Archive | Freedom of Speech at Colleges and Universities

Queensland University Suspends Lawyer for YouTube-Distributed Blasphemy

The Brisbane Times reports that:

A Queensland University of Technology lawyer[,] … Alex Stewart[,] has taken leave from his non-academic position as a QUT [Queensland University of Technology] commercial contracts lawyer after controversy erupted over a YouTube clip in which he smokes self-made cigarettes rolled in pages from the [Koran and the Bible] before rating which “burns better”….

The Daily Telegraph (UK) reports,

[Stewart] on leave following a meeting on Monday and is facing an inquiry.

“The university is obviously extremely, extremely unhappy and disappointed that this sort of incident should occur,” vice-chancellor Peter Coaldrake said.

Stewart’s point was apparently to argue (among other things) that people shouldn’t venerate books to the point of getting upset about others’ supposed mistreatment of the books. “Is this profanity? Is it blasphemy? Does it really matter? I guess that’s the point with all this, this crip — it’s just a [bleeped out] book. Who cares? Who cares?” I quote here a video accompanying the Brisbane Times article, which includes a short excerpt from Stewart’s YouTube clip. But I do not know where one can find the full clip; if you can point me to it, or send me a file containing it, I’d be much obliged.

Note that the Brisbane Times video also quotes a police spokesman who is saying that Stewart’s actions were likely not a criminal offense. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

UPDATE: Just to repeat what the title says, Stewart is a lawyer working for the university, not a professor. [...]

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A Thought from Prof. Michael McConnell

Stanford law professor (and former judge) Michael McConnell, who represented the Christian Legal Society before the Supreme Court in Christian Legal Society v. Martinez, e-mails this:

I had a mischievous thought, which I thought I would offer to your blog:

I have a suggestion for the City of New York City, if it wishes to resolve the Ground Zero Mosque controversy in accordance with our constitutional traditions. It could require that the leadership of any nonprofit organization using city streets or water within the 9-11 zone be open to “all comers, without discrimination based on status or belief.” We have it on good authority that this is a neutral policy, violating no one’s First Amendment rights. Christian Legal Society v. Martinez. Lower Manhattan would be as free as a public university campus. The City could congratulate itself for promoting “tolerance” and “diversity” — without having to put up with those pesky Muslims. Who could possibly object?

UPDATE: Note that the “suggestion” (which is of course a criticism of the Court’s decision in Christian Legal Society, not of the proposed mosque) relates to requiring that the leadership of the organization be open to all comers. The mosque would thus be excluded even if it welcomed everyone to attend, so long as it limited its leadership to coreligionists (as any religious group surely must). The policy in Christian Legal Society in fact required such open access to student group leadership, not just to attendance at student group functions. [...]

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Third Circuit Strikes Down Another Campus Speech Code

The case is McCauley v. University of the Virgin Islands, decided today. The court holds that the K-12 school cases — “Tinker, Fraser, Hazelwood, Morse, and other decisions involving speech in public elementary and high schools” — “cannot be taken as gospel in cases involving public universities,” and strikes down (at least when applied to speech) university bans on

  1. “Displaying in the Field House, softball field, soccer field, cafeteria and Reichhold Center for the Arts any unauthorized or obscene, offensive or obstructive sign,”
  2. “[C]onduct which results in physical manifestations, significant restraints on normal behavior or conduct and/or which compels the victim to seek assistance in dealing with the distress,” and
  3. “Verbal Assault, Lewd, Indecent or Obscene Conduct or Expressions on University Owned or Controlled Property or at University Sponsored or Supervised Functions,” when applied to speech that does not fit within the “obscenity” exception to First Amendment protection (an exception that’s limited to hard-core pornography).

The Foundation for Individual Rights in Education, which filed an amicus brief in the case, has more. [...]

