When Do Private Text Messages Between Two Individuals Justify Punishment?


I’d like to say “never,” except that when especially offensive private text messages become public, they aren’t private any more. As with e-mails, any time you send a text message that you know will embarrass you if it falls into malign hands or is seen by righteous eyes, you have authored the means of your potential destruction.

That’s not right, but that’s the way of the world.

Thus a Washburn University Phi Delta Theta fraternity member posted a photo of a man with a topless woman in bed as part of a fraternity text exchange following a chain of crude text messages between frat members. These were obtained by The Topeka Capital-Journal on a slow news day—Wow! Stop the presses! College guys are crude!-–and before you could say “thought control,” the national Phi Delta Theta organization suspended the Topeka campus chapter.

“We are very concerned by the messages reviewed thus far. Phi Delta Theta is a values-based organization and any behavior or statement contrary to those values is subject to significant action,” Phi Delta Theta spokesman Sean Wagner said in a statement. Naturally, the chapter president then grovelled an apology.

“On behalf of the Kansas Beta Chapter we would like to apologize for the offensive messages circulated,” President Jake Gregg told the Washburn Review, the student newspaper. “They in no way, shape, or form represent the values of Phi Delta Theta or the men of Kansas Beta as a whole.”

“He promised members would cooperate with university and fraternity officials in their investigation,” says The Journal.

Investigation?  What’s being investigated? Frat guys sent jokey, tasteless, typically sophomoric comments to each other (read them here–they are simply not any different from what every guy who ever hung out with other heterosexual guys has heard a thousand times, except that it’s milder than most of that). OK, some jerk set out to embarrass them, a newspaper helped, the national organization was embarrassed and felt to had to disassociate itself from the foolishness, and the chapter’s president mea culpaed all over the place to try to keep his frat from being plowed under. But the only difference between the text messages and two guys swapping dirty jokes with each others in a dorm room is that somebody unethically made the comments public, causing the maximum amount of damage possible to all concerned.

That individual, whoever it is, is the ethics miscreant here, just like Twitter bullies and the spurned lovers who send their ex’s clumsy farewell e-mail  around the world to humiliate him. Those text messages were private speech, and making them public out of context is unethical-–a Golden Rule breach, a free speech chill, and a cruel effort to push the nation to a state of Soviet-style paranoia, where citizens are afraid to express thoughts, make bad jokes, say outrageous things to friends and generally live because they fear their words being used  to destroy them.

Once the stuff is out, it’s out. The individuals society should focus its disapproval upon hard, however, are not the frat boys being frat boys. but those who set out to harm them.


Facts: CJ Online, NY Daily News


20 thoughts on “When Do Private Text Messages Between Two Individuals Justify Punishment?

  1. At first blush, I thought that this was an overreaction, because am not a great fan of the Greek fraternity/sorority system; mostly, though, I don’t care about it one way or another. Then, I read the article. I am amazed at the total capitulation by students and the fraternity. Where is Bluto Blutarsky when you need him? These are rather dangerous statements from the article:

    Chapter president Jake Gregg stated: “We are cooperating with University and Fraternity officials while they conduct their investigation to determine the most appropriate way to address this situation,” Gregg said in a written statement.” Why is there any investigation going? Why is the fraternity submitting to the investigatory powers of the University? At most, this is a inter-frat issue. There is no allegation of a crime or the threat of a crime. Why is Gregg still the Chapter president? He should be removed immediately.

    Washburn President Jerry Farley said: “I’ve heard they’re despicable, vile, sexual, disrespectful on the part of women and that won’t be tolerated on campus[.]” Oh, okay. He has no idea what he is talking about. Someone tolkd him that someone said someone else thought they were bad. Real bad and, by golly, they can’t have real bad things happen on campus. Nope. Can’t do it. Gotta a protect the children. The president should be relieved of his duties forthwith because he has demonstrated, conclusively, that he lacks any leadership skills whatsoever.

