Thursday, August 20, 2009

Universities schooled about free speech

Late August is here, which means college students across the country are contemplating a return to bars, parties and -- oh yeah -- classes. As they arrive at campus, though, many of them are actually entering an environment where free speech and diversity of opinion are less respected than they are at home. Often disguised as harassment codes, free speech restrictions are alive and well at colleges and universities, and actually still have defenders in both the legal and academic communities.

The Foundation for Individual Rights in Education has spent the last decade at the forefront of the effort to ensure that respect for liberty is among the lessons taught on the nation's campuses. FIRE fights the good fight, but there are still plenty of schools where administrators think stifling debate -- or even suppressing opinions -- is more important than encouraging the free exchange of ideas.

Just weeks ago, the University of Louisville was ordered to reinstate a nursing student, Nina Yoder, who had written provocative posts on her Myspace page about her political and cultural views and the alleged irresponsibility of (unidentified) patients she had tended. Yoder prevailed in the free speech battle, but only after taking her case to federal court.

Yale University Press continues to raise worries about its commitment to free speech by agreeing to publish a book about the Mohammed cartoon controversy only after the author reluctantly agreed to omit the actual cartoons.

And last month, a federal judge struck down the Los Angeles Community College District's sexual harassment code as an affront to constitutionally protected free speech rights, which public universties are legally bound to respect.

FIRE maintains a rogues gallery of "worst of the worst" public and private universities that are especially egregious in maintaining policies that suppress speech and the free exchange of ideas. Private universities, while not bound by the First Amendment, can sometimes be challenged on contractual grounds if they promise but fail to protect an open environment for expression. They can also just be publicly shamed for their authoritarian policies. The Red Alert List currently features:

Michigan State University -- "Michigan State University (MSU) has been named to FIRE's Red Alert list after finding student government leader Kara Spencer guilty of 'spamming' and misuse of university resources for criticizing the administration's plan to change the school calendar."

Colorado College -- Colorado College landed on the list because the school "refused to remove the guilty finding from the records of two students who posted a parody flyer on campus and reaffirm its published commitments to free speech."

Brandeis University -- Brandeis earned its place on the list after it "declared Professor Hindley, a nearly 50-year veteran of teaching, guilty of racial harassment and placed a monitor in his classes after he criticized the use of the word 'wetbacks' in his Latin American Politics course."

Tufts University -- "Tufts University earned its Red Alert status by finding in May that The Primary Source (TPS), a conservative student newspaper, violated the school’s harassment policy by publishing two satirical articles during the past academic year."

Johns Hopkins University -- "Johns Hopkins University earned its Red Alert designation by suspending eighteen-year-old junior Justin Park for posting an “offensive” Halloween party invitation on the popular social networking site"

In addition to the institutions listed above, Boston College was recently given a "red light" rating for failing to live up to its promises of an open environment for expression. And Northern Illinois University currently features as FIRE's "speech code of the month" over broad rules banning "Intentional and wrongful use of words, gestures and actions to annoy, alarm, abuse, embarrass, coerce, intimidate or threaten another person."

While college speech restrictions seem to fail in court time and again, and draw nearly universal condemnation, they do have their defenders. In April, the Harvard Law Review published an article criticizing the pro-free-speech decision in DeJohn v. Temple University (PDF). The piece complained that the decision "deprives institutions of meaningful guidance as to how to combat harassment while respecting freedom of speech."

That's how speech restrictions are usually defended; it's a balancing act between free speech rights and whatever values happen to occupy the would-be censors' attention. Somehow, speech always seems to get short shrift when the censors start weighing their priorities.

Fortunately, though, they don't usually get their way in court or when it comes to public opinion. As the First Amendment Center points out:

The speech codes that have been challenged in court have not fared well. Courts have struck these policies down as being either overbroad or vague. A statute is overbroad if it prohibits a substantial amount of protected speech in its attempts to restrict unprotected speech. A statute or regulation is vague if it does not adequately inform a person what expressive conduct is prohibited and what expressive conduct is allowed, leaving a person to guess at its application.

But the speech codes are still out there, tripping up students and faculty alike until somebody expends the time and energy to knock them down.

So if you're a college student returning to school in a couple of weeks, get ready for some good times. But keep FIRE's number on speed dial.

Below, FIRE President Greg Lukianoff discusses campus speech codes..



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