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The Supreme Court, Honor Code, and The Muppets: Reform for Free Speech and Expression

This article does not necessarily reflect the views of The Clerk as an institution.

Here at Haverford, our student-drafted and ratified Honor Code seeks to establish guidelines for our academic and social behavior, ideally culminating in a campus devoid of academic dishonesty and social iniquity. While the former aim rests on the objective truth that cheating is immoral, the latter goal, addressing our individual subjectivity, inherently evokes a central question to any community—to what extent is an individual personally responsible to our community? The reasonable answer is that we mediate between our personal desires and liberties and our commitment to our community; however, where this line should be drawn remains contentious. In my opinion, Section 3.04’s “Social” category of the current Honor Code overreaches, allowing for viewpoint discrimination and the imposition of an ideological majority’s will. Although the statement may stem from good intentions, its lack of defined procedure provides for an environment in which minority opinions can be silenced under threat of official punishment by Honor Council. In determining the merit and efficacy of this clause, I recommend looking to Supreme Court precedent. One particular 1992 ruling, that of R.A.V. v. St. Paul, parallels a section of Haverford’s Honor Code and, when compared to the proceedings of “The Muppets,” calls into question our treatment of free speech within the context of our responsibility to the community.

On the morning of June 21, 1990, the petitioner, R.A.V., allegedly burned a cross on a black family’s front lawn, violating St. Paul, Minnesota’s prohibitive statute against symbols “which one knows or has reason to know ‘arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.’”(1)  With the ordinance upheld by the Supreme Court of Minnesota, the defendant appealed to the Supreme Court of the United States, claiming violation of his First Amendment rights to freedom of expression. Although it recognized the defendant’s action as morally reprehensible, the Supreme Court sided with the defendant, unanimously declaring St. Paul’s legislation unconstitutional for content discrimination and for de facto viewpoint discrimination.(2) By limiting its prohibition to specific topics, St. Paul’s ordinance discriminated against certain subjects, while others, such as “political affiliation, union membership, [and] homosexuality” remained outside of its scope; essentially, the law unconstitutionally cherry-picked “disfavored subjects” for prosecution.(3) Further explicating the statute’s unconstitutionality, the Supreme Court recognized that “In its practical operation, moreover, the ordinance goes even beyond mere content discrimination to actual viewpoint discrimination.”(4) In the context of the law, a statement condemning anti-Semitism would be permissible, whereas anti-Semite expression and speech would be considered illegal. Due to this potential imbalance in freedom of expression, the Court deemed the law unconstitutional censorship, declaring that “the point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.”(5)   

Under Section 3.04 of the Haverford Honor Code,

“We recognize that acts of discrimination and harassment, including, but not limited to, acts of racism, sexism, homophobia, transphobia, classism, ableism, discrimination based on religion or political ideology, and discrimination based on national origin or English capability…violate this Code.” (6)

While this long-winded statement avoids an unfairly limited scope by encompassing a plethora of potential topics and providing the clause “but not limited to,” the threat of viewpoint discrimination remains present in its current form. In fact, during my first semester at Haverford, especially within the context of the recent presidential election, I often heard expletive-ridden denunciations of islamophobes, racists, and sexists, which elicited support from other members of the community. However, if an individual condemned Muslims, a racial or ethnic minority, or any gender in a similar manner, they would receive an overwhelmingly negative response.

While we are undeniably entitled to express our distaste for such expressions, I do not believe that we should be able to impose public consequences through Honor Council upon those who espouse views different from our own. By allowing Honor Council, an institution provided for by the Honor Code, to pass formal punishments, euphemistically referred to as “resolutions,” against certain types of expression we allow for viewpoint discrimination against unpopular opinions on Haverford’s campus. We may believe that Honor Council will protect not only the communal interest, but also individual liberties; however, the potential for abuse remains unquestionably high. In fact, even before the implementation of the aforementioned portion of the code in 2015, its underlying rationale served as the basis for de facto institutional censorship against two students in the infamous 2004 Honor Council trial The Muppets.

As many of us are already aware, the defendants in The Muppets, Bert and Ernie, wore blackface and attached black sexual prosthetics to themselves in their portrayal of Macy Gray and an unspecified “blonde haired African American performer.”(7) Comprising the confronting party, Grover, Elmo, and Zoe expressed feelings of alienation, pain, and anger at Bert and Ernie for their portrayal, pressing for “resolutions” that included a public bi-college publication and the exclusion of Bert and Ernie from graduation, claiming that these actions would “set the tone that this type of action won’t be tolerated. She said that they wanted women and Black students on campus to feel secure.”(8) Acknowledging that it did not possess the authority to ban Bert and Ernie from graduation, Honor Council, in its statement of violation, put forth resolutions stating:

-1. Both parties must organize a panel discussion on race and/or gender. The confronting parties are invited to help organize the panel. 2. Each party must write a research paper concerning the White male in America. 3. Each party must write a letter to the community reflecting on how he and others were affected and how he has changed.(9)

By requiring Bert and Ernie to write a detailed, seven-page research paper on “the White male in America,” the Honor Council passed institutional punishment for their Halloween costumes, providing de jure punishment for their controversial portrayals.

