Earlier today, the University of Minnesota’s excellent student newspaper, The Minnesota Daily, held an online chat via Twitter to hear readers’ reactions to the paper’s extensive coverage of a key First Amendment case playing out on campus. Those interested in reading the lively discussion can retrace the hashtag, #mndailychat.
Tatro v. University of Minnesota was argued last week before the Minnesota Supreme Court and likely will be decided this year. The case — involving a UM student who was disciplined for wall posts on her personal Facebook page — will be the first time a state supreme court has confronted the extent of a college’s authority over what its students say online. So it will be watched as a potential standard-setter for the rest of the nation.
It’s apparent from the Twitter chatter that, understandably, some casual observers find the facts and law of the case confusing. Two points raised during the tweet-up require particular amplification.
First, the University has succeeded in convincing some people that Amanda Tatro’s case is about campus safety. It’s not. At all.
To recap, Tatro was punished by a student disciplinary board because (1) her jokes on Facebook about stabbing an ex-boyfriend provoked a police investigation (which concluded that Tatro posed no danger), and (2) some goofy comments about dissecting corpses (hers was nicknamed “Bernie”) made it into the news media and upset some UM supporters who’d pledged to donate their remains for dissection.
Colleges always, always, always have the power to investigate potentially threatening behavior. A good-faith investigation, by itself, is never a First Amendment violation. The First Amendment prohibits punitive action — that is, action that has the purpose and effect of deterring a person from saying something she has a legal right to say. At the investigation stage, there is no punishment because there has been no conclusion that anything punishable occurred.
It is a falsehood — and the University of Minnesota and its many higher-ed supporters know it is a falsehood — that a victory for Amanda Tatro will tie the hands of UM or of any university to respond to safety threats.
The university is not asking for authority to investigate dangerous behavior. It is asking for authority to issue failing grades to non-dangerous people whose behavior is misunderstood as threatening — after the investigation is over. Giving Amanda Tatro a failing grade did not make the campus one bit safer.
Second, despite what some commenters on the UM chat may think, there is no meaningful First Amendment distinction between prohibiting speech and punishing speech.
When a First Amendment controversy arises, you’ll often hear a reaction along the lines of, “Well, speech is never really free — you’ve got to pay the consequences.”
That’s true — when the consequences are imposed by non-government authorities. Your friends can de-friend you. Your roommates can move out. Your significant other can dump you. Your reputation can be injured in the eyes of the public. The marketplace can, and should, impose consequences on speech that it regards as intolerable.
But the University of Minnesota is not the marketplace — it’s the regulator. It’s an agency of government that, like all government agencies, must be kept on a tight rein so that it does not abuse authority over speech to silence its own critics.
(Suppose Amanda Tatro was not a jokester who talked on Facebook about goofing around in anatomy lab, but a student blogger who exposed the fact that other students goofed around in anatomy lab. The effect on donors would have been exactly the same. If you are not comfortable letting the university punish that journalistic blog, then you must be prepared to let Amanda Tatro go unpunished, to leave the essential breathing space for that blogger to be certain that her reporting will not land her in front of the student conduct board.)
Make no mistake: Punishing speech is every bit as unconstitutional as prohibiting it — for this reason: Punishment is the only way the prohibition is enforced. Saying “murder is punishable by life in prison” is a prohibition on murder. Saying “possession of marijuana is punishable by a year in jail” is a prohibition on marijuana. And saying “speech that alienates University of Minnesota donors is punishable by a failing grade” is a prohibition on speech.