about yourself but you will also be saving us time and wont be sore on the eyes [sic].”36 Even though he apologized to the student body with the intensity of someone who had committed a war crime (rather than a fat joke), Garneau was kicked out of his dormitory and sentenced to mandatory psychological counseling, two years’ probation, and a 3,000-word reflection paper. After his appeal was denied, he had to resort to living out of his car in the cold New Hampshire autumn for weeks. FIRE launched a national publicity campaign about the absurdity and patent unconstitutionality of this abuse of power. Shortly afterwards, the school received a phone call from Jon Stewart’s Daily Show, which wanted to cover the incident. With remarkable speed, the university announced that Garneau would be allowed back into the dorms.37 Jon Stewart apparently cared more about this abuse of rights than Garneau’s fellow students, who largely expressed ambivalence about the school’s misuse of power.38
In 2007, the same year that Keith John Sampson was being punished, Tufts University found a conservative newspaper guilty of two counts of racial harassment.39 The paper, called The Primary Source, had been criticized in December 2006 for publishing a parody Christmas carol called “Oh Come All Ye Black Folk.”40 The point of the carol was to lampoon the university’s aggressive attempts to attract black students. When called out for insensitivity, The Primary Source apologized for the joke and the case was forgotten for several months. Later that spring, however, The Primary Source published an ad questioning what the writers saw as the overly rosy depiction of Islam during the school’s “Islamic Awareness Week.”41 It contained two direct quotes from the Koran, including “‘I will cast terror into the hearts of those who disbelieve. Therefore strike off their heads and strike off every fingertip of them.’ – The Koran, Sura 8:12.” It also pointed out that “In Saudi Arabia, women make up 5 percent of the workforce, the smallest percentage of any nation worldwide. They are not allowed to operate a motor vehicle or go outside without proper covering of their body. (Country Reports on Human Rights Practices 2001),” and that “Ibn Al-Ghazzali, the famous Islamic theologian, said, ‘The most satisfying and final word on the matter is that marriage is a form of slavery. The woman is man’s slave and her duty therefore is absolute obedience to the husband in all that he asks of her person.’” The only factual error I could find in the ad was that it claimed that the seven countries that punish homosexuality by death are all Islamic theocracies. At the time, there were in fact eight Islamic theocracies where homosexuality was a capital offense.
Did this paint Islamic extremism in a nice light? No. Was it one-sided? Yes. But that was the entire point: to present a counterargument to what the paper saw as a one-sided view presented by the university. Too many of us have been conditioned to apologize for words that offend, when open debate is bound to create some offense. Indeed, it should happen. Being offended is what happens when you have your deepest beliefs challenged, and if you make it through four years of college without having your deepest beliefs challenged, you should ask for your money back.
If the complaining students had argued that The Primary Source got its facts wrong, that could have been a constructive or at least interesting debate. But instead, in predictable fashion, the offended students plowed ahead with a harassment claim. Here, the fact that The Primary Source printed largely verifiable information—with citations, no less—was no defense, nor was the fact that the ad concerned contentious issues of dire global importance. Even under U.S. libel law, truth is an absolute defense. Tufts may have made free speech history by being the first institution in the United States to find someone guilty of harassment for stating verifiable facts directed at no one in particular.
I doubt that the Tufts disciplinary board thought through the full ramifications of its actions. If a Muslim student had published these same statements in an article calling for reform in Islam, would that be harassment? An atheist saying religion is bunk? A Protestant railing against Catholicism? Nonetheless, a judicial panel consisting of both faculty and students found the publication guilty.42 After intense pressure from FIRE, the president of Tufts, Lawrence Bacow, eliminated the sanctions against The Primary Source in the fall of 2007, but he left the harassment finding intact.43 (Tufts would be “awarded” our June 2008 Speech Code of the Month for its policy banning “unwelcomed communications such as phone calls, misuse of message boards, email messages, and other behaviors calculated to annoy, embarrass, or distress.”)44
Some other notable abuses of harassment rationales include a 2005 case in which the University of Central Florida put a student on trial for creating a group on Facebook that posted “Victor Perez is a jerk and a fool” when Perez was running for student government.45 In 2004, at Occidental College in California, a student disc jockey was found guilty of harassment on his radio show, not only for making fun of his fellow members of student government, but also for cracking jokes about his own mother. In a classic administrative overreach, the student was charged for disparaging “treatment of the category [of] ‘mother.’”46
As troubling as such incidents are for students, it may be professors who have the most to fear from the overzealous reinterpretation of harassment codes. I will leave much of this discussion to Chapter 10, but it is worth noting some cases here. In 1999, in one of the first cases I ever worked on, Mercedes Lynn de Uriarte, a professor at the University of Texas at Austin, was investigated for “ethnic harassment” of another professor. Interestingly, both de Uriarte and the accusing professor were Mexican American and the complaint accused her of both not mentioning her accuser’s ethnicity when it was helpful to do so and also mentioning it when it was not helpful.47 The facts suggested that the ethnic-harassment accusation was an excuse for the university to retaliate against de Uriarte for filing a grievance.
Another incident targeting faculty took place in 2011–2012 at Purdue University Calumet, where nine complaints of harassment or discrimination were filed against a professor for criticizing Islam and Muslims on Facebook and in class. Some of the complainants never took his class, and many of them left unspecified what speech, exactly, they were complaining about.48 On November 6, 2011, the professor posted a photo on Facebook of “Christians killed by a radical Muslim group” in Nigeria, adding: “Where are the ‘moderate’ Muslims[’] reaction[s] to this? Oh, I forgot they are still looking at the earth as flat according to the idiot Mohammad, may his name be cursed.” While I can understand how this speech might have hurt some students’ feelings, feeling hurt and being harassed are categorically different things.
In 2011 the University of Denver provided another example of how far the concept of harassment has morphed from its legal origins, when Professor Arthur Gilbert was declared guilty of sexual harassment and sentenced to mandatory “sensitivity training” because the content of his class “The Domestic and International Consequences of the Drug War” was considered too racy.49 According to the syllabus, one of the themes in the course was “Drugs and Sin in American Life: From Masturbation and Prostitution to Alcohol and Drugs.”50 How, precisely, you can have a meaningful discussion of these topics without offending anybody is beyond me. While Denver faculty, FIRE, and the American Association of University Professors (AAUP) rose to Professor Gilbert’s defense, the university refused to reopen the case.51
These are just a few of the cases that illustrate how often “harassment” is used as an all-purpose accusation for speech that offends someone. This abuse became so widespread that in 2003 the Office for Civil Rights (OCR) of the U.S. Department of Education—the department that polices the enforcement of federal harassment regulations—issued a letter of clarification to practically every single college in the country recognizing that harassment rationales were being abused.52 It stated unequivocally that “No OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights.” The letter further stated, “Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.” Nonetheless, most colleges still maintain unconstitutional harassment codes