W&M Up Against FIRE-ing Squad

This post was first published yesterday on the W&M Law American Constitution Society blog: http://web.wm.edu/so/acs/.

The nation's second-oldest college, which prides itself on having educated some of the most important Founding Fathers, has been criticized for undermining the most fundamental right in the Constitution: the freedom of expression. FIRE, the Foundation for Individual Rights in Education, has labeled William & Mary a "red-light" school, calling out the College for having one or more policies that "clearly and substantially restricts the freedom of speech of its students."

The Flat Hat reported the story Tuesday on its web site. As part of its free-speech warning system, FIRE, a 10-year-old organization, sent a letter to President (and former law school dean) Taylor Reveley. In the Flat Hat article, Reveley expressed his surprise at the school's labeling, saying that he doesn't think W&M is "stifling free speech."

William & Mary is by no means the only target of FIRE's mailing. The University of Virginia, Virginia Tech, and George Mason all received similar letters. (See the entire list here.)

It is worth noting, though, that the Flat Hat chose to highlight the free speech issue less than one year after former W&M President Gene Nichol allowed a performance, albeit a censored one, by the Sex Workers' Art Show. There is no need to rehash the whole controversy here; a section of Nichol's Wikipedia article and a search for "sex workers" on the Flat Hat's web site will suffice. Although other reasons were offered when the Board of Visitors decided to allow Nichol's contract to expire, prompting his sudden resignation last February, many cited Nichols's proclivity for bringing First Amendment issues front and center (see, e.g., the Wren Cross and the Sex Workers' Art Show). This pro-First Amendment attitude—or was it actually a gusto for front-page attention?—certainly wasn't welcomed by alumni.

Nichol aside, FIRE cites vagueness in the College's general harassment policy and Student Handbook policy on student posters, banners, and signs as reasons for the "red-light" label. The poster policy reads: "All signs, posters, and banners must conform to acceptable community standards and to any applicable laws such as permissible wording by the Alcohol Beverage Control Commission" (emphasis added). Those who have taken Professor Van Alstyne's First Amendment class can tell you that defining community standards is a bitch. For example, "Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 235 (2002). Imagine taping such a picture on the walls of an academic building at W&M, or even a residence hall. But what if a law student doing a special project on First Amendment issues wanted to use such a picture? What about an undergrad journalism student with similar motives? Can an academe be part of a different community at the same college?

Such speech codes have a downside, as at least one Virginia scholar has noted. Those who violate the codes (or allow them to be violated) may become glorified as martyrs for the Free Speech cause. "[T]here is a genuine danger that speech codes may not simply fall short of a laudable goal but in fact may even undermine that goal." Robert M. O'Neil, Free Speech in the College Community 13 (Indiana Univ. Press 1997).

So what is at stake for W&M? Do prospective students consider Free Speech issues when they weigh their choices of undergraduate institutions? It seems unlikely. At the very least, however, an institution that prides itself on educating the Founding Fathers should consider restraint when it comes to censoring free speech on campus. If there's a college community where all kinds of free expression should be welcomed, this is it.