Dear President Bennet:

According to our constitution, "the National Writers Union is committed to freedom of the press, freedom of speech, and freedom of expression in all media, including print, film, and electronic media of any sort." Therefore, we oppose all actions at colleges and universities, both private and public, that limit or punish the speech of students, faculty, or other employees. Thus we express grave concerns about an incident that occurred upon the Wesleyan campus within the past year.

The National Writers Union does not wish to act as an advocate for any of the students involved. Therefore, in what follows, pseudonyms will be used. The most salient facts, as we understand them, are as follows. If any of these facts are in error, we are eager to weigh any evidence to the contrary you wish to provide.

In November 1995, an acquaintance of Mr. Smith created a doctored computer image of two people having consensual sex. The face of one of the participants was replaced by a photographic image of Mr. Jones. Mr. Smith placed this doctored image on an off-campus computer web site where he had purchased space. The doctored image was not linked to Mr. Smith's home page and was not generally publicly accessible. Mr. Smith did, however, provide the doctored image's address to some friends, who then viewed the image. In January 1996, Mr. Jones learned of the image and asked Mr. Smith to remove it. He did so in Mr. Jones' presence. By this time, however, a friend of Mr. Smith's had placed a copy of the image on another private web site. Mr. Jones demanded that Mr. Smith also remove this copy. Mr. Smith had no legal means to do so, but he agreed to ask his acquaintance to remove it. When this request was refused, Mr. Jones and a friend made a credible (and illegal) threat to do serious physical violence to Mr. Smith if the image was not removed. In order to avoid this violence, Mr. Smith's friend agreed to remove the image. Mr. Jones then brought disciplinary charges against Mr. Smith, accusing Mr. Smith of violating the Wesleyan speech code. (We're aware that the current euphemism is "harassment code." Nevertheless, a speech code by another name is still a speech code.) Mr. Jones filed his complaint with the Student Judicial Board (SJB) on February 15. Mr. Smith was not informed of the impending hearing, which took place on April 22, until April 11. He was given the choice of three individuals (all with religious affiliations) to act as his advisor at the hearing. The SJB recommended that Mr. Smith be suspended for the fall semester of 1996-1997 for his speech-code violation. On April 23, Mr. Smith wrote you appealing this sentence. You changed the sentence to one year's disciplinary probation and required that Mr. Smith write an essay titled "Responsible Use of Electronic Media--Ethics, Freedom of Expression and Accountability on the Internet."

We applaud your decision to remove Mr. Smith's suspension. The imposition of probation and the requirement for the essay (which Mr. Smith informs us he'd be happy to do voluntarily), however, concerns us. It seems to reassert Wesleyan's right to police the speech (and by implication, the thought) of its students, both on and off campus. Therefore, we respectfully suggest that you give the matter additional careful thought.

We believe that freedom of expression must be absolute in all consensual situations. In non-consensual situations, however, the rights of the non-consenting parties must also be weighed. Thus certain limitations--generally of time, place or manner--may be appropriate in cases of lying, intellectual-property theft, or the imposition of unwanted speech upon a captive audience.

We do not condone what Mr. Smith did, because the unauthorized use of a person's image (unless that person is a public figure or a limited public figure) is a form of intellectual-property theft. It's highly unlikely, however, that Mr. Jones could successfully pursue legal recourse: Mr. Smith took down the image when asked to do so; Mr. Smith did not profit from the use of the image; no actual damage was done to Mr. Jones. Moreover, Mr. Smith could himself pursue legal recourse because of the credible threat of physical violence. I am not a lawyer, however, and I don't pretend competence to decide such matters. The point is: neither should Wesleyan University. Colleges should not expropriate the American legal system's legitimate authority.

As for the "harassment" charge, it would never stand up in court. The Supreme Court has defined sexual harassment quite narrowly, and, to count as harassment, targeted speech must be so severe or pervasive as to hinder, in a discriminatory fashion, a reasonable person's ability to work. The case at hand obviously fails this test and Mr. Jones has made no such claim. (See, specifically, Meritor Savings Bank v. Vinson and Harris v. Forklift.)

The Wesleyan speech code, quite frankly, is seriously flawed. We say this with no intention of offending you. We know that you assumed the presidency quite recently--June 15, 1995--and that the speech code was put in effect long before that. Also, given what we know of your history, and your distinguished career as head of National Public Radio, we are confident that this code is not something that would have received your support.

For the benefit of those on the cc list, the code reads as follows:

Harassment and abuse, directed towards individuals or groups, may include at least one of the following: the use or threat of physical violence, coercion, intimidation, and verbal harassment and abuse.

