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Freedom of Speech on Campus - Past, Present, and Future

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Freedom of Speech on Campus - Past, Present, and Future

Fifty years ago, the Supreme Court described our nation’s college campuses as a true “marketplace of ideas,” holding that the First Amendment protects student speech at public colleges and universities. But the Court’s 1972 ruling in Healy v. James was just the beginning. Over the decades that followed, students, administrators, attorneys, and courts have grappled with the reach, limits, and larger social importance of freedom of expression on campus, taking on everything from speech codes to bias response teams, from student publications to social media. Join Will Creeley of the Foundation for Individual Rights in Education as he explores the past, present, and future of this dynamic, evolving body of constitutional case law.

Transcript

 Hey, folks, Welcome to "Freedom of Speech on Campus: Past, Present and Future." My name is Will Creeley. I'll be your speaker today, It's an honor. Thanks for spending the time with me. I'm the legal director for the Foundation for Individual Rights and Expression. Until very recently the Foundation for Individual Rights and Expression was the Foundation for Individual Rights in Education. In June 2022, we changed our name and we're now defending First Amendment rights off campus as well as on campus. But for the past 16 years, I've been defending student and faculty rights. So I've seen a lot. And we're gonna talk about some of the cases that I've worked on here in this hour. I'll skip most of this biographical information, but I will add this note, that when I meet folks, they say, "Why, Will, you do First Amendment work, tell me about some of your cases." And I always say, "Well, no matter what your politics are, I can give you five cases that will make you think I'm a freedom fighter, that will make you think I'm fighting righteous fights on behalf of all that is good and true." But the First Amendment being what it is and FIRE being a proudly nonpartisan organization, I can also give you five cases that I've worked on that will make you think that I am seriously misguided and that I am defending folks who do not have this country's best interests at heart. And again, no matter what your politics are, FIRE's credo is that if it's protected, we defend it unapologetically, fearlessly; that's the job. That's what the First Amendment requires; it's viewpoint neutrality that is non-partisanship, and we are proud of it. FIRE is dedicated to defending and sustaining freedom of expression. And as I say, for the past 16 years, we've focused on our nation's colleges and universities. We're gonna keep doing that because we think it's particularly important to protect free expression on campus. As we'll talk about later, the Supreme Court has called our campuses uniquely and peculiarly the marketplace of ideas; so free speech is very important on campus, and we'll talk about why. We also do other free speech related work or First Amendment related work: freedom of the press, freedom of conscience, religious liberty, legal equality, and we also do due process work. We're headquartered in Philadelphia, it's where I'm located. We also have an office in our nation's capital. So how do we do the work we do? Well, we defend students and faculty whose rights have been violated. We get an awful lot of case admissions, folks. We hoped to put ourselves out of business after being founded in 1999. FIRE's co-founders Professor Alan Charles Kors of the University of Pennsylvania and criminal defense attorney and civil libertarian Harvey Silverglate, they thought the problem would be solved in about five years. They wrote a book called "The Shadow University" detailing what they saw as illiberal trends on our nation's campus and universities. And so they founded FIRE after filling a book with stories of rights violations on campus. And as I say, they thought they'd probably be done with the work in about five years. Well, it's 2022 and unfortunately business is booming 'cause once you lift up a rock, a lot of things start to crawl out. And we have not been hurting for work. You may have been reading about some of the cases we've worked on in the news. Campus speech has been a hot issue for the past five years, and we'll talk about some of those cases. How do we do what we do? We defend students, we educate folks, hopefully do a little bit of that here today. We lobby for legislative changes to protect student and faculty rights in our nation's state houses and on Capitol Hill. And we publicize rights abuses. We find that universities often don't want to defend censorship in public, same censorship they were happy to practice in private. So we make sure that if universities are censoring folks, well, we're gonna make 'em famous; and if that doesn't work, we will litigate. I have a team of attorneys that I work with. I'm very proud of the excellent results that they've been able to reach. And we're gonna keep doing that both on campus, as we've always done, and now off campus as well. But today we're talking about on-campus student rights past, present and future. We will talk about the landmark decisions, the really big cases handed down by the Supreme Court from 1957, Sweezy v. New Hampshire, all the way to the '90s with Rosenberger. We'll talk about those big foundational cases that set the landscape for what the First Amendment means when the constitution comes to campus and when we start getting guidance from the court about the First Amendment and its ramifications at our nation's colleges and universities, we'll also take a little bit of a look at more recent cases from the past 10, 15, 20 years, to give you a sense of how those foundational cases have impacted courts and how they've guided courts handling student First Amendment rights in the years since. Finally, we'll take a little bit of a look into our crystal ball, thinking about some of the very recent case work FIRE's had, to give you a glimpse of the future. What's coming down the line for the First Amendment on campus? We'll do a quick review and then we'll call that an hour. All right, so let's get started. Speech at public colleges, foundational decisions. U Berkeley alum might recognize that as your alma mater. That is the University of California, Berkeley, the free speech movement in full swing. Here we go. 1957, Sweezy v. New Hampshire. This is the Supreme Court's first look at what the First Amendment means. This is a faculty rights case, but the conception of the First Amendment and the conception of our nation's public universities put forth by court here has been formative. So let's give you a quick sense of the facts. That gentleman down there in the corner, that's Paul S Sweezy. He's a famous Marxist economist. And in 1957, being a famous Marxist economist was not necessarily a comfortable position. 