    “On campus, some students approached by reporters hadn’t heard about the suspension, although they agreed the situation reflects poorly on the university. Chris Carson, a senior, said the messages cast Washburn men in a negative light.” What kind of students are we educating in this nation? Is this the result of 40 years of trigger warnings and politically correct indoctrination? I would pull my son out of that school if he uttered this kind of nonsense.

    “Junior Brianne Stewart said she hopes the university questions the fraternity and finds out what has happened. She said Washburn needs to do what is right. ‘I feel that them getting suspended is a good thing, looking into it and stuff is a good thing because I feel like it should be stopped. I know it may just have been talking (in a) sexist way from what I read from the article online — some of that stuff is not stuff you should say, joking or not, because that’s not how you should treat ladies,’ Stewart said.” Let’s all embrace totalitarianism, shall we? Can’t have people thinking impure thoughts, can we?

    Where are the people jumping up and down, screaming at the university for acting like a despot, suspending a fraternity for juvenile actions of its members? It’s obvious that nobody at this university – A UNIVERSITY!! – has seen Animal House’. We are doomed.



    • So, a fellow student thinks these young men should be kicked out of the college for acting like young men.
      “She hopes the university questions the fraternity and finds out what has happened.” What happened? What happened is that some guys were making conversation in the way that young guys tend to do. Are men now only allowed to speak in a manner approved of by the most delicate of women, even the speech is not directed toward any females whatsoever?
      No, Brianne, that’s “not how you should treat ladies,” but guess what? No “ladies” were involved in the conversation, so that’s irrelevant.

      • “Are men now only allowed to speak in a manner approved of by the most delicate of women, even the speech is not directed toward any females whatsoever?”

        Depends who you ask, current feminists and SJW’s would probably give a resounding YES…. accompanied by jazz hands.

  2. What the hell is wrong with people? The quotes in the linked article are harmless, tame, stupid young-guy jokes. Hell, my older brothers made worse comments to each other and their friends during conversations I was a part of! Those comments weren’t offensive. With the right intonation, they’re even funny. They’re certainly much better that what I expected to see when I clicked that link.

  3. “I’d like to say “never,” except that when especially offensive private text messages become public, they aren’t private any more.”

    I disagree — strongly.

    If I were to privately text you some of the confidential medical information that I’ve been entrusted with over the years, that would be properly punishable. If your doctor were to text you shitty medical advice and get you killed, that would be properly punishable. If your lawyer were to violate confidentiality in a text to his wife, that would be properly punishable. If an antivaxxer were to text me realistic death threats including my home address or photos of my (nonexistent) children at school, that would be (or should be, anyway, given the history of these things) properly punishable. If I were to privately text you fraudulent information relevant to a commercial offer and you were to accept or decline that offer on that basis… well, you get the idea.

    The above examples are all of private messages between two individuals. They are all the sort of thing that can and should be punished… and them becoming public has no relevance as to why.

    On the other hand, what those frat boys did really isn’t comparable to any of my examples, and I largely agree with your analysis of this specific incident.

    I do, however, wonder how the Heck the newspaper got the (allegedly private) texts. That, in and of itself, represents a pretty substantial issue.

      • The point is that private messages — or, more accurately, the acts involved in sending them — *are* actions. They are, of course, *private* actions, but you’re still doing them.

        The question here is: “When Do Private Text Messages Between Two Individuals Justify Punishment?”

        The examples I gave were all of private text messages between two individuals. You said that you were tempted to say that such things should “never” warrant punishment, and were only stopped by the fact that they weren’t private anymore when leaked. This is what I disagree with.

        You can commit crimes, torts, and offenses in a variety of ways by sending private text messages. Those words are actionable, and should be punished.

        Even if I were to leave out things that are actually illegal… what about the hypothetical employee who sends his (or her) boss an offensive and/or insulting text? Is it wrong for the boss in question to discipline (or even dismiss) the employee for such private communications?

