Chalk is Talk: Is Wesleyan’s Chalking Ban Illegal?

By Eric Stephen, Assistant Editor-in-Chief, Emeritus
Friday, March 29, 2013

Shannon Welch/Photo Editor

Wesleyan University is now just under halfway into the 11th year of a blanket moratorium on chalking on campus property. The moratorium (or perhaps we should just call it a ban since there is nothing to suggest that this is a temporary limitation), announced on Oct. 3, 2002 in a campus-wide email by then-President Douglas Bennet, was justified on the grounds that “[c]halking, as practiced, undermines our sense of community and impedes substantive dialogue.”

While both Presidents Bennet (1995-2007) and Michael Roth (2007-) have provided justifications for the ban on chalking, both arguments appear to be predicated on the notion that, because Wesleyan is a private institution, the University has no responsibility to state or federal protections of freedom of speech. As a result, student response to the ban over the course of the last decade has focused on the ethical issues surrounding a suppression of speech and not the legality of the moratorium itself.

However, state law suggests that this story is not so simple. It is time, therefore, for the dog to bark—for students to look critically at the prohibition to see whether the University is enforcing an illegal policy and, more broadly, what rights we as students have to speak within our privately owned ivory tower.

In this article, it will be argued that Wesleyan’s chalking ban is facially unenforceable because it violates Connecticut state law, specifically Connecticut General Statute §31-51q, which, in brief, protects some employee speech from infringement by an employer. The chalking ban is overbroad in that it prohibits some legally protected speech—for example, that of students who are employed by the University—and therefore is an invalid policy that should no longer be imposed until sufficient considerations are made regarding free speech rights on campus.

Federal Constitutional Protections of Free Speech
The First Amendment to the United States Constitution affirms that “Congress shall pass no law…abridging the freedom of speech.” Although the Free Speech Clause now applies to state governments under the Fourteenth Amendment, Gitlow v. New York (1925), constitutional protections in general do not ordinarily extend to infringements by private actors. DeShaney v. Winnebago County(1989). This is to say, for example, that an individual does not have the constitutional right to enter the house of another person to preach to her. Private actors, such as people or institutions that are not affiliated with the government, are able to infringe upon the speech of others without constitutional recourse.

Thus, the first question to ask when determining the legality of the chalking ban is whether the University is itself a private actor.

In Marsh v. Alabama (1946), the Supreme Court found that “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” However, in Rendell-Baker v. Kohn (1982), the Court later refused to consider a privately owned school to be a state actor, even though the school received money from the government and the school served a genuine public function. It appears, then, that there is little argument that could be made that Wesleyan University is not a private actor for the purposes of the First Amendment.

However, there are a few caveats in the jurisprudence subsequent to Marsh that require exploration. PruneYard Shopping Center v. Robins (1980), for example, suggests that, although limitations on speech by private actors may not trigger federal protection, state constitutions may confer expanded speech rights than the federal constitution requires. In this case, the Court determined that the California state constitution codified much broader protections for free speech than the federal constitution, and the more expansive state constitution should be respected in instances such as these. Similarly, Hudgens v. NLRB (1976) explains that state laws “may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others.”

Thus, if we do not dispute the claim that Wesleyan is a private actor, it appears from Marsh, Hudgens, and PruneYard that the University may still be limited on the types of speech it can infringe upon by both the Connecticut state constitution and also state law.

Shannon Welch/Photo Editor

Connecticut State Constitutional Protections on Free Speech
Following PruneYard, the state constitution may trigger broader free speech protections than the federal constitution. For the purposes of free speech, the most relevant sections of the Connecticut Constitution would include §4 “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty” and §14 “The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address, or remonstrance.” (For religious speech, §3 will also be implicated.)

According to the Connecticut Supreme Court, however, the Connecticut Constitution is not expansive enough to protect speech against infringement by private actors. In Cologne v. Westfarms Associates (1984), the state court determined that there was “no evidence [in the Connecticut Constitution] of any intention to vest in those seeking to exercise such rights as free speech and petition the privilege of doing so upon the property of others” (on page 59 suggesting that this even applies to private university property). Thus, unlike California in PruneYard (or New Jersey, Colorado, Oregon, Massachusetts, Washington, and Pennsylvania similarly), the state constitution of Connecticut does not enshrine free speech protections when dealing with private actors.

Connecticut Statutory Protections on Free Speech
However, as noted in PruneYard, “a state may adopt, in its own constitution, individual liberties more expansive than those conferred by the federal constitution and a statute is, for that purpose, in the same category as a state constitution.”  Thus, it is possible that some refuge can be found in state law for questioning the legality of the chalking ban.

