Almost eleven years ago, President Bennet banned the process on Wesleyan’s campus known as “chalking.” Almost immediately, students tried to pressure the administration into lifting the ban to no avail, mostly by recommending that people just chalk anyway (and maybe also by bringing a flood of chalking violations to the SJB) and arguing that the chalking ban was morally and practically unadvisable.
Chalking has seen a resurgence starting last spring, around the ten-year anniversary of the ban, followed by a forum on chalking later that month. Last fall, the need-blind movement used chalking, which swiftly became a goal of its own, including two “legal chalk-ins,” one controversially blocked by President Roth.
Eric Stephen ’13, in a substantial Argus article published today, analyzes the chalking ban from a new perspective: that the chalking ban actually violates free speech rights protected by Connecticut state law, and should thus be reversed on legal grounds. A condensed version of Eric’s argument is posted below:
In today’s issue, The Argus will be publishing an article that critically examines the legality of the chalking moratorium imposed by President Douglas Bennet in 2002 and maintained by Michael Roth after he took over as the University’s President in 2007. The article argues that Wesleyan’s chalking ban is unenforceable because it violates free speech rights that are legally protected by Connecticut state law. However, the Argus article is designed to provide legal detail for a series of arguments supporting and opposing the chalking ban; for students who are not interested in the minutia of law, Wesleying has offered me the opportunity to give a brief review of the article for their site.
According to President Bennet in a campus-wide email in 2002, the University administration initiated the chalking moratorium after it began facing growing concerns regarding obscene, discriminatory, and threatening chalking on campus. Instead of playing the censor and distinguishing between chalking it would allow and chalking it would not, the administration found it necessary to instead limit all chalking on campus so that the negative content could sufficiently be controlled.
The problem with this approach, the Argus article argues, is that such a blanket policy is overbroad in that it infringes upon some protected speech in an effort to stamp out speech that is unprotected. The protected speech at issue here comes from Connecticut General Statute §31-51q, which, in brief, protects some employee speech from infringement by an employer. Under the statute, Wesleyan University—as an employer of faculty, staff, and hundreds of student workers—therefore has a legal responsibility to respect the First Amendment free speech rights of its employees, even though Wesleyan is considered a private actor. The speech referred to under the statute is specifically political speech (and possibly apolitical religious speech); we do not argue that the obscene, oppressive, or threatening speech at issue in 2002 should be afforded any protection.
The University administration has advanced four specific arguments over the last decade via campus-wide email, forum discussion, and the Wesleyan Student Handbook to justify the moratorium’s breadth: the dangerousness of anonymous speech; the need to maintain a safe work, living, and educational environment; the value of campus aesthetics; and the respect of University property. The article takes each of these four arguments and demonstrates that none of them legally, logically, or ethically provide sufficient justification to infringe upon speech so drastically. Each of these four goals could be accomplished through less restrictive means than a blanket prohibition on an entire medium of communication—time, place, and manner restrictions have all been historically upheld by the courts as acceptable limitations that must first be considered by the University to avoid overbreadth.
The point is that it would be legally questionable under Connecticut state law to discipline (via a fine, for example) any student who is employed by the University for chalking political messages. This is the bare minimum that needs to be reformed in order for the policy to be legally valid.
From this legal minimum, however, other concerns emerge: Is there any substantive point to maintaining the arbitrary dividing line of employed/unemployed for student chalkers? What should be the fate of chalked messages that are not political in the legal sense but also do not amount to unprotected speech (including informational content such as “Come to the senior dance theses today at 4!” or whimsies such as inspirational quotes or artistic displays)?
Simply put, the chalking policy, as it exists now, is overbroad in a way that would likely not hold up to judicial scrutiny and, as a result, should no longer be enforced. The current blanket policy should instead be supplanted with more sensible time, place, and manner limitations created through dialogue between the administration, students, faculty, and staff. Such a dialogue could also open the doors for allowing non-employed student speech to be respected as well as apolitical but unharmful speech to survive. However this new policy is crafted, it will enable legally protected speech, thereby meeting legal requirements.
Thus, it is time for students to come together and protest Wesleyan’s invalid chalking policy, for us to tell our administration that it is not above the law. It is time for us to demand that students have a voice in our how the University’s policies are crafted and maintained. This is not simply a minor issue of speech rights, but a broader concern over what kind of community we wish to have and how we are to be treated by our administration.
Again, this brief is not intended to be comprehensive of the article’s entire argument. Broader discussions about the anonymity of chalking, the University’s Title VII requirements, constitutionally valid time-place-manner limitations, the blurry line between protected and unprotected speech, and the limitations of the overbreadth doctrine can all be found in the article, as well as an elaboration on the points made here. Given the importance of this issue, I encourage everyone to read the article from The Argus (link here) or in print, and I will be able to answer any further questions at estephen[at]Wesleyan[dot]edu.
WESRETROSPECTIVE: A Decade Without Chalking, Part One
A Decade Without Chalking, Part Two: An Interview with Matthew M ’05
A Decade Without Chalking, Part Three: An Interview with Claire Potter
A Decade Without Chalking, Part Four: An Interview with Nicholas Myers ’05
A Decade Without Chalking, Part Five: An Interview with Dean Mike Whaley