The writer of this analysis is Robert Plotkin, MIT undergraduate and staffer of the Thistle, published by the Alternative News Collective. Plotkin forwarded a file containing this passage to me. I have excerpted the portion focusing on the Massachusetts Civil Rights Act, which is the basis for free speech rights with regard to private institutions in Massachusetts. This passage is excerpted from a series of articles about so-called "bad-mouthing" rules enforced at MIT, which prohibited any statement by a member of one living group which is deemed to be negative about another living group. -- Lars Bader SIGNS, POSTERS, AND BANNERS The right of students to hang signs, posters, and banners inside and outside of their dormitory rooms has been affirmed strongly in Massachusetts. During the 1985-1986 academic year, BU enforced a banner policy which prohibited students from, among other things, hanging objects from any part of their dormitories. Like MIT, BU is "a corporate body created by a Massachusetts legislative charter.". In Abramowitz v. Boston University, the court ruled that the BU banner policy "is invalid because it interferes with rights secured to the plaintiffs under the Massachusetts Civil Rights Act." The MCRA's requirement of violation by means of "threats, intimidation, or coercion" was satisfied, since BU employees, in the course of enforcing the policy, entered students' rooms without their permission or knowledge, removed and confiscated banners, and evicted or threatened to evict the students. The decision declared that, "Indeed nowhere in our society is the protection of the free flow of ideas more important than in the university, the quintessential "marketplace of ideas."" In addition, the court noted that "Within the university, student dormitories play an important role for students' exercise of their freedom of expression, providing students with the only area reserved exclusively for their personal use. Such use, of course, includes the student's right of free speech." The court ruled that since BU "has devoted its property to use as a University campus" and since BU "functions in many respects precisely like a public university," there is "no reason why the free speech rights of students at Boston University should be any narrower than those of students at public universities." Since the plaintiffs' banners were "pure speech," "unadulterated by elements of disruptive conduct that might otherwise attenuate the plaintiffs' interest," they were deserving of protection. Lastly, BU had ample opportunity for "reasonable regulation of the speech" of the plaintiffs without unnecessarily infringing on their rights, for example, by regulating "the display of signs, posters and banners in places, such as fire escapes, where they might pose a significant safety hazard." The BU banner policy went beyond "reasonable regulation." The policy was also rejected on the grounds that the plaintiffs were "tenants and are entitled to the same rights enjoyed by tenants under Massachusetts law, including the right to display messages on the walls, door and windows of their dormitory room," even though each of the plaintiffs had signed a Residence License Agreement, in which they agreed to abide by the banner policy. The authority of the IFC and Dormcon, therefore, to apply the "bad-mouthing" rules expression via signs, posters, or banners on students' doors, walls, and windows is at best highly questionable.[51] THREATS, INTIMIDATION, COERCION, AND INTENT For a violation of civil rights to constitute a violation of the MCRA, the violation must occur by means of "threats, intimidation, or coercion." What does this mean? The court turned to Webster's dictionary in Deas v. Dempsey to begin to determine the meaning of "coercion," which was defined as "the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done.""[52] This definition is quite broad, and there is no guarantee that future courts will continue to adopt it. The court has used such a broad conception, however, in at least one case, Batchelder v. Allied Stores Corporation, in which a uniformed security officer ordered Donald P. Batchelder to stop handing out political handbills in a privately owned shopping center. The security guard's action was deemed "sufficient intimidation or coercion to satisfy the statute [the MCRA]."[53] Does enforcement of the "bad-mouthing" rules constitute "threats, intimidation, or coercion"? Certainly there could be individual cases in which the rules were enforced in such a way that such enforcement constituted "threats, intimidation, or coercion." IFC or Dormcon officials could, for example, threaten an alleged "bad-mouther" with individual disciplinary action. But what about normal procedures, in which someone is accused of violating the rules and given a hearing? Considering the information outlined above, it seems that such a process could be considered a form of "threats, intimidation, or coercion," with the effect of deterring the accused from exercising his free speech rights in the future. Even the existence of such procedures, with their attendant penalties, deter students from exercising their free speech rights, and could be considered "threats, intimidation, or coercion." The lack of clear precedents on this point, however, makes it especially difficult to arrive at firm conclusions. What about intent? The MCRA does not require that "an actor specifically intend to deprive a person of a secured right in order to be liable under the statute," nor need the violating act be willful.[54] In an early history of the MCRA, Robert P. Sherman and Rachel B. Goldman say that "Iit is clear that the MCRA is to be interpreted in conformity with $1983 [a federal civil rights statute] which simply requires the plaintiff to show that the natural and foreseeable consequences of the defendant's act was to interfere with the plaintiff's rights."