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Important Case on Public Universities’ Charging Speakers Security Fees (Especially in Anticipation of Possible Hostile Reaction by the Audience)

From Sonnier v. Crain (5th Cir. July 27):

Sonnier argues … that SLU’s speech policy violates the First Amendment because it gives the University the “sole discretion … in determining both the need for, and the strength of the security” at the public assembly or demonstration, and assesses the cost of additional security on the sponsoring individual or organization. In response, the defendants assert that the fee has never been charged. Regardless of whether the fee has ever been charged, we agree with Sonnier.

In Forsyth County v. Nationalist Movement, the U.S. Supreme Court struck down a virtually identical security fee provision that required organizations to pay for “the cost of necessary and reasonable protection [for assemblies] … [that] exceeds the usual and normal costs of law enforcement ….” The Forsyth County Court found the security fee unconstitutional because, among other reasons, the regulation included no
objective standards directing how to establish the level of the fee. Instead, the amount of the security fee was left to the “whim of the administrator.”

The SLU security fee provision has the same shortcomings as the ordinance struck down in Forsyth County. As the policy states, determining the additional amount of security needed is at the “sole discretion” of the University; no objective factors are provided for the University to rely upon when making such a determination. Because of the unbridled discretion this provision gives to the University, we conclude that the district court abused its discretion in denying a preliminary injunction with regards to the security fee.

The court had no occasion to discuss the second basis for the Forsyth County decision, which was (and here I quote the Supreme Court’s decision as to parades on public streets in Forsyth, rather than the Fifth Circuit’s decision as to [...]

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Content-Neutral Speech Restrictions on Public University Campuses

Sonnier v. Crain (5th Cir. July 27) has an interesting discussion, in which the Fifth Circuit panel (by a 2-to-1 vote) defers considerably to universities’ prerogatives, even without deciding that the university locations are not public fora. The appellate court upholds the trial court’s denial of a preliminary injunction of a policy that required all public assemblies or demonstrations — even organized by small groups — to get a permit (1) for which seven days’ notice was required, (2) which would only be issued to each individual or group for two hours once per week, (3) for which the applicant had to provide various personal information, and (4) which was limited to a few specific locations around campus. The court repeatedly stressed that even though some such restrictions might be unconstitutional on city sidewalks and other such places, the university had broader authority to imposed content-neutral speech restrictions on its campus.

The court did note, however, that the plaintiff might still prevail in an as-applied challenge, after more discovery. Its reasoning is also limited to content-neutral speech restrictions. [...]

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The Ninth Circuit Rodriguez Opinion and Speech in Non-Academic Workplaces

I explain below why the Ninth Circuit’s Rodriguez decision applies to harassment lawsuits brought against private employers. Here I’d like to explain why and how it would apply to non-academic employers.

Rodriguez does say that its First Amendment analysis, and its statement that “Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment” is “particularly so on college campuses.” But it didn’t say that it is only so on college campuses; the opinion’s rationale applies equally to other workplaces as well:

Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio, 395 U.S. 444, 448–49 (1969); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) [written by then-Judge Alito –EV]; DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596–97 (5th Cir. 1995). “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” Saxe, 240 F.3d at 204; see also United States v. Stevens (“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.”)….

The Constitution embraces … a heated exchange of views, even (perhaps especially) when

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The Ninth Circuit Rodriguez Opinion and Speech in Private Workplaces

The Rodriguez decision arose in a public community college, and it stressed the importance of academic freedom. But I think it would also be relevant to Title VII lawsuits based on speech in non-academic workplaces, and in private workplaces (though not to individually directed insults or sexual propositions). Here let me talk about the private workplaces; I’ll talk about non-academic workplaces in a separate post.

Say that someone says something offensive in a private workplace, perhaps a private university but perhaps just a private law firm — for instance, through a workplace-wide e-mail, or in a lunchroom conversation that offended coworkers overhear, or in a cartoon posted on his office door. The private employer could of course restrict this speech without violating the Constitution, since the Constitution only applies to state action (with “state” here meaning “government,” including federal, state, and local governments). But if someone sues the employer, claiming that the employer had a legal duty to suppress speech and conduct that creates a hostile environment, then any imposition of liability on the employer for the employee’s speech would indeed be state action.