        And so I echo my eternal refrain and calling-card: “It’s a lot more complicated than that!”

        • It’s more complicated if you unjustly complicate it. Sending mere words is the act. If the words independently break the law, or cause damages that justify the act being called a tort, then that’s second and separate act from the act of communicating—speech. Now the act becomes the commissioning a tort or a crime, not just speech.

          A text message vulgarity, in contrast, is just speech, private, between two consenting participants. (By definition, there is no consent to the crime or tort.)

          • Me: “What consenting adults do in the privacy of their own bedroom is not the government’s business.
            You: “Ha! Gotcha! What if one kills the other, huh?”

            OK. Fine. Why is that distinction worth making, since it’s obviously not related to the point?

            • You know as well as I do that the distinction between those two “acts” is, at best, a legal fiction. We aren’t talking law here (or strictly law, anyway; a lot of my examples do merit legal consequences) — see, well, your entire article and my “boss” example.

              As for your “consenting adults” exchange, it really doesn’t work as a parallel. For one thing, the phrase “what consenting adults do in the privacy of their own bedroom” has a specific context, rhetorical history, and set of implications which your question does not even remotely have an equivalent to. For another, someone’s ability to consent to being killed is… legally (and ethically) contentious at best.

              • It occurred to me after posting this that part of my phrasing (“You know as well as I do”) was… ill-chosen, and likely to come across in a manner nearly opposite how I intended. I apologize for this (although I stand by the central thrust of my point).

                • No apology required. The disagreement, I think, centers on the privacy point—in a simple exchange, no 3rd party’s interest is involved. If HIPPA’s at issue, a third party’s interest is at issue—if the exchange is a tort, the law—that is, society, is a third party with an interest.

                  That said, the exact wording of the sentence in the post and the headline did not explicitly exclude such scenarios.

                  • Where’s the third party in the offensive message to a boss — or the hypothetical bad medical/legal advice?

                    • I was uncharacteristically dense, AC–now I know what you’re getting at.


                      The intent of the title was to refer to “punishment” as formal negative consequences, inflicted by someone or a body outside of the two parties involved who have consented to the exchange and its tone. I guess that’s assuming too much subtext based on what I actually wrote.

                      I did not mean to say that there would be no CONSEQUENCES if one party harmed the other or crossed lines not consented to by the other party. I meant that a third party not part of the discussion 1) shouldn’t be privy to it and 2) shouldn’t be taking action against the allegedly offending party.

                      A boss is a party to the conversation, and the employee is obviously not immune from the adverse consequences of what he says to the boss, and shouldn’t be.

                      The essay’s beginning embodied the sloppy rhetorical error of assuming one’s audience can read your mind, and you were right to flag it. Thanks.

  4. I’m not sure of the answer to the question posed at the top of this post, but it certainly calls to mind the admonition my best lawyer friend received early on from one of his bosses: “Never put in writing anything you wouldn’t feel comfortable having placed as a headline of the New York Times.” Another of those sage law practice maxims that are virtually impossible to observe in the real world, but still worth keeping in mind. And texting is writing. It’s not casual conversation.

    • Today, with ubiquitous recording devices, the distinction between intentional records of a communication and an accidental one is illusory. Lawyers are paid to avoid risk. A good rule from that perspective today is never tell a joke or say anything politically incorrect at all, and don’t think it either, or you might slip up. The point is that it talking/texting to a friend is like putting it on the front page of a newspaper, then our democracy is a fraud.

      The ethics rule is not to DO anything that you don’t want on the front page, meaning a intentional result that the public would find violates the culture’s standards. Making a friend chuckle shouldn’t qualify.

  5. Was the photo from something posted online or was it a photo of students? I would have a problem with a photo of a topless student being forwarded around without her consent. If not, then I don’t care.

    I do hate Greek life. I remember crying buckets of tears when my dad wouldn’t let me join a sorority. Now I look back and see it as great parenting.

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