The allegation against The Herd sounds pretty bad:
Last month, the Foundation for Individual Rights in Education, or FIRE, gave Marshall its ‘Speech Code of the Month’ designation for what foundation official Samantha Harris says are restrictive speech codes that prohibit a ‘staggering amount of constitutionally protected speech.’In other words, MU hasn’t really done anything wrong, but conditions are there for them to do so. Sort of like a Winter Storm Watch, I guess. In fact, of the two episodes discussing the article, Shibley admits FIRE would not have intervened in one and the other was covered by settled (if possibly incorrect) West Virginia law.
* * *The foundation did not turn their attention toward Marshall after any particular actions or cases that occurred on campus, but for the university's actual policies, said Robert Shibley, the group's senior vice president.
That second incident goes back to a statute passed to combat the Ku Klux Klan that prohibits wearing a mask in public. The Supreme Court of Appeals upheld the statute in a 1996 decision against attack on free speech grounds. The facts of that case, State v. Berrill, 474 S.Ed.2d 508 (1996), are worth sharing (paragraph breaks added):
The facts are not disputed. In an effort to convince the Calhoun County Board of Education (Board) to change the Calhoun County High School red devil mascot, Thomas Berrill, appellant, went to a Calhoun County Board meeting dressed in a devil costume. The costume included a mask that covered his face. Prior to the meeting, Mr. Berrill called the Board and asked to be placed on the meeting agenda under the fictitious name of ‘Mr. DeVille’. He did not inform the Board of his true identity nor of his plan to dress in a devil costume.Ah, the fun of small town kooks.
The meeting was held at the Board office, which is owned by the Board, in a room that had only one means of exit, an interior door leading to another part of the building. Although the agenda for the Board meeting provided a time for public questions and comments, Mr. Berrill did not await that opportunity. Rather, when Mr. Berrill entered the meeting, he took advantage of a pause in the proceedings, a short period of silence, to begin his conduct and remarks.
The evidence discloses that Mr. Berrill moved or ‘pranced’ about the room and began to speak although he was not called on by the moderator to do so. Mr. Berrill then addressed the gathering for a period estimated by witnesses to range from one-and-a-half to ten minutes, during which time the regular business of the meeting came to a halt. Although Mr. Berrill used no threatening words and had no physical contact with anyone at the meeting, he ignored instructions to take a seat or leave and was at least twice called out of order by the moderator.
In his statement to the assembly, Mr. Berrill represented that he was the red devil and thanked the Board for keeping the devil in the schools and keeping God out. Mr. Berrill departed from the meeting room only when the Board president stood up and moved toward Mr. Berrill.
Anyway, getting back to FIRE’s complaints, they are legitimate, if not perhaps a little overblown. No, neither MU nor any other state university should have vague policies about speech that could be used to squash legitimate First Amendment protected expression. But if theoretical repression is good enough to get you on a “worst in the country” list, then things must be going pretty well on campuses across the country.
For more discussion of FIRE’s list, see Ed’s post over at Dispatches from the Culture Wars.
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