1957, this is the height of the Red Scare. This is Senator Joseph McCarthy and his list of known communists in the State Department. This is the house House Un-American Activities Committee. This is folks being blacklisted in Hollywood and other industries for being alleged communist sympathizers. So Paul Sweezy believed that one day the working class, the proletariats would triumph, and he was happy to talk about that, his beliefs; but again, a difficult time to have those political commitments. Shameful chapter in our nation's history, with folks being blacklisted for their political views. So Sweezy was giving lectures at the University of New Hampshire. And the state legislature in New Hampshire saw all the theatrical performances being put on by Senator McCarthy down in Washington and they thought they might want to get in on that action too. They thought that they also wanted to have some hearings to drum out suspected socialists and communists from their state institutions as well. So they heard about Sweezy and they dragged him before the attorney general and dragged him before the legislature to answer questions about the lectures he was giving. And Sweezy answered some questions but he refused to answer questions about the content of his lectures. He said, "No, that's between me and my students," and he was held in contempt. Long story short, the case goes up to the high court. And the court, for the first time, begins to elucidate this concept of academic freedom, the idea that educators in our nation's universities should have broad leeway to discuss ideas, to discuss even extremely controversial ideas, perhaps especially controversial ideas. To quote from the opinion: "No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principals are accepted as absolutes." Here you go. Listen to this one. "Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die." Wow. So civilization, American civilization, is on the line here. The court is saying we have to protect the right of students and faculty to inquire, to study and evaluate; otherwise that's it for our experiment in democracy. 10 years later, Keyishian v. Board of Regents, State University of New York. Here, we have faculty members at the University of Buffalo who are refusing to sign a loyalty oath. State loyalty oaths were still common in 1967. You had to avow before the state would hire you that you were not involved in any seditious organizations; in other words, the communist party. When Keyishian refused, he told folks later while writing a book about his experiences, he told them that this was his revenge on the '50s because he had seen professors, his mentors, blacklisted and drummed out of academic life during the purge of communists and socialists. So by refusing to take the oath, he said he was getting his revenge on that illiberal time that he had seen his mentors being pushed out earlier on. So he refuses, along with some other folks in the University of Buffalo English Department, and the case goes up to the high court. The question was whether Keishiyan's refusal to sign the loyalty oath was grounds for termination, whether he could be disciplined for holding a different view. And again, the court viewed the question through the lens of academic freedom. The idea that the court seized upon was that teachers have to be free to consider the world around them and to have different viewpoints, insulated from political interference; that the state, having founded public universities, could not dictate what faculty may think, believe, advocate, understand, teach; that once you've established this knowledge making institution, this truth seeking institution, you have to let it go without legislative for political interference; that's the question of academic freedom. And again, you see the court here really emphasize the importance of academic freedom not merely to the teachers concerned but to all of us. The First Amendment does not tolerate laws that cast a pall of orthodoxy over the classroom. Academic freedom is a special concern of the First Amendment. So that's faculty rights. But again, just note the conception of higher education the court is putting forth here in these early decisions. So now let's get to students. 1972, Healy versus James. This is a case at Central Connecticut State University involving a would-be chapter, a prospective chapter, of the left wing radical group Students for a Democratic Society. You may remember, from your American history class, SDS as being founded part of the Port Huron Statement, the folks who had helped coordinate the March on Washington and working with the Student Nonviolent Coordinating Committee, SNCC. SDS was a mainstay of anti-war protest, and they had been involved in some violent activities, some of their chapters elsewhere; so when they applied, when a group of students applied to get official recognition from administrators at Central Connecticut State University and all the benefits that would be granted from official recognition, the university president, well, he wasn't having it, he didn't want any part of it. He asked questions about whether or not SDS would involve violent or rule breaking activities on his campus, and he said no. He said, "You can't have that group here. We've seen what they've done elsewhere." Even though the application pledged that the group would follow the rules, the president of the university, James, who's in the caption, said no. He didn't think that they'd be independent, he thought that they would disrupt things on campus. So after a loss at the district court level and in front of the Second Circuit, Supreme Court grants cert and agrees to hear the students' case. Again, they're looking for official recognition, and they're alleging that the only reason they've been denied recognition by the president is because of their viewpoint and these unfounded apprehensions of disruption that the president was relying on. And the court leaves no doubt. The court makes very clear at the outset: "We note that state colleges and universities are not enclaves immune from the sweep of the First Amendment. And because the First Amendment protects freedom of association, there can be no doubt that denial of official recognition burdens or bridges the First Amendment and the freedom of association rights that it protects." The court is adamant here. There is no grounds to deny students at a public college First Amendment rights; in fact, protecting First Amendment rights is extremely important nowhere more vital than in the community of American schools. That is a big one folks. That is the court making very clear that the First Amendment applies to public college students in full. The constitution has come to campus. All right. The very next year, Papish v. Board of Curators of the University of Missouri. Another landmark case. And this one really echoes insofar as here we're not just talking about freedom association, we're talking about pure student speech. Building on the principles outlined in Sweezy, Keyishian and Healy, in 1973, the court confronts the question of a student, a graduate student, Barbara Papish, who had been expelled from the University of Missouri, expelled from Mizzou for handing out a student paper, the "Free Press," the "Underground Free Press." Now, the "Free Press" was fairly