Proposed Pomona Speech Code Potential Win for Free Speech

This Wednesday, Pomona College’s Dean of Students, Avis Hinkson, sent an email notifying students of planned changes to the Student Handbook, crucially to those pertinent to speech codes at the college; the new speech codes restrict circumstances under which college administrators can punish students for speech code violations. At a college where free speech is a hotly-contested issue, these proposed changes could potentially be a win for free speech proponents.  

Under the proposed code, Pomona’s speech code would only limit free speech that “constitutes harassment,” “fighting words,” “incites imminent lawless action,” and “that constitutes a true threat.” Currently, according to the Handbook, speech “considered objectively [to be] offensive and insulting rather than a communication of ideas”—which could be widely interpreted by college administrators, as demonstrated by the investigation of a meme group two years ago—would no longer be a policy violation.

A section of the proposed speech code.

In order to qualify as fighting words, speech must meet all of the following criteria: “First, the speech must be addressed at a specific individual or particular group of individuals. Second, the speech must be abusive rather than a communication of ideas. Third, when considered objectively, the speech must be likely to provoke a violent reaction.”

To incite imminent lawless action, speech must “advocate for, or attempt to cause, lawless action in the near future. Lawless action includes, but is not limited to, violence or destruction of property.” Besides the first requirement, “when considered objectively, the speech, in context must be likely to produce such lawless action. Third, the speaker must intend to cause such lawless action.”

The proposed changes states “[t]o constitute a true threat, the speech must communicate a serious intent to harm a specific person or a particular group of persons. While the speaker does not necessarily have to intend to carry out the threat, the threat must be serious enough to cause an individual to fear for their physical safety in order to qualify as a true threat.”

The current speech codes states that any “abusive and insulting” can be a speech code violation.

The email proposed changes includes tentative changes to other policies concerning student life, such as those for Title IX cases, substance use and unregistered parties.

The State of California enacted the Leonard Law in 1992, which legally obligates Californian academic institutions, both private and public, to abide by the First Amendment. It follows that Pomona punishing or persecuting any student for speech protected by the Amendment would be unlawful, regardless of the college’s speech codes. Unlike its current speech codes which leave room for interpretation by reporting parties and administrators, Pomona College’s potential speech codes, if implemented, would be more in line with legal limitations of the First Amendment; credible threats, fighting words, incitement of imminent lawless action, and harassment are generally not considered to be protected speech under the Constitution.

However, towards the end of the proposed speech code change, a small paragraph reads “[i]n addition, the [Pomona] College may reasonably regulate the time, place and manner of expression to ensure that it does not disrupt the ordinary activities of the College.” This proposal is very short and ambiguous, and listed separately to the others, at the far bottom of the page.

Claremont McKenna College—which alongside Pomona is a member of the Claremont Colleges Consortium—is the only Claremont College with a “green light” rating from the Foundation for Individual Rights in Education (FIRE) indicating little restrictions of free speech. Pomona, along with the other Claremont Colleges—Harvey Mudd, Scripps, and Pitzer Colleges—currently have “yellow light” rating, indicating noticeable restrictions on free speech. Last semester, in an interview with Hinkson, the Independent asked whether Pomona would consider changing speech codes to gain a green light rating from FIRE.

In response to hearing the news of this proposed amendment, one Pomona student, who spoke to the Independent on condition of anonymity, said that he “trust[s] the administration’s decisions and I believe that the Constitution is a good benchmark [for free speech].” However, the student also expressed concern that “problems [may] arise in the future due to this revision,” since “hate speech is protected by the first amendment,” which, if allowed, could “make the campus an unsafe place for other individuals.”

However, another student welcomed the proposed changes, arguing that “[f]reedom of speech is aggressively repressed on college campuses, which is not just morally wrong but also compromises academic integrity,” but was worried about the clause that says free speech can be “reasonably regulate[d],” warning that “the wording is very vague, and I can see it being abused in the future, as happens with ambiguous laws in many countries. Speech policing is totally unacceptable.”

Hinkson also noted in the email that the proposed revisions will be “open to community comment from April 10 2019 to May 10, 2019” via a given email address.

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