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FIRE Files Four Free Speech Lawsuits

Yesterday, the Foundation for Individual Rights in Education (FIRE) filed four lawsuits charging that three state universities and one community college maintain unconstitutional speech codes and have restricted the free speech of students and faculty members.  The institutions named in the lawsuits are Citrus College, in California, and Chicago State, Iowa State, and Ohio Universities.  In a press release posted on the group’s website FIRE explained:

“Unconstitutional campus speech codes have been a national scandal for decades. But today, 25 years after the first of the modern generation of speech codes was defeated in court, 58% of public campuses still hold onto shockingly illiberal codes,” said FIRE President Greg Lukianoff. “For 15 years, FIRE has fought for free speech on campus using public awareness as our main weapon, but more is needed. Today, we announce the launch of the Stand Up For Speech Litigation Project, an expansive new campaign to eliminate speech codes nationwide. We have already coordinated two lawsuits in the past nine months, and this morning we brought four more. The lawsuits will continue until campuses understand that time is finally up for unconstitutional speech codes in academia.”

By imposing a real cost for violating First Amendment rights, the Stand Up For Speech Litigation Project intends to reset the incentives that currently push colleges towards censoring student and faculty speech. Lawsuits will be filed against public colleges maintaining unconstitutional speech codes in each federal circuit. After each victory by ruling or settlement, FIRE will target another school in the same circuit—sending a message that unless public colleges obey the law, they will be sued.

Although FIRE’s campaign is directed largely against speech codes, which the group claims are mostly unconstitutional (and courts have often agreed), the four suits filed yesterday covered a range of alleged abuses.

At Citrus College in California, student Vincenzo Sinapi-Riddle is, with FIRE’s backing, challenging three unconstitutional policies, including a free speech zone that the school already agreed to abolish after a 2003 lawsuit. Not only did Citrus College reinstitute its “Free Speech Area,” comprising a miniscule 1.37% of campus, but it also requires student organizations to undergo a two-week approval process for any expressive activity.  Courts have ruled that public institutions of higher education may reasonably restrict the “time, place, and manner” of expression on campus, but may not limit the content of such expression.  Reasonable restrictions include prohibitions against loud demonstrations in classroom buildings or against speech in class that unacceptably diverts the class from focusing on the subject matter.  But while courts have allowed institutions to bar unauthorized expression in certain limited locales like classrooms, they have frequently drawn the line against efforts to restrict speech to a limited number of predesignated  “free speech zones.”  Indeed, it can well be argued that under the First Amendment the United States is one giant free speech zone, with several clearly defined limitations and restrictions, to be sure.  Similarly courts have severely restricted attempts to require advance notice before expressive events are held.

Two of the suits question universities’ authority to regulate student expression on t-shirts. Iowa State University (ISU) students Paul Gerlich and Erin Furleigh, leaders of the university’s student chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU), filed suit after administrators censored T-shirts by creating a retroactive rule prohibiting any use of the school’s name or trademarks to promote “dangerous, illegal or unhealthy products, actions or behaviors.” Administrators claimed that a T-shirt with the message “NORML ISU Supports Legalizing Marijuana” would be interpreted as a university-wide endorsement of marijuana legalization.  Clearly a university does have the right to defend its name and trademark against attempts to use these for commercial purposes, but as I understand it copyright law is fairly clear that use of a name or trademark for purposes of organizational identification, satire, or other forms of political expression may be permissible.

In the second t-shirt case, Ohio University student Isaac Smith, a member of Students Defending Students, a student group that defends students accused of campus disciplinary offenses at no cost, is suing Ohio U. for preventing group members from wearing T-shirts reading “We get you off for free”—a joke the group first used in the 1970s. This year, administrators claimed it “objectified women” and “promoted prostitution.” Ohio University’s speech code, challenged in the lawsuit, forbids any “act that degrades, demeans, or disgraces” another.

