Archive | Freedom of Speech at Colleges and Universities

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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Greg Lukianoff Guest-Blogging

I’m delighted to report that Greg Lukianoff, president of the Foundation for Individual Rights in Education — one of my favorite public policy advocacy groups — will be guest-blogging this week about his new book, Unlearning Liberty: Campus Censorship and the End of American Debate. Here’s the book description:

For over a generation, shocking cases of censorship at America’s colleges and universities have taught students the wrong lessons about living in a free society. Drawing on a decade of experience battling for freedom of speech on campus, First Amendment lawyer Greg Lukianoff reveals how higher education fails to teach students to become critical thinkers: by stifling open debate, our campuses are supercharging ideological divisions, promoting groupthink, and encouraging an unscholarly certainty about complex issues.

Lukianoff walks readers through the life of a modern-day college student, from orientation to the end of freshman year. Through this lens, he describes startling violations of free speech rights: a student in Indiana punished for publicly reading a book, a student in Georgia expelled for a pro-environment collage he posted on Facebook, students at Yale banned from putting an F. Scott Fitzgerald quote on a T shirt, and students across the country corralled into tiny “free speech zones” when they wanted to express their views.

But Lukianoff goes further, demonstrating how this culture of censorship is bleeding into the larger society. As he explores public controversies involving Juan Williams, Rush Limbaugh, Bill Maher, Richard Dawkins, Larry Summers — even Dave Barry and Jon Stewart — Lukianoff paints a stark picture of our ability as a nation to discuss important issues rationally. Unlearning Liberty: Campus Censorship and the End of American Debate illuminates how intolerance for dissent and debate on today’s campus threatens the freedom of every citizen and makes us all just a

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Quite the Speech Code

FIRE’s Speech Code of the Month, from SUNY – New Paltz:

This policy applies to all members of the campus community, individuals doing business with the
campus, any person utilizing campus facilities. This will include SUNY New Paltz’s campus, any off-site
facilities, and work-related travel….

Examples of Prohibited Conduct …

Distribution, display or discussion of any written or graphic material that ridicules, denigrates,
insults, belittles, or shows hostility or aversion toward an individual or group because of protected
status.

“Protected status” seems to refer to “sex, sexual orientation, predisposing genetic characteristics, race, color, national origin, age, religion, creed, marital status, military status, or disability, including pregnancy.” So better not distribute, display, or discuss any material that show hostility or aversion to Scientologists, extremist Muslims, conservative Christians, gays, members of the military, or anyone over thirty. Thanks to Paul Milligan for the pointer. […]

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English University Student Government Excludes Atheist Group from Freshmen’s Fair for Blasphemy

Here’s the atheist group’s statement about the incident, which seems consistent with a Daily Mail (UK) account and with a statement from the student union (quoted in the article):

Today, the Reading University Atheist, Humanist, and Secularist Society (RAHS) participated in the Freshers’ [i.e. Freshmen’s -EV] Fayre organised by Reading University Students’ Union (RUSU).

We spent several hours talking to other students and visitors, promoting the society and encouraging people to attend our forthcoming discussion on the topic “Should we respect religion?”

Among the material displayed on our stall was a pineapple. We labelled this pineapple “Mohammed”, to encourage discussion about blasphemy, religion, and liberty, as well as to celebrate the fact that we live in a country in which free speech is protected, and where it is lawful to call a pineapple by whatever name one chooses.

Towards the end of the afternoon, we were informed by a member of RUSU staff that there had been complaints about the pineapple, despite the fact that no complaints had been made at any point to anybody on the stall. Our commitment to freedom of expression meant that we refused to remove the pineapple from our stall. After a few minutes, we were told by another member of RUSU staff that “Either the pineapple goes, or you do”, whereupon they seized the pineapple and tried to leave. However, the pineapple was swiftly returned, and shortly was displayed again, with the name Mohammed changed to that of Jesus….

