University Justifications for the Chalking Ban
The University may argue that the ban is not overbroad in that it is a content-neutral moratorium that arose as a result of compelling interests. (In the context of free speech, “content neutral” limitations are limitations that apply to speech regardless of its content.) There are two ways for the students to respond: first, question whether the policy, as applied, is truly content neutral, and second, question whether the policy’s purported goals are truly sufficient to merit limitations on speech.
Regarding the latter, which will be addressed first, quotations reflecting the University’s interests come from the original Bennet email, both because Roth has not so succinctly articulated a rationale for the ban and also because it offers the firmest basis for understanding why the ban was initiated and maintained.
“The anonymity of chalking undercuts dialogue because there is no context in which to respond.”
Indeed, there are important considerations that must be addressed because of the anonymity of the speech. One need not look much further than the Anonymous Confession Board (ACB) to discern that anonymity can generate a culture of irresponsibility, where individuals are free to spew vitriolic hate with little fear of recourse. Given this reality, it could then be argued that providing a platform for speech that is eo ipso anonymous in nature opens the floodgates for undisciplined, dangerous speech to deluge the marketplace of ideas. To protect students and staff from hateful, violent, and threatening speech, then, the University is justified in limiting media for anonymous speech on campus more broadly.
In response to this argument, it is first important to look into the rationale used by the Supreme Court in its decisions protecting anonymous speech. In Talley, discussed above, the Court contended that “[a]nonymous pamphlets, leaflets, brochures, and even books have played an important role in the progress of mankind” and therefore “anonymity has sometimes been assumed for the most constructive purposes.” (See, for example, The Federalist Papers.) By accepting the argument in McIntyre that “[t]he decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible,” the Court has propounded that there exists value in withholding authorship.
Let us take as example a post from President Roth’s blog in 2007. In response to the chalking of “Michael Roth, what are you doing about global warming?”, Roth dismissed the method of chalking as “dumb” yet, in the same breath, provided a relatively satisfactory response to the question. Overt ableism aside, Roth used the chalking as an opportunity to provide students with valuable information about the University’s environmental impact; the identity of the speaker did not matter—whether the person was involved in any of the University’s environmental movements—nor did the intent of the speech—as it can be hermeneutically read to be either hostile and demanding or simply inquisitive. Additionally, the student did not need to fear recourse by the administration for inquiring into its action. All that mattered was that the words were scrawled and that they remained for him to see; the anonymous speech had positive and engaging power.
Second, it is important to note that not all anonymous speech will be protected: allowing for anonymous speech does not require an “anything goes” model of regulation. Not all speech is high-value speech that receives constitutional protection—hate speech (R.A.V. v. City of St. Paul [1992]), “fighting words” (Chaplinsky v. New Hampshire [1942]), true threats (Virginia v. Black [2003]), and obscenity (Miller v. California [1973]) would fall outside First Amendment sanctuary even when the speaker is known.
Because there is some speech that falls outside the First Amendment, it does not follow that the possibility of such unwelcome speech should bar all speech whatsoever (this is the very point of the overbreadth doctrine). Indeed, there exist three options here: (1) allow all speech, (2) allow protected and constructive speech while censoring negative and unprotected speech, or (3) allow no speech.
In his email to campus, Bennet elaborated on why he chose the third option over the second: “Our practice has been to ask administrators to distinguish between hostile messages and other messages, and then scrub away those deemed hostile. The line can be indistinct, and it is undesirable for the administration to be engaged in choosing among messages.”
However, the difficulty of a decision should not mean that the decision should be avoided, especially considering that evading that decision proscribes legally protectable speech. We do not bar all experiments in the Psychology Department because some experiments that a psychologist could perform are unethical; instead, we maintain an institutional research review board that approves some studies while denying others.
It is true that no clear line exists between “hostile” and “other” messages; but with that said, it would be clear on which side of the line most chalkings fall, with only few—perhaps pornography vs. art or microaggressions, to name a few examples—falling in the margins, where some will suggest the content come under the title of “hostile” while others do not. Call me an optimist, but I would hope that these messages that exist in the margins would generate campus-wide dialogue and discussion—for example, regarding the role of human sexuality in artwork or how messages could be understood to perpetuate oppressive microaggressions—and therefore these questionable scribblings should be viewed with less disdain and resignation.
Further, regarding such line-drawing, there is nothing to suggest that this must be per se administrative in nature. In Miller, the Court suggested that obscenity should be determined using “contemporary community standards.” Accordingly, what better way to generate a dividing line than to use the very community that must live with the speech that is communicated within its gates? Let us employ the campus—its faculty, its staff, the Wesleyan Student Assembly, and student opinion more broadly—to craft a policy that best fits its climate. I do not doubt (and let us hope the University does not either) that students are intellectually capable of understanding that such a policy must account for the possibility of children and those with more conservative constitutions coming into contact with such speech.
To be sure, I am not suggesting that one policy will eliminate the blur of the margins entirely or that we could find a way to all agree, but it will engage the campus community in a way that the ban does not, as well as provide a mechanism for students to speak in a way currently impossible under the current moratorium as it exists.
Finally, it is difficult to understand how the anonymity of speech denies an opportunity to respond. While it is true that there is much less context in which to punish, mechanisms for response are vast. For example, although the University did not find the (hopefully few) culprits of racist ACB posts last November, the posts nonetheless sparked an over three-hour Diversity University forum to discuss inclusion on campus, calling out overt instances of hate as well as the multitude of microaggressions that occur on campus in an attempt to both educate students, faculty, and staff on the difficulties still being faced by many as a result of difference and also posit future changes for the University to make in order to further the substantive goal of social justice.
Is this not a response? Is it not possible to argue that this forum provided a rare occurrence for students to air grievances and name systems of oppression that they see being perpetuated by other students, faculty, and staff, and actually know their voices were heard? The Diversity University forum epitomized a “context in which to respond” to tragic anonymous speech that exposed the cracks of oppression in our University walls, speech that laid bare pockets of racism that would have otherwise been swept under the rug so that Wesleyan could maintain the illusion of inclusivity. Although it is true that the context of the forum was drastically different than anonymous Internet comments, it provided a context nonetheless. Though chalking runs the same risk of anonymous hate as the ACB, it does not eliminate any context in which to respond, and therefore this justification appears insufficiently weak to vindicate a proscription.
Finally, the University could argue that “employee” is not a unitary identity here—that the qualifier “student” in the term “student employee” is important because it reflects the educational character of the workplace in question. Should §31-51q apply with less weight to student employees because the Court has long held that First Amendment rights of students can be limited in schools “in light of the special characteristics of the school environment”? Tinker v. Des Moines ICSD (1969). Can chalking so drastically impede intellectual standards or inclusive access to the educational enterprise that school administrators have a right to proscribe it for the sake of education?
While the educational setting is an important consideration, Tinker (and the 2007 case Morse v. Frederick that even further limited student speech) dealt only with secondary school students and also did not extend further into the living environment. Wesleyan students are required to live on campus for all four years of their education, which conflates the workplace environment with the living environment for students, making the logistics of the situation much more similar to Marsh than to Tinker. Further, if we are called “student employees,” what is our binary opposition? “Adult employees”? Are students to be so infantilized in the workplace simply because they are also consumers of education? Finally, we must also note the privileged position that the freedom of intellectual exchange should have in the academic environment of our “Little Ivy”—are we ready to tear down the marketplace of ideas simply because that marketplace sits inside University gates? It is therefore difficult to understand why Tinker or Morse would apply to adult students who live in the environment in which they also work. As a result, §31-51q should apply with equal weight to all employees.