‘Penis’ is not protected speech at UDel
Free speech advocates are challenging the University of Delaware over an incident in which campus police took issue with a free speech ball because someone had written “penis” on it.
Young Americans for Liberty (YAL), which sponsored the free speech ball last Wednesday through its UDel chapter, announced in a press release that students were approached by a uniformed officer who informed them that some of the content that had been written on the ball—including a drawing of a phallus and the word “penis”—constituted a possible violation of the school’s sexual misconduct policy, and would have to be crossed out or turned into something else.
"No, I’m not saying you should stop; I’m just saying you should monitor what people write."
“Drawing a penis, or a swastika, or the n-word on there—what is that?” the officer asks in video footage obtained by YAL. “All it does is open up … you know, hate … I think it’s just meant to provoke.”
The students protest that they were having a civil discussion with the officer about those very messages, to which he replied that other groups on campus would be less inclined toward discourse if they came across them.
“There’s some groups on campus where if they see something that they don’t like, they’re going to, you know, be upset and there’s not really going to be a discussion,” the officer explains. “It’s just gonna be they’re hurt, they’re offended, and they want something done about it.”
“So we should stop doing this because…”
“No, I’m not saying you should stop; I’m just saying you should monitor what people write,” the officer says, clarifying that under UDel policy, the police have to investigate reports of offensive messages as potential hate crimes.
“I understand where you guys are coming from … but we’ve also got to keep in the back of our mind that everything that people say may be offensive to other people,” the officer continues. “It stinks being in the middle, so I just try to be a mediator.”
While the officer was evidently uncomfortable with the policy he was tasked with enforcing, YAL was livid, calling the school out for infringing on the First Amendment rights of students.
“Here we have yet another case of students’ constitutionally guaranteed right to Free Speech being attacked,” said C.J. Sailor, YAL’s Director of Free Speech. “As the recent events at Emory University showed, there's a fundamental misunderstanding on college campuses, where even the faculty believe in freedom from speech instead of freedom of speech.”
The Foundation for Individual Rights in Education (FIRE) also got into the act, sending a letter to university President Nancy Targett and UDel Chief of Police Patrick Ogden Friday outlining the unconstitutionality of the school’s policy.
“The categories of speech that [the officer] identifies as problematic are so broad that they include any speech that a passing university community member might find subjectively distasteful or upsetting,” the letter observes, noting that “most expression communicated in a manner found disagreeable or offensive by some is fully entitled to protection under the First Amendment.”
Citing both Circuit Court and Supreme Court rulings supporting its claims, FIRE asks UDel to “publicly clarify that it will not censor words or ideas simply because someone may find them offensive,” and to ensure that law enforcement officers are trained to respect First Amendment rights, even if that means revising the policies that are currently in place.
“A campus police officer should never ask students to self-censor their constitutionally protected speech,” FIRE’s Senior Program Officer Marieke Tuthill Beck-Coon said in a statement. “As a public university, UD must abide by the First Amendment, which has very few exceptions—and subjectively offensive words or images are not one of them.”
UDel has confirmed receipt of the letter, but spokespersons for FIRE told Campus Reform that the university has yet to provide an official response.
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