No 1st Amendment on Campus

“Some of the examples FIRE [Foundation for Individual Rights in Education] cites as free speech violations are attempts to mitigate or prevent harassment and bullying among students. The foundation picked on the University of Connecticut for prohibiting people from “actions that intimidate, humiliate or demean persons or groups, or that undermine their security or self-esteem.”

[Why, if this is good policy for the college campus, to “protect” students from “troubling” i.e., conservative speech, it is not good policy for the rest of the country – I’m particularly thinking about the disgusting, degenerate, intimidating, humiliating, demeaning, dishonest and specifically personal attacks on the Trump family – including the First Lady, Melania, her 10-yer old son, Baron and the First Daughter, Ivanka. The hypocrisy is stultifying.]

Incidently, UConn has been under federal investigation  by the U.S. Department of Education for, among other allegations, declining to assist a studentwho received rape and death threats and constant harassment as a result of an op-ed she wrote criticizing the university’s new logo.

The group also advocated for people  to tweet directly at the University of South Carolina because the school prohibits “teasing,” “ridiculing,” and “insulting.” The group believes schools violate First Amendment protections in their attempts to stop harassment. FIRE’s Director of Policy Research said in a statement, “the Department of Education needs to make clear to universities, once and for all, that prohibiting harassment does not mean restricting protected speech.”

FIRE frequently focuses on public colleges since they are required to abide by the 1st Amendment. But private schools also face scrutiny from the group. FIRE’s president has raised alarm about Harvard University, for instance, because administrators admitted to reviewing faculty emails in the midst of a cheating scandal. He compared it to the government spying featured in the dystopian 1949 novel 1984 by George Orwell.

[Equally as bad is the secret listening to the phone conversations of Americans not under investigation for anything and then making transcripts of them available to PLDC Washington insiders. It must be a Democrat thing – taught at Harvard, practiced in Washington.]

 

In Liberal Tyranny in Higher Education the authors, deal with the dismantling of the 1st Amendment on college campuses and describe how freedom of speech has become a one-way street controlled by progressive/liberals who do their best to suppress conservative and Christian opinions, thoughts and ideas with professors and administrators using so-called “free-speech” zones and “speech codes” as their preferred methods for suppressing free speech.”

A free speech zone is a designated area in which students who wish to speak out on an issue are allowed to have their say.  But there are some obvious problems with this concept.  First, the entire college campus should be a free speech zone.  When the contemporary liberal professors who came up with this concept, were Alinskyite campus radicals in the 1960s, they certainly did not allow themselves to be hemmed into free speech zones.  In fact, as we have seen, they took over and occupied entire buildings.

“A second problem with free speech zones is that many colleges require students who wish to make use of the designated areas to apply in advance and describe what they plan to say despite the Constitutional prohibition against prior restraint.  Of course, if they do not like what the students plan to say, some colleges have begun to deny them access or, at the very least, limit their access. There are even cases in which the designated free speech zone was moved to an isolated location when conservative or Christians applied to use it.

Speech codes are just as bad, or possibly worse, since they are used by colleges to limit what students are allowed to say as well as how they are allowed to say it.  It is as if liberals think they have a constitutional right not to be offended and, of course, almost anything a conservative or Christian says will offend a liberal.

Consider the speech code established at The State University of New York at Buffalo (SUNY Buffalo).  On the surface the speech code appeared to do little more than encourage good manners, but the code is insidious. The code makes any speech in residence halls that is not courteous, polite or mannerly, impermissible. Of course, it is the liberals who run the university who decide what is courteous, polite, and mannerly. Rest assured that a Christian student questioning the concept of coed dorms would not be considered acceptable no matter how courteous, polite, and mannerly the Christian student might be.

While universities may certainly establish codes of conduct to protect the ability of students to sleep and study in dormitories, restricting all speech in a dormitory to that which is considered by college administrators to be courteous, polite, and mannerly is just one more way of silencing the views of students who do not toe the line of leftwing orthodoxy.  With such a speech code in place, any student who happens to voice disagreement with another student’s life style, behavior, personal choices, or opinions could be charged and disciplined.

