Speech Codes and the Criminalization of Speech

In the early 1990s when I attended the University of Pennsylvania for my undergraduate degree, I was an editor at The Daily Pennsylvanian. This was back when printed newspapers ruled the day, and the DP was among the best student newspapers in the country. It was entirely student run, owned by a student-run corporation, and did not take any money from the University of Pennsylvania.

I probably spent more hours at the DP than any other single place while I was at Penn. As a crime reporter for a semester, I wrote 117 articles in, what I recall was a 90 issue daily run, meaning on some days I wrote two or three articles. There was a lot of crime in West Philadelphia, and I covered shootings, robberies, rapes, and trials.

They later went on to make a major motion picture about the Executive Editor of the newspaper, Stephen Glass. Reporters and editors from my tenure at the DP are now reporters at major publications.

Two events got me interested in free speech issues. The first was what was received national attention as the Water Buffalo incident. A Jewish student, angry at African-American sorority sisters, yelled out of his dorm window at them, calling them “water buffalo”. Other students had yelled much worse epithets. When University police came through the dorms to find out who was yelling names, he was the only one who admitted his conduct. He was hauled before a university disciplinary board and threatened with sanction. As it turns out, the fact that he was Jewish was important because the term “bahema” in Hebrew is slang for a rude person. And “bahema” can literally be translated as water buffalo.

A second incident involved a conservative columnist who had written some critical and even offensive things about Martin Luther King, Jr. In response, students stole copies of the newspaper a few weeks later as a protest action.

I wrote about the both incidents for the DP. It struck me that both were a matter of free speech, and that regulating free speech – even offensive speech – so long as it doesn’t communicate a threat, is dangerous business.

Universities and colleges have had a habit of engaging in speech regulation, and the practices are now two decades old. That’s why when a university decides not to regulate speech, it’s to be commended.

Witness Ball State University. The Student Government Association president made some offensive comments about Chinese people and culture on Twitter. He is in the process of resigning, as he should. But the University has also issued a statement in which it says it will impose no sanction. That is the proper response from the university.

“His remarks are not a violation of any university policy or law,” said Tony Proudfoot, a university spokesperson. “He is likely to find, however, that such remarks do have unintended social consequences beyond formal actions from the university.”

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.