“Officials at the school took this action, despite the fact that the Supreme Court held 43 years ago that the First Amendment protects clothing with crude political slogans,” said Robert Corn-Revere, a prominent First Amendment attorney who is representing FIRE in the four lawsuits. “In that case, it was a jacket urging an anatomically improbable act involving selective service.”  Ohio University, however, said that it never directed any students not to wear the T-shirts, but that some administrators did suggest that the shirts “might inhibit their efforts to serve other students” – an exchange the university believes was appropriate.

The only one of the four cases that involves faculty was filed against Chicago State University, where administrators have repeatedly attempted to silence CSU Faculty Voice, a blog authored by Professors Phillip Beverly, Robert Bionaz, and other faculty members that exposes what they see as administrative corruption. After bogus accusations of trademark infringement failed to intimidate the professors, CSU hastily adopted a far-reaching cyberbullying policy to silence its critics. It then used the cyberbullying policy to investigate one of the faculty bloggers for harassment, leading to the lawsuit from Beverly and Bionaz.  I have previously posted on this blog about the travails of the Chicago State bloggers, as has John K. Wilson.  Both of us focused on CSU’s crude efforts to shut down the blog on the grounds of trademark protection, which I called “a thuggish effort to bully and frighten, with no legal or moral justification.”  John concluded that “Apparently, CSU is trying to market itself as the Lord Voldemort of higher education, where no one dare speak its name.”

FIRE has been involved in other recent cases that challenged restrictive campus speech codes, including one that was settled this year at Modesto Junior College, in California.  In that settlement, the college agreed to change its policies to allow free speech in open areas across the campus and to pay $50,000 to a student it had allegedly prohibited from distributing copies of the U.S. Constitution outside a free-speech area.  In a similar case in which FIRE has coordinated the lawsuit, the University of Hawaii at Hilo told students they couldn’t come out from behind a table to distribute copies of the Constitution and also quarantined free speech to an isolated area of campus that is prone to flooding. The University has suspended these policies while the case proceeds.

The four lawsuits announced by FIRE seem well-founded, although I can’t claim either to be an attorney or to be privy to all the facts.  However, Michael Olivas, the William B. Bates Distinguished Chair of Law at the University of Houston and a member of AAUP’s Litigation Committee, told insidehighered  that the cases were

“low-hanging fruit.” Some of the grievances are understandable mistakes on the part of universities, he said, while others are “just sheer stupidity.” Regardless, he said, universities should be wary of the lawsuits.

“Schools really do need to listen, because if FIRE found them, then others can find them.” Olivas said. “But, at the end of the day, these four cases amount to something of a hill of beans.”

I’m not so sure, at least about the last sentence.  I tend to agree with one of the commenters on the insidehighered article, who wrote, invoking the landmark First Amendment case of Hustler Magazine v. Falwell: “This is the theme of First Amendment jurisprudence–that ‘sensible’, ‘moderate’ restrictions on speech that offends people are going to lead to more restrictions on more kinds of speech, including speech most of us find more socially redeeming than Hustler’s, such as faculty criticisms of university administrators. Universities have gone much too far in regulating speech, and this is why these lawsuits are ‘low-hanging fruit’, as Olivas puts it. You set the precedent with the easy to win cases, and that precedent will make the harder ones easier to win.”

With the exception of the Chicago State case, which implicates faculty extramural expression, none of these four suits directly involves the principles of academic freedom developed and defended by the AAUP.  Academic freedom in research and the classroom is not founded on the general protection of speech offered by the First Amendment; if it were, the concept could not be applied to private institutions.  Academic freedom is instead based upon the fundamental principle of professional autonomy.  As the AAUP’s founding 1915 Declaration of Principles on Academic Freedom and Academic Tenure concluded:  “It is, in short, not the absolute freedom of utterance of the individual scholar, but the absolute freedom of thought, of inquiry, of discussion and of teaching, of the academic profession, that is asserted by this declaration of principles.”

