Prong 1: Chalking as Constitutionally Protected, Anonymous Speech
To maintain the chalking ban, the University may suggest that chalking is not protected speech, and therefore the administration is not violating §31-51q by proscribing its use.

To counter, it is first important to note that the First Amendment does not simply protect utterances but also expressive conduct that is “sufficiently imbued with elements of communication.” Spence v. Washington (1974). Thus, the First Amendment “affords protection to symbolic or expressive conduct as well as to actual speech.” Virginia v. Black (2003).

In Mahoney v. Doe (2011), the District of Columbia Court of Appeals found that the “creation of words or images through chalk is an expressive act” without much deliberation (both parties agreed that chalk amounted to speech). A similar result was found by a district court in Occupy Minneapolis v. County of Hennepin (2011), where limitations on chalking needed to “serve[ ] a substantial government interest,” a requirement that would not be triggered if chalking did not amount to speech.

To be sure, it seems difficult to argue that chalking is not speech. Pamphlets, handbills, and protest signs are all protected by the First Amendment. There is even evidence to suggest that skywriting is constitutionally protectable. Lorrilard Tobacco Co. v. Reilly (2001). Although the media differ, all options afford individuals the ability to communicate through artistic displays and the written word.

Is it possible, however, that chalking loses constitutional sanctuary because it is anonymous in nature? The answer appears to be no: in Talley v. California (1960), for example, the Court struck down a law that required contact information to be placed on handbills as a violation of the First Amendment. Anonymous (and even spontaneous) religious speech has also been constitutionally protected as a specific speech category. Watchtower Society v. Village of Stratton (2002).

In McIntyre v. Ohio Elections Commission (1995), the Court explained its understanding of anonymous speech, asserting that “the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure…Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” Although the Court was explicitly referencing literary publications here, its statement that “the freedom to publish anonymously extends beyond the literary realm” suggests that anonymity in the myriad other forms of communication should similarly receive constitutional protection.

However, if, under §31-51q, speech is a right that attaches to employment, then it attaches to an element of identity—“employee”—that is hidden by the anonymity of chalking. How can the University determine whether the chalker is a University employee or not? If the speaker is per se unidentifiable, could it be that §31-51q does not at all apply?

To respond, it is important to first note that the University, like the government, is in no way obligated to bolster constitutionally protected speech. In City Council of L.A. v. Taxpayers for Vincent  (1984), the Court notes that “the mere fact that government property can be used as a vehicle for communication does not mean that the Constitution requires such uses to be permitted.” Just because I wish to shout my beliefs from the rooftops does not mean that the government is required to provide me a megaphone or a broadcast or a sidewalk in which to play town crier. Cf. Miami Herald v. Tornillo (1974).

Let us suppose that a student employed by the University chalked “Remember to register to vote!” and a student not employed by the University chalked “End the Drug War!”, both statements of national concern. The University is under no obligation to leave the former to weather the elements simply because the speaker is employed by the University. Both can be erased at the University’s discretion. However, if both of these dastardly malefactors were caught on site and disciplined, §31-51q would be triggered for the former even though the speech was intended to be anonymous. The distinction here is that it is the discipline that is invalid, not the erasure of the speech.

Yet a rule without punishment for its violation lacks any teeth to be enforced. To reduce the chalking moratorium to a mere suggestion for student employees but have it remain a persecution for those not employed by the University is to create an arbitrary dividing line for who can speak, and many of the University’s substantive goals in creating the ban would fall to the wayside once even one person is given rein to chalk.

Thus, there is little doubt that chalking is constitutionally protected speech and therefore may receive §31-51q protection even despite its anonymity. Next we must turn to the actual content of the chalking to ascertain whether institutional discipline for speech is consistent with state law.

Prongs 2 and 3: A Chalking Ban as Overbroad
Under the current policy, students caught chalking would be brought before the Student Judicial Board (SJB) for violation of §15 of Wesleyan’s Code of Non-Academic Conduct (CNAC), “Department Regulations.” According to a Wesleying guest post, those found responsible under §15 for chalking will be fined something in the ballpark of $50 for restitution.

However, if it is true that chalking is protected speech, then §31-51q can safeguard chalkers from the discipline of a fine if their scrawling also withstands prongs 2 and 3 discussed above. However, under §15 of CNAC, the policy is a blanket ban—regardless of the content, regardless of the speaker, regardless of the time, place, and manner of the chalking, the content will always be subject to pecuniary discipline by the very fact that it is chalking. Yet, according to Cotto, “it is the combination…of where the speech occurred at the workplace and its particular content that determines if the speech is protected by [§31-51q]…Identifying the difference [between protected and unprotected speech] requires a case-by-case analysis.”

Looking at Cotto’s discussion of Girgenti v. Cali-Con, Inc. (1988) and Pickering v. Board of Education (1968), it appears that a strong argument can be made for a facial challenge on overbreadth grounds. In the context of free speech, overbreadth occurs when protected speech is banned in the process of attempting to proscribe unprotected speech. To invalidate a law on its face, “the overbreadth of the statute must not only be real but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma (1973).

The Court has routinely held that protected speech cannot be sacrificed at the altar so that unprotected speech does not pervade society. Reno v. ACLU (1997). And yet this is what the University attempts to do with its moratorium; chalking that withstands all three above prongs—based on case analysis—should not simply be suppressed for fear that the next instance of chalking could fail to do so. As a result, the moratorium is overbroad, and overbreadth would not withstand judicial scrutiny.

A final note here regards standing. According to the Supreme Court in Taxpayers for Vincent, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” Thus, any student who is fined for chalking may have standing to question the validity of the fine on the grounds that it could be—and perhaps was (if anyone were to come forward)—applied to speech protectable under §31-51q. Even the hypothetical unemployed student who chalked “End the Drug War!” has some standing to question the policy because the suppression of protected speech is of concern to everyone in a democratic society.

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