Privacy, Free Expression and Instagram: UW-Oshkosh deals with another “hate speech” moment

There are many times I am wistful that I do not advise the student paper at UW-Oshkosh anymore, but Friday definitely was not one of them.

OSHKOSH – University of Wisconsin-Oshkosh leaders say they’re investigating viral social media posts that show photos of racist and homophobic messages and hateful symbols they believe involve students.

The images, which appear to show messages posted in off-campus student housing, prompted calls for expulsions and drew the attention of state lawmakers.

A social media post of three photographs, taken at a party the previous night, attempted to “out” the party hosts (UWO students) for racist and homophobic elements that were on display at their home:


(Editor’s note: Both students were named, but I blocked them here. That’s not because I believe in hiding racism, but rather because I couldn’t independently verify that these guys lived there etc. More on this later.)

Very few things will lead to the chancellor of a major university cancelling everything he or she is doing that day to call an impromptu open forum to deal with something. Even fewer of those things are positive events. An infinitesimal number of those things will pack a giant ballroom with students on a Friday afternoon like this one did:


Then again, this wasn’t the first of these social media posts to paint the university’s citizenry in an awful light. During the student government elections in March, a student posted on social media his support for a particular slate of candidates, noting “UWO Vote for these guys today unless you want a lesbian or a hmong to win.”

The editor of the student paper told me his social media had been blowing up all night over this incident. He said he’d been getting DMs and more asking if the Advance-Titan was going to cover this and what it was going to say. Before he reached out to me, I had been emailing with Frank LoMonte, a legal eagle who formerly served as the executive director of the Student Press Law Center and now runs the Brechner Center for Freedom of Information at the University of Florida, on this topic.

My questions to Frank were for the blog, both in terms of lessons to learn and how to keep my own keester out of the fryer while writing about this issue. I gladly shared the answers with the editor as well, because this kind of situation deals with all sorts of legal and ethical issues. Here are a couple things I pondered and things Frank told me, written in a loosely structured format, that might help some of you in the future:

Clearly the speech here (a laundry list of racist and homophobic ideals as well as a giant Swastika painting) is not something the university supports or enjoys having associated with the institution. That said, I knew that there were issues involved here about this being a public institution, this happening off campus and so forth. Essentially I asked Frank, are these students and their speech still protected?

“There’s an especially aggressive strain of First Amendment case law, which I think is completely incorrect, that says if you’re enrolled in a pre-professional program, you have near-nonexistent First Amendment rights and your university can punish you if your speech falls short of the standards of what would be acceptable workplace behavior in the profession…

“The better-reasoned view is that students have at least as much First Amendment protection online as they do in the hallways, so that means at a bare minimum they have the Tinker v. Des Moines level of protection — if not more, since the Supreme Court has never limited college students to the Tinker standard.

“I think it would be quite hard for a college to show that just saying ‘I hate [fill in the blank minority]’ is an act disruptive of the campus, absent a threat to actually act on the animus. Once speech becomes threatening, yes, it loses its First Amendment protection and can be punished, but if someone does no more than express racial or religious hatred, there is no “hate speech” exception to the First Amendment, particularly not off-campus on personal time.”

I knew other colleges and institutions have dealt with this before. We’ve detailed a number of these things on the blog, including Harley Barber’s infamous rant on Martin Luther King, Jr. Day. One incident that made major national news was at the University of Oklahoma, where a video surfaced of  SAE fraternity members singing a racist chant. The chapter was banned from campus and at least two students were expelled, although one of their attorneys said the student withdrew prior to being expelled. Again, neither of these incidents, or the one at UWO was good, but do universities have the power to expel students based on off-campus things like this? Frank’s take:

“I think the reality today is that most colleges do in fact either impose disciplinary sanctions or strongly encourage the students to ‘voluntarily’ withdraw and start over somewhere else. Colleges know that these cases are quite hard for student speakers to win, and if you’re really caught saying something so boneheaded that you’d be humiliated to continue living with it every day for the next 24 months, you’re not going to sue over it. You’re probably going to slink away in humiliation, close your social media accounts, and hope nobody at your new college Googles you.

