The Dartmouth Speech Code
By Joe Asch, Guest columnist and a 1983 graduate of Yale Law School
Published on Tuesday, May 29, 2001
Q: In light of the recent decisions regarding Psi Upsilon and Zeta Psi fraternities, does Dartmouth have a speech code?
A: I think that would be obvious. Yes. These two organizations were punished for things that their members said and wrote.
Q: But the administration hasn't published a code?
A: A law does not have to be written to exist and to be enforced. In America, we have a bit of a fetish about the written word, but, for instance, in England, the constitution is unwritten.
Q: How does that work?
A: The courts there review complained-about governmental actions in light of the cultural and political traditions of the nation and in reference to precedent. There are now a large number of constitutional rulings, so people can predict in a fairly accurate manner whether a new law is constitutional or not.
Q: Can the English constitution be amended?
A: Yes. If the courts strike down on constitutional grounds a law passed by Parliament, Parliament just has to pass the law again; it is then considered constitutional. The process is an ongoing one.
Q: How does this all apply to Dartmouth?
A: It seems President Wright and the Deans have grounded their recent decisions in a general notion of "community standards" -- something akin to an English standard based on tradition. In fact, the U.S. Supreme Court uses a similar standard in limiting the extent to which local governments may restrict pornography.
Q: Isn't this pretty vague?
A: At the present time at Dartmouth, it certainly is. For example, in the Psi Upsilon incident, it is unclear what the the exact infraction was. The offenders allegedly said, "Wah Hoo Wah scalp the bitches," but it is unclear exactly how they transgressed "community standards." By referring to the forbidden Indian symbol? By implying violence in using the word "scalp?" By insulting the female listener in saying the word "bitch" to her? Or all of the above?
Q: How can we know?
A: Right, now you can't. You'll have to wait until the next penalty is handed down.
Q: What about Zeta Psi?
A: Same problem. Did the brothers cross the line into forbidden speech by writing about sex itself and referring to their exploits? Or by naming students who had been their partners? Or by implicitly condoning date rape when they announced that a future edition of "The Zetemouth" would discuss "patented date rape techniques?" We don't know.
Q: How will things play out in the future?
A: The dimensions of Dartmouth's speech code will reveal themselves over time by the actions, or the inactions, of the administration. For instance, if someone complains that at a party the host played some gangsta' rap music replete with homophobic, sexist language, the administration's response to the complaint will tell us more about the speech code. I expect that no action would be taken in this situation, but you never can tell.
Q: What if some fraternity brothers wrote the same type of thing in a newsletter?
A: Tough to say. In the present climate, I expect that African-American cultural figures would be given more freedom than a Greek student, but that is just a guess. We'd have to wait and see. Students could speed the process by filing numerous complaints and seeing how the administration responds to them. If the administration declines to act in response to a student complaint, I would say the absence of punishment is a de facto acceptance of the complained-of conduct, i.e. it is not forbidden under the speech code.
Q: What if a student wrote in support of the Palestinian terrorist bombing of Israeli women and children? Or in support of the KKK bombing black churches?
A: I expect that the first would be protected; but not the second, unless the first previously had been judged formally by the administration to be ok, in which case the second might be defensible under the precedent of the first decision. At that point, you would start to have a body of speech code decisions to which to refer. Right now, however, it is too early in the formulation of Dartmouth's unwritten speech code to be sure.
Q: But don't you agree that advocating terrorist bombing is worse than, say, yelling "Wah Hoo Wah.... etc." to a passing pedestrian?
A: Yes I do. But then I'm not the one deciding what is legal and what is forbidden under the speech code. That is the responsibility of President Wright and his Deans.
Q: So how should members of the Dartmouth community proceed in light of the present vagueness of the unwritten speech code?
A: Be very careful what you say and what you write ... But don't worry, the limits on your freedom of expression will become clearer in a few years as the administration decides case by case what it will allow people to say and write at Dartmouth College.