The RAHS believes in freedom of expression. Our intent in displaying a pineapple labelled “Mohammed” was to draw attention to cases where religion has been used to limit this and other fundamental rights, such as the imprisonment of Gillian Gibbons. We did not expect to be forced out of the Freshers’ Fayre because of

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“University of California Jewish Student Campus Climate Fact-Finding Team” Calls for Banning “Hate Speech”

Fortunately, it appears that UC President Mark Yudof — a noted First Amendment scholar — is not going along with this. Here’s the relevant passage, which the Foundation for Individual Rights in Education rightly condemns:

2) UC should adopt a hate speech-free campus policy.

While many campuses have adopted hate-free campaigns or issued commitments affirming the free and open exchange of ideas while maintaining a civil and supportive community, UC does not have a hate-free policy that allows the campus to prevent well-known bigoted and hate organizations from speaking on campus (aside for time, place, and manner provisions), such as the KKK. UC should push its current harassment and nondiscrimination provisions further, clearly define hate speech in its guidelines, and seek opportunities to prohibit hate speech on campus. The President should request that General Counsel examine opportunities to develop policies that give campus administrators authority to prohibit such activities on campus. The Team recognizes that changes to UC hate speech policies may result in legal challenge, but offer that UC accept the challenge.

Now I’m pretty sure that attempts by the KKK to organize speeches on UC campuses are very rare. But of course if the KKK did show up, I’m pretty sure that the effect would be more of an outpouring of support for Jewish and non-white students, through university officials’ and student groups’ uniformly condemning the speakers, counterdemonstrating, and the like. Indeed, a university campus is a place where counterspeech is especially likely to be effective in combating such overwhelmingly condemned evil speech, both intellectually (in the sense of providing a persuasive response, if any is likely to be required) and emotionally (in the sense of making the targets of the speech feel welcome and valued on campus).

But of course this isn’t about the KKK: […]

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University of Delaware Students Barred from “Ridiculing” with the Intent of “Excluding or Degrading a Person”

From the Code of Conduct ban on “bullying”:

1. Statement of Policy

A student shall not impair, interfere with, or obstruct the orderly conduct, process, or function of the University or any of its students, faculty members, University officials, guests or the surrounding community.

2. Prohibited Activities

Specific violations of this standard include, but are not limited to: …

f. Bullying (Any deliberately hurtful behavior, usually repeated over time, with the desired outcome of frightening, intimidating, excluding or degrading a person. This includes, but is not limited to, physical assault, verbal abuse, teasing, ridiculing and spreading of rumors or private information about a person and may be done by any method of delivery, such as verbal, written or electronic); …

I would have thought that university students — as well as faculty members and university officials — are old enough to deal themselves with “teasing,” “ridiculing,” and attempts at “excluding or degrading,” without the administration’s help; but the University thinks otherwise. The Foundation for Individual Rights in Education is urging the University to change its policy. […]

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“Call Me Irresponsible, Call Me Unreliable, Throw in Undependable Too”

I blogged about Turkish Coalition of America, Inc. v. Bruininks (8th Cir. May 3, 2012) when the district court decision came down, and yesterday the Eighth Circuit agreed with the district court’s bottom line (though disagreed with the district court’s decision about standing). I think the District Court and the Eighth Circuit both got it quite right — the defendant university’s labeling the Turkish Coalition’s site “unreliable” and advising students against relying on the site in their research papers doesn’t violate the Coalition’s First Amendment rights, and is also not actionable libel:

TCA alleges that the defendants defamed it by stating that TCA’s website (1) engages in “denial” of the Armenian genocide in Turkey during World War I, (2) is “unreliable,” (3) presents a “strange mix of fact and opinion,” and (4) is an “illegitimate source of information.” …

With regard to the first challenged statement, TCA argues that the Center’s accusation of “denial” is false because the term “denial,” in the context of genocide studies, is a term of art that implies denial of well-documented underlying facts associated with a genocidal event. TCA points out that its website does not deny certain underlying historical facts about the fate of Armenians in Turkey during World War I, such as that “certainly hundreds of thousands of Armenians died during” what it characterizes as “the Armenian revolt.” Under TCA’s interpretation, however, the term “denial” would merely express a subjective evaluation of the credibility of the historical sources for every assertion on the TCA website, many of which TCA admits are “contested.” Such an evaluation of credibility is essentially an opinion, “not capable of being proven true or false,” and thus not actionable in defamation, because different historians might well come to different conclusions. On the other hand, the “denial” statement reasonably

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Should Colleges Punish “Cyber-Bullying” by Their Students?