radical. The "Free Press" issue in question that resulted in Ms. Papish's expulsion had an article about a local activist group called Up Against the Wall Motherfucker. And I know that's maybe an unexpected word to hear, but hey, this is a First Amendment CLE, we're gonna keep it very real. So the paper had an article about this group, and a member of this group had been arrested for burning a draft card; and then after trial, the activist member of this group was acquitted. So of course the "Free Press" ran an article with a big headline saying "Motherfucker Acquitted," and that earned the ire of the administrators on campus, as well as the cartoon, the political cartoon included in the issue, which depicted a policeman sexually assaulting the Statute of Liberty and the Lady of Justice, the woman with the scales and the blindfold. And all that content was edgy enough that Papish was expelled. But because the court had just made clear, in Healy, that First Amendment applies in full on public college campuses for students, this actually is a relatively straightforward case for the court. The First Amendment protects offensive speech, even gravely offensive speech, it certainly protects political speech or reporting about political groups, political cartoons. So the court extends its holding in Healy and says the mere dissemination of ideas, no matter how offensive they may be to good taste, on a state university campus may not be shut off in the name alone of conventions of decency. It doesn't matter that it's offensive, it doesn't matter that they used a curse word, it doesn't matter that the cartoon might really shock some folks, it's all protected by the First Amendment. And just because you're on a public university campus doesn't mean that subjective, even prevailing, normative conceptions of good taste or what's decent and what's proper, you can't punish somebody just because you don't like what the expression at issue is; that's not enough no matter how offensive to good taste. Keep that top of mind because that is a ruling that echoes throughout the years. Just because it's offensive, doesn't matter, not enough. If there's one thing about the First Amendment that I try and tell students, all the hundred, maybe thousands, well, actually definitely thousands of students I've talked to across the country is that the First Amendment doesn't allow the government to pick and choose winners on the basis of viewpoint. And here's another instance of that, the court making clear that even offensive speech is protected at a public university, like the University of Missouri, like Mizzou. So nine years later, Widmar v. Vincent. This is the University of Missouri-Kansas City. And here we have an evangelical student group that wanted to continue to use university facilities to hold Bible studies, to have teachings, to have meetings where they discussed Bible verses. And this group Cornerstone was pretty popular on campus, it was drawing big crowds, up to 125 people, and it was using university facilities, like other student groups, to do so. And the school, University of Missouri-Kansas City, cracked down. They were worried, all of a sudden, that they might be violating the Establishment Clause by letting an explicitly religious group conduct explicitly religious meetings and activities and readings on their campus, in their public facilities, taxpayer supported facilities. So UMKC cracks down, it says, "No more of that." The students sue. And Widmar marks the court looking at campus and specifically the student group recognition process as a kind of forum, they say, "If you're going to allow student groups to meet on campus and if you're gonna give them some benefits with regard to recognition, you've created a forum. This public forum is open for use by student groups and you cannot exclude certain groups because of their viewpoint or because of the content of their speech." The campus of a public university possesses many of the characteristics of a public forum; and once you've opened up this forum, even if you didn't have to do it, you can't, again, pick and choose winners on the basis of viewpoint, which is exactly what UMKC was doing here. So there was no Establishment Clause violation. Having a religious view is the same as having any other kind of view, and you can't restrict student groups that are religious just because of their expressive activities. And that ruling, in turn, would lead to the court's holding in Rosenberger v. Rector and Visitors of the University of Virginia 14 years later. In Rosenberger, you had a student publication called "Wide Awake," which you can see in that picture. And this was a religious student publication, a Christian publication. And like other student publications, "Wide Awake" received funding from the student government; and they had applied for that funding and received it, and were using it to print copies of their publication, of their magazine. And the school said, "Well, wait a second, we can't let you do that because now you're spending public money, money that we have levied from students in the form of mandatory student activity fees, and you're putting that towards a religious purpose, and that's a problem for us, so we can't let you do that." And after the student group sued, again, the court, consistent with this decision in Widmar, says the student government collecting fees and disbursing it, well, those are no longer public fees. It's not the state speaking when the student group publishes the magazine, it's the student group speaking. And nobody would understand the student group as speaking on behalf of the university, that is the student group is functionally its own third party, it's own private group here. And that once the state, and in here the state university, the University of Virginia, sets up its system of collecting money, well, that's, again, a kind of metaphysical forum, the court calls it, a metaphysical public forum. And just as the court said in Widmar, once you've set up that forum, you can't exclude some folks just because they have a specific type of viewpoint, here a religious viewpoint, and you can't categorically exclude religious viewpoints because there is a wide range of academic and social and political commentary that involves religion, you can't have a blanket no religion exemption or exclusion. And so the court says that is especially important, that protecting a diversity of voices and diversity of viewpoints is especially important in the college context where the state acts against a background and tradition of thought, an experiment that is at the center of our intellectual and philosophical tradition. So from Rosenberger, again, once the state has set up a student group recognition or student group funding system, it cannot exclude some student groups from that funding system on the basis of their viewpoint. Thinking of student activity fee funding and this metaphysical forum that the court identified in Rosenberger, Board of Regents of the University of Wisconsin System versus Southworth, 2000. Here you have a challenge to the constitutionality of the public university, University of