Consider an analogous case, Noah v. AOL Time Warner. Noah sued AOL, claiming that anti-Muslim speech in various AOL venues created a hostile public accommodations environment. The court held that the federal statute didn’t apply here, because the federal public accommodations statute doesn’t cover service providers (though some state statutes might), and because § 230 immunizes them. But the court also said that “construing Title II as plaintiff requests, to require that AOL censor or limit the speech of its members, may well cause the statute to run afoul of the First Amendment.” Why? Because even though AOL could restrict speech on its own private property, the First Amendment is triggered when federal [...]

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“Free Speech Has Been a Powerful Force for the Spread of Equality Under the Law”;

“we must not squelch that freedom because it may also be harnessed by those who promote retrograde or unattractive ways of thought.” So writes the Ninth Circuit in today’s Rodriguez opinion, in an important holding about the interaction of the First and Fourteenth Amendments.

I’ve written before against arguments that First Amendment rights need to be weighed against Fourteenth Amendment equality values, in a way that might justify restricting allegedly bigoted speech; I likewise criticize calls (whether from the left or the right) to weigh free speech rights against constitutional democracy values, constitutional privacy values, and the like. One of my arguments is that bigoted speech doesn’t actually violate the Equal Protection Clause, and to the extent that it offends “equal protection values,” those “values” can’t be seen as trumping First Amendment rights. But today’s Rodriguez opinion from the Ninth Circuit had a special twist on this constitutional conflict argument.

The premise of hostile environment harassment law, under which speech in workplaces, educational institutions, places of public accommodation, and the like could lead to liability, is this: An employer, educational institution, or place of public accommodation that tolerates speech or conduct that creates a hostile environment based on race/religion/sex/etc. for some of its patron is discriminatorily providing a worse environment to some people than to others. Therefore, the courts have held, the institution is violating statutes that ban such discrimination, and can be held liable under such statutes (for instance, Title VII of the Civil Rights Act of 1964 or similar state laws).

Now here’s the twist: The Equal Protection Clause has been held to bar discrimination based on race/religion/sex/etc. by government entities, even in the absence of any statute. Therefore, by the same logic as in the preceding paragraph, it has been read as barring government [...]

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Freedom of Speech vs. Workplace Harassment Law — A Big Free Speech Win in the Ninth Circuit

I’ve long written about how workplace harassment law sometimes violates the First Amendment, so I was especially pleased to see today’s Rodriguez v. Maricopa County Community College Dist. (9th Cir.) (written by Chief Judge Kozinski, and joined by retired Justice O’Connor, sitting by designation, and Judge Sandra Ikuta). The entire opinion is much worth reading, and it’s readable and not too long (about 11 pages). But here’s the heart, which I like very much:

Professor Walter Kehowski sent three racially-charged emails over a distribution list maintained by the Maricopa County Community College District, where he teaches math. [For details, see PDF pp. 4-5 of the opinion, or the end of this post. -EV] Every district employee with an email address received a copy. Plaintiffs, a certified class of the district’s Hispanic employees, sued the district, its governing board and two district administrators (the chancellor and the president) claiming that their failure to properly respond to Kehowski’s emails created a hostile work environment in violation of Title VII and the Equal Protection Clause…. The district court … denied summary judgment to the president and chancellor on plaintiffs’ constitutional claim, including on the issue of qualified immunity, and to the remaining defendants on both the constitutional and Title VII claims….

Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001)

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Canadian University Restricting Graphic Posters That Compare Abortion to Genocide

From the Canadian Broadcasting Corporation:

The University of Calgary is threatening to expel a group of students who refused to move a graphic anti-abortion display on campus….

[In november 2008, the group] refused university administrators’ requests to make the posters [of aborted fetuses] — which compared abortion to the Holocaust and the genocide in Rwanda — less visible, and also ignored a letter threatening legal action.

Six students were charged with trespassing on campus, but those charges were later stayed.

