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University of Alaska Fairbanks (UAF) independent student newspaper  is being subjected to an —again—after a faculty member who complained about the paper’s content appealed two separate findings clearing the newspaper of sexual harassment charges based on its content. Although the university has not formally disciplined the newspaper staff, the months-long and burdensome investigations of clearly protected speech are wearing down the newspaper’s editors and are likely to significantly chill future student speech.

The  described the two articles that led to the complaints:

The first was a satirical article in the newspaper’s April Fools’ “Fun Star” issue and written about plans to build a vagina-shaped building on campus, a joke based on a previous article about a penis-shaped building. ...

The other article was a news story about abusive comments on the Facebook page “UAF confessions,” in which students can post comments, sometimes anonymously, on Facebook.

As examples, the Sun Star article included screenshots of the site, including one of a university student making a comment about punching a pregnant woman in the stomach. The student’s name is visible in the article because the comment was made using the student’s Facebook account.

According to the News-Miner, the UAF Faculty Senate asked the newspaper to redact student names from the latter article, arguing that those students were being singled out in a forum more permanent and public than Facebook. Sun Star editors refused to edit the article.

Sociology professor Sine Anahita filed two complaints alleging that the articles created a hostile environment on campus. Two university investigators looked into the allegations for several months, and in October, UAF’s Office of Diversity and Equal Opportunity produced a report comprising 22 pages (plus 62 pages of attachments) concluding that the newspaper’s articles were protected by the First Amendment and did not constitute hostile environment harassment. UAF Diversity and Equal Opportunity director Mae Marsh  after her investigation: “I have determined that the alleged act(s) of discrimination are constitutionally protected and also that they do not meet the definition of sexual harassment.” The University of Alaska system’s Labor Employee Relations Coordinator Jennifer McConnel included this statement in her report, too, coming to the same conclusion.

In appealing that finding, Anahita claimed that the report had “factual errors and misattributions and faulty process.” Following Anahita’s appeal, an external reviewer will now begin yet another investigation.

But absent a claim that, in fact, the newspaper published much more than just the satire and screenshots described above (and no such allegations have been reported), this appeal cannot properly end in a finding of hostile environment sexual harassment. According to the U.S. Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 629 (1999), student-on-student harassment is discriminatory conduct that is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

With respect to the first article, The Sun Star is hardly alone in its analysis of buildings—real or fake—    (or, perhaps more accurately, vulvas), and it would be very difficult to argue that such an article is so objectively offensive that it would deprive a reasonable student of his or her educational benefit. Davis sets a precise threshold, and if The Sun Star’s article reaches it, so too would innumerable college publications nationwide.

With respect to the second article, The Sun Star reproduced another student’s post as it appeared on Facebook. It does not comport with the First Amendment or with common sense to say that all public speech that might be embarrassing to the speaker must never be made more public than the forum in which it was originally shared. To impose this restriction would severely hinder journalists’ abilities to shed light on matters of public concern—as, indeed, The Sun Star staff was attempting to do in this case.

Lakeidra Chavis, current editor-in-chief and writer of the satirical article in question,  for The Sun Starin September to share details of the case. Chavis emphasized the importance of protecting journalists’ rights to report the truth—“not just about the issues the university sees fit”—as well as satire. According to Chavis, the repercussions of the students’ protected speech didn’t end with the investigations. After finding out that a class for which she was registered was being taught by the complaining professor, the Dean of Students “advised [her] to take the online section of the course.” Chavis says in her editorial, “I ended up dropping the class, despite it being the last elective I need for my degree.”

This is an absurd and depressing result for a student journalist at a public university bound by the First Amendment. As Chavis notes, the investigation as a whole contributes to an atmosphere that encourages self-censorship:

Many students are hesitant to speak out against the university because they are either planning on attending graduate school, applying for a job or working for a department and are afraid of retaliation.

Federal courts have concluded that investigations into protected speech can constitute violations of the First Amendment in and of themselves. In Sweezy v. New Hampshire, 354 U.S. 234, 245, 248 (1957), the Supreme Court noted that government investigations “are capable of encroaching upon the constitutional liberties of individuals” and have an “inhibiting effect in the flow of democratic expression.” The Supreme Court added in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963), that “the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation” may also violate the First Amendment.

In , 227 F.3d 1214, 1228 (9th Cir. 2000), the United States Court of Appeals for the Ninth Circuit—the opinions of which are binding on UAF—held that an investigation into protected expression chilled speech and was therefore a violation of the First Amendment. And in , 966 F.2d 85 (2nd Cir. 1992), the Second Circuit upheld a trial court’s finding that a university president’s creation of a committee to investigate protected speech by a professor implied the possibility of disciplinary action, and thus violated the First Amendment.

For an example from ��ݮ��ƵAPP����’s case archives of the problems presented by protracted investigations of protected speech, recall that ��ݮ��ƵAPP���� helped secure a victory for students at San Francisco State University (SFSU) after that institution’s College Republicans were investigated for months for exercising their First Amendment rights. During an anti-terrorism rally in October 2006, members of the group stepped on Hezbollah and Hamas flags. Because the flags displayed the word “Allah,” another student filed a complaint that the College Republicans engaged in “attempts to incite violence and create a hostile environment” and “actions of incivility.” Despite letters from ��ݮ��ƵAPP���� explaining that the students’ speech was protected political protest, it took until March 2007 for the investigation to finally end with a unanimous finding for the College Republicans by the Student Organization Hearing Panel. The incident led to alawsuit coordinated by ��ݮ��ƵAPP���� and the Alliance Defending Freedom that ultimately resulted in an injunction preventing SFSU from enforcing unconstitutional speech codes.

Back to UAF. Worryingly, we were unable to access   (as linked from ) on the Sun Starwebsite today. This may be a technical glitch, but it would obviously be deeply troubling if the paper has been forced to take them down.

In sum, this is a remarkable—and regrettable—result from what amounts to a humorous reflection of a common observation and the reproduction of an already-public post. At a public college like UAF, both articles are protected by the First Amendment, and subjecting students to several semesters of investigations for this speech is unacceptable. UAF should remind the school community of the First Amendment’s broad protections and take whatever steps in its power to end this new investigation swiftly. As former University of Alaska President Mark Hamilton wrote in 2001 following the investigation of a creative writing professor for the content of her work, further investigation is incompatible with the First Amendment:

“Noting that, for example, ‘The University supports the right of free speech, but we intend to check into this matter,’ or ‘The University supports the right of free speech, but I have asked Dean X or Provost Y to investigate the circumstances,’ is unacceptable. There is nothing to ‘check into,’ nothing ‘to investigate.’”

Exactly. UAF can’t undo the two investigations that the newspaper has had to endure but it can—and should—stop the third.

Image: “Newspaper stack” -