Wisconsin, charging students an activity fee and putting those fees to use to fund a wide variety of student groups, whether or not that's constitutionally permissible. First of all, the court says, "Yes, having a mandatory student activity fee system that funds a wide variety of groups is permissible, even if it funds groups that some students don't like. If the university wants to create some kind of opt out system where students can select the groups they wanna fund, that's fine, but the university doesn't have to do that." The whole point is that maybe for efficiency's sake, it's easier for the university just to collect all the money from each student and then pool it together and have that money distributed in a viewpoint neutral way. That's fine. You don't have to have an opt out system, it's not constitutionally required. Some of your fees will be used for groups you may not like if you're a student, and the Supreme Court says that's okay. What's not okay," the Supreme Court goes on to say, is implementing some kind of referendum system where student groups and their funding are put up to a popular vote. That's a problem because, the court says, it substitutes majority determinations for viewpoint neutrality and therefore undermines the constitutional protection of viewpoint neutrality that these kinds of funding systems require. The whole theory of viewpoint neutrality, says the court, is that minority views are treated with the same respect are are majority views. So if you put up who can get funded up to a popular vote, well, that's majority rule and that's incompatible with the basic First Amendment promise. The government will collect this money and will distribute it in a viewpoint neutral way, that's the only way this thing works. And if the government allows groups to be put up to a majority vote, that violates the viewpoint neutrality principle the court established in Rosenberg, in Widmar, and again reinforces here in 2000 in Board of Regents versus Southworth. So that does it for the Supreme Court's First Amendment on campus cases, from Sweezy to Southworth. The big takeaways here: public universities are state actors; faculty have academic freedom rights to discuss questions of scholarly interest, to research to teach without political interference; and college students have full First Amendment rights when they are on campus, they don't check those rights at the door; we're not talking about K-12, we're talking about generally adult college students who are engaged in the search for truth in the marketplace of ideas that is the public university campus; and the state cannot pick and choose winners on the basis of viewpoint once it opens up metaphysical public forums in the form of student organization systems; and the mandatory student fee funding that make that possible. All right, moving on. Now that we've got the basics, let's work in some of the more recent cases. This one, we'll go way back to 1988: Gay and Lesbian Students Association v. Gohn. I'd like to highlight this case to demonstrate the incredible transformative power of the First Amendment, to show you the distance that society can travel in a lifetime and the power of freedom of expression. This one comes to us from the University of Arkansas where the Gay and Lesbian Students Association... Much like Sweezy in the 1950s, the Gay and Lesbian Students Association, well, it wasn't easy to be out and gay at the University of Arkansas in the early '80s, that's my guess And it's borne out by the facts here. The Gay and Lesbian Students Association applied for funding from the student government to show a film about Stonewall. As I recall, they asked for about $200 for a one time expenditure to screen a film on Stonewall and the gay rights movement. And they were turned down. And they weren't just turned down with a standard, polite rejection. They were subjected to pretty tough remarks from the student government, pretty nasty stuff. One student government member remarked to the student group: "I didn't think you'd look so normal." Another said, "Why would we allow you to show this movie? It'd be like handing matches to an arsonist." So the student government was pretty ugly in their rejection. And the administration of the University of Arkansas was much the same, they were adamant that there'd not be funding for the Gay and Lesbian Students Association. And they in turn, the administration in turn, was getting pressure from the state legislature, which was threatening to cut off funding to the university if the student group got funding. So it was a high profile rejection based solely on the viewpoint that the Gay and Lesbian Students Association wished to express to show the movie. And so what do we recall from the foundational cases we just discussed? The government cannot single out a viewpoint for exclusion from a forum that it has created on the basis of hostility to that viewpoint, and that hostility was well in evidence in the record here with the statements from the student government officials, the administration, and the legislature; very explicit about why this student group was not receiving funding to which other student groups and similar groups were entitled and to which it should have been entitled, but for its viewpoint. So the group stood up for itself, stood up for its rights. The First Amendment, as it so often has, protected the voice of a political minority. And after consideration, the Eighth Circuit made clear the university didn't have to open a mandatory student fee funding system to fund student organizations, but once it had done so: "It is bound by the First Amendment to act without regard to the content of the ideas being expressed." That is one of the fundamental premises of American law. All right. Moving on now to the Fourth Circuit, from the Eighth Circuit to the Fourth Circuit. Now we're in 1993, we got a fraternity at George Mason that wanted to stage or did stage an ugly woman contest in the student union. And this was a pretty... By all accounts, it was a pretty ugly event in terms of its expressions of hostility to women, to minorities. This was described by the court as kind of a boorish event. And in response, 247 students asked that the frat be punished. And the frat was banned from social events for two years for creating a hostile environment for women and minorities on campus by virtue of this ugly woman contest. The frat challenged the discipline. And again, you know what I'm gonna say. The government cannot single out students on the basis of viewpoints expressed, even if they are offensive. And some students certainly found this event very offensive, but the Fourth Circuit said it is apparent that the government has other ways to respond to speech it doesn't like, to speech that other students don't like, beyond imposing punishments based on viewpoint. Right? The university has an interest in having an environment free of discrimination and racism, and treating folks equally, but there are other ways to achieve that interest rather than punishing students for protected speech. And that's, again, the takeaway here. It's the marvelous thing about the First