What speech would be “controversial” on your campus?  If you attend a public university, the odds are good that “controversial” and “Christian” or “pro-life” are likely synonymous.  So if the University could impose greater restrictions on your speech just because they deem your views “controversial,” this would provide a nice and easy way to marginalize Christian, pro-life or other conservative speech.  The mere fact that your expression would draw hecklers angry that you dare upset the monolithic liberalism and anti-Christian views on many university campuses would be justification for the school to restrict your speech.

If you attend the University of Massachusetts-Amherst this isn’t a hypothetical, this was school policy.  UMass-Amherst earned the Foundation for Individual Rights in Education’s Speech Code of the Year for 2010 for this policy.  Not only did UMass-Amherst impose greater restrictions on rallies where it deemed the views “controversial,” but it imposed a 48 hour pre-approval policy for even non-controversial rallies (7 days for “controversial” ones) and allowed administrators unbridled discretion to approve or deny these rallies for any reason.  And UMass required “controversial” rally organizers to designate six students to form a security team – placing these students at risk from their opponents and effectively preventing small student groups from holding such rallies.

In response to a letter on behalf of the UMass Students for Life from ADF Allied Attorney Mari Chamberlain of Jacobi, Chamberlain, LLP in Lexington, Massachusetts, UMass-Amherst has eliminated these unconstitutional policies.  On Wednesday UMass confirmed that it has now eliminated the controversial/noncontroversial rally distinction altogether, now only asks that space be reserved 24 hours in advance of any “rally” and eliminated its requirement that students place themselves in danger by providing a six person student security team.   This is a significant improvement on UMass’s speech policies that had ranked among the worst in the country.

Problems still remain.  Among them, UMass still doesn’t define “rallies” well, making it unclear whether a single student wishing to speak on campus must comply with this policy.  And rallies – whatever that means – are still limited to a single location, the steps of the Student Union building.  We are following up on these remaining concerns, but it’s still a good week for free speech at UMass.

The First Amendment has been fairly competitive this bowl season.  Through games of December 27 I am 5-4 in my picks for the college football bowl games based solely on the universities’ respect for the First Amendment..  That’s 55% if you’re scoring at home.  Perhaps I’m on to something here.  As the actual on-the-field games improve, let’s take a look at how the next few days of bowl games would play out if the First Amendment had anything to say about it (for full “rules” of the picks below see the prior post linked above).  If not linked directly, references to speech codes can be found at FIRE’s website.  Also see references to ongoing or past First Amendment violations at ADF’s Map of Cases in Your Area. 

Champs Sports Bowl: West Virginia v. North Carolina State – NC State has some problems, including prohibiting student use of religious or political quotes in their own email signature lines and requiring advance permission for any “assembly” on campus (apparently even for a two person “assembly.)”  But per the rules for this contest West Virginia’s bad practice trumps these NC St. policies.  West Virginia has a long history of trampling students’ First Amendment rights – including a court battle defending the limitation of student speech to a couple of tiny “speech zones” (abandoned after a Rutherford Institute lawsuit and public pressure from FIRE and others in 2002).  West Virginia also maintains a red light speech code.  Pick: Pack. 

Insight Bowl: Missouri v. Iowa – Missouri helpfully makes it explicit that its prohibition on “harassment” sweeps more broadly than the First Amendment permits – reaching activity that doesn’t affect the university’s educational environment.  Missouri does, however, get some credit for deciding to continue to allow a Christian fraternity to maintain associational freedom on campus.  Iowa also has a red light speech code, but the administration has now thrice turned back efforts of some students to deny Christian student groups associational freedom – one upping Missouri by also declaring that the University of Iowa’s own Human Rights Policy would prohibit the school from imposing the religion nondiscrimination rule to derecognize CLS as this would constitute religious discrimination.  Pick: Iowa.

Military Bowl: East Carolina v. Maryland – East Carolina prohibits students from “singling out” others on the basis of gender, race, etc.  Maryland says that any “attempt to repress [or] undermine …  any person or group constitutes a legitimate threat to the health and welfare of our community.  … [These will be] dealt with seriously.”  Both policies could easily be applied to prohibit not just true harassment or discrimination, but virtually any comment on gender or other differences a student might make.  If only the NCAA had not adopted the overtime rules eliminating ties.  Pick: Maryland in a squeaker. 