The group put up the display again on April 8, and was asked by campus security to turn the graphic images inward, away from passersby. The students snubbed that request and refused to leave campus, according to the university’s letter.

Their “failure to comply with the direction of a campus security officer or university official in legitimate pursuit of his/her duties” could result in sanctions ranging from fines or probation to suspension or expulsion….

Judging by the photograph in the newspaper, the sign at issue is this one:


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A Sad Victory for Thuggery in Texas

The Foundation for Individual Rights in Education reports:

A student performance of an excerpt from Corpus Christi, a play positing Jesus Christ as a gay man, was canceled this past Friday at Tarleton State University (TSU) in Texas amid controversy and calls for censorship.

The performance of the excerpt, which was to be directed by TSU student John Otte, was scheduled to be held on Saturday morning as fulfillment of an assignment for an advanced directing class. Instead, Corpus Christi and three other student-directed plays, also scheduled for Saturday, were canceled by the class’s professor late Friday evening[, citing] … “safety and security concerns for the students as well as the need to maintain an orderly academic environment.” …

Otte’s selection of award-winning American playwright Terrence McNally’s play had prompted condemnation from fellow students and community members because of the play’s content. Shamefully, even Texas Lieutenant Governor David Dewhurst weighed in on the side of censorship, saying in a statement that “Every citizen is entitled to the freedom of speech, but no one should have the right to use government funds or institutions to portray acts that are morally reprehensible to the vast majority of Americans.”

Fortunately, however, … TSU President F. Dominic Dottavio recognized in a March 11 open letter that while TSU does not endorse the play, and while he personally found it “offensive, crude, and irreverent,” TSU, as a public university, was “legally bound to allow the student production to go forward.” Dottavio further wrote:

We have had many conversations with the Office of General Counsel for The Texas A&M University System and they have made it clear to us that this is an unambiguous freedom of speech (First Amendment) issue. The Supreme Court of the United States has consistently held that public universities may not engage

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Pro-Life Speech “Upsetting” and “Not OK” for the Duke University Women’s Center

The Foundation for Individual Rights in Education reports:

Duke University’s Women’s Center has canceled an event about motherhood because the sponsor was engaging in pro-life expression elsewhere on campus. A Women’s Center representative told Duke Students for Life (DSFL) that “we have a problem” and an ideological “conflict” with the event, which was supposedly canceled to protect Duke women from encountering the event during the group’s “traumatizing” pro-life “Week for Life.” …

As part of a “Week for Life” series of events held at Duke over March 15-19, DSFL had reserved a Women’s Center space for a “Discussion with a Duke Mother” on March 18. A Duke student and mother was to speak about motherhood and the challenges of being in both roles. But the day before the event, the reservation was abruptly canceled in a voicemail to the group.

Meeting with the group on March 18, Duke Women’s Center Gender Violence Prevention Specialist Martin Liccardo said that because the event was associated with the Week for Life and DSFL, the event could not be held at the Women’s Center.

Liccardo told the group that the prospect of holding a pro-life event in the Women’s Center during Week for Life was too upsetting for some students: “We had a very strong reaction from students in general who use our space who said this was something that was upsetting and not OK. So based on that, we said, OK, we are going to respond to this and stop the program.” …

Oh, yes, and the Women’s Center “ascribe[s] to a broadly defined, fluctuating and inclusive feminist ideology that welcomes discordant viewpoints from varied experiences.” I guess this must be one of those fluctuations away from welcoming discordant viewpoints.

Duke is a private university, and is not bound by the Free [...]