Nonetheless, as U.S. Supreme Court Justice William J. Brennan, Jr., put it in his justly famous Keyishian opinion, academic freedom is “a special concern of the First Amendment.”  Moreover, certainly an institution of higher learning that encourages robust discussion and debate and protects the free expression of all members of the university community, including students, is far more likely to protect athe cademic freedom and professional authority of its faculty.

In 1967, a committee composed of representatives from the AAUP, the United States National Student Association (now the United States Student Association), the Association of American Colleges (now the Association of American Colleges and Universities), the National Association of Student Personnel Administrators, and the National Association of Women Deans and Counselors formulated a Joint Statement on Rights and Freedoms of Students.   According to the Joint Statement, “Students and student organizations should be free to examine and discuss all questions of interest to them and to express opinions publicly and privately. They should always be free to support causes by orderly means that do not disrupt the regular and essential operations of the institution.”  The Statement also declared, “The institutional control of campus facilities should not be used as a device of censorship.”

FIRE’s mission and approach differ from those of the AAUP and we sometimes disagree.   Nonetheless, often our concerns overlap, as was indicated in an enlightening session offered by FIRE staff members at AAUP’s recent Annual Meeting in Washington.  The AAUP does not initiate litigation or provide attorneys or direction for those who may file suit.  We do, however, submit amicus curiae briefs on important cases with clear implications for our principles, and the AAUP Foundation makes available modest grants to support faculty members who may be involved in such litigation.  It is, therefore, not our role to become involved in FIRE’s litigation project.  But in these four lawsuits I, for one, am more than happy to wish them well.

About Hank Reichman

First Vice-President and Chair, Committee A on Academic Freedom and Tenure, American Association of University Professors (AAUP)

5 comments on “FIRE Files Four Free Speech Lawsuits

  1. John K. Wilson
    July 2, 2014

    Members of the AAUP sometimes disagree not only with FIRE, but also with other members of the AAUP. So, with that in mind, let me express one theoretical (and historical) disagreement with Hank Reichman. He claims that academic freedom (and the AAUP’s concept of it) is based on professional autonomy, not the general protection of free speech (which does cover private colleges, even if the First Amendment doesn’t). I disagree. That was the case in 1915, but the AAUP’s 1915 statement no longer has any standing in the AAUP, except as well-written history. First of all, “absolute freedom” doesn’t exist anywhere, and “absolute freedom of thought…of the academic profession” doesn’t really mean anything because only individuals think. Today’s foundation of academic freedom is indeed freedom of speech, not professional autonomy. The freedom of the academic profession collectively to control academic processes is an important protection for academic freedom, but not the core concept. If, for example, the collective faculty decided to fire a professor for criticizing the government, then they would be violating academic freedom, not exercising it, because academic freedom is fundamentally defined by core principles of free speech for individuals, and not by the freedom of the academic profession.

    • Hank Reichman
      July 2, 2014

      John is absolutely correct that members of the AAUP can and do disagree with each other; this is one of the organization’s strengths and reflects our fundamental commitment to the free interchange of ideas. But while John is surely entitled to his view that today the foundation of academic freedom is freedom of speech, that is not the position of the AAUP, at least if we understand the term “freedom of speech” not as an abstraction but as a legal right founded in the First Amendment of the U.S. Constitution. While I quoted the 1915 statement, which John dismisses as just “well-written history,” any fair reading of the 1940 Statement (with its 1970 interpretations), which remains the AAUP’s touchstone document on academic freedom, must conclude that the statement is founded not on First Amendment jurisprudence but on professional principles. Indeed, it could hardly have been otherwise since the term academic freedom only begins to be used in Supreme Court rulings much later, and even then in ways that can be quite different from AAUP’s understanding of the term.