So argue two lawyers in a recent Chronicle of Higher Education article, warning of legal liability if colleges don’t take suitable steps to suppress such speech. The article is short on definitions of cyber-bullying, but calls for colleges to update their “anti-bullying and social-media policies to take into account the immediate and significant harm that can be inflicted when bullying behavior leaves the dormitory or the quad and goes online,” and to have administrative processes to “foster a safe and supportive” (and “more inclusive”) “environment for all of its students” by “[m]anaging the recent and exponential growth of social-media sites and digital forms of communication.”

This sounds to me like more than just a call for punishing constitutionally unprotected speech, such as threats of violence — though how much more is hard to tell. It will be interesting to see what new university speech codes aimed at preventing “cyber-bullying” are going to spring up in the coming years. […]

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Penn Law School Rejects Louis Vuitton Nastygram

A Penn student organization put on a fashion law symposium, and created the following poster:

The top part of the poster echoes the Louis Vuitton design, but with copyright and trademark symbols worked into it. You can see Louis Vuitton’s cease-and-desist letter, and the Penn Office of General Counsel we-won’t-case-or-desist response. The Penn response strikes me as quite persuasive — I think the use of the marks can’t qualify as dilution, is unlikely to confuse, and is likely to be a fair use in any event, for much the same reasons that the Penn letter gives. And I’m glad that Penn is refusing to go along with Vuitton’s demands. […]

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FCC Standards Come to Arizona Classrooms

Here’s a bill currently being considered by the Arizona Legislature:

A. If a person who provides classroom instruction in a public school engages in speech or conduct that would violate the standards adopted by the federal communications commission concerning obscenity, indecency and profanity if that speech or conduct were broadcast on television or radio:

1. For the first occurrence, the school shall suspend the person, at a minimum, for one week of employment, and the person shall not receive any compensation for the duration of the suspension….

2. For the second occurrence, the school shall suspend the person, at a minimum, for two weeks of employment, and the person shall not receive any compensation for the duration of the suspension….

3. For the third occurrence, the school shall terminate the employment of the person….

B. For the purposes of this section, “public school” means a public preschool program, a public elementary school, a public junior high school, a public middle school, a public high school, a public vocational education program, a public community college or a public university in this state.

What a silly bill. First, what’s the point of this sort of micromanagement by the legislature? I would guess that in most schools, teachers’ vulgarities will get them disciplined by administrators even without a state statute. Moreover, I would assume that such discipline can be more finely calibrated than the statute suggests — is it really obvious that a high school teacher who swears in the classroom three times in his career (perhaps given some extenuating provocation) must be fired?

Second, the FCC standards are notoriously vague, as this Second Circuit decision (now being reviewed by the Supreme Court) laid out. The standards have shifted dramatically over time, and by subject matter. I assume that even under the […]

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Neal Gaiman + FIRE + Firefly + Campus Free Speech, All Together

A Foundation for Individual Rights in Education video, about the now-notorious University of Wisconsin-Stout Firefly poster incident:

Here’s a brief summary of the incident from FIRE:

On September 12, 2011, Professor Miller [UPDATE: who is a professor of theater] posted on his office door an image of Nathan Fillion in Firefly and a line from an episode: “You don’t know me, son, so let me explain this to you once: If I ever kill you, you’ll be awake. You’ll be facing me. And you’ll be armed.” On September 16, UWS Chief of Police Lisa A. Walter emailed Miller, notifying him that she had removed the poster and that “it is unacceptable to have postings such as this that refer to killing.”

Amazed that UWS could be so shockingly heavy-handed, Miller replied by email, “Respect liberty and respect my first amendment rights.” Walter responded that “the poster can be interpreted as a threat by others and/or could cause those that view it to believe that you are willing/able to carry out actions similar to what is listed.” Walter also threatened Miller with criminal charges: “If you choose to repost the article or something similar to it, it will be removed and you could face charges of disorderly conduct.”

