Monday, April 18, 2005

A New Spin on Free Speech

College Counsel Robert Donin defends Dartmouth's speech codes in today's Daily Dartmouth. In his article, he cites a recent comment by President James Wright (emphasis added):
"The Dean derecognized the fraternity because of the repeated publication of a newsletter that cruelly demeaned specific women on campus. This incident was about behavior, not speech -- the organization published articles describing the supposed sexual exploits of two undergraduate women who were identified by name."
In other words, students are allowed to think satirical thoughts about their friends, but they can be punished for writing these thoughts down.

Donin continues, writing that the vanished letters from President Wright and Dean of the College James Larimore, which appeared to set out a speech code, did not, in fact, set out a speech code:
Removed from the context of the Zeta Psi case, these comments might imply a broader regulation of expression. But the letters were prompted by, and addressed to, the specific case at hand. (Both letters were commenting on the decision already reached by Dean Martin Redman concerning Zeta Psi, rather than setting forth policies that led to that decision.) The assertion that the letters constituted official "policies" subjecting students to penalties for discriminatory or unpopular speech per se is incorrect.
Donin is right. There is no speech code per se. That is why, absent any formal policy regulating or permitting free expression, we can look only to the views of the administration.

If the administration is committed to free speech, why did President Wright say in his letter that "speech has consequences for which we must account" and that he does not believe free speech is more important than the "rights, feelings, and considerations of others?" (In fact, that portion of the letter was not about Zeta Psi, as Donin suggests, but about the Indian symbol.) Why did Dean Larimore say that "the rules and standards of our community" are more important than the right to "expressive conduct?" Why did he write that unregulated free expression would be "corrosive of the very idea of a residential college?"

Donin says these letters represent the views of President Wright and Dean Larimore alone and do not reflect policy. But, since Dartmouth students lack any formal commitment to free speech and since the administration routinely cracks down on "inappropriate" speech, it is unclear why the opinions of the College's top administrators and policy makers would be irrelevant.

The College applies this same rationale during its repeated attempts to censor The Dartmouth Review: students are free to hold whatever beliefs they like, but the College may place restriction on their dissemination.

8 comments:

notyetalawyer said...

Your reading of Donin's letter is ridiculous. He makes a fair point about the nature of free speech and expressive conduct and doesn't lean heavily on the speech/action distinction of which you accuse him.

As he says in his op-ed, "the First Amendment does not protect defamation, invasion of privacy, copyright infringement, threats or harassment." In other words, these types of things aren't part of "free speech." Do you disagree? If not, and if you think that the Zetemouth was closer to this type of "speech" than to advocacy of a particular viewpoint, you should concede the point. Otherwise, you should explain why.

Your other point about the administration's questionable commitment to free speech is well taken though. Dartmouth apparently doesn't have an official stance one way or another and can only be judged by the sum of its actions and public statements. FIRE and others have done a good job of documenting what this is, and Donin's statement that Dinesh D'Souza has been allowed to speak on campus is unsatisfying.

Strangely, Fartlog doesn't seem to be loading today...

Emmett said...

As he says in his op-ed, "the First Amendment does not protect defamation, invasion of privacy, copyright infringement, threats or harassment." In other words, these types of things aren't part of "free speech."

Sigh -- a little learning is a dangerous thing....

In other words, these types of things aren't part of "free speech."

Notyetalawyer, your suggestion here is what is usually called "completely untrue." Each of these offenses almost necessarily has a speech component. Indeed, they are not even the strongest claims that could be made (a claim for intentional infliction of emotional distress, though weak, would at least be stronger.) However, just because they remain punishable offenses does not mean they do not fall under the color of the First Amendment. Indeed, these offenses -- most of which have their origins in English common law -- are limited by the First Amendment. See, e.g., New York Times v. Sullivan, 376 U.S. 254 (1964).

if you think that the Zetemouth was closer to this type of "speech" than to advocacy of a particular viewpoint, you should concede the point.

I would like to hear an explanation of how the following offenses you listed in any way describe the situation we faced with the Zetemouth:

Defamation. What kind of defamation? Do you mean libel? What statements were untrue? Among those statements that were untrue, what statements are not parodic? What do you say to the fact that the only reason we all know about this is because the supposed "victim" decided to tell everyone, to go on national television, etc. etc.?

