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"Never Tweet": Campus Speech Rights and Social Media

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"Never Tweet": Campus Speech Rights and Social Media

Social media is a minefield: All of us are just a click away from going viral! But the risk of internet infamy hasn't stopped students and faculty staff from posting, sharing, and tweeting their way into free speech flare-ups at campuses across the country. So what can recent First Amendment controversies and cases involving social media teach us about freedom of expression and the First Amendment? Join Will Creeley from the Foundation for Individual Rights and Expression as he takes a closer look at student and faculty free speech rights in our extremely online world.

Transcript

- Hey folks, welcome to Never Tweet: Campus Speech Rights and Social Media. My name is Will Creeley. I'm the legal director for the Foundation for Individual Rights and Expression. I'm gonna keep my bio short so we can get to the substance here, but in a word, I've been defending student faculty free speech rights for 16 years with FIRE. FIRE is a nonpartisan nonprofit 501 headquartered in Philadelphia, beautiful old city Philadelphia, just across the street from Independence Hall. We've also got an office in Washington, DC. We are proudly nonpartisan, as the cases we'll discuss here will make pretty clear. And what are we talking about today? Well, we're going to talk about social media. Everything happens online. Social media is hell. Social media keeps me and my colleagues here at the Foundation for Individual Rights and Expression very, very busy. Never tweet is almost always good advice, but as the cases we'll talk about will demonstrate all to clearly, college students and faculty don't always follow that advice, and neither do high school students. We'll get a word in about them at the end. We'll talk about the lessons we should take from online speech controversies. We'll also talk a little bit about this emerging case law where the intersection of our online social media marketplace of ideas runs into restrictions on student and faculty speech, outrage mobs online, punishments for protected speech online, and more. We'll take some broader lessons, and I'll end with my advice to campus administrators. Really, it's advice for all of us as we navigate the digital age. Every time a new communications medium, whether it is the printing press or broadcast television or radio, every time we introduce a new communications medium, people freak out, and censorship is an old human instinct, and we see this clearly again and again throughout history. You only need to look up John Peter Zenger and Governor William Cosby of colonial new York's reaction to his articles making fun of Governor Cosby and the reaction when John Peter Zenger was imprisoned for his speech critical of power. That sets a template that's continuing to this day. Again, we'll explore those cases, those modern cases here, but long story short, censorship is an old human impulse, and social media makes it more immediate. We are all a tweet away from having someone tell us that we are jerks and someone tagging in our bosses and someone seeking to get us fired for an expression, which however unpopular or unwanted or subjectively offensive is nevertheless protected by the 1st Amendment. So how do we navigate all that? All right, this will come as a surprise to none of you, but breaking news, people say stupid things online. Now I should note, the Foundation for Individual Rights and Expression, FIRE, where I work is proudly nonpartisan. I'm not going to editorialize about the speech. Our rule here at FIRE is if it's protected, we defend it. End of story, end of conversation. We don't clear our throats and say, "Well, this might be objectionable," or, "Well, this is obviously wrongheaded." No, we just do the job. We're like plumbers. You got a broken sink, we'll come up and fix it. We don't care who you voted for. Little bit like that except with 1st Amendment. You're being punished for protected speech. We don't care what it's about. We're gonna defend you. You can check out more of our case work at theFIRE, T-H-E-F-I-R-E.org. But anyway, this would be my one exception to that rule. I will say people say stupid things online, and you can draw your own conclusions as we go. College students and online speech. It is really kept us incredibly busy. First note before we get into the specifics of some of these recent cases, as you can discover more about in another class for Quimby, I've had the privilege and honor of recording recently, the 1st Amendment applies in full on public college campuses. You wanna hear more about that case law, check out my other class here at Quimby, but in the meantime, let's just start with that basic recognition that the 1st Amendment protects college student and faculty speech. We nevertheless have seen here at FIRE a wide variety of what we call speech codes that are more clearly perhaps defined as restrictions on speech on campus that would be unconstitutional restrictions on the 1st Amendment off campus. Here's the secret. They're justice unconstitutional on campus when the school in question is a public university, and most private universities, even though they're not bound by the 1st Amendment, they're private organizations, most private universities, nevertheless, promise students and faculty a wide range of expressive freedom. In fact, most of them promise rights commensurate with those enjoyed by students on public campuses. Just to give you a sense of the world out there, at Boston University, students are prohibited from using computing facilities, including internet servers, in a way that, quote, "might needlessly interfere with the work of others." Folks, I don't know if you've been on Facebook or Twitter or Instagram, but I think all of those services can be argued to needlessly interfere with the work of oneself and maybe others as well. And as you know, from anybody who's ever posted on Twitter or logged onto Twitter, people post annoying, offensive, or sometimes harassing things all the time and without anchoring the what is and isn't harassing to federal anti-discrimination law, what you have here is a broad, almost limitless prohibition on a vast amount of speech that is protected by the 1st Amendment or, at Boston University, which makes extensive promises of freedom of speech, by the university's own policies. Likewise, Alabama, A&M down south bans annoying, abusive, profane, or offensive messages. I guarantee you, without annoying speech, the internet would just about shut down. I think a good 75% of the