Free Speech on Campus
Law 620
Spring 2024
BE CAREFUL WHAT YOU POST
Case Study #1 (Harvard)
Harvard invites admitted undergraduates to join an official Facebook group, which is moderated. The site warns students that "Harvard College reserves the right to withdraw an offer of admission under various conditions including if an admitted student engages in behavior that brings into question his or her honesty, maturity, or moral character.''
From the site, students can form their own chat groups. According to Harvard’s newspaper, The Harvard Crimson, members of one group sent each other “memes and other images mocking sexual assault, the Holocaust, and the deaths of children... Some of the messages joked that abusing children was sexually arousing, while others had punchlines directed at specific ethnic or racial groups.”
Sometime in mid-April members of the group received an email from the Admissions Office:
The Admissions Committee was disappointed to learn that several students in a private group chat for the Class of 2021 were sending messages that contained offensive messages and graphics. As we understand you were among the members contributing such material to this chat, we are asking that you submit a statement by tomorrow at noon to explain your contributions and actions for discussion with the Admissions Committee.
Soon thereafter, Harvard College revoked admissions offers to at least ten members of the group.
Some members of the community supported the university's decision. "I do not know how those offensive images could be defended," one student said. But some professors condemned it. Alan Dershowitz, an emeritus professor at Harvard Law School, expressed the view that "Harvard is intruding too deeply into the private lives of students.''
Harvard declined to respond to various inquiries writing that "We do not comment publicly on the admissions status of individual applicants.''
Case-Study #2 (NYU)
On October 10, 2023—three days after Hamas launched an attack on Israel—NYU’s SBA president, Ryna Workman, published a message in the organization’s weekly newsletter email. In it Mx. Workman, expressed their “unwavering and absolute solidarity with the Palestinians in their resistance against oppression,” as well as the view that “Israel bears full responsibility for this tremendous loss of life.” (A screenshot of the message is here.)
By the evening of October 10:
Winston & Strawn rescinded Workman’s offer of employment because their “comments profoundly conflict with Winston & Strawn’s values as a firm.”
NYU’s SBA voted to initiate Workman’s removal as SBA president. In its message, the SBA wrote “multiple students have received significant targeted harassment and death threats…We urge NYU Law’s administration to do more to protect students’ privacy and safety in the face of targeted harassment.”
NYU’s law school dean issued a statement repudiating Workman’s message.
The Foundation for Individual Rights and Expression (FIRE), in contrast, defended Workman in a letter to NYU (written out of concern that NYU might be investigating Workman):
Workman’s reported statements… are the very sort of passionate, core political speech one might expect on a college campus. They are wholly protected even if other students found them offensive or even hateful…. Law students, especially, must be free to debate the legal issues of the day without fearing institutional reprisal for engaging in protected speech.
Readings
All material linked in the case studies
Erwin Chemerinsky, "Punishing Speech is Wrong," Daily News, June 21, 2017
Josh Moody, "Why Colleges Look at Students' Social Media," U.S. News, August 22, 2019
Benjamin Herold, “10 Social Media Controversies That Landed Students in Trouble This School Year,” Education Week, July 6, 2017.
Optional: Listen to (or read) this NPR podcast about the personal consequences of the Harvard meme scandal for one student from Pennsylvania.
Class Presentations
Harvard/Winston & Strawn are private entities but what if they were public? Would rescinding admissions/employment offers based on "behavior that brings into question his or her honesty, maturity, or moral character'' or value conflict violate the First Amendment? (Hannah Barcus, Marisa Galvez, Soleil Montemurro, Benjamin Schneider, Alexandra Stanley)
FIRE claimed that Workman’s speech was the “very sort of passionate, core political speech one might expect on a college campus.” But Workman expressed themselves in an organization’s newsletter, not in a personal email or social media account. Likewise, the Harvard students were on school-sponsored social media, not a private-personal communication channel. Are these distinctions with or without meaning? (Samantha Abril, Gabriella Franco, Destiny Salcedo, Yuval Schnitkes, Alina Wan)
and 4. The Harvard case generated a great deal of commentary—much of which also applies to the NYU case.
Group 3. The editorial board of the Washington Post wrote,
It would be a mistake... to conflate the recent events at Harvard with any kind of attack on free speech. What happened at Harvard is simply this: Misguided young people with an outsize sense of entitlement have been required to suffer the consequences—about which they had received sufficient warning—for ugly and inappropriate behavior. Harvard was right to insist that those who are granted the privilege of attending the private institution adhere to its standards.
Defend the Washington Post’s position. Would your argument also apply to Workman, a student (not admittee) at NYU? (Amanda Burch, Matthew Corwin, Jeremy Gartland, Alexandra Holland, Cameron Wong)
Group 4. Will Creeley of FIRE claimed that the revocations were in tension with a speech delivered by Harvard's president defending the importance of free speech. The president said:
We must remember that limiting some speech opens the dangerous possibility that the speech that is ultimately censored may be our own. If some words are to be treated as equivalent to physical violence and silenced or even prosecuted, who is to decide which words?
We need to hear those hateful ideas so our society is fully equipped to oppose and defeat them.
Defend Creeley's position with regard to the Harvard and NYU cases. (Jordan Al-Rawi, Joseph Colarian, Zoe Ginsberg, Gabriel Niforatos, , Hannah Salman)