Amendment, it really does take all commerce no matter what one personally might think of the speech. Moving on, College Republicans at San Francisco state University versus Reid. There were College Republicans in San Francisco State University, there were two of them, and they had what they called an Anti-terrorism Rally on campus. And they, being College students, went to Wikipedia, they found copies of the Hamas and Hezbollah flags, and they printed those out, and they had an event where they stamped on those flags in the main public square, so to speak, at SFSU. And students saw them stomping on these flags and complained, and they filed reports to the administration saying that the flag stomping was offensive, was anti-Muslim and was really not something that should be allowed to happen on campus. And the College Republicans were investigated for five months after being charged with attempts to incite violence and create a hostile environment and, crucially, actions of incivility. Actions of incivility. After five months, they were cleared; but really they had had more than enough of being investigated for what they felt strongly was First Amendment protected speech. So they filed a lawsuit challenging the system-wide civility requirement that required students to be civil to one another at all times. And they didn't like having been investigated, so they brought a First Amendment challenge to that policy. And the federal judge here found that requiring students to be civil, well, that is a First Amendment violation. The government cannot tell you to be nice to other people. The government can ask you, the government can hope that you'll be nice to your fellow students, but the government cannot require civility. And why not? Well, because anger, emotion, vitriol, all of that is protected by the First Amendment. You have a First Amendment right to be angry if you see something you don't like. You have a First Amendment right to be rude if you are confronted with an idea you don't like. You have the First Amendment right to stamp on the Hamas and Hezbollah flags if that is how you feel your political message is best expressed. Requiring students to be civil might well require students to forsake the means of communication that are most likely to be effective. There is an emotive component in emotion and anger. Roberts v. Haragan, Northern District of Texas, 2004. Here you had a classic speech code. What's a speech code? It's a university policy that regulates expression and restricts expression that's protected by the First Amendment. Texas Tech University had a laundry list of things: personal attacks, threats, insults, epithets, that were prescribed when they are personally directed at people on the basis of a wide variety of protected class statuses, including political views or political affiliations. You can't tell someone that they are a stupid Democrat or a stupid Republican or whatever. You can't disagree in those kinds of heated terms under the policy at issue here at Texas Tech. And a students challenged it saying that it restricted protected speech, and the district court agreed. This may start to feel familiar to you. What can the government not do? It cannot tell you, per the First Amendment, it cannot tell you that you cannot say things that another person might be offensive. Offense alone is not enough. The policy is constitutionally over broad, that is it sweeps within its ambit protected speech 'cause it bans speech that no matter how offensive, it's not prescribed by the First Amendment, it's not one of the limited categorical exceptions to the First Amendment. Mere offense alone is not sufficient grounds for punishment. And this policy, insofar as it prohibits insults or ridicule based on political views or political affiliation, down it goes does, it does not pass First Amendment muster. My goodness, in today's polarized United States, can you imagine a ban on ridicule based on political views or political affiliation? Half the internet would go outta business folks. Next up, Barnes v. Zaccari. This student right here is Hayden Barnes. And I have the pleasure and honor of knowing Hayden quite well. FIRE worked on this case, and we coordinated litigation on behalf of Hayden. What happened to him? Well, he was an environmentally minded student at Valdosta State University in Southwestern Georgia. And he was protesting because the university president, Zaccari, wanted to build a large parking compound or parking structure on campus. And Hayden, being an environmentalist, thought that there would be other better, more beneficial uses for the money than the millions of dollars that were gonna be devoted towards building this parking garage. He said, "You could buy buses and run on biodiesel. You could give every student on campus a bike. Don't spend the money on a big parking garage." He posted a collage on Facebook protesting the planned construction of the parking garage, and he called it the Zaccari Memorial Garage. And he did that because Zaccari said that the garage was to be his legacy on campus, that it was his gift to campus. Now, Zaccari, unbeknownst to Hayden, had been monitoring Hayden's Facebook page. Zaccari did not like Hayden and the protest, the kinda one man protest, he was leading against Zaccari's pet project, the parking garage, so he was monitoring Hayden's Facebook account and looking for a way to punish him. Now, this is way back... when this litigation started, way back in 2007. Facebook was not a widely known concern at the time. And I remember in our press releases about the case, we had to identify it as social networking site Facebook.com. Those days are long gone. Anyway, here's the co collage so you can see it. You see there's kind of political messages here: "No blood for oil." There's a bulldozer bulldozing the earth. And there's presence Zaccari up there. But Zaccari seized on the title, the Memorial Parking Garage, and he said, "Aha! This is a threat on my life. This is a true threat." And he rounded up his fellow senior leadership, being the president, he called the meeting and said, "I'm gonna expel this student." And he was warned that doing so might risk a lawsuit. So he had the student administratively withdrawn, he had Hayden administratively withdrawn. He slipped a note.... They slipped a note under Hayden's door, said he had 48 hours to leave campus, that he was being administratively withdrawn because he was presenting a threat to campus. Well, Hayden fought back and litigated and said, "First of all, there's no way that this constitutes a threat." And it took two trips up to the 11th Circuit. And the 11th Circuit agreed, found that the withdrawal had violated Hayden's rights, and also that Hayden had not had access to proper procedural protections, he didn't have notice and an opportunity to be heard before being kicked out on Valdosta State University. And Hayden, meanwhile, before the case was resolved, this all started in 2007; by the time it was resolved, Hayden had graduated from law school. Hayden became an attorney. He went from undergrad all the way through law school while his case was going on, and he won. And