Friday, 17 May 2019 13:04

GUEST EDITORIAL: When investigation itself is punishment for free expression

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When no crime’s been committed, there’s nothing to probe and no one to punish. So why are two North Carolina colleges wasting their time investigating protected speech?

N.C. State University administrators say they’re trying to identify the person who painted a swastika inside its Free Expression Tunnel last week, and Wake Forest University is still trying to unmask the creator of a satirical Instagram post that’s widely perceived as racist. 

In the latter case, a parody of a campaign ad for a student council candidate included a pledge to “build a wall” between Wake Forest and nearby Winston-Salem State University, a historically black institution. The unknown person who shared it on Instagram closed his or her account after the image created an uproar. 

It isn’t clear whether the post was intended to denigrate WSSU’s largely African American student body or if it was merely a clumsy joke about a neighboring school that meant to mock President Donald Trump’s planned wall on the U.S.-Mexico border. 

The reason is irrelevant, as is the meme creator’s identity. While Wake Forest is a private university and isn’t subject to the First Amendment, it guarantees its students freedom of expression and “can be contractually held to the rules it creates,” the Foundation for Individual Rights in Education notes. 

A 1972 N.C. Court of Appeals case in which Wake Forest was a defendant adds to a robust body of case law holding that private colleges have contractual relationships with their students. When they renege on their promises to respect students’ free speech, they’re in breach of contract. Schools that pay lip service to freedom and then deliver censorship have lured students under false pretenses. 

At N.C. State, the issue’s even more clear-cut. As a public university, NCSU is an arm of state government and its students retain the same First Amendment rights on campus that they enjoy in society at large. Just as police can’t arrest someone for hateful speech, public colleges can’t impose any discipline for it. 

Scrawling a swastika on public property would normally be an act of vandalism, just as painting one’s initials or a peace sign. But N.C. State’s Free Expression Tunnel is meant for such expressive displays. Its very name indicates the blissful absence of limitation or regulation. 

Why would well-paid university officials try to identify the anonymous authors of offensive messages when they can’t be disciplined? 

FIRE’s Adam Goldstein said the investigations serve as a stand-in for punishment. Educrats can reassure those who take umbrage at the protected speech that they’re taking it seriously while simultaneously discouraging other students from speaking out if their words could cause offense.

“Faced with the threat of these kinds of investigations, students must now weigh their speech against the likelihood of institutional persecution,” Goldstein writes on the FIRE website. “In many cases, they will choose to walk away rather than risk being hunted down and, at the very least, summoned to a series of meetings where they’ll be tasked with convincing administrators not to further violate their own promises of free expression.” 

While the Wake Forest meme creator may have little recourse if he or she’s unmasked and shamed, the N.C. State swastika-scribbler could sue the university and pocket taxpayer money if its investigation proves fruitful. 

“...Government inquiry alone trenches on First Amendment rights,” U.S. District Judge Lawrence Whipple of New Jersey wrote in a 1978 ruling. 

In Winston-Salem, someone made a tasteless joke that may have had racist undertones. In Raleigh, someone emblazoned a well-known hate symbol infamous for its use in Nazi Germany in a venue for street art advertised as a place where all views are welcome. While both actions offended large numbers of students and community members, neither broke the law or even violated a school rule. 

Colleges who use investigation as a form of discipline when no sanctions are warranted are sending a message: We can’t punish you for your speech, but we can still make you sweat. 

As Goldstein writes: “Does Wake Forest know that, historically, witch hunts haven’t gone well in places named Salem?”