To the Editor:
In his letter defending the College's punishment of Zeta Psi, Dartmouth General Legal Counsel Robert B. Donin ("Free Speech and its Limits," April 18) claims that Dartmouth has no speech code; that Zeta Psi was sanctioned for its behavior, not its speech; and that Zeta Psi's speech was not protected by the First Amendment. All three claims are patently false.
First, Dartmouth does have a speech code even though it is not written. Mr. Donin writes that certain community letters written by Dean Larimore and President Wright to justify the derecognition of Zeta Psi were tied only to the Zeta Psi incident, and merely expressed the writers' "personal convictions" about what behavior should not be tolerated at Dartmouth. After Zeta Psi was derecognized, however, Dean Larimore wrote, "Dartmouth has the right and the obligation to remove from its residential life system an organization that will not conform to the standards of that system" and President Wright wrote that there was no place at Dartmouth for speech he considered to be "demeaning to women and others, that was racist, or that was homophobic." These statements demonstrate not only that Dartmouth has a speech code, but worse, that it has a speech code that came into being only after the incident and was then retroactively enforced. Since the speech code was not public prior to the incident, the school administrators had the power to make up whatever terms they wanted for the code. By imposing the code ex post facto, the dean and the president were able to punish students for speech they found offensive even though there was no way for those students to know ahead of time what speech would be punished.
Second, the College punished speech, not behavior. Mr. Donin references a speech by President Wright in which he said, "The Dean 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." But an internally published newsletter is unquestionably speech. Mr. Donin himself appears to contradict President Wright when he classifies Zeta Psi's actions as one of the "types of speech for which our legal system permits recourse."
Finally, contrary to Mr. Donin's assertion, Zeta Psi's speech was protected by the First Amendment. In Cohen v. California, and Texas v. Johnson, the Supreme Court held that speech that is shown to offend others is still protected by the First Amendment and cannot be punished. In R.A.V. v. City of St. Paul, Minnesota, a unanimous Court declared a city ordinance unconstitutional that forbade speech that "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender." Federal Courts have held that "demeaning" speech that specifically targets others by name is protected by the First Amendment. To provide one of the many examples, UWM Post, Inc. v. Board of Regents of Univ. of Wis. System declared unconstitutional a university speech code that prohibited "discriminatory comments" directed at an individual that "intentionally ... demean" the "sex ... of the individual" and "[c]reate an intimidating, hostile or demeaning environment."
In the end, punishing Zeta Psi was bad policy. The fact that the College would punish speech that is constitutional undermines its credibility as an institution of higher learning. Furthermore, since the dean may punish speech that he finds offensive, there is a considerable chilling effect because college students will not be able to know when their speech will be deemed objectionable or subject them to punishment. Rather than punish speech this way, the College should be teaching its students that their speech will be protected even if the dean does not like what they say.
