The First Amendment is now 10-8 this bowl season.  But if Tennessee could have kept 11 players on the field and the official would have kept the flag in his pocket on a controversial celebration penalty in the Pinstripe Bowl it might be 12-6.  Still, I remind you that these picks are solely for entertainment purposes.  And if you needed that reminder you might want to seek help. 

Now the games get really good. And the First Amendment gets a chance to have its revenge in the Rose Bowl (a sentence that perhaps has never before been written).  As always, if you’re a student or know students at a school subject to one of these unconstitutional policies, let us know so that we can work with you to have the school change them.  That is, after all, the ultimate purpose here.  “Rules” for the picks and prior games are here and here. 

Here are the picks for New Years Eve and New Years Day.

Meineke Bowl – South Florida v. Clemson:  South Florida sports a red light speech code that prohibits students from making comments or displaying pictures “derogatory toward any individual’s … religion….”  Evidently, not only would a drawing of Mohammed be punished by South Florida, but any comment critical of Islam (or any other religion) could be punished.  And in an action parodied by our friend Mike Adams, although USF eventually reversed course, it recently denied recognition to a conservative student group, Young Americans for Freedom, because it deemed the group “too similar” to a libertarian group on campus.  Like most schools, Clemson has its issues, but not enough to keep the Tigers from taming the Bulls.  Pick: Clemson.

Sun Bowl – Notre Dame v. Miami:  Private secular university v. Private Catholic university.  Notre Dame students know they’re attending a Catholic university and have at least some understanding that will impact the school’s policies.  Miami students do not make that choice however and are subject to a speech code that prohibits any “words or acts” that “interfere with another person’s rightful … comfort.”  That’s right, anything you say that another finds uncomforting is prohibited at the University of Miami.  Pick: Notre Dame. 

Liberty Bowl – University of Central Florida v. Georgia:  Central Florida has a history of applying restrictive speech zones to prohibit student protests.  Georgia has a red light speech code, banning in university housing any “acts of intolerance,” defined as anything that is either intended or results in harm to any person or group.  This broad policy could be applied to punish a student for words that, even if unintended and even if a reasonable person would not have taken offense, cause any emotional harm to another.  And despite a Georgia Attorney General’s opinion directly on point after the same issue at Georgia Tech years before, it took a federal lawsuit by ADF and CLS to persuade Georgia to permit a Christian fraternity to have Christian leaders.  Georgia’s quick surrender (1 day after the complaint was filed) weighs in their favor, but UCF pulls it out.  Pick: Central Florida.  

Chik-fil-A Bowl – South Carolina v. Florida State: This is a matchup of two schools that, while they still retain red light speech codes have also demonstrated an ability to appropriately respond to concerns and defend student speech and association rights.  Florida State has twice, without facing litigation, has turned back attempts to derecognize or defund religious student groups because they limit leadership to students who agree with the groups’ religious views.  ADF and CLS had to sue South Carolina in 2008 (13 years after Rosenberger) over the university’s prohibition on permitting religious student groups to receive student activity fee allocations from student government.  To its credit, however, South Carolina quickly indicated a willingness to eliminate this policy and adopted new policies that prohibited viewpoint discrimination in student fee allocations.  It’s close, but the tie breaker is South Carolina’s history of defending Prof. Lynn Weber’s “Guidelines for Classroom Discussion” in her Women’s Studies course, requiring students to agree that “racism, classism, sexism, heterosexism, and other institutionalized forms of oppression exist” and agree that “we are all systematically taught misinformation about our own group and about members of other groups.”  Pick: FSU.

Ticket City Bowl – Northwestern v. Texas Tech:  As always, more is expected of public universities, like Texas Tech, than private ones like Northwestern.  And Texas Tech’s history is not one that overcomes that burden.  ADF, Liberty Legal Institute and FIRE successfully challenged the school’s restrictive speech zone and speech code in 2003 when Texas Tech denied a student’s request to express his views on homosexuality in a public area – moving him to a “free speech gazebo” instead.   Northwestern’s “bias incident” policy, prohibiting any expression that is motivated at all by “bias” on the basis of religion, gender, sexual orientation, etc. is shockingly broad and would, if Northwestern were public, be a blatant violation of the First Amendment.  But even this terrible policy is trumped by Texas Tech’s actual practice of stifling student speech until ordered to stop by a federal court.  Pick: Northwestern.