internet is speech that somebody out there might find annoying, let alone offensive. Delaware State University similarly bans speech that would cause offense to others or use that would harm morale or result in the embarrassment of the institution. Again, people say all kinds of things online. It's a utopian dream we can all aspire to, posting in a way that doesn't cause an institution embarrassment, but you absolutely, as a government actor, which Delaware State University is, you absolutely cannot punish speech just because it embarrasses you. So let me give you a sense of some of the recent work we've had involving online speech. At Fresno State out west, we had a university that investigated its chapter of the College Republicans for a tweet that the College Republicans had posted that was critical of the military. Here, we had a veteran who was criticizing Republicans. I think it was about LGBT issues, and the College Republicans at Fresno state have a bit of a bomb throwing social media account. They like to mix it up apparently, and they started making fun of this veteran and then the Armed Services in general, saying, "The armed services must be going soft or what's wrong with the armed services if they had employed you," et cetera. So it got fairly nasty fairly quick. Again, social media, no surprise. Par for the course. And the Fresno State response, the administrative response was to argue that they would or announce that they would undergo a review, quote, unquote, "a review of the College Republicans' speech." Again, no matter how nasty it is, well, not no matter, but the 1st Amendment protects a broad amount of nasty speech. In fact, a great deal of speech that we might find repugnant, racist, offensive, sexist, all protected speech under the 1st Amendment. So this speech, the speech by the College Republicans was certainly protected by the 1st Amendment. So there's no grounds for a government actor to investigate it or threaten discipline. We wrote the California State University system, and they backed down after we did, so we reminded them that they're bound by the 1st Amendment as a government actor and that they can't investigate or punish the College Republicans for their Twitter speech, no matter how offensive some, many, or most of us may find it. Also, staying out in California, we had an interesting situation where a 3L law student at Stanford Law had satirized the Federalist Society, the conservative legal group, and he had posted a fake flyer for a fake Federalist Society event, classic satire, saying, "Come to this Federalist Society event and hear the originalist case for the January 6th insurrection. Come hear from senators Ted Cruz and Josh Holly about why the founders would've liked the mob descending on Congress." Clearly parody, clearly satire, but the Federalist Society members who were unhappy with the email nevertheless complained and filed a harassment charge against the student, the Stanford Law School student, and Stanford, instead of looking at this and saying, "You know what? This is protected. This is parody. It's protected under our promise of free expression." No, they decided to hold the student's graduation. It was just days before he was supposed to walk as a graduate of Stanford Law, and the school said, "Nope, we're gonna investigate this." Now again, I'm not sure what there was to investigate because it was, again, very plainly parody, very plainly satire. FIRE tweeted about the incident, and we used social media to our advantage here. The controversy quickly went viral. It ended with sitting US senators, not Senator Cruz or Senator Holly, weighing in on it, and Stanford finally saw the light and announced there would be no investigation and that the student would graduate. Took too long, but that's where that one ended up. Bryant University. Here, we have a student, Quinton Law, who was going home after a Super Bowl party and was called a racial slur from a dorm. He wasn't clear about who was calling him this name, but he heard someone yelling at him, calling him a racial slur. He gets back to his dorm room. He posts on Facebook, "Hey, whoever was in this dorm calling me that name, it's horrible, and I'm upset, and I'd like the chance to talk to you and explain why I'm so upset." Posts this on Facebook. Before too long, Mr. Law had campus law enforcement knocking on his door saying that his post on Facebook had amounted to harassment of the students in that dorm, that the girls in 6L or whatever the dorm was, were afraid of his post. Now his post was very plainly protected. It was, in fact, remarkably composed and measured, considering that Mr. Law just had somebody calling him such vile epithets, but nevertheless, it was his door that the police were knocking on. So he went to the school and said, "What's happening? Why am I being investigated here when my post was just expressing my hurt and upset and offering to talk after being called an epithet?" And the school told him to keep it quiet. They didn't want this kind of thing on Facebook. At that point, Quinton came to FIRE. We wrote the school a letter saying, "You cannot punish somebody for expressing this." Again, should be obvious. "You cannot punish somebody for expressing deep hurt after being called a racial slur, and if anything, you should be providing Quinton with support." And after we wrote in, happily, the school got the message and said that they were ordering a review of their social media policies "to ensure they're up to date and protect the principles of free speech while balancing the needs of safety to our community. It is not the university's policy to attempt to suppress information regarding acts of racism, and it never will be." So Bryant got it right, but their first instinct was to clamp down on speech that might embarrass the institution. That meant the institution did not want the outside world to know that students were calling other students racial slurs on campus. Facebook again. Here we have a student at Long Island University post in New York who went to a Cabela's, a popular sporting goods outfitting store, and tried firearms and posted pictures of himself at Cabela's. Fairly standard issued stuff. No question that this was a threat or anything remotely approaching it. Nevertheless, he was called into a meeting. "Hey, we saw you posting with firearms on Facebook. You need to come and answer for that." No good. That's protected speech. You can't have a mandatory meeting for posting yourself engaged in entirely lawful conduct on social media. Zoom backgrounds. Well, during the pandemic, when so much of education shifted to the online arena, you know that sooner or later, Zoom