Archive | First Amendment

‘The New York Times’, Yale, and Sissygate

Last week, I had the pleasure of having my first op-ed published in The New York Times, and I was pleased (and a little surprised) when the letters to the editor that were published the next day were overwhelmingly positive.

The op-ed changed a lot during the editing process, evolving from what started as a piece primarily about restrictions on election-related student speech. (For more on that front, see several cases my colleague Will Creeley talked about in greater detail in a recent piece for The Huffington Post.) Switching gears, the editors in particular wanted me to add some discussion of elite colleges.

Thankfully, that wasn’t very hard — my new book, Unlearning Liberty: Censorship and the End of American Debate, has an entire chapter just devoted to censorship at Harvard and Yale. So I chose one fairly recent, very silly case from Yale, which I had previously written about for The Huffington Post.

As you may or may not know, Yale and Harvard have a football rivalry. Every year students and alumni get very excited about what they call “The Game.” And every year, Yale and Harvard students figure out new ways to insult each other. In 2009, Yale freshmen took a highbrow approach, plastering a line from F. Scott Fitzgerald’s 1920 novel This Side of Paradise on that year’s annual “Game” T-shirt: “I think of all Harvard men as sissies,” the T-shirt read. The Yalies added “WE AGREE” underneath.

Just for context’s sake, the full quote reads:

“I want to go to Princeton,” said Amory. “I don’t know why, but I think of all Harvard men as sissies, like I used to be, and all Yale men as wearing big blue sweaters and smoking pipes.”

But for Yale, this was a literary reference [...]

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Private Religious Colleges and Free Speech

I have been guest blogging this week, and Eugene asked me to reserve some of my posts to respond to reader comments. From the moment that Eugene announced I would be posting, a few commenters have decided that the single most important thing FIRE should actually be fighting is the scourge of censorship-happy Christian colleges. I confess, as I have before, to just being really tired of this argument, as we’ve explained FIRE’s stance on private colleges so many times. (Check out the following link, and most recently my piece in RealClearReligion.)

It’s really pretty simple, and people familiar with law and legal principles should be able to understand our stance. Public colleges and universities are, of course, legally bound by the First Amendment. Private colleges are not. However, private institutions should be held accountable for how they present themselves and for the contractual promises they make to students. The vast majority of private colleges promise free speech in rather glowing language found in student handbooks, codes of conduct, and similar materials. But out of the top few hundred colleges and universities in the country, a small minority do not. FIRE has concluded that it makes little sense in our pluralistic democracy to go after private colleges that have policies making it clear that the institution places other values (for example, their religious or ideological identity) above the value of freedom of speech.

Pepperdine University is an example of a school with a very powerful statement that should serve as a warning to students that its religious identity takes priority. Pepperdine policy states, for instance, that “[i]t is expected that all students will adhere to biblical teaching regarding moral and ethical practices. Engaging in or promoting conduct or lifestyles inconsistent with biblical teaching is not permitted.” The [...]

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Only a Few Examples of Censorship on Campus?

A few commenters on my latest post for The Volokh Conspiracy have been riffing on the theme that the Foundation for Individual Rights in Education (FIRE, where I work) is only able to show a few examples of censorship on campus, and therefore it must not be that big of a problem.

Here’s my erudite response: hogwash.

First of all, it takes a very rare brave and/or motivated student to even bother fighting back against his or her college or university administration. Nonetheless, FIRE, which is not exactly a household name, receives about 450 requests for help every year from students or faculty members who believe their free speech or due process rights have been violated. Because of our size, we don’t actually have the capacity to handle all of the case submissions we receive. Some cases we refer to attorneys, while other cases are settled in private. The cases that we talk about publicly are only those about which we have been given permission to speak. But even with all these limitations, here’s a short list of just some of the cases we have fought over the past few years:

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The Reality of College Censorship, Part 2: Speech Codes

While the public seems to fondly believe that speech codes are a thing of the past — a bygone product of the “political correctness” movement of the 1980s and 1990s — they are alive and well on the modern college campus. As I explain in Unlearning Liberty, these days, you’re unlikely to open up a student handbook and find a section labeled “Speech Code.” Instead, these codes are woven into other policies regarding student conduct, particularly those that prohibit “harassment” and “incivility.” What hasn’t changed about these speech codes, however, is how ludicrous they often are.

