Our latest newsletter highlights the prevalence of university speech codes and the “you can’t say that” atmosphere they create on campus.  These speech codes—which about 65% of public universities have on the books—forbid students from saying anything that university administrators deem offensive, intolerant, or emotionally upsetting.  Taken literally and applied across the board, these policies would shut down virtually all discourse on campus (including even presidential debates), turning the “marketplace of ideas” into a ghost town.  But they are only enforced selectively to silence particular viewpoints, usually conservative and Christian ones.  To university administrators, secular or leftist speech is “provocative” or “challenging” and thus celebrated as essential to the academy.  But conservative or Christian ideas are “offensive” or even “hateful,” threaten the university community, and so the students espousing them must either be silenced or sanctioned.  So in practice, speech codes allow university officials to decide what ideas can be expressed on campus and to punish anyone who says anything that they do not want students to hear.

Of course, one might wonder whether these dangers are just theoretical.  Our newsletter describes how speech codes stifle speech, but Fordham University provides a recent, vivid example of this speech code mentality.  College Republicans at Fordham invited Ann Coulter to campus.  Unsurprisingly, this sparked significant controversy on campus, leading Fordham’s president, Rev. Joseph McShane, to chastise the group publicly.  In a statement, he wrote:  “To say that I am disappointed with the judgment and maturity of the College Republicans . . . would be a tremendous understatement.”  Why?  In his eyes, Ann Coulter’s “rhetoric is often hateful and needlessly provocative—more heat than light—and her message is aimed squarely at the darker side of our nature.”  In fact, it constitutes “[h]ate-speech, name-calling, and incivility,” causing him to feel both “disgust” and “great contempt.”

Sadly, in the face of this campus outrage and presidential belittling, College Republicans wilted, rescinded its invitation, cancelled the event, and apologized for sparking controversy.  And President McShane duly congratulated its contrite leaders because they “acted quickly, took responsibility for their decisions, and expressed their regrets sincerely and eloquently.” 

Of course, as a Catholic institution, Fordham is not obligated to protect free speech like a public university must, but President McShane’s response to this lecture still illustrates the “you can’t say that” mentality embodied in speech codes.  He decided that Ann Coulter’s ideas and method of expressing them had no place at Fordham, and he used the bully pulpit of his office to scold and manipulate students into silencing themselves.  Yet his handwringing about “Fordham’s values” is incredibly selective.  After all, a Fordham professor invited Peter Singer—the infanticide-advocating Princeton professor—to lecture on campus, and some law professors are demanding funding for the theatrical pornography of The Vagina Monologues.  Yet curiously, President McShane has not issued any statements questioning the “judgment and maturity” of these leftists and their events. 

Whether the tool is shaming or sanctions, the goal of speech codes and the mentality that flows from them is the same:  to limit campus discourse only to those voices and viewpoints that academia deems acceptable.  But the First Amendment has a different goal:  to promote full, free, and unfettered debate.  And when students are willing to take a stand, university administrators discover a startling truth:  when speech codes collide with the First Amendment, speech codes lose.

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If you face unconstitutional speech codes on your campus give us a call at 1-800-835-5233 or email us here.

On this blog, university speech codes and the evils associated with them are a frequent topic.  Our website outlines many the ways that these policies violate the First Amendment, and God has repeatedly blessed our efforts to eliminate these restrictions on free speech with success.  Not only have federal courts struck down these speech codes in places like California, Washington, Georgia, and Pennsylvania, but our victories even have also impacted other governmental bodies.

But our friends at FIRE recently unveiled a new way of illustrating the problems with speech codes—a video replete with whiteboard illustrations.  Lasting just over five minutes, Campus Censorship and the End of American Debate outlines the prevalence of speech codes (over 65% of universities have them) and gives examples of the absurd and biased way these speech codes are enforced to silence conservative students.  It also discusses the long-term harms that speech codes produce.  Not only do they eliminate the freedom of students to hold and articulate unpopular views, but the speech code mentality has also at times leeched out into society at large, cutting off debate and polarizing our civil discourse. 

How do they cover all this material in five minutes?  Well, you will have to watch this entertaining and informative video to find out.  Afterwards, contact us to see if your college or university is among the 65% and to learn what you can do about it.

Today, Alliance Defending Freedom is launching a new tool with important information and up to date information about your rights on  campus. The Speak Up University Newsletter will cover a range of topics relevant to college students and their parents, as well as faculty and staff, keeping you informed about your constitutional right to Speak Up.

Take a look at the first newsletter here, and sign up to receive the newsletter in your inbox each month.

Last year Casey started the tradition of completing an NCAA bracket based on how well the universities protected the constitutional rights of their students.  And Heather and Jeremy have continued this tradition by covering the Southeast and East Regionals, respectively.  Of course, Casey’s original rules still apply, though Jeremy’s new rule is—in the eyes of this Tarheel fan—a long overdue addition (even though Senator Jesse Helms once remarked—correctly—that if the Soviets ever invaded America, they would feel at home in Chapel Hill).  However, without further ado, here are the First Amendment picks for the Southwest Regional.

University of Kansas v. University of Richmond

In this matchup, the fact that the University of Richmond is private gives it an initial edge over the public University of Kansas.  But as Richmond is secular, this distinction hardly tips the First Amendment scales. 