Invasion of Privacy. Don't see how this is relevant here. The newspaper was a private, in-house affair; they were destroyed after every meeting. In fact, the girl found a copy in a dumpster. It's hard to see what might constitute invasion of privacy here.

Copyright Infringement. What? What copyright? What infringement? For a parody?

Threats. What threat?

Harassment. What harassment? What kind of harassment? Common law harassment? Sexual harassment? Hostile environment?

Before you answer, I'll just warn you that, while the law does reward creative advocacy, it will usually not tolerate absurdly "creative" arguments. Be sure you're not stretching the meanings of these terms (especially "threat" and "harassment") beyond credulity. (It should be apparent that I believe you've done this already.)

d said...

Talk about stretching the meanings of terms... What relevance is Times v. Sullivan when the Zete students were not writing about a public figure? The First Amendment does not protect an individual who publishes the false statement that a particular private person has syphilus. That's obviously libelous, even if it goes no farther than the meeting room, which easily covers the requirements of "publishing." And even if Zetemouth were a newspaper (talk about creative lawyering...) and the person defamed were a public figure, its writers might have been malicious enough that their work would trump the First Amendment even under Sullivan.

The argument about invasion of privacy being irrelevant because the statement was made only in "a private, in-house affair" is absurdly creative. Does your privacy become more or less invaded depending on the size of the group that hears that you have syphilis, or even depending on how late or if ever you learn that your privacy has been invaded?

Anyway, the torts of breach or invasion of privacy, wrongful disclosure of confidential information, or breach of confidentiality could trump free speech -- even if (or sometimes because) the statement revealing the private information were true but given in confidence. These could be uncreative common-law claims in New Hampshire.

Emmett wrote "Notyetalawyer, your suggestion here [that "In other words, these types of things aren't part of 'free speech'] is what is usually called 'completely untrue.'" Now Emmett's the one speaking untruths. The original statement might be imprecise, but it's not untrue. "Chilling" and prior restraint, for example, are elements of free speech doctrine, while invasion of privacy or copyright fall into different areas of law -- each of which may, in some cases, touch upon free speech but neither of which depends on free speech for its independent existence.

Copyright infringement is merely an example of an area where free speech is of very small concern -- I don't think anyone claimed that Zete was punishable because its publication infringed on the copyright of the Dartmouth, which, as you point out (unnecessarily) might be protected on that ground as a parody. The syphilis information is irrelevant to the parody and would not be protected that way, of course.

Anonymous said...

The throwaway statement "The College applies this same rationale during its repeated attempts to censor The Dartmouth Review" at the end of the post catches one's attention. How exactly could Dartmouth censor anyone in the libertarian sense of the term, meaning government deletion of offensive material? Could any private organization censor a person even if it wanted to, as long as he is still free to publish his Review all he likes after being asked to leave? (And has this even happened?) Exactly which common-law cause of action would this be? Did your parents censor you when they told you to be quiet at the table? Does the Review now feel "oppression" and its members suffer "anxiety" about publishing their "personal narratives" relating to their "victimization"? Stay strong, survivors!

Emmett said...

What relevance is Times v. Sullivan when the Zete students were not writing about a public figure?

The relevance is precisely as I said when I brought it up: offenses, even well-established ones, that contain a speech component are nevertheless bound by the First Amendment. I did not say that it was relevant beyond this.

Your observations about false statements regarding private individuals are correct and well taken, but you neglect to mention the effect when it is parodic in nature. Parody enjoys constitutional protection. The Zetemouth was quite clearly parody; each one of the (few) Zete brothers who saw it understood it as such. To conclude otherwise would mean that obvious inside jokes among a small group of friends about their friends and acquaintances can constitute defamation -- when the participants expressly intended to keep the joke secret, and its public dissemination is due entirely to the supposed "victim"! Surely, free speech rights are more expansive when they are targeted to public individuals; but we must be careful to ensure that they remain vigorous and strong when they are "targeted" (really, "about") private individuals too.

Emmett wrote "Notyetalawyer, your suggestion here [that "In other words, these types of things aren't part of 'free speech'] is what is usually called 'completely untrue.'" Now Emmett's the one speaking untruths. The original statement might be imprecise, but it's not untrue.

