Penn State Censorship--The Plot Thickens:

Reader Andy Banducci points out that the "harassment" policy AD42 that Penn State has relied on in censoring student Josh Stulman's exhibit of paintings on the culture of terrorism in the Palestinian Territories is under constitutional attack by the Alliance Defense Fund. You can read the complaint here.

According to this news story, Penn State's response to the complaint states: "It is denied that Penn State maintains a 'speech code policy.'" It will be pretty hard for Penn State to maintain that posture when the email Stulman received cancelling his exhibit apparently stated that his exhibit was in violation of AD42 because it "did not promote cultural diversity" or "opportunities for democratic dialogue."

Not to belabor the obvious, but after federal courts consistently invalidated state university "speech codes" in the 1990s, the universities revived these codes in the guise of antidiscrimination policy. There is no reason to believe that the universities will be any more successful in defending the (barely disguised) codes this time, but neither the Constitution nor common sense seems to be much of a barrier to speech regulation at public universities these days.

Why do you say that there's no reason to believe that the universities will be successful in their latest strategy of suppressing speech in the guise of non-discrimination? First of all, doesn't Harper point the other way? And second, don't the universities have people just as clever as you (to wit, a majority of their law school faculties) ready and eager to defend those policies? How do you know your side will win?
4.24.2006 12:49pm
Richard Aubrey (mail):
wm. The univerities had a bunch of really bright--just ask them--people pushing the recruiter issue SCOTUS recently skunked. So, although they're bright, they aren't being constantly sharpened, or re-sharpened in the courts.
There are brighter folks around.
4.24.2006 1:07pm
great unknown (mail):
The underlying theme of the previous two comments seems to be that the legality of the issue is not determinative; what counts is the cleverness of your advocates. This is precisely what many people find repugnant about the "great game" of law and its players.
4.24.2006 1:25pm
Penn State Student:
wm = William *Bill* Mahon? As a Penn State student, it wouldn't suprise me.
4.24.2006 1:28pm
Dave Hardy (mail) (www):
If the facts are closely balanced, skill of the advocate can be the key -- seeing an issue that someone else would have overlooked, etc.. But if the facts are stacked against a position sufficiently, a barely competent attorney can easily beat a very sharp one.

What always annoys me in the real world isn't that -- it's how you have to factor in a judge's predelictions/baises. A barely competent advocate can also beat a very sharp one, and despite bad facts, if the judge likes his position (and in some cases, if the judge likes him!)
4.24.2006 2:00pm
Upsetting the liberal orthodoxy apple cart again I see. Full speed ahead!!!!!!!!!!!!!!!!!!!!!! Liberals becoming orthodox and shall I say THE ESTABLISHMENT is going to be their down fall. They never dreamed of a countercultural movement aganist them. HAHA.
4.24.2006 2:14pm
Beau (mail) (www):
Has anyone a hyperlink to a copy of the administrator's initial email to the student? Has anyone seen a copy?
4.24.2006 2:27pm
Bruce Wilder (www):
I am not sure I know which "side" Randy Barnett is on, wm13.

There are a lot of viewpoints at large today in the U.S., which are going to run afoul of a university's interest in a collegial environment, the university's core committment to rational criticism, as well as the university's patience (aka resource constraints).

University administrators face a really difficult problem, in keeping social order on a campus. The concentration of youth and leisure time and a short time committment to a community, is a potentially incendiary combination. University adminstrators have a necessary and legitimate interest in managing that social environment; they should not be conceding control of the university's social environment to rabble-rousers or partisans of some ephemeral cause. The university's core committment to rational criticism does entail tolerance of a diversity of viewpoints on unsettled controversies, but it also means that some viewpoints, unable to support themselves, rationally, will be rejected.

An argument over what the rules should be, can be different from an argument over whether Administrators are erring in a particular case. An argument, from a particular case, that there should be no rules, is hard to distinguish from an argument that Administrators must cede control, altogether, to partisans in a particular controversy.

When I see phrases like "democratic dialogue" and "cultural diversity", I do not automatically assume a posture of cynical scorn. Sure, I understand that a university may be using such terms as a mask for an erroneous policy. But, I also understand that the university does, in fact, have a legitimate interest, rooted in its core committment, to "diversity" and "dialogue".

If the university's actions in this CASE, tend to do quite the opposite of what the university claims to intend, that would not necessarily indict either the claimed intentions nor the rules.

I like the claimed intentions -- "diversity" and "dialogue" sound like good things, in the abstract, to me. I recognize that university administrators do have to manage a potentially unstable social environment, and to promote a discriminating rational criticism, and they do face resource contraints. In short, I am not ready to buy into the idea that there can or should be no rules, or that, given practical rules, some errors should not be expected and tolerated, without turning over the rules.

In my view, there will be rules. Arguing that there should be no rules is a clever rhetorical tactic, but it is not honest or realistic. I am not sure what ideal rules would look like, but I am sure that even with ideal rules, there will be errors made in individual cases.

