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.