[55] Neither the IFC or Dormcon can claim as a legal defense, then, that they enforce the "bad-mouthing" rules merely to make rush "better for everybody," as Holly Simpson says, without intending to violate anyone's First Amendment rights. VAGUENESS When is a law too vague? When people "of common intelligence must necessarily guess at its meaning." Statutes that prohibit speech and other conduct "must give adequate warning of the conduct which is to be prohibited and must set out explicit standards for those who apply it. ... [The U.S. Supreme Court determined in Lazetta v. New Jersey that] "No one may be required at the peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." ... These considerations apply with particular force where the challenged statute acts to inhibit freedoms affirmatively protected by the constitution."[56] Although the "bad-mouthing" rules are not laws, but regulations of private organizations, it is instructive to examine the characteristics of laws that are impermissibly vague. In addition, the MCRA, in conjunction with the decisions in Abramowitz v. Boston, Nyer v. Munoz- Mendoza, and other cases, has significantly strengthened the free speech rights of students in Massachusetts with respect to private universities and other private organizations. The IFC rule prohibits "anything other than favorable comments about any FSILG." Interpretation of the rule, then, rests entirely on the interpretation of the word "favorable." Since neither standards nor elaboration are provided, such interpretation will vary greatly from person to person and from case to case. The MedComm rule says that "No living group member may spread falsehoods, misleading or damaging statements, etc. about any living group. *BAD-MOUTHING ANY LIVING GROUP IS STRICTLY PROHIBITED.*" Interpretation of "misleading," "damaging," "etc.," and "bad-mouthing" are highly subjective. It is not difficult to construct reasonable hypothetical situations in which students of common intelligence would have to guess at the meaning of the rules. In fact, students often find themselves in situations in which they are unsure whether statements they might make could be considered "bad- mouthing," and choose to remain silent rather than risk punishment. Neither "bad-mouthing" rule gives "adequate warning of the conduct which is to be prohibited." In addition, neither rule sets out any standards, much less "explicit standards", which must be followed by those who apply it. The "bad-mouthing" rules are clearly far too vague to have any claim to legitimacy. OVERBROADNESS Statutes that regulate speech "must be narrowly drawn to address only the specific evil at hand," and a "law regulating speech will be deemed overbroad if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately protect."[57] The "bad-mouthing" rules are not laws, but rules adopted by private organizations, so it would seem that the above standards do not apply to them. However, according to the decision in Nyer v. Munoz-Mendoza, even "Assuming a right to restrict speech on the basis of legitimate State or private interest, the means used must be precisely and narrowly drawn so as to avoid unnecessary restriction of constitutionally protected liberty. ... The least restrictive means available must be used." According to Abramowitz v. Boston University, the "constitutionally protected liberty" of private university students in the state of Massachusetts is as broad as that of public university students. Therefore, it seems that the above standards of overbroadness can reasonably be applied to the "bad-mouthing" rules. Are the "bad-mouthing" rules overbroad? To answer this question, two additional questions must first be answered: (a) What, if any, is the legitimate interest of the IFC and Dormcon in regulating the speech of their members?, and (b) Do the "bad-mouthing" rules go beyond the means required by that interest? Economic concerns and business interests cannot be claimed as legitimate motivations for the "bad-mouthing" rules. The IFC cannot, for example, attempt to justify the "bad-mouthing" rules by claiming that they make "a lot of sense for fraternities that could fall into financial trouble if they don't get a large enough pledge class," as claimed by Eliot Levitt. It was decided in Redgrave v. Boston Symphony Orchestra that "fear of business disruption, fear for economic loss, or fear for physical safety are not justifications [for restriction of civil rights] under" the MCRA, since the "legislative intent would be negated if such defenses were permitted."[58] The "bad-mouthing" rules prohibit statements that are false, "misleading," "damaging," or not "favorable" to any living group. The latter three categories have already been discussed. Can the "bad- mouthing" rules legitimately prohibit false statements? There is no simple answer to this question, and I will not attempt to answer it in full here. Prohibiting merely false statements is most likely illegitimate; some form of a requirement that the statement be defamatory and made with malice would probably be necessary. In order to satisfactorily demonstrate a legitimate interest in regulating speech, the IFC and Dormcon would have to show that doing so is necessary for the fulfillment of one or more of their legitimate functions. The IFC might attempt to do so by appealing to the role of the IFC Rush Committee as defined in the IFC Constitution, which is to "coordinate and implement the IFC's Rush according to the By-Laws of the Rush Committee."[59] Dormcon would have a much more difficult time trying to legitimate its regulation of speech. I have attempted to obtain a copy of the latest Dormcon constitution, and have been informed that the most recent copy available to Dormcon officials dates from 1942 or so. This, in itself, raises serious questions about the legitimacy and competence of Dormcon, and should be of interest to all dormitory residents. It is unclear that the IFC and Dormcon have any legitimate interest in regulating the speech of their members. If they do, however, any regulation enforced by either organization must use the "least restrictive means available," and must not be impermissibly vague, according to the criteria described above. For any conceivable legitimate interest that either organization might have, it is virtually certain that the current "bad-mouthing" rules go beyond the necessary means.