By Matthew Kaufman
Managing Editor
The Foundation for Individual Rights and Expression, a civil rights organization that advocates for free speech on college campuses, gave the College a “yellow light” rating in its 2024 Spotlight on Speech Codes and said that some of its policies might be unconstitutional.
FIRE, as the organization is better known, places schools in one of three categories based on their protection of free speech. “Yellow light” schools, including the College, “maintain policies that could too easily be applied to suppress protected speech or maintain policies that, while clearly restricting freedom of speech, restrict relatively narrow categories of speech,” according to the report.
“Red light” schools, the most severe category, “maintain at least one policy that both clearly and substantially restricts freedom of speech” or do not have publicly accessible speech codes. “Green light” schools do not have any policies that threaten free expression.
The College originally received a red light rating, but FIRE changed the classification to a yellow light after The Signal requested more clarification on the reasoning behind the rating.
In an email to The Signal, Laura Beltz, FIRE’s director of policy reform, said that a yellow light classification is still concerning, because the College is a public school that must abide by the First Amendment.
“While these are more vague or narrow restrictions than the red light policies,” Beltz said, “yellow light policies are unconstitutional at a public institution like TCNJ and could too easily be applied to restrict speech.”
Luke Sacks, the College’s head of media relations, said in a statement that the College stands by its policies and strives to protect free speech.
“TCNJ cherishes and respects free speech and at all times does its utmost to accommodate First Amendment rights within the framework of its other legal obligations,” Sacks said. “The College does not agree with FIRE's conclusions that certain policies include provisions that are unconstitutional.”
Dr. Tao Dumas, a professor of political science who teaches courses on constitutional law, said in an interview that while public schools must abide by the First Amendment, there is still some latitude to restrict certain speech.
“TCNJ does have an educational mission,” Dumas said, “and so we do have some ability to limit some speech a bit more than perhaps in some other settings, because the college has a mission to ensure that students are receiving an education.”
FIRE took issue with four of the College’s policies regarding harassment, on-campus postings, use of public space and student conduct.
Beltz said that the harassment policy was too broad and could be utilized to silence protected speech.
The harassment policy “does not sufficiently track the Supreme Court's substantive standard for peer harassment in the educational setting,” said Beltz. “Instead, it should be revised to track that legal standard.”
Dumas said the College’s Sexual Harassment, Misconduct & Discrimination Policy allowed for one incident of misconduct to qualify as harassment, whereas the Supreme Court’s standard requires conduct to be “pervasive and extreme.”
“If somebody were accused of harassing another individual for, let's say, one comment, that would be a more extreme interpretation of harassment than what the Supreme Court or other levels of courts would typically find enforceable in a court,” Dumas said.
However, Dumas added, the College may have more latitude to expand the definition of harassment because of its educational mission.
FIRE also criticized the College’s Posting Policy, which requires flyers posted on official bulletin boards to be approved and list the name of the author.
“This places an unreasonable prior restraint on all posting of materials, and essentially prohibits anonymous expression on posters,” said Beltz. “Anonymous speech is typically protected under First Amendment standards, and can be a powerful tool for those who may feel they can only express their views anonymously or through the use of a pseudonym.”
Dumas said this policy could be considered unconstitutional, depending on how the College has enforced it and if the administration has denied content from being posted based on its content.
“Once you create a bulletin board, for example, you've created either a public forum or a limited public forum,” said the professor. “Once you open up those spaces for discussion, you're not supposed to be able to discriminate based on the content of those messages in that location, because you've already designated that as a location [where] speech is permitted.”
FIRE then targeted the College’s Use of Campus Property Policy, which states that unapproved protests may only occur in four “public use areas” around campus.
“The college can put in place reasonable regulations on the ‘time, place and manner’ of expressive activities, in order to limit disruptions to classes and other campus functions,” Beltz said. “However, limiting all spontaneous protest to those areas appears unreasonably restrictive of students' free speech rights.”
Dumas said that this criticism was fair but more difficult to prove.
“I think that one's probably the least obvious to me that that's problematic,” said Dumas. “But I would agree that we're not designating very much space on our campus for [spontaneous protests] to happen.”
FIRE’s final complaint was with a section of the Student Conduct Code, which states that students should “conduct [themselves] professionally and with civility in all pursuits of knowledge in and outside the classroom.”
“Speech cannot be limited merely because it has been found to be unprofessional or incivil,” Beltz said.
Dumas said this issue hinges on whether or not there’s a penalty for acting disrespectful.
“If there's nothing in our policies that says, ‘X, Y and Z happens if you're incivil,’ I don't think it's particularly problematic,” Dumas said, “but I get her point that it’s bordering on censorship.”
Sacks, the College’s spokesman, said that while the administration disagrees with FIRE’s recent findings, it continually reviews and revises its policies.
“The College will take into account FIRE's comments when the identified policies are next reviewed,” said Sacks.
FIRE often works with colleges and universities to develop policies that address misconduct while protecting free speech, and Beltz said the organization would be happy to work with the College.
“Now is a time on college campuses where so many students are looking to get out and express themselves on important issues,” Beltz said, “so colleges need to respond by ensuring their policies on speech allow for students to share their viewpoints and that their policies on misconduct are applied properly and evenhandedly.”