In the Foundation for Individual Rights in Education‘s (FIRE’s) most recent annual report on campus speech codes, we found that nearly two-thirds (65 percent) of the 392 colleges and universities we surveyed across the country maintained speech codes that clearly fail to meet First Amendment standards (which FIRE labels as “red light” policies). See Spotlight on Speech Codes 2012: The State of Free Speech on Our Nation’s Campuses for our analysis. Moreover, even though public schools are legally required to uphold students’ First Amendment rights, these institutions were no more likely than private schools to have policies that met constitutional standards; 65 percent of both public and private universities surveyed received a “red light” rating.

This is actually an improvement from past years. In fact, the percentage of overall “red light” schools has now dropped for four straight years, from 75 percent in 2009, to 71 percent in 2010, to 67 percent in 2011, to 65 percent today. Additionally, the number of institutions that do not maintain any published policy restrictions on student free speech (which we call “green light” schools) has nearly doubled over that time, from 8 to 15. Nonetheless, the fact that such a high proportion of surveyed colleges [...]

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The Reality of College Censorship, Part 1: Censorpalooza

As those of you who read my blog yesterday know, Eugene invited me to be a guest contributor to The Volokh Conspiracy this week in order to discuss some of the issues raised in my recently released book, Unlearning Liberty: Campus Censorship and the End of American Debate.

Yesterday, I described the negative impact that suppressing speech on campus has on our greater society. I also promised to give some shocking examples of censorship. So before we get into the legal issues that these cases raise, let’s take a moment to examine the state of free speech on campus.

Over the last decade, the Foundation for Individual Rights in Education (FIRE, where I work) has fought against so many acts of censorship that we decided to put together a short video that highlights some of our most egregious and bizarre cases:

The video features:

  • Hayden Barnes, a student from Valdosta State University who was expelled for peacefully protesting the proposed construction of a parking garage.
  • Keith John Sampson, a student in Indiana found guilty of racial harassment for publicly reading a book.
  • The University of Delaware, a public college that developed a program of thought reform to serve as a “treatment” for students’ incorrect attitudes and beliefs.
  • Andre Massena, a student at Binghamton University (formerly SUNY-Binghamton) who faced suspension or expulsion for challenging the Department of Social Work.
  • KC Johnson, a professor at Brooklyn College and author of a book about the Duke Lacrosse case who was threatened with a possible investigation after publicly criticizing the School of Education for what he perceived to be indoctrination and viewpoint discrimination by members of the faculty.

These cases are just a few in the long list of rights violations that FIRE has battled. Last year, FIRE began drawing attention to this [...]

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Free Speech on Campus & ‘Unlearning Liberty’

Thank you to Eugene for inviting me to guest blog on The Volokh Conspiracy this week. By way of introduction, I am a First Amendment lawyer and the president of the Foundation for Individual Rights in Education (FIRE), and my new book, Unlearning Liberty: Campus Censorship and the End of American Debate, hit the bookshelves just last week.

As some readers know, Eugene has taken a special interest in campus censorship. He has frequently highlighted FIRE’s work on this blog and was a keynote speaker at our 10th Anniversary Dinner. We have also worked together on a couple of cases, including State v. Drahota and Snyder v. Phelps.

This week, I will be writing about the reality of campus censorship, the prevalence of campus speech codes, and numerous shocking stories that show how even relatively tame and uncontroversial speech is targeted. Look for my next post to see some remarkable cases of campus censorship.

But I will also be going beyond the laundry list of horror stories and discussing the many ways in which campus censorship harms us all. As I discuss in my book, I believe that it damages our greater society in two distinct ways.

The first and most dangerous harm is that speech codes and ridiculous “free speech zones” make students far too comfortable with restrictions on their freedom of speech. In a recent case at the University of Cincinnati, for example, libertarian students were restricted to only 0.1 percent of campus when they wished to collect signatures for a ballot initiative, and were threatened with police action if they strayed outside those boundaries. Further, I argue that frankly creepy indoctrination programs like the one run out of the University of Delaware teach students that censorship of “wrong” opinions is what good and educated [...]

