Spin City

Anyone who has been following the trustee election is no doubt aware that the College pleads innocence on the charge of hostility to free expression. The official line — despite all evidence to the contrary — is that Dartmouth does not have a speech code. But what about the Zeta Psi case, you say, in which a single private, in-house parody newsletter led to a fraternity’s permanent derecognition and expulsion from campus? The College has a pat little answer: Zete was punished for its conduct, not its speech. Says Robert Donin, the College’s lawyer, in his recent letter to The Daily Dartmouth:

The Zeta Psi case falls squarely within the area of permissible regulation…. The statements in the Zeta Psi newsletter […] targeted two specific students for personal abuse in a repeated fashion even after the organization agreed to end this behavior.

Fortunately, FIRE President (and Harvard-educated lawyer, thank you very much) David French takes Donin to task, pointing out that Dartmouth’s charge of “harassment” against Zete is laughably weak:

I know of no case authority indicating that a person is denied or limited in their “ability to participate in or benefit from the educational program” when he or she is “targeted” in a communication so private that he or she couldn’t find it without sifting through the trash. There is no court in America that has found “harassment” in similar circumstances.

Indeed. Predictably, too, Donin falls back on a cherished old shibboleth of the censors. Dixit Donin:

A long line of First Amendment cases recognizes that freedom of expression is not absolute. Even where the First Amendment fully applies, as Justice Oliver Wendell Holmes, Jr. famously wrote, no one has the right to falsely yell “fire” in a crowded theater. Similarly, the First Amendment does not protect defamation, invasion of privacy, copyright infringement, threats or harassment, to cite just a few of the well-established, judicially approved limitations on free speech.

All of this is readily conceded; indeed, I wonder who exactly Donin is arguing this point with? No commentator I know of (certainly not trustee candidates Peter Robinson or Todd Zywicki, for whom, if you are an alum, you really ought to have voted by now) has suggested that actual defamation should be protected expression. (Indeed, Donin never explains why any of this is even relevant; does the Zete case fall into one of these categories? No? Then why bring it up?) Donin is fighting the straw man syllogism “if speech, therefore absolutely protected.” It might be easier for Donin to argue with absolutist simpletons; but, to borrow from Rumsfeld, you argue with the opponents you have, not the opponents you wish you had. So Mr. Donin: can we please get back to the question at hand?

But perhaps I’m being too harsh on Donin; after all, it’s not his fault his bosses so gleefully resort to heavy-handed punishment for puerile little jokes. So let’s see what President Wright had to say about the matter in a recent speech to the Dartmouth Club of New York:

The Dean [of Residential Life Marty Redman, affable fellow by day, outraged Puritan by night] derecognized the fraternity because of the repeated publication of a newsletter that cruelly demeaned specific women on campus. This incident was about behavior, not speech — the organization published articles describing the supposed [wrong: obviously fictional] sexual exploits of two undergraduate women who were identified by name.

(Um, er, I thought Zete’s publication was speech, just one of those types that you can regulate — no? Yes? Oh, never mind….) So Wright, too, relies on the harassing-conduct-not-speech line. Once again, David French brings us back to Earth (with some help from yours truly). French shows how thin the charge of harassing conduct is (ditto for the alleged violations of Minimum Standards, which actually provide the clearest evidence yet of a speech code applicable to 40% of the student population; all Dartmouth students should be aware of the backdoor tactic employed in the Zete case).

French aptly concludes:

A fraternity did something silly and tasteless and offended a significant (and powerful) segment of the campus community. Dartmouth found a way to punish that fraternity despite the fact that no pre-existing rule or code prohibited the fraternity’s actions, and then President Wright and Dean Larimore drafted the letters that form the basis of the modern Dartmouth speech code as a warning against future offenders.

If Dartmouth respects free speech, it will not only repeal its speech code, but it will also re-recognize Zeta Psi. Four years of punishment in the absence of any violation of campus rules or regulations is enough.

Okay, so the College’s lame arguments can be exhaustively refuted, and when they are, they are shown for what they really are: mere spin. But I must confess, I get very frustrated that these refutations are always necessary. Why does the College dig its heels in so? Why is Wright so hesitant to acknowledge the many ways in which expression — edifying or otherwise — can occur? Why do they insist on this facile distinction between conduct and speech? (Who’s guilty of easy syllogisms now?)

Finally, why is the College so determined to punish a bunch of kids for silly but harmless jokes? (And please, please, nobody try to argue that the harm was psychological. Melissa Heaton — the publication’s main attraction — took evident joy in her newfound celebrity. She went on The Today Show and spoke to any number of jouranlists. She told me personally that she relished the publicity. Melissa milked her fifteen minutes; it is simply false to say that anyone was harmed by this.)