Cracking the Speech Code
March 19, 2009
National Association of Scholars
Good morning everybody. I am going to follow the template that Steve Balch asked me to. He sent me an e-mail asking me to cover a number of topics.
The first thing he said was, "You'll take up the topic of the state of free speech and civil liberties on campus." I should hope so, because that's kind of what FIRE does. I'm going to start with some examples. Right now, FIRE is dealing with a case at Michigan State University, where a student was found guilty of "spamming" for e-mailing to a certain percentage of the professoriate a letter that she had written (along with the student government) criticizing the fact that the university had reduced the semester by four days. Faculty and students were angry about this change, and regardless of the fact that she was a student government leader commenting on an issue of great public concern, she was found guilty. The university has ignored 13 civil liberties organizations who wrote to point out that this was absurd and that one has the right to "petition the government for a redress of grievances."
At Brandeis University a professor was found guilty of racial harassment for explaining and even criticizing the term "wetback" in his Latin American Politics class. The professor had taught there for 50 years. It's right out of a Philip Roth book-it's absolutely ridiculous. And it took place at Brandeis, a university named for Justice Louis Brandeis, probably the most important Supreme Court Justice in the history of free speech. Nat Hentoff, who just wrote his last article for The Village Voice, wrote a scathing article about this incident, but Brandeis still refuses to overturn this racial harassment finding.
You can watch a video on the FIRE website about a case at Indiana University - Purdue University Indianapolis (IUPUI) in which a student-employee was found guilty of racial harassment without a hearing for reading a book. The book was Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan. It celebrates the defeat of the Klan by Notre Dame students in a 1924 riot. But nonetheless, because it had pictures of the Klan on the cover the university found him guilty of racial harassment-literally judging a book by its cover.
Meanwhile, in a case at Valdosta State University (VSU) about which we also have a video, an environmentalist student was expelled for posting a "threatening" collage on Facebook which protested his university's plans to construct two parking garages on campus. Since the president of the university, Ronald M. Zaccari, had been saying "this garage will be my legacy," the student referred to it in the collage as the "S.A.V.E.-Zaccari Memorial Parking Garage." Now this was obviously not a threat, and clearly the university didn't think so either because they stapled the collage to the expulsion letter and slipped it under his door. If they honestly thought this guy was the next Cho, I don't think they'd be doing that. They also really picked the wrong guy. This student is a Shambhala Buddhist and a decorated EMT who, by account of his girlfriend, will not kill spiders.
This very same school, up until FIRE got involved, maintained a free speech zone for 11,000 students consisting of less than 1 percent of the campus. The free speech zone was only available from noon-1pm and 5-6pm on weekdays, with 48 hours advance notice. Of course, even with permission to speak, you could be expelled if you were found to be a "clear and present danger"-a finding that, at VSU, may result from something as harmless as a collage.
Meanwhile, there are the other Red Alert schools: at Colorado College two students were found guilty of "violence" for making a parody of a gender studies flyer. The university is standing by this decision still, saying essentially "well, you know, it's not a big deal." So they're saying it's not a big deal to have a finding of violence for a parody on your transcript?
At Tufts, in a case where the university still hasn't overturned the finding, students were found guilty of racial harassment for, among other things, publishing a satirical advertisement in their newspaper which was critical of Islamic Awareness Week. The advertisement contained entirely verifiable facts about radical Islam. In fact, the only error I found was that it said there were seven Islamic theocracies that punish homosexuality by death, when there are actually eight.
And, of course, there is the University of Delaware, where FIRE had a case that I wouldn't have even believed before we documented 500 pages of it. FIRE has never worked harder on a case because there were so many different abuses. The example I always like to give from this case is as follows: Imagine this creepy situation. You're a female student and you're being invited in to a male Resident Assistant's dorm room for a mandatory meeting in order to fill out a questionnaire about your sexual preferences. One student's answer was "none of your damn business," and for this she was written up.
Meanwhile, in terms of speech codes, in our most recent report we documented that 77% of public colleges have "red light" codes. We saw about a 1% improvement in this figure from the previous year. You don't have to be a First Amendment expert to know that these codes are unconstitutional. An older, truly memorable example of a red light policy was the Hampshire College policy that banned "psychological intimidation, and harassment of any person or pet."