Capital One Bowl – Alabama v. Michigan State:  As an Alabama fan, this is painful.  Michigan State has had a yellow light speech code and while it has had problems in the past with mandatory “diversity” training programs, requiring security fees for a conservative group showing a film on radical Islam.  But it buckled under pressure without litigation in both cases.  Alabama on the other hand has a red light speech code, limits student speech to a single speech zone – a tiny fraction of the campus – and requires that all postings must be “in good taste” with “questions that arise concerning the interpretation of good taste … directed to the Auxiliary and Support Services office” (where a speech taste tester is evidently employed).  I may never be able to go home again.  Roll Tide.  But… Pick: Michigan State.

Outback Bowl – Florida v. Penn State: Penn State has been sued 3 times by ADF (twice along with CLS) for violating students’ First Amendment rights.  It first denied recognition to a Christian student group because it was deemed “too similar” to other such groups (involving the school in comparative theology among other problems), then denied the same group recognition because it wanted its leaders to be Christians.  And PSU also employed a speech code that actually said, “acts of intolerance will not be tolerated.”  In all three cases PSU changed its policies in response to litigation.  But unlike Penn St., Florida still sports a red light speech code.  And in Beta Upsilon Chi v. Machen, UF first denied recognition to a Christian fraternity because it was all male.  Then it agreed to allow it, like other fraternities and sororities, to limit itself in this manner but denied the group recognition because it sought to be a fraternity of Christian men.  Only after the Eleventh Circuit Court of Appeals issued an injunction pending appeal in the case and one month after oral argument in that court did UF decide to change its policy.  Pick:  Penn State.  

Gator Bowl – Mississippi State v. Michigan: Michigan still sports a red light speech code, and appears to prohibit the use of student fee allocations for “religious activities.”   But Mississippi State authorizes resident advisers to remove any postings that are deemed “offensive to others” and prohibits as “harassment” any “unwelcome” words directed to any student because of his, well, anything (“race, color, religion, sex, national origin, age, disability, genetics, sexual orientation, or group affiliation”).  It’s close, but advantage Wolverines.  Pick: Michigan.

Rose Bowl – Wisconsin v. Texas Christian:  In 1916 Georgia Tech defeated Cumberland College 222-0 in the most lopsided football game ever played.  In real life I can’t wait for this year’s Rose Bowl, but on a First Amendment playing field Wisconsin would challenge Cumberland’s record of futility.  Wisconsin’s history of violating the constitutional rights of its students is too voluminous to recount here.  But whether employing unconstitutional speech codes, requiring students to subsidize liberal ideas they do not agree with and refusing to ensure viewpoint neutrality in its funding process, denying recognition to religious student groups, and then trying again to deny religious groups funding on the theory that they may use the funds for prohibited “worship,” Wisconsin has been on the other side of a lawsuit by ADF and allied organizations for virtually the entirety of the existence of ADF.  UW even recently planned to begin performing late term abortions and require medical staff to assist in them in violation of their conscience until ADF intervened.   On the one hand is a university that demands rigid adherence to its doctrine and goes to great lengths to ensure that its orthodoxy is religiously adhered to by all its students.  On the other hand is a private Christian college in Texas.  Pick:  TCU.

Fiesta Bowl – Connecticut v. Oklahoma:  UConn sports a red light speech code to Oklahoma’s yellow.  In 2004 ADF allies had to bring a federal lawsuit to prevent Oklahoma from slicing funding for a student newspaper that published from a Christian perspective on the ground that it prohibited funding for “religious services.”  Oklahoma reversed course and complied with the Supreme Court’s Rosenberger decision after the lawsuit was filed.  But in addition to its red light code, UConn presently sports a referendum on funding student organizations that authorizes viewpoint discrimination.  Pick: Oklahoma.