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Stolen Valor Act Struck Down

In United States v. Alvarez the Supreme Court has held that the Stolen Valor Act is unconstitutional. Justice Kennedy wrote for the Court, joined by the Chief Justice, and Justices Ginsburg and Sotomayor. Justice Breyer, joined by Justice Kagan, concurred in the judgment concluding the law is unconstitutional as written, but also suggesting that a more carefully drawn statute could survive First Amendment scrutiny. Justice Alito dissented, joined by justices Scalia and Thomas. The opinion is here.

For some of Eugene’s prior posts on this case see here and here. [...]

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Today’s Supreme Court Opinions

The health care cases were not issued today. They are expected on Thursday. But there are plenty of other significant opinions. Two that are of particular interest to me are America Tradition, Inc. v. Bullock, the Montana campaign finance case, and Arizona v. United States, the Arizona immigration case.

The Montana decision is a per curiam opinion summarily reversing the Montana Supreme Court’s decision upholding a state law restricting campaign-related speech by corporations. I think the 5-4 majority opinion is pretty obviously correct in holding that this law is inconsistent with the Court’s 2010 decision in Citizens United:

A Montana state law provides that a “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party….” The Montana Supreme Court rejected petitioners’ claim that this statute violates the First Amendment…. In Citizens United v. Federal Election Commission, this Court struck down a similar federal law, holding that “political speech does not lose First Amendment protection simply because its source is a corporation….” The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.

In dissent, the four liberal justices argue that Citizens United should be overruled.

In the Arizona decision, a 5-3 majority, with Chief Justice John Roberts and Justice Anthony Kennedy joining three liberal justices (Justice Kagan was recused), ruled that three out of the four challenged provisions of the Arizona immigration law are preempted by federal law. The fourth – the [...]

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ACS Panel on Citizens United

This morning I attended a panel at the American Constitution Society conference titled “Citizens United Two Years Later: Money, Politics and Democracy at Stake.” The panel was moderated by Democracy editor Michael Tomasky and featured University of Montana law professor Anthony Johnstone, Fordham law professor Zephyr Teachout, longtime campaign finance activist Fred Wertheimer, founder Democracy 21, Capital University law professor Bradley Smith, Brennan Center constitutional fellow Monica Youn, and Laurence Gold, Associate General Counsel, AFL-CIO. It was an interesting panel, and I’ve summarized the discussion below the fold. [...]

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Citizens United and the Wisconsin Recall

In yesterday’s WSJ, Stanford’s Michael McConnell explained why progressives should not blame the Supreme Court’s Citizens United for Governor Walker’s victory over the union-backed recall effort. If anything, Citizens United helped those trying to oust the controversial governor, as unions put far more money into the recall election than did corporations. Governor Walker may have outspent his opponents, but the bulk of his money came from individuals, not corporations (and he also benefited from a quirk in Wisconsin law allowing unlimited donations).

For the most part . . . Mr. Walker’s direct, big-ticket support came from sources that have been lawful for decades.

His opponent, Milwaukee Mayor Tom Barrett, got his support primarily from labor unions, whose participation was legitimized by Citizens United. Without that decision so demonized by the political left, Mr. Barrett would have been at even more of a financial disadvantage.

Speaking generally, Citizens United is likely to benefit Democrats more than Republicans. Corporations rarely make independent expenditures during candidate elections in their own name, because the ads offend customers, workers and shareholders. And direct corporate contributions to candidates tend to be split more or less evenly between the two parties, largely neutralizing their effect.

But unions have no compunctions against running campaign ads, and almost all of their money goes to Democrats. The Republicans’ advantage, when they have one, comes from rich individual donors—and the right of individuals to make expenditures in support of candidates long predates Citizens United.

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Are Search Engine Providers Like Internet Service Providers?

Today’s NYT reports on the white paper Google commissioned from our host, Eugene (about which Eugene blogged here). I don’t know this area nearly as well as Eugene does, but I found this portion of the article particularly interesting:

there is a bit of a rub for Google, some scholars say. The kind of reasoning Mr. Volokh uses in his paper could come into conflict with one of Google’s policy priorities — the so-called net neutrality rules that call for everyone to get equal treatment on the Internet.