“You can look at what David Boren did to the fraternity pledge who sang the racist song on a video that went viral. That speech was almost certainly not within the school’s authority to punish constitutionally — it was incredibly offensive, but not threatening, and there’s no “offensiveness” exception to the First Amendment — but Boren calculated that the price of not doing anything would be worse for him than the minimal risk of a First Amendment lawsuit. And he was right, nobody sued and his expulsion held up.”

Aside from the issues of free speech, I was curious about the issue of someone entering a house, taking a couple pictures and then putting people on blast via social media with those images.

We’ve discussed invasion of privacy topics both here and in both books, but those are usually clear-cut examples: If the chancellor at your university is running down Main Street like Will Ferrell in “Old School,” you have every right to take pictures of the chancellor and publish them. If you climb up the drainpipe of my house and lean inside to take pictures of my kid while she’s sleeping, you’re in deep trouble.

This situation felt a little murkier, so I asked Frank about issues pertaining to privacy and open displays of stuff within an off-campus home like this:

“Everything depends on the factual details. First, was this a gathering with a large number of people, some of whom were not intimately close friends-and-family? If it’s a roomful of 50 people and half of them barely know each other, it’s quite hard to argue that something you willingly displayed in front of dozens of strangers is ‘private.’

“Second, was the act of taking the photograph open or concealed? If I see you snapping the photo openly and conspicuously and I stand by and do nothing — and if other people are doing the same — then I can’t very well complain that you took the photos against my wishes.

“But let’s assume those things aren’t true. Let’s assume it’s 10 people who all know each other very well and the photo is snapped surreptitiously. In that event, then yes, I think there’s an invasion-of-privacy claim. When you’re inside of a private home, you have an expectation of privacy, and that’s even true to some degree if you’re a house guest rather than the owner.”

As a journalism nerd, the question that most rattled around in my head (and that of the editor, I’m sure) were about what should people publish in regard to this story. Some media outlets blurred out the faces of the people in the photos. Others blurred out one or more words on the white board. Still others didn’t run the images, but rather summarized the content.

In some cases, those were issues of taste, while in others those were issues of risk. Naming the guys runs a huge risk for a number of reasons, including that you need to make sure of your source. For example, when I posted about the Oshkosh North situation, I pretty much laid out the whole story that Brock Doemel wrote and did so with almost no fear. The reason was, I spoke with Brock, I trusted Brock as a source of that information and I knew that the blow back about his story had nothing to do with factual accuracy.

In this case, however, I’m getting a third-hand (at least) photo of an Instagram post compiled by someone I do not know. The risks are much higher. In addition, I don’t know if maybe these guys have a third roommate who put the stuff up there and they have nothing to do with it. (One of the students called out in the post initially posted on Twitter that he had nothing to do with this. He has since deleted his account.) I also couldn’t prove these photos were taken at this house and that these guys live there and more. In other words, a lot more unknown elements made naming these guys a lot riskier, so I was more cautious.

What to publish and what not to publish in terms of the images and the post gave me pause. I also was sure there were other things I wasn’t thinking about as potential landmines, so I asked Frank to give me a map to the landmine field here:

“I think it’s powerful in a situation like this to show the audience: ‘Here’s exactly what this looked like to the people attending this gathering in the apartment. They were big, clear, legible words in a visible place that couldn’t help but be noticed.’ The picture helps you get that across.

“Where I would be really careful is in over-characterizing or over-describing beyond what you can say for sure based on firsthand observation. For instance, maybe the photo shows Jane Jones standing and smiling as she looks at the words. I wouldn’t say ‘Jane Jones stood by without doing anything,’ because for all you know, Jane immediately ran up and erased the words. This is the issue we saw with adding interpretation to the video of the Kentucky high-school Trump fans who got into a confrontation outside the Lincoln Memorial. Is the smiling student expressing his smug superiority over the Native America protester, or is he trying to remain stoical in the face of insults shouted at him? If you don’t know, don’t speculate and don’t guess.

“I don’t think it’s a bad editorial call not to use the photos, if there is concern over people who were innocent bystanders being targeted for blame. That’s not impossible. Maybe Joe walked in for 30 seconds to pick up his roommate, and in those 30 seconds his picture got snapped, but he didn’t have any involvement in the writings and he barely stopped to look at them. Again, it comes down to what you know, ideally from people who were in the room at the time, and not what you infer.”


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