next annual review.
“As it stands right now, it’s impossible for students to understand what the term means,” Goldstein said.
Bacon, who said he has education in law, did not believe that the policy would violate any First Amendment rights.
“We felt we were not changing the policy, just that we were changing the area of enforcement,” Bacon said.
The most controversial word in the policy for Harris at FIRE is “expression” because expression can encompass protected free speech.
“It’s an interpretation of how you say expression; is it physical expression?” Bacon said. “Again, to me, it says obscene conduct, not obscene expression.”
Contact Amanda Herman at hermanac@jmu.edu
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