      Specifically, here is the 1940 Statement’s definition of academic freedom:

      1. Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.
      2. Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.
      3. College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

      Note that there is not a single reference to the First Amendment nor are the terms “freedom of speech” or “free speech” to be found here. For a more thorough explication of this position I would refer readers to the 2009 book by legal scholars Robert Post and Matthew Finkin, “For the Common Good: Principles of American Academic Freedom” (http://yalepress.yale.edu/yupbooks/book.asp?isbn=9780300143546), which is based almost entirely on AAUP policy statements and AAUP case investigations. Post’s 2011 book “Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State” argues that the familiar understanding of the First Amendment, which stresses the “marketplace of ideas” and holds that “everyone is entitled to an opinion,” is an inadequate foundation for academic freedom, which must combine the notion of the free exchange of ideas with that of scientific competence and expertise (http://www.law.yale.edu/academics/15051.htm). Finkin and Post are former members of Committee A and Post is a former AAUP General Counsel.

      In conclusion, let me hasten to add that in addition to being a supporter of academic freedom I am also a supporter of freedom of speech. Specifically, I would extend the protections of the First Amendment probably much further than many others, even perhaps within the AAUP, and certainly (and sadly) further than the courts have recently done. And I suspect that most if not all AAUP members also combine their support of academic freedom with a broader support for First Amendment rights. Hence, in practice despite our differing views of the foundation of academic freedom, John and I will agree on specific issues far, far more often than not.

      • John K. Wilson
        July 3, 2014

        Part of our disagreement is due to the fact that I consider “freedom of speech” as a philosophical principle, not just as a legal right (“academic freedom” is also both a principle and a legal right). Hank is correct to point to Post and Finkin as key advocates of the professional model. He is also correct to note that the 1940 Statement is a clear espousal of that professional model of academic freedom. What he fails to discuss, though, is how the 1970 Interpretive Comments effectively overturned much of the professional model found in the 1940 Statement. So, most of what he quotes (in a section that doesn’t mention freedom of speech but also doesn’t mention academic freedom as the collective freedom of the academic profession) is largely repudiated today by the AAUP. So, in section 2, the limits on “controversial matter” and on religious institutions have been entirely rejected by the 1970 Comments. In Section 3, any enforceable “special obligations” to show restraint and respect and declare that you are not speaking for the institution are, according to the AAUP, entirely lifted.

        What we are left with is a definition of academic freedom that wholly endorses academic freedom as a special kind of freedom of speech, one that is not limited by the collective academic profession. Under this definition, 1) individual professors have “full freedom” to research and publish, even if academic colleagues disagree with them; 2) individual professors are entitled to freedom in the classroom, even when teaching controversial matters, and even if other professors dislike their pedagogy; 3) individual professors have full freedom of speech in extramural utterances as citizens, and they have no enforceable obligation to show restraint, and their free speech cannot be restricted, not even by other professors.
        Now, this gets complicated because the way that the AAUP protects academic freedom is by giving enormous power to the collective decision-making of the academic profession. But that is a tool, not a fundamental principle. The principle underlying academic freedom today is the idea of freedom of speech not just in one’s private life but extended to the employees of a college. The notion that academic freedom is limited solely to academic work approved by the collective academic profession is an outdated approach to academic freedom, and one that is used to infringe academic freedom rather than protecting it.

    • Hank Reichman
      July 3, 2014

      The differences between John and me raised by his comment, my response, and his reply seem increasingly academic, though interesting, and probably ill-suited to treatment in a series of blog comments and replies. Perhaps John and I will agree to submit some sort of exchange on this issue to the Journal of Academic Freedom, although since this year’s number is already complete (and will appear in September) that will have to wait at least a year. But for the moment I will try to conclude this exchange with a few brief responses to John’s latest.

      I will concede that in a sense the spirit that underlies the AAUP’s notion of academic freedom is the same one that underlies our commitment to freedom of speech. If you like, one can reasonably call that spirit, as John does, a “philosophic principle.” However, left at that such a principle is highly abstract and doesn’t really take us very far.