Although there is no statute that protects all individuals from having their speech restrained by private actors, there appears to be some limitations that exist specifically to protect the speech of employees. Connecticut General Statute §31-51q holds that “Any employer…who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4, or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and employer, shall be liable to such employee for damages caused by such discipline or discharge…”

Simply put, employees are afforded legal protections against discipline or discharge from their employers for speech if (1) that speech is otherwise constitutionally protected, and (2) that speech does not substantially interfere with job performance or a working relationship. This understanding, albeit somewhat more limited, was affirmed by the Connecticut Supreme Court in Cotto v. United Technologies (1999): “We conclude that §31-51q applies to some activities and speech that occur at the workplace because…there is no prohibition that prevents a legislature from protecting employee speech wherever it occurs.”

However, Cotto did provide some further qualifications. According to Cotto, §31-51q parallels federal statute 42 U.S.C.§1983, and thus Supreme Court interpretations of that law should inform state law as well.

According to the Supreme Court in Waters v. Churchill  (1994), in order to be protected by Section 1983, “the speech must be on a matter of public concern, and the employee’s interest in expressing himself on this matter must not be outweighed by any injury the speech could cause” to employee relationships. Similarly, in Connick v. Myers (1983), the Court found that “conduct at a governmental employer’s workplace is not constitutionally protected unless the expressive activity concerns a matter of public, social, or other concern to the country.” Finally, although not mentioned in Cotto because it was not at issue in the facts of the case, Section 1983 can also protect religious speech, including religious speech that does not abut national concerns. Rosenberger v. University of Virginia (1995).

Following the Court in Cotto, it therefore appears that any employee, including student employees, can invoke §31-51q for employer discipline as a result of their speech if  (1) the speech is otherwise constitutionally protected, (2) the speech does not substantially interfere with job performance or the working relationship, and (3) the speech is either religious or of pressing national concern.

To be sure, there exist some forms of speech that can meet all three above requirements. As a result, the University cannot, without second thought to civil liberties, ban any and all speech that it dislikes. In the state of Connecticut, some speech cannot be infringed upon, even by private employers.

For chalking to be protected by §31-51q, we must first argue that chalking is constitutionally protected speech. From there, it would likely be most useful to next argue that the moratorium is facially invalid because of overbreadth—it does not allow for speech that withstands prongs two and three above to survive on University campus despite legal protection.

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  • Jacon Mayer '10

    Nice article Eric.

    Unfortunately, what you don't address is the contract Wesleyan forces students to sign: the Code of Non-Academic Conduct. The code is riddled with broad language that essentially grants the University the power to do whatever it wants, and students are then contractually bound to let them. There are any number of clauses in the CNAC that would be illegal as policies, but as a contract are perfectly legal. Since you clearly enjoy legal research, I'd love to see an article that expounds on those flaws in the CNAC. In my mind this is but one example of how the University abuses its position of power to infringe on students' rights as citizens of the United States, residents of CT, and (this is more rare, I'll grant) as human beings.

  • Melody Moezzi

    Thanks for this. I'm an alum (2001), and the reason I chose Wesleyan (my "safety") after getting accepted to other, more well-known universities was because the day I stepped on campus for a visit, I saw a chalking that read, "Keep your laws off my cunt." At that moment, I knew Wes was for me, and I was right. It had nothing to do with the shock factor or even the political position of the chalking. It was because of the mere fact that this was a place where you could speak your mind freely, where people knew how to use language as a weapon and weren't afraid to do it. I'm sad to hear that y'all don't have the same freedoms we did, but I'm happy to see that we still have sharp minds willing to fight for what's right. Bravo Eric!

  • Lee Jacobson '05

    I was a student at the time this occurred. I was told by the student body president at the time that the Aramark cafeteria workers were threatening to sue the school for sexual harassment in the workplace based on sexual and extremely graphic chalkings throughout campus. One chalking that sticks was written outside Foss 10 (next to admissions) on revisit weekend, "I'm going to fuck your son in the ass then make him suck my dick and taste his ass on my dick." I can assure you, that while most chalkings were tamer, that one was by no means uniquely sexual. President Bennett gracefully decided to take the flack for the chalking moratorium by himself, and not expose the campus workers to the abuse that they would undoubtedly have received from the student body. The student body was unresponsive to several pleas to reduce the graphic sexual content in the chalk messages and the moratorium was a result. Certainly an entire group of employees feeling sexually harassed is of "public concern?"

  • Eric Stephen

    Hi Jacon,

    Thank you for your comment !

    I think you raise a good point, and admittedly I don't know much about contract law. I think I would need to look more into the language and logic of CNAC when students pledge to it before I say anything concrete. However, here are some thoughts:

    First I would want to question whether this could really be considered an "employment contract". I do not dispute that employment contracts can limit the First Amendment rights of employees, but I am wondering if CNAC has anything built in that's actually about employment (vs. student life). Many students come to Wes and get campus jobs, many students don't. And many people who work for the University are not students under CNAC. To say that a pledge everyone takes when coming to Wesleyan, even those who never intend to or never do get a campus job, is an employment contract seems illogical. It seems like the contract would be presented when you actually apply for a campus job (maybe when you fill out your W-4 ??). To me, it seems like what your referring to would be much closer to the community contract my grandparents signed when the moved into a retirement community than an actual employment contract, and so it may be difficult for the University to argue it should be read so expansively.

