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Criticism of government and public officials is at the core of First Amendment protections. But the Institute of American Indian Arts in New Mexico is ironically using its anti-bullying policy to browbeat student critics into silence. 

Last spring, David McNicholas, senior editor of the Young Warrior student magazine, published two student submissions reacting to recent news of the abrupt resignation of Karen Redeye, a beloved student success advisor at IAIA. 

The first submission was an anonymous editorial urging students to speak up against IAIA’s “oppression” and accusing Redeye’s supervisors of bullying her to the point that “good people have no choice but to leave or sacrifice their own mental, emotional well-being.” The second submission, also from an anonymous student, was an image of a flyer referencing rumors that Nena Martinez Anaya, the dean of students, misappropriated grant money meant for food aid. The flyer read, “Karen Redeye keeps pantries full[.] Nena Martinez robs them[.] Redeye Redemption[.]” 

Immediately after the magazine’s publication, IAIA Provost Felipe Colon told McNicholas he was being investigated over complaints that the publication constituted bullying. Specifically, he was told that the “damaging and defamatory content” and “derogatory and unfounded misinformation” violated IAIA’s expansive  — which bars everything from “teasing, name-calling” and “taunting,” to “telling others not to be friends . . . with someone” and “offensive text messages or emails.” 

A third complaint, filed by Lorissa Garcia, interim director of the Student Success Center, echoed the others but added a new accusation. Namely, that in his role as public relations officer for the student government, McNicholas used its Instagram account to “promote and distribute derogatory and unfounded misinformation and rumors” concerning Garcia’s role in Redeye’s resignation. 

Garcia based this allegation on the claim that the student government’s account “liked” a student’s post sharing an image of the “Redeye Redemption” flyer. 

Colon found McNicholas responsible for bullying, placed him on probation through the end of the 2024–25 school year, suspended him from student housing, and ordered him to issue written public apologies to Garcia and Martinez Anaya — and publish retractions in the Young Warrior and on the student government Instagram account. 

Redeye then emailed IAIA President Robert Martin to explain that she had indeed resigned from IAIA due to “maltreatment” and “bullying from direct supervisors.” Despite Redeye corroborating the editorial’s factual assertions, an appeals panel lifted the other sanctions but upheld the probation. 

FIRE wrote IAIA last month, urging it to rescind the remaining sanctions and revise its overbroad and vague anti-bullying policy:

The First Amendment protects the freedom of the press to publish vehement criticism of government officials (including college administrators) like that contained in the anonymous editorial submissions printed in the Young Warrior. In fact, such criticism is at the core of the Constitution’s guarantee of expressive rights. . . . As the Supreme Court has , “debate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

IAIA cannot ban “teasing” and “offensive text messages” simply by labeling them bullying. In order for so-called “bullying” speech to be punishable, it must rise to the level of  — that is, it must discriminate based on protected status and be severe, pervasive, and objectively offensive, among other criteria. An anti-bullying policy expansive enough to cover “taunting” and “telling others not to be friends . . . with someone” is unconstitutional.

But IAIA refused to rescind the sanctions or amend its policy. According to the school, its actions did not violate the First Amendment:

Mr. McNicholas was not disciplined because he published critical commentary about IAIA officials, as you state; he was disciplined for publishing harmful, hurtful, unsubstantiated and damaging statements about the persons and reputations of members of the IAIA community. There is a big difference between critical commentary and the spreading of unsubstantiated and injurious statements claiming illegal activity. 

Contrary to IAIA’s assertion, constitutional protection for speech and the press extends to criticism that is “harmful” or “hurtful.”  The Supreme Court : “Criticism of [public officials’] official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.” 

Nor does the published material lose First Amendment protection simply because it contains . Even false or misleading statements are protected unless the expression meets the  for unprotected defamation. Here, that means IAIA would need to show that the published claims about Garcia and Martinez were not only false, but that McNicholas published them despite knowing — or with a “” — they were false.

IAIA cannot do so. Despite throwing around a lot of terms like “misinformation,” “libelous,” “defamation,” and “slander,” IAIA has not offered any evidence to show the allegations are false, let alone that McNicholas knew they were false. Indeed, the available evidence shows he had good reason for believing the truth of the published allegations. 

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, . If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If you’re a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).