Later on September 16, Miller placed a new poster on his office door in response to Walter’s censorship. The poster read “Warning: Fascism” and included a cartoon image of a silhouetted police officer striking a civilian. The poster mocked, “Fascism can cause blunt head trauma and/or violent death. Keep fascism away from children and pets.”

Astoundingly, Walter escalated the absurdity. On September 20, Walter emailed Miller again, stating that her office had removed the poster because it “depicts violence and mentions violence and death.” She added that UWS’s “threat assessment team,” in

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Lawsuit Claiming University of Iowa College of Law Discriminated Against Republican Teaching Applicant

Ilya blogged about this lawsuit when it was filed, so I thought I’d note that today the Eighth Circuit allowed the lawsuit to go forward, “revers[ing] the district court’s grant of summary judgment based on qualified immunity.” Naturally, this is not a finding that the law school did indeed discriminate, only that a jury should make that decision. “Dean Jones’s conduct confirmed the faculty’s recommendations, which a jury ultimately could conclude violated the First Amendment.”

Thanks to How Appealing for the pointer. On Brief, Iowa’s Appellate Blog has more. […]

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“Hiring [a Lecturer] Stridently Opposed to Gay Rights Goes Against the [University’s] Ethic of Nondiscrimination”

That’s what one Hamline University business school professor said, in opposing the hiring of another prospective business school professor, according to the St. Paul Pioneer Press:

A Hamline University professor said Wednesday that hiring [former Republican gubernatorial candidate] Tom Emmer would have been a bad business decision for the school, while Emmer said “political bigotry” in higher education is discriminating against people with conservative views like his….

Asked whether the decision not to hire Emmer had anything to do with faculty concerns about his political views, [Hamline spokeswoman JacQui] Getty said Hamline would have no comment beyond a statement … [that] said “there were conversations” about Emmer joining the faculty but “no finalized agreement.”

Jim Bonilla, an associate professor in Hamline’s business school, said he wrote to McCarthy with concerns about Emmer’s appointment and that he knows of two other professors, outside the business school, who raised concerns with Hanson.

He said he doesn’t know whether faculty concerns about Emmer factored in the administration’s decision not to hire him.

For Bonilla, listed on the school’s website as a consultant on diversity in higher education and the founding director of “Race, Gender & Beyond” program, there is a business case and a social justice case to be made against Emmer.

In terms of business, he pointed to fallout from gay-rights groups after Target Corp. donated $150,000 to a political fund that in turn supported Emmer.

And hiring someone stridently opposed to gay rights goes against the school’s ethic of nondiscrimination and works against training the staff does on creating safe spaces for gay and lesbian students, Bonilla said.

“That would be money wasted,” he said. Not hiring Emmer allows Hamline to make a decision “congruent with our values and a sound business decision,” Bonilla said….

Despite the school’s statement that

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“Arresting [Koran-Burning Pastor Terry] Jones Would Have Been an Option Had He Come on Campus”

From today’s L.A. Times:

Campus police said they asked the Rev. Terry Jones not to come on campus after receiving information about suspicious activity associated with the visit that raised safety concerns. Several areas on campus, including Aldrich Hall where the university’s administration is housed, were closed.

Jones, who threatened to burn the Koran on the anniversary of of the September 11 terrorist attacks and eventually did so in March, had applied for a permit to speak at an area near the campus flagpoles but was denied permission because another organization had already applied for the same time slot….

School officials said that arresting Jones would have been an option had he come on campus.

It’s hard to be sure, based on the story, exactly what happened. If Jones had been denied a permit on the content-neutral grounds that the spot was already taken, the University would be able to insist that Jones not show up. (University campuses are generally treated as limited public fora from which the university may generally exclude outsiders; and if the university allows outsiders to speak, it may impose content-neutral rules limiting their speech. See, e.g., Bloedorn v. Grube (11th Cir. 2011).) And beyond this, if the police department had simply warned Jones about the danger, and asked him to stay away while making it clear that this was just advice that he could ignore, there wouldn’t be a First Amendment problem.

On the other hand, if the police generally demanded that Jones stay away, not just on this occasion when his permit was denied for space conflict reasons but also even in the future (when no such conflict would likely exist) that would be much more troubling. If anyone has further information, I’d love to hear it. […]

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