You're criticism is entirely semantic. Notyetalawyer said that these offenses are not a "part of free speech" -- that "the First Amendment does not protect" those offenses -- in order to question the First Amendment's relevance. You yourself concede that it is "imprecise," and of course I agree -- it is so imprecise that it is not a correct statement. The First Amendment is certainly relevant to those offenses, to the extent that they operate at the limits of its protection.

Free speech is defined not only by what it is, but by what it isn't. No professor could discuss free speech rights without discussing those offenses; in this sense alone, they are "part of free speech."

The argument about invasion of privacy being irrelevant because the statement was made only in "a private, in-house affair" is absurdly creative.

We never covered invasion of privacy in my torts class, so I don't know the precise definition of "invasion of privacy" (or "wrongful disclosure of confidential information"). But I have to imagine that it means an unwarranted intrusion of some kind. When someone, as a joke, makes up a fake story about someone, what has been invaded? Assuming a breach of privacy, when the public dissemination of this fake story is due entirely to the activities of the supposed victim, why is that the jokers are responsible?

As for "wrongful disclosure of confidential information" -- what was the "information"? It was made-up jokes. You say that it was given "in confidence," but in fact there was no relevant communication between Melissa Heaton and the Zete brothers. What was the "disclosure"? It is presumably not publication, and -- as I said -- the person who disclosed it to the public was the supposed victim herself. And finally, can it be said that a private group of friends making up jokes about someone else is "wrongful"? There is no transgression, no intrusion on Melissa Heaton's interests -- what's wrongful about that?

I'm happy to hear informed arguments regarding what is required for invasion of privacy, but I'm extremely skeptical that this case even comes close to it.

The syphilis information is irrelevant to the parody and would not be protected that way, of course.

Again, I would distinguish this by pointing out that the charge must not only be believable, it must actually be believed. (I remember one old-timey case about a guy who was emotionally shattered by a story that he was having an affair -- a story that, given the guy's well-known character, was obviously false. Because no one believed it, he lost his claim.) None of the brothers hearing the claim in their weekly joke newspapers would have come anywhere close to believing it.

As an aside, remember the definition of a defamatory statement: one that "tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him."

I'll check back occasionally, but I won't be able to engage in a full-fledged discussion on this, I'm afraid -- I have finals next week! (Not torts -- that was last term.)

notyetalawyer said...

If it's still interesting, I'll check back after finals. I don't have the time to respond fully, but I'll just say that my initial points were made in broad strokes, which I should have known just invites people who disagree to put whatever spin they want on it. A few basic points, though. (and apologies in advance for rambling. I have to get back to teaching myself about class actions)

"Free speech" is a normative concept. You can't point to every suppression of something that looks like speech and say that it violates "freedom of speech." You need an explanation of what "free speech" refers to. Even Bork says that implementation of the phrase "freedom of speech" is not self-evident from the text, and it requires some gloss to say that expressive conduct that isn't "speech" per se is still protected as "free speech."

The way the Supreme Court has interpreted the phrase "freedom of speech" in the First Amendment to constrain the government is complicated and it is not enough to say that anything that looks like "speech" needs to be protected if an organization is to be said to support "free speech."

For example, the Supreme Court has had a lively debate over the years about whether nude dancing (Barnes v. Glen Theater, 1991), corporate campaign contributions (Austin v. Mich. Chamber of Commerce), participation in parades (Hurley v. Irish-American GLB Group of Boston, 1995), covering up the 'live free or die' motto on a NH license plate (Wooley v. Maynard, 1977), and a bunch of other things fall under the phrase "free speech."


The 2 major theories out there is that "free speech" protects things that contribute to the "marketplace of ideas," and that it protects an essential individual liberty.

Under the marketplace theory, the point is public debate. So, the source of the speech doesn't matter (organizational speech is just as protected as individual speech), obscenity is not protected because it doesn't add anything to the marketplace. The Zetemouth would not be protected under this theory because "Melissa Heaton is promiscuous" doesn't add to the marketplace of ideas.