Since conservative and Christian students who live in college dormitories are going to see plenty of behavior and hear plenty of opinions they disagree with, they are likely to be the most frequent targets of speech code violations.  Of course, this was the purpose of this cunning little speech code in the first place. For example;

Officials at Shippensburg University in Pennsylvania used provisions in their institution’s speech code to strip a Christian student organization of its rights and privileges because it required members to honor a statement of faith and because it selected its leaders according to its interpretation of Biblical teaching.

Two students at Georgia Institute of Technology were subjected to religious discrimination for maintaining a Biblical view of homosexuality, a view that violated the university’s “Safe Space” training program.  The “Safe Space” program ridiculed religions that do not embrace homosexuality except, of course, Islam [- the violence prone theocratic institution which commands its followers to kill homosexuals].  The only views on homosexuality allowed at Georgia Tech appear to be those of students who endorse and approve it. Apparently, homosexual students at Georgia Tech have rights but Evangelical Christian students don’t.

The radical left is persistent and increasingly aggressive in its attempts to silence Christian and conservative speech. Economist and intellectual writer Walter Williams summed up this situation in an article entitled, “Ideas on Liberty,” in which he wrote:

“Western values are by no means secure. They are under ruthless attack by the academic elite on college campuses across America.  These people want to replace personal liberty with government control; they want to replace equality with entitlement; they want to halt progress in the name of protecting the environment.  As such they pose a much greater threat to our way of life than any terrorist or rogue nation.”

“As a legal matter, there is no specific level of federal funding that obligates a private college or institution to honor the 1st Amendment. Many factors, such as university governance, the appointment of trustees, and specific acts of legislation, need to be weighed in determining the status of any given institution. That should not stop students, however, from learning as much as they can about the funding and governance of their institution.

There are moral and political questions [wouldn’t it be nice if moral and political were the same thing?] that arise from such knowledge, beyond the legal issues. Do the taxpayers truly want to subsidize assaults on basic free speech and First Amendment freedoms? Do members of the Board of Trustees truly want to be party to such assaults? Do donors want to pay for an attack on a right that most Americans hold so dear?

Information about funding and governance is vital and useful. For example, students may find that a major charitable foundation or corporation contributes a substantial amount of funds to their college, and they may inform that foundation or corporation about how the university selectively abuses the rights and consciences of its students. Colleges are extremely sensitive to contributors learning about official injustice at the institutions that those donors support. Colleges and universities must be accountable for their actions.

The lack of protected free speech on college campuses is not a new problem, though it seldom makes the headlines. Nonetheless, it is a serious problem, which legions of conservative speakers on hundreds of college campuses have experienced first-hand. Virtually none of many, many incidents of violent disruption of a lawful public event featuring a conservative speaker caused the expulsion or even suspension of any of the students or faculty or any professional Alinskyite agitators, acting like fascists, who participated in the disruptions and/or broke the law.

Conservative speakers on campuses have been hit with pies, had red paint tossed on them and have been shouted down time and time again. No one gets suspended; no one gets disciplined; and no one gets expelled. But if you chant what could be the lyrics to a popular rap song, not only do you get expelled, but your fraternity gets shut down and all the members get tossed out of their house – all without a hearing. Note the hypocrisy in the double standard applied to such cases.

Indeed, calling this behavior “hypocrisy” is too polite a term because today, the campus leftist disruptors are not troubled or shamed by the charge of hypocrisy. This tells us the problem goes far deeper. The progressive left running most of our institutions no longer even pretends to believe in free speech in the traditional sense, so they are self-immunized against charges of hypocrisy.

Greek fraternities are a new target of the college “Free Speech for Me but Not for Thee” codes. Fraternities and sororities have joined Young Republicans and conservative groups as guilty until proven innocent before the leftist administrators and tribunals governing our modern “institutions of higher learning.” They are, after all, the citadels of “white privilege,” and thus guilty of innumerable crimes against social justice [not to mention slave holding and trading, and Jim Crow – even though they have no connection with any of those sordid issues].