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More on Christian Legal Society v. Martinez

David French, with whom I’ve been having a very enjoyable discussion about this case, posts further on the subject:

I want to focus my response on one item [from Volokh’s previous post] — a point that I believe to be absolutely critical not just to the legal analysis but also the equities of the case. In response to my question, “What conceivable state interest exists in requiring open membership by expressive organizations?” Professor Volokh writes:

The answer, I think, is a variant of what President Kennedy set forth as a justification for Title VI of the Civil Rights Act of 1964: the desire that “public funds, to which all taxpayers of all races contribute, not be spent in any fashion which … subsidizes … racial discrimination,” or, adapting it here, the desire that public funds, to which taxpayers and students of all religions and sexual orientations contribute, not be spent in any fashion which subsidizes religious or sexual orientation discrimination. This too is a justification that is independent of the content of speech, a content-neutral rule that, to be sure, isn’t aimed at preventing disruption, but is aimed at preserving the funds for the purposes for which they were set aside. (And, let me mention again, Healy expressly stressed that the case did not involve rules such as that “Applicants must limit membership to ‘matriculated students’ and may not discriminate on the basis of race, religion or nationality.”)

But isn’t Title VI aimed squarely at invidious discrimination? By its terms it’s limited to the identity-based categories of race, color, and national origin. Is it invidious discrimination for expressive organizations to ask that their members and officers agree with the group’s mission and conduct themselves accordingly? I think it’s a mistake to equate such commonsense, mission-based “discrimination” with invidious racial

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Should Access to Public University Property and Funding Be Treated Differently from Access to Other Public Property and Funding?

David French of the Alliance Defense Fund responds further to my posts about Christian Legal Society v. Martinez. I much appreciate David’s thoughtful reactions on this, and I’d like to continue the conversation.

Here’s David’s argument slightly abridged:

By treating this case as a “government benefits” case, I think Eugene is missing a few vital things. First, let’s not forget that this case arises in a university setting, where a very long line of case law holds — among other things — that the university is “peculiarly a marketplace of ideas” that if closed will cause our culture to “stagnate and die.” In fact, it’s hard to think of a single case where the Supreme Court has decided against student free speech or student access to forums — from Healy (student-organization recognition), to Widmar (religious groups’ access to facilities), to Rosenberger (access to funds), to Southworth (in which the court upheld an otherwise-unconstitutional mandatory student-fee scheme in part because it bought the argument that the scheme helped nurture free speech on campus).

The Court has even taken the rather unusual step of excluding (Garcetti, for example) universities from the scope of otherwise speech-restrictive decisions. The following language from Rust v. Sullivan (which upheld the so-called abortion “gag-rule”) is illustrative: “We have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.” (Emphasis added.)

With language that sweeping and decisions that consistent, I would say that it’s an open question as to whether the access to facilities by expressive associations could even be considered a “government benefit” as

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Christian Legal Society v. Martinez and the Court’s University Speech Decisions

David French writes at National Review Online:

I don’t have time to detail Eugene’s argument in all its complexity, but the one sentence summary is: Public universities are not constitutionally compelled to provide government benefits (like room access and student fee funding) to “discriminatory” Christian student organizations…. [Here is] his post’s primary shortcoming:

Eugene cites two cases, Boy Scouts of America v. Dale and Rosenberger v. Rector and Visitor of the University of Virginia as foundational to the fraternity’s position. Yet this is incomplete. Boy Scouts (holding that the Scouts could exclude scoutmasters who were openly engaged in homosexual behavior) and Rosenberger (holding that religious student organizations were entitled to viewpoint-neutral access to student-fee funds) are certainly important, but they rest on a foundation of other cases, most importantly Healy v. James (reversing a university’s decision to deny recognition to Students for a Democratic Society) and Widmar v. Vincent (holding that universities had to provide religious student organizations with equal access to university benefits).

Healy is particularly crucial, because it places the discussion of student-organization associational rights in the right context — the university context. I think Eugene’s key flaw is to treat the university environment and university student-organization system as essentially like any other government program, when they most assuredly are not. The Healy court got this, holding that there was a free-association interest in student-organization recognition: “There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right.” On campus, recognition typically equates with existence.

Everything flows from this initial determination. Once the free-association right locks in, the panoply of associational rights attach — including the now well-established right to expressive organizations to exclude those who do not share the organization’s mission or message. In fact, in Christian

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