My colleague David Hacker has written a series of blog posts recently instructing students on the constitutional basics of student fee policies. Too often, these policies are unconstitutional because they empower university officials or student representatives to allocate funds based on the viewpoint of the group applying for funds. Obviously, this violates First Amendment 101. Well, his posts have inspired me to provide some basic guidance on other constitutional repeat-offenders.

Perhaps the head of the pack is the university “speech code.” At its essence, a speech code is any policy that allows a university to regulate the content of speech—or what is said. Over 75% of America’s public colleges and universities have an unconstitutional speech code. They are usually located in the Student Handbook or the Code of Student Conduct. A garden variety speech code will be labeled as a “harassment,” “discrimination,” “civility,” or “bias” policy. But I am always amazed at the other creative labels university’s use to mask their speech codes.

One of the key indicators of a speech code is that it regulates speech based on its subjective effects on others. So if your university has a policy that punishes speech because of how it makes someone feel, it’s probably a speech code. The classic example of this is the policy prohibiting “unwelcome,” “demeaning,” or “discriminatory” “verbal comments or statements” that create an “intimidating,” “hostile,” or “offensive” academic environment based on some protected category (i.e. race, religion, sex, sexual orientation, gender identity, etc.). The ADF Center for Academic Freedom successfully struck down such a policy at Temple University and pressured Shippensburg University to change a similar policy.

Universities wield such policies purportedly to create an “inclusive” and “tolerant” environment, but they are unconstitutional just the same. If one thing is clear in the First Amendment, it is that the government cannot prohibit speech simply because it offends someone. In fact, the courts have repeatedly held that speech is often most effective when it arouses a strong response from its audience, and as such, is worthy of special First Amendment protection.

Another key indicator that your university has a speech code is if you have no idea what speech is prohibited. For example, Penn State University had a policy declaring, that “Acts of intolerance will not be tolerated.” Huh? Besides being ridiculous, the courts refer to this as “vagueness.” The problem with vague speech policies is that students are likely to censor themselves completely in order to avoid being punished. Additionally, vague policies allow university officials to selectively decide who will speak and who will be silenced. But the First Amendment is supposed to create an environment where speech is “robust and uninhibited,” not chilled. This is especially true on the college campus, which the Supreme Court has repeatedly recognized as the “marketplace of ideas.”

Chances are, your school has a speech code. If it does, and you want to say something that might be prohibited by your school’s policy, give us a call. There are few things we enjoy around here as much as protecting your freedom of speech.

Both Inside Higher Ed and Minding the Campus highlight the latest example of academia serving as a network of leftist think tanks.  The “Cry Wolf Project”—organized by “prominent liberal academics”—is trying to rally faculty and graduate students to do “battle with conservative ideas.”  That is, the organizers will pay $1,000 for essays supposedly showing how conservatives “cry wolf” by exaggerating the consequences of leftist public policy proposals.  K.C. Johnson at Minding the Campus notes the organizer’s almost comically inflated sense of self importance and skewed definition of “scholarship.”  But this project illustrates a more disturbing divide between faculty who can speak freely and those who cannot.

Doubtlessly, plenty of faculty members will jump at the opportunity to write what are essentially opinion columns designed to “construct a counter narrative” impugning conservatives.  After all, the organizers are targeting the social sciences, where leftists outnumber conservatives by eight or nine to one (if not more).  Faculty get to use their “research skills,” list another publication on their resume, and perform the vital public service of undermining those who seek to “thwart progressive reform.”  As an added bonus, they get paid fifty cents a word and get their names in front of faculty from schools such as Harvard, Yale, and MIT.  All in all, it is a quick, easy, and financially rewarding way to polish up that next promotion application. 

However, the story is much different for faculty on the conservative end of the political spectrum.  For example, Dr. Mike Adams is a criminology professor at the University of North Carolina-Wilmington.  When he applied for promotion, he had published more peer-reviewed scholarly articles than all but two of his colleagues, had consistently high evaluations from his students, and had earned several teaching awards.  He also mentioned the column he writes on the side, covering a wide expanse of cultural issues but frequently highlighting abuses within higher education.  Because of his column, he lost the promotion, as his colleagues described his writings as “excessively puerile self-indulgence” that “generally detracted from the scholarship of the department.”  Apparently, when it comes to academia, all viewpoints are not created equal.

Or consider Scott Savage, whose story David Hacker recently highlighted.  As a librarian, he simply recommended a book for freshmen to read.  And this prompted sexual harassment charges and a vicious campaign of intimidation and harassment that forced him ultimately to resign.  Again, some viewpoints are more equal than others.

Sadly, the double standard extends beyond the faculty lounge.  For example, though the verdict was later reversed, Ward Churchill’s jury found that his university wrongly fired him for expressing views—odious and reprehensible ones, to be sure—that the First Amendment protects.  And Churchill is a professor with a fake ethnicity, no earned doctorate, and plagiarized articles.  Yet Dr. Adams’ and Mr. Savage’s cases never even reached a jury because the judges ruled that the First Amendment did not protect their speech.  For Dr. Adams, merely referencing his column on his application transformed it into part of his “official job duties,” stripping it of all First Amendment protection.  For Mr. Savage, because recommending a book did not qualify as “teaching” or “scholarship,” it also did not qualify as free speech. 

Media Matters describes the “Cry Wolf Project” as a “yawner,” arguing that lots of professors dabble in politics.  But when they advance leftist causes, they are rewarded and promoted.  And if they are challenged, the higher education world rises to their defense (as it did for Churchill), championing them as First Amendment heroes.  If they dabble in conservative causes, they are vilified and subjected to false but potentially career-ending misconduct charges.  And after they are told that the First Amendment does not protect them, leading higher education publications pile on, mischaracterizing the facts and the ruling.  Perhaps there is a slight imbalance here, but we must be careful lest we be charged with “crying wolf.”

Reblogged from NRO – Written by David French

“Eugene Volokh highlighted what could be an ominous development for the legal profession: monitoring law-student speech to see if students meet the “character and fitness requirements” for the legal profession. The articulated concern stretches from “cyber-harassment” and “cyber-stalking” to “outrageous gender- or race-specific comments.” Professor Volokh points to this AALS (American Association of Law Schools) panel, put together by the AALS Section on Women in Legal Education:”

Click to read the whole article.