Both schools earn FIRE’s red light rating.  For example, Richmond prohibits “inappropriate behavior or expression,” which is hardly a model of clarity and causes students to steer well clear of anything anyone might consider “inappropriate.”  And the speech code in its sexual harassment policy prohibits speech that might create a “hostile, intimidating, or offensive environment.”  While this language is hardly unique to Richmond, other harassment policies do not apply unless the speech is “sever[e] and/or persisten[t],” which mirrors the Supreme Court’s standard for harassment guidelines.  So its failure to include such language in its sexual harassment policy is a strike against the school’s First Amendment fortunes. 

Kansas features similar policies, including several that prohibit comments that create a “hostile, intimidating, or offensive environment.”  Its housing guidelines prohibit students from doing anything that “purposely humiliates another person” and from “making degrading comments.”  Such ambiguous, in-the-eye-of-the-beholder rules cover a wide spectrum of speech that the First Amendment protects. 

However, Richmond’s “Bias Incident Protocol” tips the balance in the Jayhawks’ favor.  At Richmond, anyone who thinks he might be subject to a “bias incident” can report it to the “Bias Response Team” for “support and guidance.”  And what is a “bias incident”?  Is it discrimination?  No.  Is it a crime? No.  Its definition has to be read in full to be appreciated:

[A]cts that do not appear to constitute a crime or actionable discrimination, but which may intimidate, mock, degrade, or threaten, individuals or groups and which one could reasonably conclude targets a member or group within the University community because of that individual or group’s actual or perceived age, ancestry or ethnicity, color, creed, disability, gender, gender identity or expression, immigration or citizenship status, marital status, national origin, race, religion, religious practice, or sexual orientation.

So what is a “bias incident”?  Virtually any expression that any hearer does not like for any reason, which also happens to be the very kind of speech the First Amendment is designed to protect.  So in this matchup, the First Amendment pick goes to the Kansas Jayhawks.

Virginia Commonwealth University v. Florida State University

This contests pits a school FIRE has not ranked (VCU) against one that earned its red light rating (FSU).  The Seminoles earned this distinction largely because of their numerous speech code policies that prohibit speech that creates “an intimidating, hostile, or offensive environment.”  While these policies punish a broad spectrum of protected speech, Florida State has also turned back two attempts to derecognize or defund religious student groups because they limit leadership to students who agree with the group’s religious views.  And under the principle that “practice beats policy,” this weighs heavily in the Seminoles favor.

Like Florida State, VCU prohibits speech that “of a hostile, intimidating, or offensive nature.”  While prohibiting “disruptive behavior,” its housing policy prohibits creating “emotional” disturbances, which could conceivably cover anything, including a fellow breaking up with his girlfriend.  (See here at page 31.)  And while the First Amendment guarantees students the freedom to distribute literature in the outdoor areas of campus, VCU either ties them to informational tables that can only be placed in limited areas or forces them to reserve “literature distribution areas.”  (See here at page 19.)  All of this is especially troubling since so many Virginia universities have “gone green” by reforming their policies to comply with the First Amendment.

In short, Florida State’s history of respecting religious groups compensates for its red light rating, especially since VCU has similar policies and should have learned from its neighboring schools.  So the First Amendment picks the Florida State Seminoles.

University of Kansas v. Florida State University

Moving from the Sweet Sixteen to the Elite Eight, Florida State’s history of respecting religious groups again compensates for its policies and gives it the advantage over Kansas’ unconstitutional policies.  So the First Amendment prediction is that the Seminoles will tomahawk the Jayhawks to earn a trip to the Final Four.

Check out the Sweet Sixteen of Liberty: Southeast Region 

 Check out the Sweet Sixteen of Liberty: East Region

Standing.  For most people, it is something they mastered when they were about one or two years old.  For lawyers, it is a migraine-inducing set of legal doctrines that dictates whether someone has the right to bring a lawsuit in federal court.  For two sets of university students, this migraine has been particularly acute because it has prevented them from challenging blatantly unconstitutional speech codes that governed their every interaction on campus.  And for the Supreme Court, it is the subject of two briefs that ADF filed yesterday.

As David French explains at Phi Beta Cons, this standing question is critical for students because it determines whether courts will even review their schools’ speech codes.  Until recently, the unquestioned rule was that students could challenge policies that “chilled” their speech.  As a nation, we value the free exchange of ideas so much that courts did not want people choosing not to speak for fear of being punished.  And so if a policy restricted a student’s speech, he could challenge it.  This was the rule that the Third, Sixth, and Seventh Circuits, as well as numerous district courts, applied to university students in light of similar Supreme Court decisions.

However, the Fourth and Ninth Circuits have taken a different approach.  In these cases, students engaged in speech that the First Amendment unquestionably protects.  Jonathan Lopez gave a speech defending the definition of marriage, and Rock for Life presented a display defending unborn life.  Jonathan’s professor interrupted his speech, called him a “fascist bastard” in front of the class, accused him of “offending” the class, refused to grade his speech (saying, “Ask God what your grade is” on the evaluation sheet), and threatened to get him expelled when he complained about this mistreatment.  The University of Maryland, Baltimore County moved Rock for Life’s display to a deserted area of campus, saying that it might “emotionally harass” other students.  Yet the Ninth and Fourth Circuits said neither Jonathan nor Rock for Life has the right to challenge the speech codes that motivated these actions.  And so policies that other courts have struck down remain on the books, and student expression on campus remains squelched.

Americans rightly value the freedoms the First Amendment protects, particularly the freedom to speak our minds.  Yet, if we cannot get in the courthouse door when those freedoms are violated, the First Amendment essentially becomes a dead letter.  And that is why Jonathan’s and Rock for Life’s cases matter so much for every student nationwide.