We occasionally face some skepticism about our speech code ratings, because we find so many to be constitutionally flawed, but I would like to point out that of the approximately 12 lawsuits that have been conducted against schools FIRE has dubbed "red light" colleges, 100% have been successful. 100% success is not very common in a litigation program. Those lawsuits which have resulted in opinions have concluded with very strongly worded opinions, including most recently in a federal circuit court decision in DeJohn v. Temple University in August 2008. The opinion in this case actually brings in to question some of the most standard harassment policies that are out there. Even dating back to the days before FIRE, there have been 20 years of solid defeats of speech codes, without a single victory for the codes since litigation against speech codes began in 1989. Yet these codes have significantly increased in number during that same time. There are a lot of reasons for this, and I actually wrote an article, which appeared on the NAS website, that explained my opinion of where this increase comes from.
As part of FIRE's legal strategy to address this increase, we recently sent over 250 certified mail letters to colleges across the country warning them that their red light speech codes leave them vulnerable to First Amendment challenges. In addition, given the utter clarity of the law with regard to the free speech rights of college students, we informed them that university administrators should not expect to receive qualified immunity when those policies are challenged. This means that administrators responsible for maintaining speech codes could be held personally liable for monetary damages. One way or another, these laughably unconstitutional codes must end, once and for all.
In his e-mail Steve Balch also wrote, "I think our audience would like to know whether, given all of FIRE's great work, there's been a discernable direction in the evolution of the state of campus civil liberties, or whether with each leak plugged, it seems yet more spring forth (for example, there may be progress on the speech code front, but all at once, we find ourselves trying to cope with renewed assaults on student privacy within the dorms, etc.)."
In the summer of 2007, it seemed to me that conditions on the university campus were actually improving. I was optimistic; it seemed like we were making progress. I was impressed, for example, that universities did not, in general, punish students for Mohammed cartoons, which were run in student publications throughout the country. Administrators increasingly consulted us on cases. And, in general, the absurdity of the cases seemed to have declined somewhat since their worst levels in 2005. But then, starting in the fall of 2007, the cases just got worse and worse. All of the cases I just discussed are from that time forward.
That's discouraging, to say the least, but I'm very proud of the work that our little organization has done. Since its founding 10 years ago, FIRE has secured 136 victories at 110 colleges and universities whose total enrollment exceeds 2.3 million. Among these victories, FIRE is responsible for changing unconstitutional or repressive policies affecting more than 1.4 million students at nearly 70 of these universities.
Why then do things seem to be getting worse? I have no way of proving this is why, but purportedly the number of administrators on campus finally exceeded the number of people involved in instruction in 2006. And that is where the problems are coming from: the administrators. That's one of the reasons why I try to go every year to be a very unpopular speaker at the Association for Judicial Affairs. People may disagree with me on this, but I do not believe that professors are as infatuated with "hate speech theory" as they were in the 1990s. Indeed, Nadine Strossen wrote me last week to ask why she's suddenly getting all of these questions about speech codes; she was wondering if there had been new scholarship or legal justifications written and my answer was "absolutely not." In fact, there is much scholarship that is critical of speech regulation on campus, and the courts are absolutely uniform against the presence of speech codes. It's the administrators that have taken up this issue as a moral imperative.
Quickly, I wanted to get to the Obama administration, because I've been asked to give my opinion as to where I think we're headed. I would like to make it clear that this is not an official "FIRE opinion." Given the political diversity of our organization, there is no way we could have a singular opinion. But, personally, I am hopeful. First, the Republicans were in power for eight years and did nothing to improve the state of free speech on campus. Second, the issue of campus censorship and political correctness can "stick" to Democrats. To engage in a terrible mixed metaphor, Republicans love having the Academy as a whipping boy; why would any sensible politician want to kill that golden goose? Meanwhile, Democrats who want to paint themselves as centrists can only be embarrassed by what people on "their" side are doing. As for Obama himself, he understands constitutional law at a sophisticated level, which is very encouraging to me, and I suspect he will have far less patience for censorship and political correctness than conservatives fear.
I was also asked by Steve, "Do you worry about an increasingly politically correct judiciary and federal bureaucracy?" Somewhat. However, even judges who drag their feet like Avern Cohn, who went so far in Doe v. Michigan-the first speech code decision-as to append Mari Matsuda's Words That Wound to the opinion, had to agree that speech codes violate the Constitution. So, it's very hard to depart from the established law on this. And, for the most part, mainstream Republicans and mainstream Democrats don't believe in speech codes. It seems that people outside the Academy, and many within the Academy, aren't supportive of these types of policies.
"Do you think the politically correct within the American Academy are likely to feel more empowered by the Obama victory?" Yes, in many ways they will. But, I think they're wrong. I think the idea that America is a hopelessly backwards nation in need of moral purifying to root out its deep psychological racism faces a challenge in our electing a black president by a wide margin. I think that type of sentiment is one of the things that ends up justifying programs like the one at the University of Delaware, namely that our society is morally sick and administrators are going to be the ones that cure us.