president Zaccari was found personally liable, his defense of qualified immunity was defeated because the court, the 11th Circuit, found that it was so clearly established, the right to notice and a hearing was so clearly established and Zaccari had trampled that in his zeal to punish a student critic that he could not avail himself of the defensive of qualified immunity, that he should have known. A reasonable administrator in his position would have known that he was violating long established law. University of Cincinnati chapter of Young Americans for Liberty versus Williams. Another case that FIRE was involved in. We named the University of Cincinnati's free speech zone, they called it a Free Speech Area, our Speech Code of the month in December 2007. You had to get notice 10 days in advance to use this, if you were a student. And students who spoke outside of the Free Speech Area, which comprised just 0.1% of this sweeping 137 acre campus, you had to get 10 days notice to use it. And if you spoke outside of the Free Speech Area, you would be hit with criminal trespassing charges. Here's a picture of the free speech zone, so you can get a sense of it. It's that tiny little area in green on this whole campus at the University of Cincinnati, which had historically had rallies and protests all over campus, but they were constricting speech to that tiny little area in green. That was the Free Speech Area, again, 0.1% of the entire campus, and 10 days notice. 10 days notice, can you imagine? 10 days is like, what, 100 news cycles ago with the way that news moves these days? If you had to wait 10 days to talk, my, your message would be robbed of its urgency, robbed of its immediacy. Imagine if you had the presidential election and you weren't able to protest it or to celebrate it until 10 days afterwards. So FIRE worked with a student group, the Young Americans for Liberty at the University of Cincinnati, and they wanted to gather signatures for a ballot initiative. They were told that they couldn't do so; and that if they went outside of the Free Speech Area, they would be subject to criminal charges. And we filed a lawsuit in conjunction with the 1851 Center for Constitution Law in Ohio. And sure enough, we got a preliminary injunction against its enforcement. And that preliminary injunction was made permanent in August 2012. The policy was struck down. You cannot restrict student speech to one tiny area of campus. It's not a reasonable time, place and manner restriction. All right. Here's another similar case, another free speech similar case, in Modesto Junior College, again, coordinated by FIRE. This young man is Robert van Tynan. That's him being confronted by law enforcement for wanting to hand out copies of the constitution on Constitution Day. Robert was a returning veteran getting his degree, and he wanted to talk to his fellow students about what he had been serving for. And it was Constitution Day after all, but he was stopped by police and told that because of "time, place and manner" he had to get in the free speech zone. He had to hand over an ID for photocopying. And then they were saying, "The area's booked, you can come back in October." Well, if you wanna hand out the constitution on Constitution Day and you're being stopped by law enforcement and told you can't, hmm, something might be wrong. Here is the picture of the Modesto Junior free speech zone. Again, it's that tiny, teeny little bit right there in orange. It looks like all kinds of open area for expressive activity elsewhere, but it's that tiny little one right there. There it is. There's the free speech patio; gotta stick to it, otherwise you'll be in trouble. So in addition to being tiny, just 600 square feet, you also had to give five days' notice, get your ID, and you could only use... I love this part. You could only use the free speed zone for eight hours per semester. So if you had nine hours of stuff worth to say, you couldn't, you'd have to come back next semester; only eight hours, otherwise see you later. If you wanna do a marathon reading of "Finnegans Wake," no way, you're gonna have to come back next semester. Why? Mm, I don't think there's any good reason. And happily Modesto Junior College saw the light. They settled, paid van Tynan; changed their policies, most importantly; and now the entire campus is open for freedom of expression. Okay. So those are cases from the not too distant past that are, again, reinforcing the broad protections of the First Amendment on public college campuses. Whether that's offensive speech, incivil speech, or just kind of core political activity that's being restricted by a speech code or a free speech zone, courts have not taken kindly to restrictions on student First Amendment rights at public university campuses. That set of cases there illustrates well the ways in which the broad parameters of the First Amendment are binding on state institutions. Okay. So now let's take a look into our crystal ball. And we're gonna use recent cases to inform our review of what might be coming down the pipeline for us at FIRE and for students across the country. All right. But you may be wondering, before we get too much further down our crystal ball, what about private colleges? I've been talking an awful lot about public colleges and universities. What about private schools? Well, of course they're not bound by the First Amendment, they're not government actors. In fact, private universities have their own First Amendment right to make up their own rules about how to treat free expression. Most private universities, the vast majority of private universities, promise their students the same speech rights that they might enjoy at a public campus. If you go to Harvard, you might think, "Well, I wanna be sure I can speak as freely as I could down the road at UMass Amherst." And private universities usually advertise themselves as being broadly protective of free speech. Our line at FIRE is that if a private college advertises itself as a place where free expression is celebrated and secured in policies and promotional materials, well, students expect that right when they show up on campus. If a college promises students that right, we are here to make sure they deliver. We wanna hold them to their own policies and promises. Esque a kind of a contract theory of rights here, the student has attended with the expectation and understanding that these rights will be secured in policy and actually delivered. And if they aren't, well, then we have a problem. But I should be clear that not all colleges promise free speech. In fact, there are quite a number, there are the minority, but there are still quite a few schools that elevate other values above freedom of expression. And that is their First Amendment right. Brigham Young University for one well known example. Brigham Young puts values related to its faith, related to the Church of Latter Day Saints, the Mormon Church, above freedom of expression. And that's fine too. In our pluralistic society, different schools will serve different communities and different needs. No problem. All we ask is that colleges be very clear