Texas Bowl: Illinois v. Baylor – Is a private Christian college unrestrained by the First Amendment and clear in its expression of its expectations to prospective students.  Illinois, however, is subject to the First Amendment as a government-funded public university.  You wouldn’t know it from the Illini’s policies and practices though.  Illinois recently famously fired a professor for explaining Catholic doctrine on marriage as part of a class he was teaching on Catholic doctrine in the University’s Department of Religion.  UI rehired him in response to ADF’s demand letter.  Pick: Sic ‘Em Bears. 

Alamo Bowl: Oklahoma State v. Arizona – OSU’s yellow light speech codes v. Arizona’s red.  Arizona did eventually permit a pro-life group to be recognized after initially requiring the group to accept pro-abortion members as a consequence of recognition, but it’s a testament to the poor state of the First Amendment on campuses that this would be controversial.  Pick: OSU.

Armed Forces Bowl: Army v. SMU – A military academy against a private university.  Let’s just let this one play out on the field.  But if I have to pick… Go Army. 

Pinstripe Bowl: Kansas St. v. Syracuse – Both are red light schools.  And although more should be expected of the public Kansas State, it’s hard to pick Syracuse right now given its ongoing threatened expulsion of a law student for a satirical law blog.  Kansas State has its own problematic policies, like imposing additional costs on student organization activities that “may be controversial in nature.”  But I’m picking against Syracuse’s ongoing denial of free expression, not for K State.  Pick: Kansas State.

Music City Bowl: UNC v. Tennessee – Easy.  Tennessee is one of 14 schools in the country to have earned a green light from FIRE for its speech policies.  It has also purged itself of Lane Kiffin, making it easier to favor the Vols.  UNC on the other hand fought for years in an effort to deny associational freedom to a Christian fraternity, eventually buckling after a federal judge stopped the school from enforcing its unconstitutional policy.  And it still maintains a prohibition on any decorations on a student’s own dorm room door that another might find offensive on the basis of, among others, religion.  Pick: Vols.

Holiday Bowl: Nebraska v. Washington – Nebraska’s green light against Washington’s red.  And Washington’s red light is well earned.  The school once prohibited education majors from student teaching at religious schools until ADF allies filed a lawsuit.  Pick: Cornhuskers. 

Next: New Years Eve and New Years Day Games…

As a UVA student (CLAS ’97) I regularly walked under the tablet on the south entrance to Old Cabell Hall that stated: “For here we are not afraid to follow truth, nor to tolerate any error so long as reason is left free to combat it.” For much of the time I attended UVA this seemed out of place. After all, Mr. Jefferson’s University was staunchly defending a policy that prohibited religious student groups from receiving the same access to student activity funding that all other groups received, resulting in the Supreme Court’s Rosenberger decision against the University in 1995.  But today that quote seems a little more suitable.

Of the nearly four hundred public colleges and universities whose policies are assessed by the Foundation for Individual Rights in Education (FIRE), the University of Virginia is now one of 13 schools given FIRE’s coveted “green light,” meaning that the school’s policies respect constitutionally protected student speech. UVA, I hasten to note, is now the highest ranking (per US News & World Report) public university to achieve this standard.  Mr. Jefferson would be proud.
FIRE provides all the details about the work that UVA did to move in a few short months from a “red light” school to a “green light” school under its new President Teresa Sullivan. UVA’s revision of its policies to protect student speech demonstrates to other universities that this can be done. If UVA can eliminate its speech codes and defend student speech on grounds, surely other schools can do the same thing. I’m looking at you Virginia Polytechnic Institute and State University (yellow light). You too UNC – Chapel Hill and Duke (also see link).

We are rarely applauding schools for their efforts to protect student speech here. UVA finally gives us a reason to. (Now don’t blow it Hoos).

Last week, I had the great pleasure of attending a conference sponsored by the Foundation for Individual Rights in Education‘s Campus Freedom Network.  Along with Greg Lukianoff (FIRE’s President), Adam Kissel (the Director of FIRE’s Individual Rights Defense Program), and Professor Daphne Patai (a member of FIRE’s board of directors), I participated in a panel discussion entitled, “The Philosophical and Practical Underpinnings of Academic Liberty.”

Adam Kissel laid the foundation by, among other things, describing J.S. Mill’s arguments for free speech in On Liberty.  Mill argued that speech should not be censored, because the speech might be true — or at least partly true.  He also asserted that even if speech is erroneous it should be permitted, for exposure to challenges bolsters the truth and makes a belief in such truth more justifiable.  Mill’s arguments are essentially utilitarian:  free expression has good consequences, and censorship has bad consequences.