Today’s campus progressives are simply enforcing the universal leftist code of political correctness, a code followed by Marxists and leftists everywhere they come to power. A double standard is inherent in this leftist code. What is surprising is that anyone is surprised. The real problem is not the everyday violation of free speech on American college campuses, it is the growing acquiescence to this onerous political correctness by the university’s governing authorities and alumni.

College trustees and regents are indeed guilty of hypocrisy, but the protesters themselves know exactly what they are doing and are not ashamed. This travesty will continue until trustees are held accountable for their malfeasance. It is further hypocrisy that the progressive/liberals, who shop the courts around the country for judges sympathetic to their causes and then hide behind their, often biased and erroneous, rulings, willfully ignore volumes of Supreme Court opinions on campus free speech.

That the 1st Amendment applies on the public university campus is settled law. Public universities have long occupied a special niche in the Supreme Court’s First Amendment jurisprudence. Indeed, the Court has held that 1st Amendment protections on campus are necessary for the preservation of our democracy.

Consider just a few of the hundreds of cases brought by free speech advocates against colleges and universities who have stomped all over the 1st Amendment rights of their students for their own, politically correct, reasons:

 Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957): In Sweezy, the Court was faced with the question of whether the Attorney General of New Hampshire could prosecute an individual for refusal to answer questions about a lecture delivered at the State university concerning the Progressive Party of the United States. In holding for the teacher, the Court wrote eloquently that:

“The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation… Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

Healy v. James, 408 U.S. 169, 180 (1972): Central Connecticut State College’s president had denied official status to a left-wing student group associated with violence on other campuses. The president said the group’s philosophy was “antithetical to the school’s policies,” its independence from the national organization was “doubtful,” and it “would be a disruptive influence at the college.” Without official status, the group could not announce its activities in the campus newspaper, post notices on college bulletin boards or use campus facilities for meetings. In this decision, the Court first affirmed public college students’ 1st Amendment rights of free speech and association, saying those constitutional protections apply with the same force on a state university campus as in the larger community. The Court stated:

“[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”

 

Widmar v. Vincent, 454 U.S. 263 (1981): The University of Missouri at Kansas City ruled that its facilities could not be used by student groups “for purposes of religious worship or religious teaching,” believed that this prohibition was required under the Establishment Clause. A student religious group that had previously been permitted to use the facilities sued the school after being informed of the change in policy, asserting that their 1st Amendment rights to religious free exercise and free speech were being violated.

The Court’s decision ensured greater access to public facilities by religious organizations, and held that the State was not assumed to be in support of all messages that were communicated in their facilities. In so ruling, the Court reaffirmed its consistent recognition of the applicability of the 1st Amendment to the public university, concluding that

“With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”

In case after case, courts across the country have unequivocally and uniformly held speech codes at public universities to be unconstitutional. Public institutions of higher learning attempting to regulate the content of speech on campus are held to the most exacting level of judicial scrutiny. Typically, courts find speech codes to violate the First Amendment because they are vague and/or overbroad. This means that because the speech code is written in a way that (a) insufficiently specifies what type of speech is prohibited or (b) would prohibit constitutionally protected speech, it cannot be reconciled with the 1st Amendment’s protection of freedom of speech. For example:

 Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989): A federal district court found the speech provisions of the University of Michigan’s harassment code to be unconstitutionally overbroad. The code forbade “[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed… and that… creates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University-sponsored extra-curricular activities.” In invalidating the speech code, the court observed that “[t]he Supreme Court has consistently held that statutes punishing speech or conduct solely on the grounds that they are unseemly or offensive are unconstitutionally overbroad.”;

 Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995): Dambrot was the first speech code case decided by a federal appellate court.  The challenged speech code was a discriminatory harassment policy which defined racial and ethnic harassment as “any intentional, unintentional, physical, verbal, or nonverbal behavior that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment by . . . demeaning or slurring individuals . . . or . . . using symbols, [epithets] or slogans that infer negative connotations about the individual’s racial or ethnic affiliation.”