fatigue was gonna set in and students were going to upset each other with their backgrounds, and that's exactly what happened at Stockton University, a public university in the great state of New Jersey, where a student was investigated for using a picture of former President Trump as a Zoom background for class, and his fellow students reported to the administration they were feeling offended, disrespected, and taunted. And afterwards, when he had been approached about this, the student said, "I'm ready to fight to the death for our country and against those that wanna take it down," and he was hit with a number of charges, disruptive behavior, discrimination, harassment, creating a hostile environment, causing harm, and cyber bullying. Now, if you look closely at his post afterwards and certainly the Trump background, it's entirely protected speech. It's not too far from Patrick Henry. "I'm ready to fight to the death for our country and against those that want to take it down." It's fiery, sure, but it is exactly the kind of abstracted political rhetoric that the 1st Amendment protects. Here is the definition, just so we have it handy of true threats and intimidations. Comes to us from the Supreme Court's 2003 ruling in Virginia V Black where the court defined true threats as "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." So that speech from the student did not meet that definition nor did it meet the definition of intimidation, which is speech where a speaker in directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. So as a result, the school cannot punish the student for this speech on Facebook or anywhere else, and happily, the charges were dropped. After the second letter, FIRE wrote to the school, telling them that a Zoom background of Trump and posting a fiery speech on Facebook is protected speech, and they can't investigate or discipline him for such speech. Finally, this is one of my favorites. This is a FIRE case that we litigated. This is a Ivette Salazar. I like this one because of the way we found out about it. Ivette was live tweeting her detention by campus law enforcement. She was sitting at the campus law enforcement office, waiting to be questioned by police, and she started live tweeting the fact that she been hauled into the campus police office for handing out political flyers, and, of course, being 1st Amendment attorneys here, that perked our ears up, and we were quickly representing Miss Salazar. Here's what she did. She had seen flyers on campus that were criticizing socialism, and she's a member of the Party for Socialism and Liberation, a third party, and she, in response to the students handing out socialism sucks flyers or whatever they said, she handed out flyers for an event that said, "Shut down capitalism." And the police told her that she couldn't hand out those flyers because of the, quote, "political climate of the country." Well, whenever cops are telling students that they can't say a certain thing because of the political climate, that's when 1st Amendment lawyers like FIRE are going to step in, and we filed suit, and very quickly, the school saw the light here, changed its policies, adopted an aspirational statement about the importance of free speech in the college and university setting called the Chicago statement. Comes from the University of Chicago. This is Joliet Junior College, just outside of Chicago, so very appropriate, and paid $30,000 in damages and fees. But reaching an opposite result, let's talk about Feminist Majority Foundation V Hurley. Here, the student's speech in question was found to be not protected, but I'll give you the facts very quickly. First of all, this involves a once defunct, now revitalized social media platform, lesser known, perhaps, called Yik Yak, and the way Yik Yak works, to me, it sounds like a recipe for chaos and conflict, but again, that's how social media works sometimes. Yik Yak is a geo-tagged social media service where you post anonymously in a certain physical location, and you can see who's posting anonymously around you. And as the blurb here says, you get a live feed of what people are saying around you. You can up vote things that are good and down vote what things that aren't. You don't have user names or profiles. Everything on there is anonymous speech, right? Sounds like a real cauldron, a real witch's brew. So you had students who were unhappy with a feminist group on campus, Feminists United on campus, and they were posting nasty things about Feminists United on campus on Yik Yak. The group complained to the University of Mary Washington, which is in Virginia, and the administration said, "Look, we cannot, because of the 1st Amendment, disable access to the website. We're not gonna bar it from our wireless network. That would be a crackdown on protected speech, and we don't control the service, so this is outside of our control. We're not going to take action, and by the way, this looks like protected speech to us." So they didn't punish the student group the way that Feminists United on campus or they didn't punish the student critics the way Feminists United on campus wanted them to. The group filed suit in allegiance with the Feminist Majority Foundation, and they argued that the university was required under federal anti-discrimination law, under title IX, which bars discrimination in public education programs on the basis of sex, to take disciplinary action or at least to investigate their claims, and they filed a title IX complaint with the Department of Education's Office for Civil Rights, which is the federal agency that handles the administration of Title IX and other federal anti-discrimination laws. The school's president criticized the complaint in an open letter, said, "Look, I cannot take action here. You're asking me to violate the 1st Amendment." And at that point, the students amended their complaint to alleged retaliation that the president's letter amounted to retaliation, and they filed a suit. Again, they refiled, now alleging deliberate indifference, retaliation, and equal protection violation. The district court granted the school and the president's motion to dismiss. The district court found that the harassment, the cyber harassment, quote unquote, "harassment" took place in a context over which the University of Mary Washington had limited if any control and that the letter wasn't retaliation. It was simply responding to the fact that the group had filed the Office for Civil Rights complaint. But on appeal from the student group, from Feminist Majority Foundation, the Court of Appeals for the Fourth Circuit reversed. The Fourth Circuit panel said that, "Because