February 7, 2020

Dr. LaVerne T. Harmon

Office of the President
Wilmington University
320 N. DuPont Highway
New Castle, Delaware 19720

URGENT

Sent via U.S. Mail and Electronic Mail (laverne.t.harmon@wilmu.edu)

Dear President Harmon:

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit

organization dedicated to defending liberty, freedom of speech, due process, academic
freedom, legal equality, and freedom of conscience on America’s college campuses.

The National Coalition Against Censorship (NCAC), founded in 1974, is an alliance of over 50
national nonprofit organizations, including literary, artistic, religious, educational,
professional, labor, and civil liberties groups dedicated to promoting the right to free speech.

PEN America is a nonprofit organization standing at the intersection of literature and human
rights to protect open expression in the United States and worldwide.

FIRE, NCAC, and PEN America are deeply concerned about the threat to freedom of
expression at Wilmington University following the university’s removal of a student’s piece of
political and satirical artwork from an online art show. This act of censorship contradicts the
laudable public commitments made by Wilmington University (“WilmU”) to its students’
freedom of expression. We call on WilmU to immediately republish the student artwork in
question in its Online Student Art Show and reaffirm its commitment to freedom of
expression.

I. Wilmington University Censors Student Political Art, Citing University Values

The following is our understanding of the pertinent facts. We appreciate that you may have
additional information to offer and invite you to share it with us. However, if the facts here are
substantially accurate, WilmU’s removal of student political artwork from an art show
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controverts, rather than supports, the university’s stated values—namely, its publicly affirmed
value of upholding the First Amendment expressive rights of its students.

On January 13, WilmU’s Office of Student Life began hosting an Online Student Art Show.
Students could enter their artwork into the show by sending high-resolution pictures of their
pieces to the Office of Student Life.1 The call for submissions to the show included no other
guidelines or requirements and opened the Online Student Art Show to “all students.”2 Joe
Aviola, WilmU assistant vice president for administrative and legal affairs, explained that the
show had no specific rules.3 The show is slated to remain live through February 14, during
which time visitors may vote for their favorite pieces.4

Student Jennie Williams submitted a satirical version of the 16th-century painting “Judith
Beheading Holofernes,” which originally depicted the deuterocanonical episode in which
Judith saves her city of Bethulia by beheading Assyrian general Holofernes.5 In Williams’
version of the piece, the face of Judith is replaced with that of Lady Liberty, and the face of
Holofernes is replaced with that of President Trump.6

Williams’ artwork was originally included in the student art show after being reviewed by
university staff.7 However, on February 4, the university received an emailed complaint, also
sent to “government officials and local media,” about the piece and removed it from the show.8
Unsure of how to remove only Williams’ artwork from the online show, WilmU officials
temporarily disabled the art show entirely.9

The following morning, on February 5, the Online Student Art Show was republished without
Williams’ political artwork.10 University officials have indicated that the piece was removed
because it did not fit with WilmU’s values, and because “it’s more violent than it is expression
of speech.”11

1
Online Student Art Show, Wilmington University Events Calendar,
https://events.wilmu.edu/site/studentlife/event/online-art-show-1 (last visited Feb. 6, 2020).
2
Id.
3
Brandon Holveck, Delaware university removes artwork featuring violence against Trump from student show,
DELAWARE NEWS JOURNAL (Feb. 5, 2020, 12:20 PM),
https://www.delawareonline.com/story/news/2020/02/05/delaware-college-removes-controversial-trump-
artwork-student-show/4665641002.
4
Online Student Art Show, Wilmington University Office of Student Life,
https://www.wilmu.edu/studentlife/artshow.aspx (last visited Feb. 6, 2020).
5
See Judith Beheading Holofernes, Web Gallery of Art, https://www.wga.hu/html_m/c/caravagg/03/17judit.html
(last visited Feb. 6, 2020).
6
Holveck, supra note 3.
7
Id.
8
Id.
9
Id.
10
Id.
11
Id.
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II. Removing Controversial Student Art Is Inconsistent with the University’s

Commitment to Expressive Freedom

Wilmington University is a private institution, and the First Amendment does not compel it to
grant students freedom of expression. Nevertheless, Wilmington University has made clear
public commitments promising its students freedom of expression, specifically including
freedom of artistic expression. In removing Williams’ artwork from the Online Student Art
Show, Wilmington University has departed from those commitments.

A. WilmU makes institutional guarantees to protect free expression.

WilmU makes clear commitments to uphold the First Amendment guarantee of freedom of
expression. For example, in its student handbook, WilmU affirms:

Members of the University community enjoy significant free

speech protections guaranteed by the First Amendment of the
United States Constitution. . . . No provision of this policy shall be
interpreted to prohibit conduct that is legitimately related to
course content, teaching methods, scholarship, or public
commentary of an individual faculty member or the educational,
political, artistic or literary expression of students in classrooms
and public forums.12

WilmU also includes as a violation of its code of conduct “[i]nterference with the freedom of
speech of another at a University-owned or controlled property or University-sponsored
activity.”13 Further, “[a]ppreciation of creative expression including arts and humanities” is
listed as among the university’s core educational values.14

B. WilmU is legally and morally bound to uphold its free speech commitments.

While Wilmington University is a private university not generally required to abide by the
First Amendment, its own promises of free expression—including its explicit invocation of the
First Amendment—should reasonably lead WilmU students to expect to be afforded free
speech rights commensurate with those advanced by the First Amendment.