when they don't in fact guarantee expressive rights. We call them warning schools because we want students to be warned, to be aware that they are checking rights at the door here. And we also think that free speech is an important component of a liberal arts education, we think it's a normative good. So students have every right to attend these schools, of course; these schools have every right to place other values above free speech, of course; but we want folks to be very aware as to what's going on. All right, speaking of private schools, when schools don't fulfill their promises of free expression, students are understandably upset and surprised to find out that the promises upon which they had relied aren't worth the paper they're printed on. And that brings us to our first case. Awad v. Fordham University. Here you had a chapter of Students for Justice in Palestine that was seeking recognition. Fordham University makes promises to Jesuit school but it makes extensive promises of freedom of expression. But their application, Students for Justice in Palestine, their application was turned down. The argument was that it would be too polarizing and could not be recognized. It looks a little bit on its face like Healy v. James. The administrator said that he had seen the division that Students for Justice in Palestine had caused at other campuses, didn't want the same thing to happen in Fordham, turned down the application for recognition purely because of the viewpoint that Students for Justice in Palestine was going to advocate. The group filed suit under Article 78, New York State law, that allows folks to sue to make sure private organization fulfills its promises, follows its own bylaws. And after the lawsuit was filed, the first court, the trial court found for the students, said, "Importantly, the consideration of whether group's message may be polarizing is contrary to the notion that universities should be centers of discussion of contested issues." In other words, Fordham had promised these students broad expressive rights and then hadn't delivered. In nowhere in Fordham's rules and regulations was there any no polarizing clubs exception. So the trial court agreed that Students for Justice in Palestine should have been recognized under Fordham's own promises. But the trial court's opinion was appealed, and their ruling was appealed by Fordham. And the New York State Appellate Court said that the case was now moot since the students who had wanted to form the club had now graduated. And that was that. The students' further appeal was declined by new York's High Court, and that ended the saga. But stay tuned because more groups will surely be denied for viewpoint based reasons at private schools, and we shall see how courts treat university promises. Here's another one, thinking about the divided political times, the contentious political issues we now confront as a nation. What I've often found doing this work is that the debates we see on college campuses presage the larger societal debates. You see things become flash points for campus controversies before they hit the larger debate. This case is a case at FIRE litigated: Salazar v. Joliet Junior College. I love the story behind this case. We found Yvette Salazar, who you can see here in the picture, because she was live tweeting her detention by campus law enforcement. They had stopped her from handing out Shut Down Capitalism flyers for the Party for Socialism and Liberation, I'm recalling right. She was handing out these flyers because another student group, Turning Point USA, was handing out Socialism Sucks flyers and she wanted to rebut that argument. The campus to the cops told her that she couldn't hand out those flyers because of the "political climate of the country." And when we found her live tweeting her detention, we said, "We would be happy to represent you. You can hand out flyers that rebut another student group. You can hand out flyers that are critical of socialism or capitalism, whatever, you can do that, that's protected speech." And happily, Joliet Junior College saw the light quickly and changed their policies to make sure that students like Yvette and the students she was protesting will both have their First Amendment rights respected. So stay tuned for more cases like this because with students echoing and, again, as I say, kind of prefiguring the larger debates we're having in this country, more political speech on campus will be cracked down as universities seek to adopt a kind of a risk averse, no trouble on my watch posture, shutting down student expression in the hopes of "keeping the peace." Well, of course, trading these ideas, tackling the big issues of the day, figuring out what one thinks, hearing from people who disagree with you, that's all part of the college experience, that's how we learn. Edward C. at Eastern Virginia Medical School. We represented Edward. He wanted to start a pro-national healthcare group at Eastern Virginia Medical School, Students for a National Health Program. And it would be a chapter of Doctors for a National Health Program, and he wanted to start a student chapter at his school. He was told he couldn't do that by the student government. Again, given the political nature of the speech, that kind of put a target on Edward's group. And the student government said they didn't want to have him do it because they don't approve clubs "based on opinions." Well, maybe not based on opinions, maybe it's just a controversial opinion or advocacy for single payer healthcare because the school did recognize other belief-based groups, including a Christian group and a pro-choice group. But even when FIRE wrote the school and wrote the student government, they refused to reverse their denial. We wrote them twice, didn't get much of an answer. We filed suit on Edward's behalf; the very next day, Edward got a letter from Eastern Virginia Medical School saying, "You know what? We actually do recognize you. Apologies, we must have got lost in the mail." So we settled soon after and the student government's policy and procedures have now been changed so that the student government cannot evaluate the opinions of the student group and they can't ban a group just because it has opinions in the first place. There will be no viewpoint based denials of recognition applications at Eastern Virginia medical school. You see, that case is consistent with Gay and Lesbian Students Association v. Gohn, consistent with Healy v. James, consistent even with Rosenberger and Southworth. Once the university has set up a forum for recognizing student groups, it cannot exclude some groups just because it doesn't wanna hear their opinions, opinions of students like Edward. All right, bias response teams. This is a field to watch. Back in 2016, we filed open records requests at colleges and universities nationwide to find the prevalence of bias response teams, that is reporting mechanisms that schools establish with university personnel that encourage students to report "biased incidents." Whenever they see an act that they think expresses bias, these colleges are asking students to report that