the messages came on campus and they were in the vicinity of campus, the offending yaks," that's what you call these posts on Yik Yak, he called them yaks, "the posts were posted using the university's wireless network and were targeted at university students," so that the University of Mary Washington had an obligation under federal anti-discrimination law to pinpoint the harassers and to turn off their use of the college's network. The panel majority said that the university could not have turned a blind eye to the sexual harassment, the allegations, just because the posts, the yaks, were online and not in the real world, and they found that the university didn't make any real effort. Again, the university felt like it couldn't because of the 1st Amendment, but they said the university didn't really make any effort to investigate or end the harassment over a period of months so that the university was, in fact, deliberately indifferent to that alleged harassment in violation of its obligations under federal anti-discrimination law. The Fourth Circuit did find that the president's defense of the school in his open letter was not retaliatory. Now in a fiery dissent, one of the circuit judges said that, "The problem here is that institutions under this ruling will have to venture into an ethereal world of non-university forums, AKA social media outlets like Yik Yak, at great cost and significant liability in order to avoid the catch 22 Title IX liability the majority now proclaims." In other words, this ruling, the dissent argued, was going to send schools on wild goose chases to try and find out who these anonymous posters are and shut them down, even when the school, in the eyes of the dissent, has no control over the environment in which the harassment concerns. So stay tuned, that's relatively recent law, and we will see more of these cases. All right, let's turn now to faculty. Faculty, our advice to faculty, just like the students, never tweet. Now I'm saying that half jokingly because this obviously, as a 1st Amendment attorney, I am a great believer in the power of speech and counter speech and finding truth via the exchange of ideas. I love the 1st Amendment. I love the fact that it protects dialogue and discussion from government interference and allows us to figure out who we are and what we believe by exchanging ideas and not fists, but nevertheless, when it comes to faculty online, some good practical advice might be save it for the real world because some of these cases, you'll see the threat to faculty speech rights here. Let's, first of all, review government employee speech doctrine, Pickering V Board of Education, the seminal case in this field. For decades and decades, for really most of American history, government employees did not have much, if any, in the way of free speech rights. The famous formulation I'll paraphrase from Justice Oliver Wendell Holmes when he was on the Massachusetts Supreme Court. He heard a case involving a policeman who had been fired from the job for being involved with political activity off the job, and to paraphrase Justice Holmes, then on the Massachusetts Supreme Court, said, "You have a right to freedom of speech, but you don't have a right to be a policeman." So in other words, choose one, and that was the reigning view for decades until the 1950s when the court started striking down loyalty oaths, anti-communist loyalty oaths that were being imposed upon state workers And then 1968's Pickering V the Board of Education in which the court considered a case where a high school, public high school teacher had written a letter to the editor as a citizen, not as a teacher, as he proclaimed in the letter, criticizing the school board's funding decisions and its prioritization of athletics. The teacher was fired for that letter to the editor and filed suit. The high court issued in ruling for the teacher, the famous Pickering balancing test, which balances the interest of the public employee as a citizen in commenting upon matters of public concern and the interest of the state as an employer in making sure it can provide efficient public services. So the balancing test there is designed to ensure that public employees don't simply check their rights at the door, that they have retained 1st Amendment rights as citizens as well. That rule was augmented and we shall say altered by 2006 Garcetti V Ceballos, in which case the court updated the rule, said, "When public employees make statements pursuant to their official duties, they are not speaking as citizens for 1st Amendment purposes. The Constitution does not insulate their communications from employer discipline." But of the roughly 20 million public employees in the United States, the court noted a possible exemption for one particular type of employee, that is public university faculty. In his dissent, Justice Souter said, "I hope that in announcing this newly restrictive, newly favorable to employer interest, government employer interest standard that the court does not mean to endanger academic freedom, that is the right of professors to evaluate and investigate new ideas, to engage in speech in a search for truth to play devil's advocate, and so forth." The ruling, as Justice Souter saw it in his dissent, threatened the ability of faculty to engage in that kind of classic academic speech and counter speech. So the majority reserved the question of whether or not public faculty would be subjected to this Garcetti rule about when public employees make statements pursuant to their official duties because faculty official duties include this kind of speech and scholarship that has traditionally been protected by the 1st Amendment's understanding of academic freedom. The court said, "There's some argument that expression related to academic scholarship or classroom instructions implicates additional constitutional interests that are not fully accounted for by this court's customary employee speech doctrine." So the court said, "We will deal with the academic speech questions as they arise," and in the vacuum that the court created by carving out that potential exception by reserving that question, the federal circuit courts have begun to reach decisions that are protective of public university faculty speech and, instead of applying Garcetti, apply Pickering to public university faculty speech. There's Demers is the case in the 9th Circuit, Adams is the case in the Fourth Circuit, Buchanan V Alexander in the Fifth Circuit, Meriwether V Hartop in the Sixth Circuit. So those cases are continuing, but let's get to some of the details. We very quickly can get right into some of the problems that we've seen for