      Let me remind John that in my original post I wrote that “Academic freedom in research and the classroom is not founded on the general protection of speech offered by the First Amendment. . . ” I did not state that it was not founded on some abstract philosophic principle of free speech. In the U.S., however, the principle of free speech, while no doubt derived from Locke, Milton, and the Enlightenment philosophers, among other sources, has developed over time on the basis of the First Amendment and its legal history. Freedom of speech, of course, really means freedom from punishment or retaliation for one’s speech. The First Amendment’s protection for speech is thus aimed at limiting the state’s ability to so punish or retaliate and our understanding of that protection has been developed and refined (sometimes for better, others for worse) by a lengthy and complex jurisprudential history intreracting with various political movements from below (e.g., for universities — and highly relevant to the FIRE lawsuits — Berkeley’s 1964 Free Speech Movement).

      Similarly, AAUP’s own definition of academic freedom, originally defined more thoroughly than “freedom of speech” is defined in the First Amendment, also has been developed and refined by a lengthy process involving policy statements, investigative reports, etc. In this light academic freedom, like “freedom of speech,” is a contested value the meaning of which undergone significant change and will continue to do so.

      John is correct that the 1970 interpretive comments significantly developed and refined the 1940 Statement, but I think he goes much too far in declaring that these “effectively overturned much of the professional model.” For example, his contention that the 1970 comments “entirely rejected” the so-called “limitations clause” governing religious institutions is simply inaccurate. For evidence of that I would refer him to the 1999 Committee A report “The ‘Limitations’ Clause in the 1940 Statement of Principles on Academic Freedom and Tenure: Some Operating Guidelines” (http://www.aaup.org/report/%E2%80%9Climitations%E2%80%9D-clause-1940-statement-principles-academic-freedom-and-tenure-some-operating).

      But here’s another way of looking at this: If “free speech” in the U.S. is to mean something other than its definition via First Amendment jurisprudence, then it would have to be one of the understandings of the concept widely accepted in popular discourse. For example, some would say that “free speech” is based on a “free marketplace of ideas.” Others would simply say that “free speech” is the right to voice one’s own opinions, no matter how controversial — or, for that matter, how ignorant or stupid — they may be. But, as Post’s book persuasively argues, these notions are at best a weak reed on which to base our protection of academic freedom in the classroom or in research.

      For example, the idea advanced by some religious fundamentalists that the earth is only 6,000 years old is certainly free to compete in the public marketplace of ideas, and those who advocate this silliness must be free to do so without restriction. However, a geology professor should not be free to advance this idea in a geology class, nor should a geology department be constrained from denying tenure, promotion, or whatever to a colleague whose “research” is based on this scientifically false notion. In society I am free to claim that 2 + 2 = 3 (and face the consequences for my finances if I act on that claim), but a math teacher cannot be permitted to teach this to be true to a class.

      On what basis then do we found our academic freedom to teach and to conduct research? We do so on the basis of disciplinary competence determined by a community of scholars, but a community of scholars that embraces a spirit of tolerance and open-mindedness. Ultimately this community is defined first by its professional and disciplinary standing and by its embrace of professional values, including the principle of academic freedom. There can be problems with that, to be sure, but that’s why academic freedom — just like “free speech” — is and will always be a contested value.

      Finally, let me quickly acknowledge that the third leg of academic freedom, freedom of “extramural speech,” is not strictly a professional value. It is here that the concepts of academic freedom and freedom of speech most closely intertwine and therefore it is not surprising that when Justice Brennan deemed academic freedom “a special concern of the First Amendment” he was writing about a case that involved such extramural expression.

  2. Quixote (@Quixote34)
    July 2, 2014

    And they left New York University off the list? That institution’s vicious assaults on free speech rights are well known. For just one little example, see the documentation of how they handled the little matter of the “troll” who unwisely mocked a department chairman for his alleged plagiarism:

    http://raphaelgolbtrial.wordpress.com/

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This entry was posted on July 2, 2014 by in AAUP, academic freedom, faculty, students and tagged , .
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