    But assuming my sophomoric understanding of contracts is wrong and what your referring to actually can be seen as an employment contract -- from what I understand, state employment statutes can still provide relief. State employment statutes wouldn't have any teeth if any employer can just say "in order to get this job you have to sign this contract that accepts that we are above the law, including laws that explicitly protect you as an employee from me". I believe that any employment contract must be made with current employment statutes in mind, including sec. 31-51q above.

    But I think what you're getting at is the broader question of what happens when someone wears the hat of student (no speech rights) and also the hat of employee (some speech rights) when the two are in tension. I would argue that the University should not think it can disregard student employee rights just because it also plays landlord and educator on top of employer, which I touch on a little bit in the Argus article.

    These are just my first thoughts, and this is definitely something I will look into, so thank you for bringing it up. Maybe others reading this will know more than me here too? I hope my first thoughts may be useful though in the meantime.

  • Eric Stephen

    Hi Lee,

    Thank you for your comment.

    In the article on page 4 I take up the possibility of "sexual harrastment hostile environment" at length, concluding that " so long as the University polices chalking in the same way that it polices its bulletin boards, hallways, and banners, there is nothing to suggest that chalking would itself violate Title VII and thus create workplace harassment." What may also be helpful is paragraphs 4 - 10 on page 3. I would argue that dozens of lower court cases would suggest that the quote you gave above would be considered obscenity under Miller, and hence not protected. The University has a legal responsibility to respond to such unprotected statements or drawings that foster SHHE, but the doctrine of overbreadth suggests that it cannot proscribe protectable speech in the process of doing this (Page 2). This is what is at issue. I am not suggesting some sort of free speech absolutism where students can write threats, libel, hate speech, etc. without any problem -- only that the ban as it exists is questionably overbroad because less restrictive means can be used to further the same ends.

  • wesalum '78

    It seems that what most fail to appreciate is that this is not a speech issue, but a property rights issue. Each of the surfaces that were routinely used for chalking are private property. The trustees of the University who hold this property in public trust and the employees whom they designate to execute the public trust have broad latitude as to how they choose to use property in furthering the mission. At no time in the past ten years, have I seen the administration or Trustees attempt to restrict the speech of the students. Any restriction have always been with respect to the use of University property. Surely, Wesleyan students remain creative enough to share their message in a way that reaches the intended audience and is constitutionally protected.
    Finally, the University has never outlawed chalking. They have just communicated the consequences for defacing University property. Free choice remains as to whether the message is worth the consequences.

  • wesalum '78

    It seems that what most fail to appreciate is that this is not a speech issue, but a property rights issue. Each of the surfaces that were routinely used for chalking are private property. The trustees of the University who hold this property in public trust and the employees whom they designate to execute the public trust have broad latitude as to how they choose to use property in furthering the mission. At no time in the past ten years, have I seen the administration or Trustees attempt to restrict the speech of the students. Any restriction have always been with respect to the use of University property. Surely, Wesleyan students remain creative enough to share their message in a way that reaches the intended audience and is constitutionally protected.
    Finally, the University has never outlawed chalking. They have just communicated the consequences for defacing University property. Free choice remains as to whether the message is worth the consequences.

  • http://www.facebook.com/people/Lauren-Steiner/1138104490 Lauren Steiner

    My "safety?" What a way to both brag and knock your fellow classmates at the same time. By no means is Wesleyan considered a safety school, and to say so insults the achievement of those who got in who considered Wesleyan a reach.

  • http://www.facebook.com/people/Lauren-Steiner/1138104490 Lauren Steiner

    This is interesting. It reminds me of a local incident here in LA. I was very involved with Occupy LA, and we had a big brouhaha over chalking. People were cited for chalking on public sidewalks even though it is considered protected speech. Mayor Villaraigosa and the Chief of Police had a press conference in which they said that they had passed a city wide ordinance against it, which even the local reporters had to question the legality of. Occupy media people did some research and a video of the same mayor telling the Livestrong people they could chalk their message throughout the city, and even closed down public streets for the event. The video we made of that contrast was striking. They accepted and even encouraged chalking when it was corporate speech. Then Occupy went to the monthly downtown art walk with chalk and fliers about what happened to Occupiers. And regular art walk goers, many of whom were parents with children, became incensed and starting chalking messages on the sidewalk. Police were called, and arrests were made. Occupy activists left for another event. People came out of bars and restaurants and saw half the LAPD in riot gear blocking an entire street. Someone threw a rock. And a melee ensued. Of course Occupy was blamed for it even though they weren't even there at the time.