While their actions were insensitive and lacked foresight, I do not believe that Bert and Ernie should have received formal punishment from Honor Council for their engagement in blackface because it presents viewpoint discrimination as outlined by the Supreme Court in R.A.V. v. St. Paul. Just because we do not communally approve of an act of verbal or physical expression does not mean we can subject the accused to institutional punishments by Honor Council. Although appeals to the perceived threat to the security and sense of acceptance of black and female students like Zoe’s are important in our self-consideration of our actions, I do not believe that these concerns are substantial grounds for subjecting fellow students with minority opinions to unequal standards within our Code. As stated in R.A.V. v. St. Paul, “St. Paul’s desire to communicate to minority groups that it does not condone the ‘group hatred’ of bias-motivated speech does not justify selectively silencing speech on the basis of its content.”(10)  

Arguably, maliciously burning a cross in a black family’s lawn constitutes a significantly greater transgression than a negligent costume choice, begging the question: why protect this type of expression? I posit that by protecting the right to this offensive and blatantly disrespectful behavior, regardless of intentionality, we protect Haverford’s core dedication to multiculturalism and pluralism.

In rejecting Bert and Ernie’s joint appeal, the then-current President of Haverford College, Thomas R. Tritton responded, “You argue that ‘violating community standards and violating the Honor Code are two different things.’ I cannot agree.”(11) I contest President Tritton’s claim; while our community standards influence our Honor Code, the two should remain disparate to prevent viewpoint discrimination and, therefore, ensure the safety of an unpopular opinion on campus. If we fail to differentiate the two, then we allow the moral and ethical judgments of the majority to become the formal standard upheld in formal Honor Council proceedings, which subjects those who engage in controversial behavior or harbor unpopular opinions to potential punishment for expression explicitly protected within the First Amendment.

In the defense of such behavior and speech, I implore us to reflect upon historical injustices committed against unpopular opinion and action in the name of public decency and perceived security. In my home state of Louisiana, the 1896 Supreme Court ruling Plessy v. Ferguson set a precedent for over half a century of legal Jim Crow segregation in the South in the name maintaining racial purity and ensuring security. This same ideological imposition and belief in community morality, or majority morality, as absolute morality also led to ethnic and religious cleansing in Germany, Turkey, Rwanda, Iran, and Iraq in the 20th century alone. In these cases, the opinion and bias of the majority defined institutional standards, suppressing individual liberties in the name of security and moral righteousness. Unfortunately for racial, ethnic, and religious minorities in these cases, subjectively benevolent intentions did not guarantee positive yield. To clarify, while these events themselves are not comparable to the situation at Haverford, the same foundational problem persists. As in these other historical examples, majoritarian morality is masquerading as an absolute one, threatening freedom of expression with official Honor Council sanction and, thereby, silencing dissent according to its subjective determinations of offensiveness.

Ultimately, the problem with this portion of the Code revolves around an inconsistency within the legitimacy of our desired outcome and the procedures we utilize to realize it. While expressing the incongruence of blackface with our community values is certainly legitimate, the lack of formal proceedings grants Honor Council an unreasonable amount of authority in distinguishing what constitutes a violation of the Code and its corresponding punishment. In its current state, the “Social Responsibilities” section of the Social Honor Code places communal values and pluralism in stark contrast with each other, demanding a commitment either to the protection of minority interests or to the fundamentals of free speech and expression, and therefore generates unnecessary internal conflict.

The solution to ameliorating such a dilemma entails thoughtful commitment to our values of pluralism and mutual respect. By divesting Honor Code of the ability to pass judgement on Social Code and establishing formal procedures to treat potential violations, we can afford increased protections to individuals irrespective of their opinions’ popularity. To create these procedural regulations, I recommend the formation of a Free Speech Committee, whose mission would be to align Haverford’s Social Honor Code with existing Supreme Court precedent as closely as possible. To ensure that the interests of all minority groups on campus are represented, such a committee would entail proportionate representation on basis of race, gender, and ideology on campus. As “members of a diverse community” who “seek mutual understanding by means of respectful communication” and believe in “resolving conflicts by engaging each other in dialogue,” it suits our aims to edit establish such procedures and redouble our efforts to protect and promote free speech on Haverford’s campus.(12) By protecting those we disagree with and the most unpopular opinions, we ensure that no injustice is committed in the name of subjective standards of public decency, morality, or security because, in the words of the Reverend Dr. Martin Luther King Jr., “injustice anywhere is a threat to justice everywhere.”(13)

(1) https://www.law.cornell.edu/supremecourt/text/505/377

(2) Ibid

(3) Ibid

(4) Ibid

(5) Ibid

(6) http://honorcouncil.haverford.edu/the-code/

(7) http://honorcouncil.haverford.edu/wp-content/uploads/2011/01/themuppets.pdf

(8) Ibid

(9) Ibid

(10) https://www.law.cornell.edu/supremecourt/text/505/377

(11) http://honorcouncil.haverford.edu/wp-content/uploads/2011/01/themuppets.pdf

(12) http://honorcouncil.haverford.edu/the-code/

(13) https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

 

To write a response to this article, e-mail our Editor-in-Chief Maurice Rippel at mrippel@haverford.edu.