IN HER Oct. 1 letter to the editor, "UJC's protection of free speech," University Judiciary Committee chairwoman Katie Graney attempts to defend two grave injustices perpetrated against students and faculty here at the University. First, she lists reasons why the University should continue to uphold a speech code that threatens to discipline members of the community merely for engaging in constitutionally protected expression. Second, she lays out her case for why the University is justified in keeping the public in the dark about how it has disciplined individuals under this speech code in the past. The arguments she gives in both instances fall tragically short of convincing, and there remains no excuse for the University's sustained affront to liberty in this matter.
Graney's denial that the University's Discriminatory Harassment Policy illegally restricts free speech indicates either a lack of understanding of what constitutes protected speech or a failure to acknowledge the full context of the speech code. Her defense of the policy rests largely on a clause within it that states, "This policy does not allow curtailment or censorship of constitutionally protected expression, nor does it attempt to address behaviors that do not constitute discriminatory harassment." A few lines later, however, the policy goes on to curtail and censor clearly constitutionally protected expression and it blatantly restricts behavior that, under any sane definition, certainly does not constitute harassment.
You could put a disclaimer on the first page of Hitler's "Mein Kampf" stating that "this book does not contain any anti-Semitism," but that wouldn't change the contents that follow. Neither does the University's speech code pass constitutional muster merely by saying, "this code passes constitutional muster."
After making the vague and overbroad statement that students and faculty members can be severely punished for saying or writing something that "unreasonably interferes with [a] person's work or academic performance," the policy gives examples of speech that might constitute "unreasonable interference." It bans "telling persons they are too old to understand new technology," "ridiculing a person's religious beliefs" and "persisting in requests for dates after being told they are unwelcome," to name a few clearly constitutionally protected examples. The Web site of the Office of Equal Opportunity Programs, the progenitor of the policy in question, lists more prohibited activities under the heading, "Examples of problematic behavior." These include "jokes of a sexual nature," "gestures of a sexual nature" and "sexually suggestive e-mail."
Graney misguidedly defends the censorship of the above speech by claiming, "There is a point... at which your right to express yourself however you may please comes up against my right to be free from harassment or intimidation that deprives me of my reasonable right to work, learn and live in our community." Clearly, there is a bit of a conceptual schism between your humble columnist and Graney over the meaning of "harassment or intimidation." I tend not to think I'm guilty of either if I tell you that you're too old to understand new technology. I happen to have some qualms about punishing someone for flashing a middle finger or making a dirty joke. And I tend to believe that if "ridiculing one's religious beliefs" were counted as intimidation, then 90 percent of Enlightenment literature would need to be removed from libraries, and George Carlin would have to be shot in the street.
Common law defines intimidation as a threat of physical harm against another person. Likewise, speech is considered to be harassment based on the time, place and manner in which it is expressed. Bans on "harassment" must be content neutral, in that they can't favor certain viewpoints or prohibit certain types of expression. As civil libertarians Harvey A. Silverglate and Joshua Gewolb wrote in the National Law Journal on Oct. 1 (ironically the same day Graney's letter ran in The Cavalier Daily), recent court decisions have affirmed that it is "unconstitutional to classify as 'harassment' speech that is merely offensive (but not physically threatening)." The University can't circumvent the Bill of Rights just by re-classifying protected speech as "harassment" or "intimidation."
So, although Graney is correct that my rhetorical fist should be stopped at the point where it meets her nose, we disagree greatly on exactly where that point lies. By taking her side in this debate, we wrap a weighty chain around our liberty and we clamp a shackle down upon our collective intellect, all in the name of sensitivity.
The harassment policy's vagueness, coupled with its absurd examples of prohibited speech, gives University officials a wide range of expression that they can censor while appearing to meet constitutional standards. The average student accused of a "harassment" offense knows little about constitutional law, and would most likely accept a seemingly ridiculous sanction for offending a peer rather than go through a tortuous appellate process.
Naturally, none of us would ever know how the University has applied its speech code in the past, because the University Judiciary Committee will not release even basic descriptions of past "harassment" and "intimidation" offenses and subsequent punishments. All records are kept in the shadows, away from the prying eyes of all who fight to uphold liberty. The reason, Ms. Graney? None other than the "protection of the rights of all students," of course.
There is only one decent course of action left open to University officials. They must disclose records of how they have prosecuted individuals charged with speech crimes in the past and they must revise the Discriminatory Harassment Policy to restore First Amendment rights here at the University. To tolerate anything less would be to make a mockery of both liberty and justice for all at U.Va.
(Anthony Dick is a Cavalier Daily associate editor. He can be reached at adick@cavalierdaily.com.)
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