 The Sixth Circuit found the policy to be both unconstitutionally vague and overbroad. The Court stated, “It is clear from the text of the policy that language or writing, intentional or unintentional, regardless of political value, can be prohibited upon the initiative of the university.” Additionally, responding to the university’s argument that the policy only prohibited fighting words, the Sixth Circuit held that, even assuming this argument to be true, “the CMU policy constitutes content discrimination because it necessarily requires the university to assess the racial or ethnic content of the speech.” As such, the policy was unconstitutional on its face.

 Corry v. Leland Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.): In Corry, a California State court decided the first … speech code case involving a private university. At issue was Stanford University’s policy on “harassment by personal vilification,” which prohibited speech “intended to insult or stigmatize an individual . . . on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin.” Again, the university argued that its policy targeted only fighting words. The court responded that the policy, even if limited to fighting words, did not prohibit all fighting words, but only those words based on the enumerated categories, violating the 1st. Amendment’s requirement of content neutrality. Secondly, the court held that the policy in fact prohibited more than just fighting words, rendering it unconstitutionally overbroad. This decision is also noteworthy because the court relied on California’s “Leonard Law,” which provides students attending private institutions in California with the same free speech rights as those attending public institutions.

 Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998): In Booher, a federal district court declared a sexual harassment policy to be both overbroad and vague for prohibiting, in pertinent part, expression which “unreasonably affects your status and well-being by creating an intimidating, hostile, or offensive work or academic environment.” In particular, the policy “fail[ed] to draw the necessary boundary between the subjectively measured offensive conduct and objectively measured harassing conduct,” giving one “the impression that speech of a sexual nature that is merely offensive would constitute sexual harassment because it makes the individual hearer uncomfortable to the point of affecting her status and well-being.” This made the policy clearly capable of reaching protected speech and therefore overbroad.

 Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003): In Bair, a case coordinated by FIRE, a federal district court found Shippensburg University’s speech code, which stated that “[t]he expression of one’s beliefs should be communicated in a manner that does not provoke, harass, intimidate or harm another,” to be in violation of the 1st Amendment. In finding the school’s code unconstitutional, the court held that “regulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in the public high school and university settings,” and further noted that not even codes that attempt to ban so-called “fighting words” pass constitutional muster.

 College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007): In October 2006, the San Francisco State University (SFSU) College Republicans held an anti-terrorism rally at which they stepped on homemade replicas of Hamas and Hezbollah flags. This offended several students in attendance because the flags contained the word “Allah” written in Arabic script. In response, offended students filed charges of “attempts to incite violence and create a hostile environment” and “actions of incivility,” prompting an SFSU “investigation” that lasted five months. The charges culminated in a school disciplinary hearing in March 2007, at which time the College Republicans were cleared of wrongdoing.

 However, in July 2007, the College Republicans brought a constitutional challenge to SFSU’s speech codes in federal district court. In November 2007, Judge Wayne Brazil issued a preliminary injunction barring SFSU and other schools in the California State University system from enforcing several challenged policies, including a requirement that students “be civil to one another” and act in accordance with SFSU’s “goals, principles, and policies.” Judge Brazil also limited the CSU system’s ability to enforce a policy prohibiting “intimidation” and “harassment,” holding that the policy could only be applied to conduct that “reasonably is concluded to threaten or endanger the health or safety of any other person.”

Dejohn v. Temple University, 537 F.3d 301, 319 (3d Cir. 2008): At issue in DeJohn was a policy defining sexual harassment to include “expressive, visual, or physical conduct of a sexual or gender-motivated nature, when . . . such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or . . . has the purpose or effect of creating an intimidating, hostile, or offensive environment.” Under the terms of the sexual harassment policy, the plaintiff, a graduate student in history and former member of the military, claimed that he “felt inhibited in expressing his opinions in class concerning women in combat and women in the military” and felt “concerned that discussing his social, cultural, political, and/or religious views regarding these issues might be sanctionable by the University.”