These commitments represent not only a moral obligation, but a legal duty on the part of the
university, which has a contractual relationship with its students. Bain v. Howard Univ., 968 F.
Supp. 2d 294, 299 (D.D.C. 2013). This relationship requires a private institution to adhere to
its commitments to the freedom of expression and academic freedom of its students and
faculty. See, e.g., Awad v. Fordham Univ., 2019 NY Slip Op 51418(U) (Sup. Ct. 2019) (private

12
WILMINGTON UNIV., STUDENT HANDBOOK, https://www.wilmu.edu/studentlife/handbook/documents/student-
handbook-interactive-2019-20.pdf (last visited Feb. 6, 2020) (emphasis added).
13
Id.
14
Id.
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university’s refusal to recognize a chapter of Students for Justice in Palestine was contrary to
the university’s mission statement guaranteeing freedom of inquiry); McAdams v. Marquette
Univ., 2018 WI 88 (2018) (a private university breached its contract with a professor over a
personal blog post because, by virtue of its adoption of the 1940 AAUP Statement of Principles
on Academic Freedom, the post was “a contractually-disqualified basis for discipline”).

WilmU’s commitment to freedom of expression is also a condition of the university’s

accreditation. WilmU is accredited by the Middle States Commission on Higher Education,
which requires that each institution, as a precondition for accreditation, “possess[] and
demonstrate . . . a commitment to academic freedom, intellectual freedom, [and] freedom of
expression.”15 This is a laudable commitment to defend, rather than abrogate, the freedom of
expression of members of the student body and faculty.

C. In removing Williams’ artwork from the Online Student Art Show, WilmU
violated the expressive rights it guarantees to students.

Because WilmU promises to preserve students’ right to free expression—again, specifically

invoking the First Amendment in this promise—courts’ interpretation of the First
Amendment provides a useful baseline for understanding what students would contractually
expect from an institution that promises to uphold these norms.

i. Williams’ artwork cannot reasonably be called a “true threat.”

Certain well-defined categories of speech are excluded from First Amendment protection,
including “true threats” and “incitement.”

A “true threat” is a statement through which “the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a particular individual or
group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). Incitement, a separate
category of unprotected speech, encompasses speech “directed to inciting or producing
imminent lawless action and . . . likely to incite or produce such action.” Brandenburg v. Ohio,
395 U.S. 444, 447 (1969). As discussed below, Williams’ artwork does not fall into this
category, and is instead best understood as core political speech.

Political speech is afforded the highest protection under the First Amendment, and our
system grants considerable deference to even threatening language and imagery posed in a
political context. See Watts v. United States, 394 U.S. 705, 708 (1969) (“The language of the
political arena . . . is often vituperative, abusive, and inexact. . . .”). This is not a new
development. Political discourse has long been steeped in themes of violence. Perhaps most
famously, Thomas Jefferson—a principal author of what ultimately became the First

15
MIDDLE STATES COMM’N ON HIGHER EDUC., STANDARDS FOR ACCREDITATION AND REQUIREMENTS OF AFFILIATION
5 (13th ed. 2015), available at http://www.msche.org/wp-content/uploads/2018/06/RevisedStandards
FINAL.pdf.
 5

Amendment16— predicted that revolution and violence would be necessary to preserve liberty,
writing: “The tree of liberty must be refreshed from time to time with the blood of patriots and
tyrants. It is [its] natural manure.”17

Expansive interpretations of these exceptions would chill political expression, which

embraces “the right to criticize public men and measures—and that means not only informed
and responsible criticism, but the freedom to speak foolishly and without moderation.”
Baumgartner v. United States, 322 U.S. 665, 673–74 (1944). Because rhetoric tinged with
violent themes often intersects with charged political expression, “extreme care” must be
taken to ensure that an exacting standard be met, lest “highly charged political rhetoric lying
at the core” of freedom of expression unreasonably be interpreted as unprotected “true
threats” or “incitement.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 926–27 (1982). The
First Amendment’s protection of freedom of expression was a choice to prohibit authorities
from using the “old, old device” of suppression of speech as a means of penalizing unpatriotic
sentiment and expression. Watts, 394 U.S. at 712 (Douglas, J., concurring).18

Williams’ artwork, while employing violent imagery, does not approach a “true threat” or
“incitement,” and remains protected political expression under the First Amendment. Unlike
even the statement in Watts, Williams’ piece did not purport an intent to take any action at all,
but rather expressed criticism of the current administration by depicting Trump as the
antagonist in a famous work of art. The depiction of Lady Liberty as Judith further evidences
that Williams’ artwork was not a threat that she herself, or any other person, intends to cause
real physical harm to President Trump, but political commentary. Such artistic criticism of
even high-ranking government officials is a far cry from communicating a serious intent to
cause ill.

ii. Williams’ artwork is best understood as core political speech that

should not be censored on the basis of its controversial content.