faculty who choose to venture into social media, like David Guth at the University of Kansas who, after the Navy yard shooting, posted a tweet that criticized the NRA. "The blood is on the hands of the NRA. Next time, let it be your sons and daughters. Shame on you. May God damn you," said Professor David Guth. He was placed on administrative leave for this tweet, and the University of Kansas system instituted a harsh new social media policy because this was an unpopular tweet in the state of Kansas, and the university, despite the fact that Guth is clearly speaking as a citizen here, he's not identifying himself as a professor, nor is he in any way representing or purporting to speak on behalf of the institution. He was nevertheless placed on administrative leave. Steven Salaita likewise at the University of Illinois, he was about to be hired by the University of Illinois when the university reversed its hiring after contracts had been signed after controversy arose over his Twitter feed in which he had posted tweets critical of the state of Israel. Salaita was promptly unhired. Here's an old one that FIRE got involved with. It's so old that it involves a social media service which I think has been a goner for many years now, Google+. If you can reach back into the annals of your mind, remember a time when Google tried its hand at social media by creating Google +, then you'll be back in the age where we saw Professor Francis Schmidt at Bergen Community College in New Jersey who was punished for posting a picture of his daughter wearing a "Game of Thrones" shirt. Now that picture that you see of professor Schmidt, he is involved in animation, and so this is not his daughter on the screen, but that's just him showing his work in his classroom. And he was a fan of the show "Game of Thrones" before it got too popular way back, at the beginning, and he posted this picture of his daughter wearing a shirt with a line from the show, from the princess in the show, the Mother of Dragons. I forget her name. Boy, it's been awhile. She, anyway, has a famous line from the show where she says, "I will take what is mine with fire and blood." So Professor Schmidt takes a picture of his daughter here doing some kind of yoga pose, posted it on his Google+ account. He didn't realize that when you post on your Google+ account, and perhaps this is why Google+ is not around anymore, it automatically alerts everybody in your Google+ network, and that included Professor Schmidt's boss, and he was summoned to a meeting to discuss his, quote unquote, "threatening post," and this is it. This is just what the post was, nothing more, just a picture of his daughter. The head of security told professor Schmidt that fire in this quote on the t-shirt could be a proxy for AK-47s, and Schmidt was suspended immediately without pay pending a psychiatric evaluation because they interpreted this post as a threat to the school. Even after he was reinstated, he had a formal warning place in his file, again, just for this picture. The idea was that he had disparaged the school and that he might engage in unbecoming conduct by posting this picture. Again, if it feels like an overreaction, that was our reaction, too. "We thought, what in the heck is going on here?" But this is the real deal. The underlying subtext that we discovered is that Professor Schmidt had been and was a vocal advocate of faculty unionization. So the university was using this post perhaps as a pretext for punishing a faculty member who was critical of the administration. We found Professor Schmidt an attorney, and the attorneys engaged with the college via our volunteer FIRE Legal Network, which you can learn more about theFIRE.org, and happily, the college settled the case. The college erased the any record of the incident, removed the formal holding, and in a classic sorry, not sorry acknowledgement, said that its actions, quote, "may have lacked basis" and, quote, "potentially violated Schmidt's 1st Amendment rights." All right, moving to Chicago again, Beverly V Watson. That's another FIRE case where we had faculty members, Philip Beverly and Robert Bionaz, who were very critical of their employer, speaking as citizens on their private blog, on their non-government blog, CSU Faculty Voices. You can see here from the header, they took Chicago State University. They crossed out Chicago. They called it Crony State University. Their criticisms were that the university was self dealing and administrators were hiring their friends and essentially paying everybody except the teachers. The school argued that the use of the iconic Chicago State hedges, as they put it, was a violation of their trademark. The faculty members said, "No, it wasn't," and then the university, in response to administrators, really wanted to silence these faculty critics, adopted a very broad and very vague cyber bullying policy and charged the faculty members for violating it by maintaining this blog critical of the university. They called it cyber bullying. FIRE engaged as part of our standard for speech litigation product. We had attorneys from Davis Wright Tremaine in Washington, DC represent Philip and Bob, and the case resulted in opinion, which you can see, and eventually settled with full policy changes and the damages of $650,000. The court said the righted issue is the plaintiff's right to free expression without retaliation. It's firmly established, and it's not contingent on whether the plaintiff's expression took place online or elsewhere. We've also seen campus speech, again, anything about a hot button issue or criticism of the administration is more prone to censorship. Early on in the pandemic, we had a professor, Professor Tom Smith at University of San Diego Law School, who posted on his personal blog an excerpt from the "Wall Street Journal" and made an argument that the coronavirus came from a lab in Wuhan. And he said, "If you believe that the coronavirus did not escape from the lab in Wuhan, you have to at least consider that you're an idiot who is following a whole lot of Chinese cock swaddle." And in response, the professor found himself targeted in a harassment complaint, and the dean of the law school said that Smith's post on his blog might have run afoul of the university's policies that specifically prohibit harassment or derogatory comments based on race or national origin. The professor apologized and said that he had been misinterpreted and said he was referring to the Chinese government, which is fairly clear that he was, and the university finally concluded after two months of investigating that the speech at issue had not violated its policy, in fact, was protected