Under the personal liberty/autonomy theory, individual speech is protected while corporate/organizational speech can be regulated more, obscenity is more likely to be protected simply because people should be free to enjoy it, etc. The Zetemouth would probably be protected in some sense as an exercise of the writers' personal liberty... but if it's viewed as organizational speech by the fraternity they can be punished.

But, if you say that free speech should be protected as a personal liberty, there's at least an argument that the Zetes' personal liberty infringes on the personal liberty of other students not to be slandered. It's an interesting question, but sanctioning a fraternity for not shredding a raunchy pamphlet into unrecognizable pieces isn't wholly incompatible with the idea of supporting free speech.


And then there's the whole can of worms about viewpoint discrimination....


I imagine that FIRE clings to Justice Black's absolutist theory of the First Amendment whereunder once something is defined as "speech," it's protected unconditionally. But, just as bleeding heart liberals who don't like certain outcomes must come to terms with the fact that Justice Brennan has been dead since 1997, so too must First Amendment libertarians come to terms with the fact that Justice Black died in 1971.


The basic point of all of this is just that saying that the Zetemouth is "speech" doesn't mean that the College can't sanction its authors without giving up any claims to supporting "free speech." I do not claim that its content reasonably fits the definition of any torts (it's probably not libel) or crimes, but I don't think that eviscerates the basic point. I have a huge amount of respect for the Review and for FIRE, and I think there's a solid argument out there that Donin is wrong. I just think it would help "the cause" more if someone would engage with his points instead of distorting what he said and insisting that the College is automatically the thought police every time it punishes someone for expressive conduct.

Emmett said...

You are correct; Dartmouth could limit all these things, and more. But there would be two problems.

The first is that Dartmouth presents itself as a liberal arts college. Its brochures all give the impression of Dartmouth as a place where the right of free expression is sacrosanct. When colleges present a certain image and then expressly contradict that image in the unfair application of unfair rules and procedures, they may even incur liability under contract theory; they certainly incur charges of bait-and-switch.

The second reason is, I think, more fundamental. Dartmouth shouldn't respect free speech merely because it promises it; Dartmouth, as a small New England liberal arts college, should want to respect it. After all, why shouldn't a liberal arts colleges, of all places, not want to offer its students more freedoms than they have as citizens? An expansive and tolerant -- even indulgent -- conception of free speech is at the heart of the liberal arts mission. It breeds the modesty needed to have true respect for the rights of others, and acknowledges the need for maturity among those who would sustain a free society.

Occasionally, boors take advantage of these freedoms and produce speech that is worthless. It happens in Hollywood and it happens at Dartmouth. But I recognize that they are independent people, and that they are free to find value in the speech that I find valueless. A liberal arts college should promote this type of respect for rights; it should also promote those who denounce worthless speech when they encounter it. I think Dartmouth does fairly well in this regard, but because there is no attitude of generosity when it comes to free speech, the critics turn into censors.

said...

runescape money runescape gold runescape money buy runescape gold buy runescape money runescape money runescape gold wow power leveling wow powerleveling Warcraft Power Leveling Warcraft PowerLeveling buy runescape gold buy runescape money runescape itemsrunescape accounts runescape gp dofus kamas buy dofus kamas Guild Wars Gold buy Guild Wars Gold lotro gold buy lotro gold lotro gold buy lotro gold lotro gold buy lotro gold runescape money runescape power leveling runescape money runescape gold dofus kamas cheap runescape money cheap runescape gold Hellgate Palladium Hellgate London Palladium Hellgate money Tabula Rasa gold tabula rasa money Tabula Rasa Credit Tabula Rasa Credits Hellgate gold Hellgate London gold wow power leveling wow powerleveling Warcraft PowerLeveling Warcraft Power Leveling World of Warcraft PowerLeveling World of Warcraft Power Leveling runescape power leveling runescape powerleveling eve isk eve online isk eve isk eve online isk tibia gold Fiesta Silver Fiesta Gold
Age of Conan Gold
buy Age of Conan Gold
aoc gold

呼吸机
无创呼吸机
家用呼吸机
呼吸机
家用呼吸机
美国呼吸机
篮球培训
篮球培训班
篮球夏令营
china tour
beijing tour
beijing travel
china tour
tibet tour
tibet travel
computer monitoring software
employee monitoring