The principle of freedom of speech does not exist to protect only non-controversial
expression. Rather, it exists precisely to protect speech that some or even most members of a
community may find controversial or offensive. The Supreme Court has explicitly held, in

16
Everson v. Bd. of Educ., 330 U.S. 1, 11 (1947).
17
Letter from Thomas Jefferson to William Stephens Smith, Nov. 13, 1787, available at
https://founders.archives.gov/documents/Jefferson/01-12-02-0348. See also, e.g., the license plate and state
motto of New Hampshire, pledging that residents will “live free or die” in defense of liberty. Wooley v. Maynard,
430 U.S. 705, 722, 97 S. Ct. 1428, 1439 (1977).
18
In the United Kingdom, it was high treason to encompass or “imagine” the death of the sovereign King. Watts
at 709. Under this law, citizens were convicted—and subsequently drawn and quartered—for joking about killing
the king or for hoping that the ruling elites would kill one another off so that commoners “might live the better.”
Id. at 709–10. For example, a “merry” innkeeper said to his son, “Tom, if thou behavest thyself well, I will make
thee heir to the CROWN.” Id. He was hanged. Compounding the travesty, he wasn’t even referring to the
monarch, but to the name of the inn he promised to bequeath to his son: “The Crown.” JOHN LORD CAMPBELL,
THE LIVES OF THE CHIEF JUSTICES OF ENGLAND: FROM THE NORMAN CONQUEST TILL THE DEATH OF LORD
TENTTERDEN 147 (1858).
 6

rulings spanning decades, that speech cannot be restricted simply because it offends others,
on or off campus. See, e.g., Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock
principle underlying the First Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself offensive or disagreeable.”).
The freedom to offend some listeners is the same freedom to move or excite others. As the
Supreme Court observed in Terminiello v. Chicago, 337 U.S. 1, 4 (1949), speech “may indeed
best serve its high purpose when it induces a condition of unrest . . . or even stirs people to
anger. Speech is often provocative and challenging. It may strike at prejudices and
preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”
The Court reiterated this fundamental principle in Snyder v. Phelps, 562 U.S. 443, 461 (2011),
proclaiming that “[a]s a Nation we have chosen . . . to protect even hurtful speech on public
issues to ensure that we do not stifle public debate.”

There is a long and storied tradition of using political art to shock and offend, and freedom of
expression protects even the most caustic, outlandishly offensive parody and satire. For
example, in Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Court ruled that the First
Amendment protected a mock advertisement purporting to interview the Reverend Jerry
Falwell, in which he described losing his virginity to his mother in an outhouse. A
commitment to freedom of expression, which WilmU has made repeatedly, is a recognition
that “debate on public issues should be uninhibited, robust, and wide-open, and that it may
well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and
public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

These principles remain as true in the campus context as they do off campus. For example, in
Papish, the Supreme Court of the United States ordered the reinstatement of a student
expelled for distributing an unsanctioned newspaper with the headline “Motherfucker
Acquitted,” following the trial and acquittal of a member of an organization known as “Up
Against the Wall, Motherfucker.” 410 U.S. 667, 667-70 (1973). That front-page headline was
accompanied by a “political cartoon . . . depicting policemen raping the Statue of Liberty and
the Goddess of Justice.” This, however, was insufficient to remove the artistic license from the
freedom of speech embraced by the First Amendment. As the Court observed, “[T]he 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.’” Id. at 670.

Here, Williams’ piece is both artistic and political, utilizing an artistic medium to comment on
a matter of much public debate—the Trump administration. Like the political cartoon in
Papish—in which the Statue of Liberty, also utilized in Williams’ artwork, was depicted as
being raped by police officers—artistic expression which offends, but does not rise to the level
of a true threat or incitement, remains protected expression. Even as her artwork might be
“politically charged” and controversial, its censorship offends the bedrock principle that
speech cannot be stifled simply because it is offensive without abandoning WilmU’s own
commitment to free expression and artistic freedom.
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III. Conclusion

In speaking to the press about this matter, WilmU indicated that it removed Williams’ piece
from the Online Student Art Show because the artwork violated the university’s values.
However, WilmU’s own public statements and policies indicate that the university values
freedom of expression, including artistic and creative expression19—not the censorship of
controversial ideas or art. In removing Williams’ artwork, the university has contravened the
laudable values it purports to uphold.

Wilmington University must reverse its illiberal decision and reinstate Williams’ piece as part
of its current Online Student Art Show.

Because the art show is slated to conclude February 14, we request a response to this letter no
later than February 10.

Sincerely,

Lindsie Rank
Program Officer, Individual Rights Defense Program
Foundation for Individual Rights in Education

Chris Finan
Executive Director
National Coalition Against Censorship

Jonathan Friedman
Program Director, Campus Free Speech
PEN America

19
Holveck, supra note 3.