FIRE is disappointed that Emerson College failed to respond to our letter of October 5, 2021, concerning its suspension and institution of misconduct charges against a student organization for distributing stickers that—as Emerson now recognizes—were intended to criticize China’s government. Emerson’s Conduct Board found responsibility, and the group appeals.
The Conduct Board found that the Emerson Turning Point USA chapter (TPUSA), was responsible for the school’s violation of the Bias Related Behavior policy. Despite finding that the group “did not intend to target anyone other than China’s government,” Emerson issued a “Formal Warning”—a formal sanction under Emerson’s policies. This warning letter further states, “[a]dditional behavior that violates Emerson’s Community Standards”—that is, engaging in the same or similar speech—”will likely result in additional disciplinary action.”
In particular, the Conduct Board concluded that:
[B]You disseminate the Stickers[, TPUSA]were discriminatory on the grounds of national origin. They interfered with the enrollment of the Complainant and/or created a hostile, intimidating, offensive work, living, learning or working environment. The Emerson chapter members were not attempting to attack China’s government. But, the Board held that giving out stickers was discriminatory given the anti-Asian environment that developed in recent years.
Emerson has always held Emerson responsible for its commitments to freedom of expression. Emerson believes that the distribution and use of sticker criticizing foreign government is “discriminatory conduct based on the basis of nation origin”. Emerson concludes at its core that campus has been subject to anti-Asian discrimination. It is up to Emerson’s student group to address this discrimination. Acceptance The Emerson students and faculty did not, nor did they intend to engage in discriminatory behaviour. The result is that Emerson students—and presumably faculty—cannot criticize China’s government.
This is a remarkable result for an institution of higher learning. Campus speeches on international or domestic political issues will undoubtedly include criticisms of foreign governments. This criticism will undoubtedly be upsetting for those who identify or support those countries. Emerson has sanctioned TPUSA because it criticizes the Chinese government. This is a breach of university commitments to freedom of expression.
Emerson will be setting a precedent here that is not limited to China critics. In recent years there have been more anti-Semitic attacks. These incidents were evident following clashes during the Israeli-Palestinian war in May. Emerson would impose sanctions on a Palestinian student advocacy organization for publishing flyers criticizing the Israeli government and encouraging boycotts of it.
Universities and colleges pride themselves in being places that welcome students of diverse backgrounds. That speech critical of foreign governments causes unintentional—and unavoidable—offense to others is not a basis to retreat from these principles. It is a legal and not moral analysis as to whether speech protection is possible. Consistently, the Supreme Court has stated repeatedly that speech cannot be limited because others find it offensive. This principle is especially relevant to universities that are open to debate and discussion.
In our last letter, FIRE stated:
FIRE is disturbed by the Emerson College’s investigation into and the initiation of misconduct cases against a student organisation and its members based on its distribution of stickers critical of China’s government. Emerson’s principles of freedom of speech guarantee that criticism of governments will be protected as a core form of political expression.
Emerson College Sues TPUSA for Distributing “China Kinda Sus Stickers”
Below is our interpretation of the facts. If you have any additional information, we are happy to hear it.
Turning Point USA members at Emerson College set up a table on September 29th, 2021 to interact with others students and find new members. Written materials were available for anyone who was interested.
Among them were stickers featuring a character in an online multiplayer game called “Among Us”, whose object it is to spot the imposter spaceship crewmate. Red is used to depict the character, which has been superimposed on the emblem of China’s Communist Party of China. The sticker includes the words “China kinda sus,” invoking a slang term “sus”—short for suspicious—used by “Among Us” players to identify suspected imposters. TPUSA chapters often distribute stickers with this message, as well as a variant critical of domestic politics that reads “Big gov sus”. Here’s the one that attacks China.
… On September 30, 2021, you sent an email to the Emerson community announcing that the “Office of Community Standards and Student Conduct and the College will initiate an investigation,” as it had “come to [your]Pay attention to the fact that stickers were distributed yesterday by several individuals that contained anti-Chinese message that was inconsistent with the values of College.[. ]”That email was followed immediately by a collective statement of a consortium of administrative department, Emerson’s Office of International Student Affairs criticizing the stickers.
Emerson’s Director of Community Standards, Sammi Naves, President of TPUSA Emerson, and Kjersten Lynum were notified by Emerson of alleged violations of Emerson’s policies regarding “Bias Related Behavior” and “Invasion of Privacy.” In addition to imposing interim restrictions on the chapter’s ability to host programs, meetings, and/or tabling, the letter warned that violations could result in further sanctions and even dismissal. It stated that interviews would be conducted and that the chapter’s leadership will meet to discuss their concerns.[.]”The letter stated that all members of the organisation must “keep confidential what we have discussed” and should “not discuss the statements made during interviews with any other person than a personal representative.”