No one questions the right of colleges and universities to institute disciplinary mechanisms to handle academic infractions, such as cheating and plagiarism. What concerns us is the expansion of this power beyond its realm of competence. We've heard on good authority, for example, of a case at a major Ivy League university where, allegedly, one student grievously assaulted another physically. The university tried very hard to persuade the victim not to inform the police, but rather to handle the matter "internally." The university claimed they were afraid that the accused's career might be indelibly damaged. (One might cynically suspect that the university was also trying to shield itself from negative publicity.)

The foundations of any free and democratic society are the assumptions that citizens have free will, that they have the right to unfettered access to information, and that they will be held responsible before the law for their own actions. The distinguished First Amendment attorney, Harvey Silverglate, has pointed out that all campus speech codes are a bad idea. Any instance of speech that lacks constitutional protection is already illegal. (We would additionally argue that much constitutionally protected speech is currently illegal as well.) Therefore any college that adopts a speech code either tramples upon protected speech or usurps the legal system. And college disciplinary boards, untrained in due process and Constitutional rights, make poor replacements for the courts.

One often hears college disciplinary boards called "kangaroo courts" and "star chambers." In our experience, these characterizations, unfortunately, are all too accurate. We have yet to hear of a college that has fired their doctors from the health services and replaced them with undergraduates or the French Department faculty. Doctors make life-and-death decisions, and having untrained personnel do their job would never be tolerated. Yet college disciplinary boards also make decisions that have lasting effects on lives and careers.

If members of your community do break the law, do not shield them from the consequences of their actions. That truly does reward irresponsibility. Usurpation of legal authority does disservice to victims, to the accused, to the universities, and to society as a whole.

We in the National Writers Union take responsibility very seriously. We are also sadly aware that many now use the word responsible (like the phrase family values) as a code word to advocate censorship. In 1991, for example, the organizer of a public-art project in Boston tried to remove an exhibit that criticized the media coverage of the Gulf War. This organizer told me, "Artists are always defending their freedom of expression. But artists also have responsibility." In other words, "I support freedom of speech, but only when that freedom is exercised in ways that meet my approval." Freedom of speech is meaningless and worthless if it cannot be exercised in a manner deemed irresponsible by those in authority. "Responsible" speech doesn't need legal protection.

Few developments of the past decades have saddened us as much as the proliferation of embarrassing speech codes at our institutions of higher learning. As campuses diversified, new tensions arose. Rather than meet these tensions head on (and in a responsible manner) college administrators instead took the easy way out and relied upon that old tired tactic, censorship. But you do not solve the problem of hatred and intergroup tension by banning hate speech.

We are distressed by private institutions who assert the legal right to police speech by claiming that, as private businesses, they are not legally bound to honor the First Amendment. What a lesson to teach tomorrow's leaders--that the First Amendment is but a nuisance that should, if possible, be circumvented! Colleges and universities are not like other businesses. While fundraising is important, it should not be the main or only concern. A college that does not instill respect for the free exchange of ideas and the primacy of free speech deserves to go broke.

To our knowledge, not a single college speech code has withstood legal challenge--and that includes speech codes at private universities such as Stanford. Yet even today, few if any institutions shed their codes voluntarily. As Wesleyan's new president you have a wonderful leadership opportunity. We urge you to work to abolish the Wesleyan speech code and to reform the disciplinary process. Such a move would earn you the respect and gratitude of all who care passionately about intellectual freedom.

You have made an excellent start in this direction by not suspending Mr. Smith. We ask that you consider going a step further and also to take him off probation. We suggest this not as advocates for Mr. Smith. But such a gesture would make a clear statement that Wesleyan University, under your leadership, is no longer interested in policing the speech or thought of Wesleyan students. (Mr. Smith, by the way, did not suggest to us that his probation be lifted. His only objective is the speech code's removal.)

It is not our intent to interfere in Wesleyan internal affairs. But when colleges assert the right to police speech, it does become a matter of great concern to every member of the National Writers Union. Our union represents over 4,300 freelance writers nationwide. We are journalists, book authors, poets, business and technical writers, academics, cartoonists, and workers in all other genres. Our membership comprises some of the most distinguished names in American letters. Our livelihood depends on freedom of expression.

I apologize for this letter's length. But we believe that the underlying issues are of urgent importance. We look forward to hearing your thoughts on these important matters.

Sincerely,

Robert B. Chatelle, Co-Chair
Political Issues Committee
National Writers Union, UAW Local 1981 AFL-CIO

cc: Judith Krug, American Library Association; Anne Green, People for the American Way; Marjorie Heins, ACLU Arts Censorship project; Leanne Katz, National Coalition Against Censorship; David Mendoza, National Campaign for Freedom of Expression; Declan McCullagh, Justice on Campus; other members of the Free Expression Network; Nat Hentoff; other members of the press.