Mill conceded that there are some circumstances in which speech can be ethically restricted, i.e., those in which the speech would harm others.  However, it is reasonably clear that Mill had a relatively narrow conception of the harms that would justify censorship.  Mere offense was plainly insufficient.

In my prepared remarks, I observed that utilitarian rationales are not the only ethical arguments for free speech — one can make “deontological” claims as well.  People are entitled to speak and people are entitled to receive information, whether or not the effects of the expression are desirable.  These entitlements can be called “rights,” and thinkers differ on where these rights come from.  I believe that people are endowed by their Creator with certain inalienable rights, including the right to liberty — which includes the right to free speech.  To be sure, many today reject the claim that rights come from God, but this conception of rights animated the thinking of the Framers.

I then observed that more modern philosophers have proposed different tests for assessing whether restrictions on speech are justified.  In the 1970s, Joel Feinberg proposed an “Offense Principle” that would supplement Mill’s “Harm Principle.”  As one might imagine, the category of “offensive” speech is broader than the category of “harmful” speech.  Yet Feinberg did not propose that all speech causing “offense” could legitimately be regulated.  Instead, he urged consideration of a multitude of factors, including the extent of the offense, its duration, the social value of the speech, the ease of avoiding the offensive speech, the motive of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community at large.

Another argument, often used to justify bans on so-called “hate speech,” is that it is inconsistent with and damaging to the underlying values of a liberal democracy to brand some citizens as inferior on the grounds of immutable characteristics.    Finally, I observed that one might argue that speech should be restricted to protect not his or her listeners, but the speaker himself or herself; this is paternalism, and is generally thought to be a very weak rationale for restricting speech.

I then discussed how the various rationales for restricting expression turned up in the majority and concurring opinions in Christian Legal Society v. Martinez.  The justifications in Justice Kennedy’s concurring opinion are almost entirely paternalistic.  He wrote, “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”  In other words, CLS shouldn’t have a statement of faith requirement because it hurts the Christian members of CLS.  Justice Stevens (in his concurring opinion) and Justice Ginsburg (writing for the majority) also rely upon paternalism, arguing that Hastings was justified in impairing CLS’s ability to formulate and articulate its message because it (Hastings) wanted CLS members to be more “tolerant,” more “understanding,” and more “respectful.”

Justices Stevens and Ginsburg also invoked rationales that are consistent with Mill’s Harm Principle.  Justice Stevens wrote that Hastings’ written Policy on Nondiscrimination protected third party students from “invidious discrimination,” and Justice Ginsburg said that the “all comers” policy protected the (alleged) “right” of all students to serve as leaders of CLS.  Justice Ginsburg also relied upon the “Offense Principle,” asserting that it would be offensive to force students who are unable to serve as leaders or voting members of CLS to financially support CLS through the payment of student activity fees.

It bears noting that Justice Ginsburg invoked a rationale that, as I understand things, rarely is invoked to justify government restriction on free expression:  the government’s own desire to “send a message” that it condemns the speaker’s expression.

Many kudos to Greg Lukianoff, Luke Sheahan, and the entire FIRE staff for convening and hosting an excellent conference.

Our friends at FIRE have written about the absurd attempts by the University of California-Berkeley to restrict the names of student organizations can call themselves by claiming “trademark” rights over words such as “Cal” and  ”California,”  and even some restrictions on the use of “Berkeley.” I agree that in some isolated situations, a private student group may name itself something that may confuse people into thinking it is an official part of UC-Berkeley.  But this is needless overkill, and is another way that universities can harass private student organizations that advocate unpopular or controversial ideas.

This reminds me of a situation about 25 years when atheists and universalists at the University of Minnesota started a public campaign to have the University institute legal action to stop the Maranatha Christian Fellowship to remove a banner from its private building that said, “Jesus Christ is Lord of the University of Minnesota.”    The atheists and universalists complained that they were offended by the sign, that it implied that the University of Minnesota was a Christian university in violation of the Establishment Clause, and that Maranatha was infringing on the University’s trademark of its name by using it in the sign. They urged the University to protect its name by forcing Maranatha to take down the banner.

How outrageous! This is a private Christian organization putting a sign on its own private building, not a university building!  The University of Minnesota wisely declined the invitation by the atheists and universalists to take such harsh and extreme action.  Maranatha Christian Fellowship continues to display the banner to this day on its building that houses its active and dynamic ministry for Christ at the University of Minnesota.