The China Kinda Sus Sticker is protected under Freedom of Speech Emerson Promises Students
Emerson’s imposition of interim steps and the initiation of an inquiry is a significant departure from college policies that guarantee students freedom to express themselves. Although criticisms of China could be equated with criticism of Chinese citizens and those who are of Chinese descent it is not a case of harassment.
Emerson guarantees its students the right to freedom of speech
Although private institutions like Emerson are not bound by the First Amendment, Emerson has adopted policies guaranteeing students “certain rights,” including the “right to freedom of speech, … freedom of political belief and affiliation,” and “freedom of peaceful assembly.” Emerson adds to these commitments by addressing students about their expressive rights. Emerson praiseably emphasizes the First Amendment’s importance and tells them that freedom of expression is a “non-only right” but “a community responsibility.”
Emerson has made these promises and is legally bound to fulfill them.
Criticism of foreign governments is protected speech, even if it offends to Other
Emerson’s stickers and others are critical of China. These stickers are part of a tradition of protests by students on American colleges that criticize foreign countries, including those opposed to South Africa’s Apartheidor or, in recent years, Israel.
Freedom of speech allows us to critique not just our government but also those of other nations. Even if that criticism offends their “dignity”, or threatens “vital national interests,” it is still allowed.[s. ]”
Boos v. BarryIn the United States, the Supreme Court of the United States overturned a ban on displays being within 500 yards of an embassies if the display was likely to cause “public odium” for the embassy. This regulation was intended to protect diplomats against speech offending their dignity. It was supported by substantial interests. The “Nation’s important interest” in international relations was served by the support of cordial discourse.
The First Amendment was not violated despite these interest.
[I]Public debate means that citizens have to accept insulting and sometimes even offensive speech to ensure adequate “breathing room” for the First Amendment rights. We rejected the inhumanity standard as a “dignity standard”. [Hustler Magazine, Inc. v. Falwell]It is inherently subjective and inconsistent with our longstanding refusal to accept it. [punish speech]Because the speech may cause adverse emotions in the audience.
The fact that speech is deeply offensive to others does not make it permissible to restrict it. Consistently, the Supreme Court has ruled that speech cannot be curtailed because others find it offensive. This is why authorities can not outlaw burning American flags, penalize the wearing of jackets with “Fuck The Draft”, punish cartoons of pastors losing their virginity to their mothers in outhouses, or disperse civil-rights marchers because they fear “muttering” and “grumbling” white observers might resort to violence.
This principle is especially strong for colleges and universities that are open to debate and discussion. For example, take a student paper’s front-page use of vulgar headlines (“Motherfucker Accused”) and “political cartoon” depicting policemen abusing the Statue of Liberty or the Goddess of Justice. These words and images—published at the height of the Vietnam War—were no doubt deeply offensive to many at a time of deep polarization and unrest. Also, “offensive” and “sophomoric” skits that depicted derogatory stereotypes and student groups were viewed by the public as offensive and “shocking.” Yet, “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency. ‘”
The China Stickers are Criticism of China’s Government. Unprotected Harassment
Title VII imposes important obligations on Emerson to address and correct hostile learning environments. However, these obligations are not reflected in this case.
The speech does not discriminate on the basis of race, ethnicity or national origin. These stickers are not intended to incite or promote stereotypes about people of Chinese origin or descent. The stickers criticize China’s policies and culture. Regierung. These stickers feature the emblem of China’s sole governing party, superimposed on a character from a videogame that bears the same red hue as China’s flag. “China kinda sus” refers to the country’s name, and not its citizens. Even though some people are from or descend from this country, criticism of foreign governments isn’t inherently a criticism of them.
The second is that even though the sticker’s message could be considered speech based upon race, ethnicity or national origin it doesn’t rise to peer-on–peer harassment according to law.
It is possible to be harassed by speech made in offensive ways. To enforce prohibitions against racially discriminatory harassing, the Office for Civil Rights of the United States Department of Education stated clearly that their regulations “aren’t intended to restrict any expressive activities protected by the U. S. Constitution”. Therefore, discriminatory harassment should not be limited to the expression of thoughts, views, symbols or words that someone finds offensive.
Instead, harassment is only allowed if speech amounts to conduct “so serious, pervasive and objectively offending” that it undermines or takes away from victims’ education experience. Victim-students then are effectively denied equal access of resources and opportunities at the institution. Distributing a sticker which others are free to take or leave, and which makes no reference to a protected class, falls short of this standard… .
Emerson is a great example of freedom-of-expression. Yet, in response to criticism of a foreign government, Emerson has abandoned these laudable commitments, imposing interim restrictions—which are reserved for an “imminent” threat to the “physical, social, or emotional well-being”31 of others—and initiating an investigation… .