It’s always possible that, after a protracted and probably nasty fight, campus administrators will realize that inter-student online communication is sometimes coded, sarcastic, and harsh — and thus incredibly easy to misinterpret — and that it is neither wise, nor even really possible, to police all students online. Thankfully, at this month’s Association for Student Judicial Affairs conference, one of the top conventions of campus disciplinary officials, some lecturers argued strongly against administrators hunting down student speech online. Less encouragingly, when at these same meetings people were asked how many check out their students’ online profiles, the overwhelming majority of hands went up.
A much more worrisome administrative response — one seriously discussed at a recent sports-law conference in New York City that FIRE attended — is more likely: the establishment of newly expanded university bureaucracies consisting of multiple administrators serving as campus Internet cops. Students and those who value freedom of speech should be gravely concerned.
The culture of privacy
With so many in-jokes and candid moments floating around cyberspace in infinitely reproducible digital formats, privacy is quickly succumbing to a digital onslaught of personal information run wild. How do we as a society deal with living lives more publicly than ever before? Maybe we simply have to become more sophisticated and accept that people behave badly sometimes, just as they always have; the only difference now is that we can see that misbehavior in color on our Web browsers. As the information citizens have about one another approaches the infinite, respecting privacy will increasingly be a duty incumbent upon the viewer.
Thankfully, while the cultural shift required may be monumental, a comparable legal reconfiguration is not yet necessary. Constitutional law is already extremely protective of speech, whether some college administrators choose to acknowledge this fact or not. From flag burning to cartoons implying Jerry Falwell lost his virginity in a drunken outhouse encounter with his own mother to virtual pornography and even burning crosses, the Supreme Court has been very clear that “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
The Court has long recognized that not only is it contrary to our principles to police speech, but that those in power are uniquely unqualified to judge the value of words. After all, as Justice Harlan wrote in the 1971 case of Cohen v. California, “one man’s vulgarity is another’s lyric.” First Amendment case law provides real and useful wisdom and guidance to universities considering expanding their speech codes into the virtual world: it is a bad idea to police humor, it is a terrible idea to enforce taste, and politeness, while commendable, must not be the law. Attempts to do so result in arbitrary enforcement and abuse.