incident to university officials. Troublingly, we found that 42% of these bias response teams also reported the speech to law enforcement or campus security. Now, again, thinking about the First Amendment's broad protections for expression, bias speech may very well be; in fact, likely is in most instances; protected by the First Amendment. So when universities, when public universities set up reporting systems that encourage students to report protected speech to law enforcement, you can see the tension with the case law. And a group called Speech First, a litigation organization, has started challenging bias response teams, including at the University of Michigan in a case called Speech First v. Schlissel, Former President Schlissel of the University of Michigan. Anonymous student plaintiffs challenged the Michigan bias response team, which, in their policies, included a broad ban, an unlimited ban on harassing or bullying another person physically, verbally or through other means.. The students said, in their declaration, they wanted to voice kind of conservative opinions about Trump, about the border wall, about gun rights, opposition to Affirmative Action, and so forth. And the district court said, "Well, we don't have evidence of punishment here; we just have this declaration from these anonymous students, that is a subjective chill. But they don't have standing to challenge the policy 'cause they haven't shown us anything more than just a broad fear of being punished, and they don't have anything really that they can point to as an injury in fact." The students appealed. And on appeal, the Sixth Circuit reversed the district court saying, "The fact that there are mechanisms in place that might involve law enforcement, that might involve referrals to law enforcement, is enough to establish not just a subjective chill, like the district court found, but in fact an objective chill. Speech First, the group that sued, recognizes that the response team lacks any formal disciplinary power and that bias incidents are not directly punishable under the statement but maintains that the response teams act by way of implicit threat of punishment and intimidation to quell speech. We agree. When you encourage students to report on each other, when you have law enforcement potentially involved, then you have an objective chill on speech, and these students are biting their tongues rather than speaking out because they fear punishment." And that was enough for the Sixth Circuit to find standing and reverse the district court's dismissal. What's more, the Sixth Circuit found that the structure of the bias response team, even though there was no explicit disciplinary power, there was an implicit threat of consequence if a student should deny or decline an invitation to a "voluntary" meeting. Given that a student might understand that the bias incident report would go to the police or the university's disciplinary system, they may feel pressured to meet with university officials to discuss their quote "biased," or subjectively biased, but still protected speech. So in other words, a student, per Speech First's complaint, could express support for Former President Trump, be reported for bias speech, receive an invitation to a voluntary meeting and then be worried about the consequences of declining that invitation. The very name, bias response team, suggested to the Sixth Circuit that the student was already doing something that might be judged to be biased and thus potentially worthy of punishment. Attending the meeting is voluntary but the record is silent as to whether being labeled voluntary ameliorates any of these objectively implied threats. So bias response teams, pay attention, there is now a circuit split between the Sixth Circuit, the Fifth Circuit and the 11th Circuit all expressing concerns about bias response teams, and the Seventh Circuit going the other way. So stay tuned. The last case I would like to direct your attention to is another FIRE case. We are representing student Kimberly Diei, a pharmacy grad student at the University of Tennessee Health Science Center. She was nearly expelled. But for a letter from FIRE, she would've been expelled after administrators hauled her in for disciplinary proceedings based on "crude" and "sexual" posts on her personal Instagram and Twitter accounts. The posts were made in her off-campus private capacity, they are fully protected, they don't even violate Twitter or Instagram's terms of service. They've got no connection to Diei's work as a student, but the consequences of just having a personal life on social media almost meant expulsion here. So we are litigating on behalf of Diei to make clear that students do not check their ability to have personal Twitter accounts, personal Instagram accounts, a real life on social media, just be by virtue of attending a professional school. There's nothing unprofessional about being a real person off-campus. So stay tuned to that one. In summary, the value of free speech. Why does all of this matter? Why do we care that students have full free speech rights at public universities? Why are we invested in defending freedom of expression? Well, because free speech is a beautiful thing. It means that we trade ideas rather than bullets; rather than fists, the way we have throughout so much of human history. In our country, we recognize the value of pluralism; that there is an important component of allowing folks to have different opinions, that we all can have different ideas about what's good and what's worth following. Justice Thurgood Marshall, one of my favorite quotes: "Freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin." That's what we're defending, and it starts in college. If any of these cases had gone the other way; not withstanding Awad, which was a disappointment; then students involved in those cases would have been taught the wrong lesson about life in our pluralistic society. Central points here, just to recap: First of all, the First Amendment applies in full at public colleges and universities. The bottom line, the one takeaway, is viewpoint discrimination is no good, it is anathema to the First Amendment. Finally, courts have consistently struck down campus speech codes in cases dating back decades; this is well established law. And as I'm always telling the students and faculty that we work with: Censorship is old, free speech is hard. It takes bravery to stand up and vindicate your rights. And as long as students speak in new ways, whether that's on Twitter or applying for recognition from the student government, administrators will likely seek ways to silence them, and we'll be here to fight for them and fight for their rights. Thank you so much for spending this hour with me. If you'd like to learn more about any of these cases, visit us at thefire.org. Of course you can always write me, [email protected], and I'd be happy to talk about our work with you. Again, thanks very much. And thanks to Quimbee for hosting this talk.

Presenter(s)

Will Creeley
Legal Director
Foundation for Individual Rights in Education - FIRE

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