I suspect that Randy Barnett wants rules, which would be quite different from what I would regard as acceptable, let alone ideal. He never really says what rule or policy he favors, so I do not know what side he is on.
4.24.2006 2:32pm
A. Zarkov (mail):
If Penn State go to court over this and loses, how vulnerable are they to punitive damages? Without punitive damages, the universities can simply continue with their speech codes. I suppose a restraining order would help, but then they would try some new wrinkle. If there is anything that universities love it's money. In my experience I have never seen any kind of institution as money grubbing as universities. So I think the most effective thing is to hit them where it really hurts—in the pocketbook.

I understand why the faculty supports this kind of thing—ideology. But why do the university administrators go along with speech codes as it seems to land them in court?
4.24.2006 2:39pm
great unknown (mail):
A. Zarkov:
Because it doesn't cost them any salary, and indeed enhances their reputation in the "academic" community.

It would be intriguing to see if administrative policy would change if individual administrators could be held liable for enforcing facially unconstitutional regulations. Imposing sanctions against Penn State would be similar to the crisis in medical malpractice: the cost would simply be passed on the students and/or taxpayers.
4.24.2006 3:17pm
A. Zarkov (mail):
Bruce Wilder:

When I see phrases like "democratic dialogue" and "cultural diversity", I do not automatically assume a posture of cynical scorn.

Perhaps you should because those phrases are typical of kind of apparatchik talk used to justify their politically motivated actions.
4.24.2006 4:54pm
David M. Nieporent (www):
When I see phrases like "democratic dialogue" and "cultural diversity", I do not automatically assume a posture of cynical scorn. Sure, I understand that a university may be using such terms as a mask for an erroneous policy. But, I also understand that the university does, in fact, have a legitimate interest, rooted in its core committment, to "diversity" and "dialogue".
When those words are used to suppress speech, how can you not assume a posture of cynical scorn?
4.24.2006 5:01pm
Harry Eagar (mail):
Bruce, would the rule have to be more complicated than:

'This is the wall where you can hang your art. First come, first served. Make your reservation at XXXX, Student Services.'?

That's content neutral.
4.24.2006 5:17pm
Christopher Fotos (mail) (www):
Not to belabor the obvious, but after federal courts consistently invalidated state university "speech codes" in the 1990s, the universities revived these codes in the guise of antidiscrimination policy.

Hence the old saying, "The first thing to do is disbelieve whatever school officials say."
4.24.2006 5:44pm
Bruce Wilder (www):
HE:"would the rule have to be more complicated than . . . ?


1. Resources are scarce, and rules like "first come, first serve" induce escalated queueing and other undesirable gaming. Resource allocation rules may be complex, or they may change frequently to defeat undesired gaming.

2. Time and manner restrictions are inevitable, in part because they are necessary supports to good order and to the university teaching and research missions. The good news is that universities are usually able to provide some resource support for organization and communication -- a diverse array of student organizations and publications exist on every major university campus that I am aware of.

3. "Content neutrality", as a strict standard, can be applied only to certain categories of student and faculty activity and expression. The university has a positive obligation and authority, relating to its core mission, to judge "content" in other contexts. Faculty can and are required to conform, as a condition of employment, in some contexts, and so are students, as a condition of enrollment.
4.24.2006 8:21pm
Gene Vilensky (mail) (www):
Prof. Bernstein,

They're apparently taking a page from NYU Provost David McLaughlin, who now claims to me that the Objectivist Club that wanted to display the Mohammed Cartoons was not censored, but voluntarily chose not to display the cartoons.

I guess the result isn't too shocking. What is shocking is that great academic scholars (McLaughlin is a distinguished applied mathematician) decide to become beureaucrats and in that capacity, engage in the sort of double-speak and obfuscation they are supposed to combat.
4.24.2006 10:54pm
Harry Eagar (mail):
In my county, water meters are a scarce commodity, and first come, first served has usually been the way they are allocated. Other ways have been tried, always with bad results. I don't see how first come, first served would be any more problematic for an art wall than for, eg, selling tickets to the student section at the football stadium.

(At my school, seniors got first crack, but once the eligible category was set [art students for the art wall, perhaps], first come first served operated without complaints.)

On good order, it seems to me that until somebody rips down the art, good order is not an issue. Since it never got hung, that cannot be at question at Penn St.

(Otherwise, you have a Polish constitution, with every member holding a veto. Nothing even gets hung.)

It's been a long, long time since I was at Cow College, but I do not recall that I was required to subscribe to any content restrictions in order to enroll. I guess we hayseeds were not such tender flowers as today's collegians.
4.25.2006 12:13am
great unknown (mail):
Gene Vilensky:
You appear to be engaged in the same bureauocratic double-speak and obfuscation that you decry (said tongue-in-cheek). What Dr. McLaughlin said was not "double-speak and obfuscation" nor was it "disingenuous" or "misleading." What he did was plain old lie through his teeth, and he now bears for all time, in addition to his other credentials, the title "Liar".
Ah, the wonders of situational ethics.
4.25.2006 9:25am
great unknown (mail):
Sorry, mispelled "bureaucrat".
4.25.2006 9:27am