under University of San Diego policy, which incorporates the American Association of University Professors' 1940 statement of principles on academic freedom and tenure. Those principles, which are the gold standard for academic freedom statements, make clear that when faculty speak writer as citizens, they should be free from institutional censorship or discipline. That's exactly what was happening here, so right result was reached in that case. Another case involving Twitter, this time in Texas. Professor Lora Burnett at Colin College in Texas. Professor Burnett tweeted during the 2020 vice presidential debate, "The moderator needs to talk over Mike Pence until he shuts his little demon mouth up." So clearly matter of public concern, clearly speaking as a citizen, but the college nevertheless issued a response saying that it "was aware of the hateful, vile, and ill-considered Twitter post" by one of its faculty members. And a Texas state lawmaker got involved here and got involved via text in communications with the president of Colin College, and the president promised that he would deal with it, AKA lean in and see what he could do to punish Professor Burnett for this protected expression. And FIRE found out about this because we filed open records request looking for communications between the university, or sorry, the college president and legislators, and we found this text message where you can see that the president was promising to the lawmaker that he would deal with this protected expression. Colin College's policy makes clear that the faculty members have the right to expect that the board and the college district administrators, including the president, would uphold vigorously the principles of academic freedom and protect the faculty from harassment, censorship, or interference from outside groups and individuals. You can see that they were not living up to that policy here and were very happy to dive in to see what they could do to punish Professor Burnett, who's outspoken on Twitter. Burnett was also on the radar of Colin College because she criticized the school's COVID-19 response. The president had said that the pandemic was, quote, "blown utterly out of proportion." She tweeted about the death of a former Colin College professor by tweeting, "Another Colin College professor has died of COVID." So her contract was not renewed, and then FIRE engaged her as a client. We represented her in a lawsuit that we filed, and that lawsuit settled not long after we find it with judgment entered against Colin College, which entered a settlement agreement with Lora Burnett. Other lawsuits against Colin College for its treatment of faculty are still ongoing at the time of this recording. In another Twitter case, albeit this one from the other side of the political aisle, Ilya Shapiro, who was a libertarian lawyer at the Cato Institute and had been hired to lead a center of constitutional studies at Georgetown University Law Center, Georgetown Law, a few days before he was to begin that job at Georgetown law where he'd be running the center and a senior lecturer faculty position, he posted this series of tweets criticizing President Biden's commitment to naming a black woman as the next Supreme Court justice. Now, this is prior to now Justice Ketanji Brown Jackson's nomination, but Shapiro criticized President Biden's statement that he would only consider a black woman for SCOTUS. He says that this means the nominee will always have an asterisk attached and said that because he wasn't picking the judge that Shapiro thought was the best, that he would be picking a lesser black woman. And the tweet quickly went viral, caused a firestorm of criticism, and earned condemnation from the dean of Georgetown Law. William Treanor said, "The tweet was appalling and at odds with everything we stand for at Georgetown Law." The Georgetown law policies made clear that faculty possess the broadest possible latitude to speak, write, listen, challenge, and learn, and Shapiro's tweet, no matter how offensive or inartfully worded, as he later characterized it as, no matter that being the case, should have been protected under that broad promise. But the law school hired an outside firm to investigate. Eventually, they cleared Shapiro on a technicality, saying that because he had not yet started the position that his tweet would not be punished, but Shapiro saw the writing on the wall, decided that he would not be free to voice his opinions, and that his academic freedom rights would not be respected, and resigned the position afterwards. Interestingly, after the initial outcry, a wide range of voices from across the political and ideological spectrum spoke up in defense of Shapiro's rights, even if they disagreed with it. For example, Nikole Hannah-Jones, agreeing here with pundit Jeet Heer, saying that even if the comments in Heer's opinion were vile, they were well within the parameters of academic free speech, and by investigating Shapiro, Georgetown had, quote, "was betraying fundamental principles," and you could see a range of voices agreeing with that sentiment that these are comments that, even if you disagree with them, are within the bounds of debate and should not be subject to punishment. All right, let's move to Professor Jim Livingston at Rutgers University posting on Facebook. Livingston is a longtime resident of Harlem. He said he was going to resign from the white race after going out to get a burger and finding the restaurant that he is going to, quote unquote, "Overrun with little Caucasian assholes who know their parents will approve of anything they do." Now this is a white professor posting this on his private Facebook page, but nevertheless, it was picked up by a conservative website that blasted it out as evidence of racial discrimination. It sparked a furor and there was media coverage and online criticism, and Livingston was found to have committed racial harassment on the basis of this post. The idea, as explained or the rationale as explained by Rutgers, was that Livingston had damaged the brand. Even though, again, he's speaking as a private citizen, on a matter of public concern, gentrification of Harlem, the argument was that Livingston had disrupted university operations because students might not wanna take his class as a result. Now, no students actually complained, as we pointed out in a letter to Rutgers, when we began to represent Livingston. In fact, we found that some of the complaints had been organized on a neo-Nazi website who saw getting involved here as a good way to stoke controversy and chaos, so trolls, in other words, coming in to complain that this post constituted anti-white