Yesterday, I received an email with the subject line “Timely Warning Notice” from campus Security at the private institution where I work as a law professor.  The email, directed to the entire campus community, mentioned that my university received a call regarding a “possible clown sighting.” Campus Security is now investigating the incident, and “[a]nyone found dressing as a clown on [] campus will be processed with the local authorities.”  I was immediately concerned – not about clowns, but about misleading students about their constitutional rights.

There is currently an epidemic of creepy clowns (if that isn’t redundant) terrorizing the country- some are harmless pranksters who enjoy dressing like a Stephen King nightmare while others are making actual threats of violence.  The moral panic that you might imagine creepy terrorist clowns would induce is exacerbated by the fact that false reports of clowns luring children into woods or kidnapping people are also being filed with police.

Campus security wants to inform students that they have recourse against individuals purposely creating panic and fear, and that is a laudable goal.  But what a private university can do to avoid the clown terror that has swept the nation is a complicated question.

As a threshold question, dressing like a clown, even right now, is very likely protected speech.  The state could make the argument that, in today’s climate of clown terror, dressing like a clown could be banned.  Just like a state can ban cross burning with the intent to intimidate, the state would argue, a state can ban the wearing of a clown costume with intent to intimidate.  However, under Virginia v. Black, the state must prove intent to intimidate; the government cannot ban cross burning outright or use cross burning as evidence of intent to intimidate.  Dressing like a clown thus also cannot be in and of itself intent to intimidate.  In addition, dressing like a clown is nowhere near as inextricably intertwined with a history of terrorism, oppression, and murder as cross burning.  A ban on dressing like a clown without any proof of intent to intimidate is surely unconstitutional, and even a ban on dressing like a clown with the intent to intimidate is likely unconstitutional – because it singles out particular speech.

Now, private universities can restrict speech (like clown costumes) on their own campuses.  This means that, unless a private university has promised otherwise in its promotional materials or student handbooks, it can censor particular costumes or speech.  Private universities can experiment with different types of speech-tolerance policies.  State universities, however, must abide by the First Amendment.

Because a private university can restrict speech, it can eject those not complying with its speech policy.  The campus-wide email I received now notifies the community that dressing like a clown is not acceptable on campus.  This is all fine.  But the email went further and mentioned that anyone dressing as a clown will be processed by local authorities.  Whether local law enforcement action would be constitutional depends on why the clown would be processed.

Local authorities can enforce trespassing laws, and can eject students warned of the prohibition.  However, the surrounding community may not be aware of the clown ban and thus would not be guilty of criminal trespass.  Plus, local authorities could enforce trespassing laws but could not punish speech, here the clown costume.  Because dressing like a clown could not be an independent crime, telling students that that anyone dressed like a clown would be processed by local authorities seriously misstates the community’s First Amendment rights.  At most, community members could be ejected from campus, but they likely could not be charged with criminal trespass.  Of course, someone purposely trying to intimidate or threaten violence could be separately punished for threatening or menacing behavior, but that would not apply to just simply wearing a clown costume.

As far as the investigation of those dressing like clowns, if a private university undertakes the investigation, it would not implicate state action or constitutional rights.  If the local police were involved in the investigation, that becomes a more complicated matter.  Courts have split on whether the First Amendment is violated when police investigate someone based on purely protected speech (like dressing like a clown) for fear that the speech means they will or have committed a crime.  (This is a fascinating article on the topic.)  Investigations are not tantamount to punishment, but they may chill speech to a significant degree.  Emailing students about the local authorities becoming involved when anyone is seen dressing as a clown will have a real impact on First Amendment rights.