 The Third Circuit found the policy to be untenable for several reasons.  First, it observed that under the policy’s’ “purpose or effect” prong, “a student who sets out to interfere with another student’s work, educational performance, or status, or to create a hostile environment would be subject to sanctions regardless of whether these motives and actions had their intended effect.”  As a result, the policy violated the requirement that a school “must show that speech will cause actual, material disruption before prohibiting it.”

 Additionally, the policy’s use of terms which were not clearly self-limiting, such as “hostile,” “offensive,” and “gender-motivated,” rendered it “sufficiently broad and subjective” that it “could conceivably be applied to cover any speech of a gender-motivated nature the content of which offends someone.” Critically, “[t]his could include ‘core’ political and religious speech, such as gender politics and sexual morality.”

 Thus, the Third Circuit concluded that “the policy provides no shelter for core protected speech.” The court ultimately held the policy to be facially overbroad and permanently enjoined the university from re-implementing or enforcing the policy. As a strongly-worded federal circuit court opinion, DeJohn carries much significance and should clearly and powerfully convey the message to university administrators that speech codes are unconstitutional.

 Smith v. Tarrant County College District, 694 F. Supp. 2d 610 (N.D. Tex. 2010): In Smith, a federal district court found restrictions on symbolic speech on campus maintained by Tarrant County College (TCC) to be unconstitutional. The court found that TCC’s reliance on a policy prohibiting “disruptive activities” to restrict students from holding an “empty holster” protest violated the First 1st Amendment. The court further ruled that TCC’s sweeping prohibition on “co-sponsorship,” which forbade students and faculty from holding campus events in association with any “off-campus person or organization,” prevented TCC students “from speaking on campus on issues of any social importance” and was therefore “overly broad” and “unconstitutional on its face.”

 McCauley v. University of the Virgin Islands, 618 F.3d 232 (3rd Cir. 2010): In McCauley, the Third Circuit struck down on 1stAmendment grounds two University of the Virgin Islands (UVI) policies restricting student speech and upheld the district court’s invalidation of a third. Noting that a “desire to protect the listener cannot be convincingly trumpeted as a basis for censoring speech for university students,” the Third Circuit found UVI’s policy forbidding “offensive” or “unauthorized” signs to be unconstitutionally overbroad.

 Similarly, citing its opinion in DeJohn, the court found UVI’s prohibition of conduct causing “emotional distress” equally untenable, deeming the policy “entirely subjective” and finding that it “provides no shelter for core protected speech.” The opinion noted that under the unconstitutional policy, “[e]very time a student speaks, she risks causing another student emotional distress,” and concludes that this “heavy weight” does “substantial” damage to free speech on campus.

 University of Cincinnati Chapter of Young Americans for Liberty v. Williams, N.. 1:12-cv-155 (S.D. Ohio Jun. 12, 2012): In Williams, a federal district court declared that the University of Cincinnati’s (UC’s) tiny “free speech zone” violated the 1st Amendment rights of UC students. In his order enjoining enforcement of the challenged free speech zone policy, United States District Judge Timothy S. Black held that UC’s free speech zone “violates the First Amendment and cannot stand.” The policy required that all “demonstrations, pickets, and rallies” on campus take place in an area comprising just 0.1% of the university’s 137-acre West Campus. UC also required that all expressive activity in this free speech zone be registered with the university 10 working days in advance, even threatening that “[a]nyone violating this policy may be charged with trespassing.”

 UC’s policy was challenged in court by the university’s student chapter of Young Americans for Liberty (YAL), who had sought permission to gather signatures and talk to students across campus in support of a statewide “right to work” ballot initiative. The student group’s request was denied and its president was told that if any YAL members were seen “walk[ing] around campus” gathering signatures, campus security would be alerted.” Next time: Free speech at private universities.

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