racial harassment. FIRE represented Livingston, and even after Rutgers explained its decision, we pointed out that there had been no real disruption of the academic environment and that Rutgers was abandoning its 1st Amendment obligations by throwing a professor under the bus simply due to public criticism of his speech on a matter of public concern. We said that if you're going to feed the troll, so to speak, by allowing Livingston to be punished after public outcry, you could expect more such activity. Happily, Rutgers saw the light, and they reviewed it reversed and remanded the decision back to the initial administrators who had found Livingston guilty of racial harassment, and they did something smart. They created a 1st Amendment panel that would review allegations against faculty when those allegations might involve speech protected by the 1st Amendment of academic freedom. So in other words, before the human resources or personnel administrators get involved, first day would be a review, a cursory review to see if the speech at issue involved 1st Amendment interests. Another model that we've seen implemented at the University of Illinois to prepare for targeted troll attacks organized by one side of the partisan divide or another include a planned response that would affirm academic freedom and made clear that you can't allow faculty be to be sunk, to have their career sunk by trolls because otherwise, you're empowering and enabling the old heckler's veto whereby loud voices of disagreement or disruption caused by those who disagree with speech end up silencing the speaker. But unfortunately, we know here at FIRE that these attacks from both the left and the right against unpopular speech on social media, we know they're gonna keep coming. For one thing, the internet outrage model is very profitable for a lot of news sites who scan professor comments and publicize them when they might provoke partisan outrage. That's a very powerful business model for a lot of websites, and the internet these days, especially social media, really does seem to run on daily outrage. And professor speech provides such outrage in ample enough quality that there are gonna be continuing calls for disciplining faculty for their post as private citizens, whether that's Lora Burnett at Colin College or Ilya Shapiro at Georgetown or Jim Livingston at Rutgers. We can see more of this. So that's the current set of circumstances for freedom of expression on campus for students and faculty, and you can see things are fairly precarious as administrators navigate demands for punishment or social media calls for punishment of students and faculty for speech that some members of the community found offensive or inappropriate or unwanted and the tensions involved there with the 1st Amendment rights of those students and faculty members. And as I say, we know one thing is for sure. We're gonna continue to see more of these fights because this is our new digital town square, and the fights that occur on social media, the call outs, the pylons, the intense criticism of the opposing side, well, faculty and students are right in the thick of it. They're not immune in any way and are full participants in those fights, and the consequences are serious. I think it's worth considering the impact of these kinds of institutional punishments and calls for punishment from outside the institution on the academic mission. Colleges and universities, to use the Supreme Court's phrase, are the true marketplace of ideas and have been recognized as such by the courts for decades. The hope and the promise of public universities and private universities committed to liberal arts education is that, through debate and discussion, through exploring the wide world ideas and possibilities, we can get closer to the truth or we can expand our sense of knowledge and purpose and understanding of the world and each other, and that gets a lot harder to do if one has the creeping sense that one's speech online might go viral and result in professional or academic discipline in ways that would derail a career. And again, there are more examples of this on both sides of the aisle than I can list in an hour, but as I say, it keeps us very busy and it it's worth thinking about what kind of distorting effect this may have on students understanding a freedom of speech and faculty's willingness to challenge the prevailing ideas of the day. What do you do if you are a dissenting faculty member who has a belief that might not be popular on Twitter or might be ripped out of context and blasted across a conservative website the next day, as we saw with Professor Burnett's comment? So it's a very dynamic environment right now and a challenging one, I think, for faculty and students, and our job, as always here at FIRE, is to play the role of an ambulance driver in the culture war, scooping up folks from both the left and the right, again, without regard to the substance of their comments or the partisan affiliation of the speaker, and simply to defend student speech when it's punished, whether that speech takes place online or offline. You can't talk about student speech rights, even though they are vastly different, as we'll talk about in another Quimby session. They're vastly different between the K-12 context and the higher ed context, but I still wanna talk about the recent ruling from the Supreme Court in Mahanoy Area School District versus BL, Brandi Levy, who famously at this point expressed her frustration with school, with her cheerleading team, and with everything one Saturday night at the Cocoa Hut, a local convenience store where she and her friend were when Miss Levy posted on Snapchat, "Fuck cheer, fuck school, fuck everything," her anguished response to not making the varsity cheerleading team. And Snapchat's, for old folks like me who don't know, it's a social media platform that involves ephemeral posts that are time dated, and they only last for a certain amount of time, I think 24 hours before they disappear into the ether. So Brandi, after finding out she didn't make the team, expressed her frustration using those choice words, and even though she did so only to her friends, the post, the snap, as it's called, was nevertheless screenshot and shared eventually with her coaches, who were none too pleased about her public criticism or, well, quote unquote "public," right? Public enough to her 200 or so friends. Some friends, right? Reporting your moment of frustration to the authorities. At any rate, the coaches suspended Miss Levy from the team, and she filed a 1st Amendment lawsuit, saying, "I was off campus," represented by the ACLU of Pennsylvania and the