Since Google is not connecting users to the Internet, it is vital for its business that the companies that provide access to the Internet do not play favorites. Yet, if those providers could somehow qualify for First Amendment protection, then the government would have a harder time mandating “net neutrality.”

Mr. Volokh never mentions net neutrality in the paper, but a Duke law professor, Stuart M. Benjamin, who has written an academic paper casting doubt on First Amendment protection for mere transmitters of information like Internet service providers, said he saw a clear connection.

Mr. Benjamin said an Internet provider like Comcast, for example, could offer “a family friendly Web,” which would filter out content considered inappropriate for children; by doing so, “they have now gone to protected speech.”

But he also suggested there was a potential for Mr. Volokh’s reasoning to extend First Amendment protections to transmitters that do even less — for example, those that simply provide faster speeds to companies that pay more money. That is the kind of behavior net neutrality rules are meant to prevent.

The more the First Amendment is applied to how information is transmitted via the Internet, Mr. Benjamin said, the harder it is to regulate. “Whether that is a good or bad

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White on Toobin on Citizens United

Adam White finds Jeffrey Toobin re-writing history in his much discussed New Yorker article on Citizens United. As Toobin set up the story, Citizens United was a little case, involving a “narrow” statutory question. According to Toobin’s New Yorker article, “There did not see to be a lot riding on the outcome.”

White finds Toobin’s account “preposterous.” As White notes, the day before the argument the NYT editorial page inveighed against the “wide array” of “sweeping” and “dangerous” claims made by Citizens United. Likewise SCOTUSBlog’s Lyle Denniston noted CU was asking the Court for “a sweeping rejection of congressional authority to regulate campaign spendingby corporations.” A CNN analyst named Jeffrey Toobin made the same point, opining the day of the oral argument that CU has “a pretty good case” and that the Court could “either say you have to come up with another way to regulate or this kind of regulation is simply unconstitutional.” [...]

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Jeffrey Toobin on Citizens United

The latest New Yorker has an extensive excerpt of Jeffrey Toobin’s forthcoming book, The Oath: The Obama White House vs. the Supreme Court, focusing on the Supreme Court’s Citizens United decision. The story, “Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision,” is everything you’d expect from a Toobin piece. It’s engaging and informative, with exclusive behind-the-scenes reporting of how the decision came to be. This stuff is catnip for court watchers. Yet the article also contains plenty of subtle (and not-so-subtle) spin in service of Toobin’s broader narrative of an out-of-control conservative court. As a consequence, Toobin paints a somewhat misleading picture of the case and the Court.

The heart of Toobin’s article tells the story of how Citizens United metastasized from a narrow case about the application of federal campaign finance law to an obscure conservative documentary to a significant decision vindicating the First Amendment rights of corporations. As Toobin tells the tale, after the case was first argued Chief Justice Roberts drafted a narrow opinion that would have held for Citizens United on statutory grounds, but leaving the statutory regime intact. The vote would still have been 5-4, but it would have been a far less significant case. Justice Kennedy was not happy with this result, however, and authored a concurrence calling for a broader holding that would rest on First Amendment grounds. Kennedy’s concurrence apparently swayed enough of the court’s conservatives that Roberts initially acquiesced. Such a broad ruling would be improper, the court’s liberals complained, as the broader First Amendment questions had not been briefed and were not properly before the Court. Yet as there was no interest in a narrower holding, the Court ordered a reargument with supplemental briefing that would place the First Amendment question front and center.

Toobin [...]

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George Will on the People’s Rights Amendment

George Will recently published a good Washington Post column on the ill-conceived People’s Rights Amendment, which Eugene Volokh and I blogged about here and here. Will points out several serious flaws in the proposal, and builds on some of the points we made:

Controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions….

Joined by House Minority Leader Nancy Pelosi (D-Calif.), 26 other Democrats and one Republican, [Rep. James McGovern] proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say that most campaign-finance “reforms” are incompatible with the First Amendment…

His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations…

McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment,

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