good folks over there. The argument was she was off campus, she was engaged in speech that did not disrupt the school, and she engaged in fully protected speech. That is the classic tinker rule, prohibiting speech or allowing K-12 administrators to prohibit speech that causes substantial disruption on campus in the K-12 context or the reasonable forecast of a substantial disruption should not apply because she was not on campus. Again, Saturday night at the Cocoa Hut. So under what grounds did Mahanoy Area School District punish Miss Levy? That was the argument. It goes up to the Third Circuit, United States Court of Appeals for the Third Circuit here in Philadelphia, and the Third Circuit said that the speech was entirely protected, and because it was off campus, there should be a relatively bright line. It did not involve the school at all, that when students speak on social media, high school students speak on social media, the schools are not empowered to police students' speech, that if they were, that students would effectively be on the clock 24/7 and would always be within reach of school authorities, and the school appealed the Third Circuit's ruling. Supreme Court granted cert. It's the first time since Morse V Frederick, a five-to-four 2007 decision in which the court found that speech that could be reasonably regarded as encouraging illegal drug use was not protected in the K-12 context, that's the famous bong hits for Jesus case, anyway, this was the first time since 2007 that the Supreme Court had weighed in on a student speech case. And in the meantime, not just the Third Circuit was confronting these issues of whether the classic Tinker V Des Moines Independent School District test really worked in the social media age. Lots of circuits have, and I like to call it, they're wandering around in the desert, pretty uniformly finding that students don't have much in the way of 1st Amendment rights when they speak, even though they're speaking online and off campus, that schools have broad authority to punish student speech online. So the court weighs in here after the Third Circuit goes the other way and grants cert. And in an opinion by now retired Justice Stephen Breyer, the court found in favor of Brandi Levy and said the snap in question was indeed protected by the 1st Amendment. And the court's reasoning is interesting, and even though they're talking about K-12 rights, I think it's relevant and applicable to our previous discussion here about the function of college and university protections for social media as well. The court said that they weren't gonna issue a general rule governing student speech online and on social media in the way that the Third Circuit had. So they declined to adopt the Third Circuit's fairly bright line off-campus protected rule. Instead, Justice Breyer said that, "The court should use three factors in evaluating student speech." First of all, and this one is specific to the K-12 context, that there's no role for the K-12 school to act in loco parentis, in place of the parents, when students are speaking off campus. It was interesting to see some of the amicus briefs that came in prior to the court's decision, one from at a conservative group arguing that, really, what should've happened here, if anything, is that Brandi's parents should have punished her, that it's not the role of the school to punish students for this speech. That was properly the prerogative of Brandi's parents. So, first of all, when students are speaking off campus and online, like Snapchats from the Cocoa Hut on a Saturday night, that's really the parent's job, and when in loco parentis, which justifies school discipline in the in-class or the in-school context, when that is not present in social media, then it's a diminished school interest in allowing for punishment to student speech. Second point that Justice Breyer identified was the need to protect student speech that might be political or religious or dissenting are simply unpopular, that when students speak off campus, the presumption should be that they're speaking outside of the reach of school administrators. Otherwise, students would be, and again, echoing the Third Circuit here, on the clock, 24/7, and that's too much, and finally, and perhaps most importantly, the court said that the school has an interest itself in protecting a student's unpopular expression, especially when the expression takes place off campus because we have to teach students what it means to live with the 1st Amendment. Quoting Breyer, "Schools have a strong interest in ensuring that future generations understand the workings and practice with a well known aphorism, 'I disapprove of what you say, but I will defend to the death your right to say it,'" And that's absolutely right, and I'd like to close by really emphasizing that that is, in large part, FIRE's view of the cultural importance of free speech, right? That we have to learn to live with each other, including those who say things that we disagree with, whether they say things online or off. Instead of organizing social media mobs, let's engage in debates or simply ignore speakers or just understand that not everyone thinks the way that we do. So, a few closing thoughts for administrators. We emphasize transparency whenever possible. Make clear what your policies are. Don't investigate speech that for months when it's plainly protected. Take a maximally rights protective position. You should educate students on their rights and how they extend to both online and offline speech. You should stand up for faculty when they're targeted bipartisan trolls on either side to make clear that the institution will have their back, and finally, make clear to the public, colleges and universities, make clear to the public that you will protect the free exchange of ideas, even when those ideas are unpopular, and do that beforehand, like a pre-commitment strategy. Say, "No matter what may come, if the speech is protected, we will defend it because it's an obligation under the 1st Amendment of public universities, and we know it to be the surest way to allow for maximum academic freedom and discussion that liberal arts education requires." So set those expectations early. All right, folks, that does it for me and my hour. Thanks very much. I will see you online at social media. There is ironically my Twitter account @WillatFIRE. I've mostly logged off, but hey, I'm on there sometimes too. So say hello, and thanks again for attending. Hope you found this interesting, and I'll see you next time.

Presenter(s)

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

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