So what is FIRE doing? We're sending an open letter to the President, explaining that since speech code defeats have been uniform, and Congress and the courts have both spoken uniformly on the matter, it is now crucial that the executive branch carry out its duty to enforce the law. At this point, universities are blatantly ignoring the law, and this must end.
We're expanding our Campus Freedom Network (CFN). I am proud to say that the CFN, which is FIRE's coalition of students and faculty members, quadrupled in size within the last year.
FIRE is also working to take make administrators aware that they may not receive qualified immunity should their speech codes come under judicial scrutiny. We expect there will be a lot more litigation through our Legal Network in the upcoming year.
But we also want to make sure this message gets out. We plan to do that through video. We now have Jackson Fellows who write legal scholarship about FIRE's issues. We're having at least four articles published this year about how to address some of these issues on campus.
FIRE always likes to take a land, sea, and air approach. The most helpful thing you can do is to get the word out. This is really happening on our campuses and it's a national embarrassment. Frankly, FIRE likes the idea of putting ourselves out of a job. I would love not to have ridiculous cases like the one at IUPUI taking place anymore. I would love not to have ridiculous speech zones exist that are only available two hours a day. What we need is help, even in the form of forwarding our e-mails on to your friends, putting our content on your blog, and writing university presidents. Increasing the attention to this issue can make such a major difference. We really do need your help, and I thank you for having me.
 For more information about this case, see http://www.thefire.org/index.php/article/10027.html.
 For more information about this case, see http://www.thefire.org/index.php/article/10204.html.
 For more information about this case, see http://www.thefire.org/index.php/article/9507.html.
 For more information about this case, see http://www.thefire.org/index.php/article/8800.html.
Red Alert institutions have displayed a severe and ongoing disregard for the fundamental rights of their students or faculty members. They are the "worst of the worst" when it comes to liberty on campus.
 For more information about this case, see http://www.thefire.org/index.php/article/9125.html.
 You can read more about this in my post on FIRE's blog The Torch: http://thefire.org/index.php/article/8052.html. I wrote: "The Primary Source published a satirical ad filled with factual assertions and because this angered people it was ruled to be unprotected harassment. If what the complaining students wanted to say was that the TPS facts were wrong, then-while this still would not be harassment-that could have been an interesting debate. But instead, in sadly predictable fashion, the students plowed ahead with a harassment claim that, based on the hearing panel's decision, appeared not even to raise the issue of whether or not the statements in the ad were true, but turned only on how they made people feel. A panel consisting of both faculty and students found the publication guilty in flagrant abuse of what harassment case law and regulations actually say, and demonstrating total ignorance of the principles of a free society. Even in libel law (one of the oldest exceptions to the rule of free speech is that you can be punished for defaming people) truth is rightfully an absolute defense. Here, the fact that TPS printed verifiable information-with citations-was apparently no defense, nor was the fact that the ad concerned contentious issues of dire global importance. Such an anemic conception of free speech should chill anyone who cares about basic rights and democracy itself."
 For more information about this case, see http://www.thefire.org/index.php/article/7540.html.
 For more information about this case, see http://www.thefire.org/index.php/article/8562.html.
 I addressed this in a FIRE statement that later was published in the Daily Journal of Los Angles and San Francisco: http://thefire.org/index.php/article/6819.html. There were, of course, schools that did not handle the issue well, most notably New York University: http://www.thefire.org/index.php/case/707.html. In that incident the school banned a panel from showing the cartoons in order to discuss them. NYU remains unrepentant for its actions.
 According to the National Center for Education Statistics, the proportion of full-time administrators in higher education finally exceeded the proportion of faculty full-timers in 2006; today, 51.4% of professionals in the field spend their time administering rather than teaching.
 To be fair the Republican-lead congress did hold hearings in 2003 that included testimony from me, Ann Neal, KC Johnson and Anthony Dick that included discussion of the threats to free speech on campus. My testimony dealt exclusively with that issue and can be seen here: http://www.thefire.org/index.php/article/5077.html. Unfortunately the focus of that hearing was actually on "Intellectual Diversity" rather than free speech. I believe by focusing on the more polarizing issue of "Intellectual Diversity" the Senate missed an opportunity to have bipartisan discussion of campus free speech. "Intellectual diversity" is, after all, impossible to achieve if you can't even voice dissenting opinions without punishment in the first place.
 You can read the letter, sent on Inauguration Day, here. In the letter, I summarized the problems that we are facing and asked for President Obama's help in both enforcing and bringing attention to the issue.
 The CFN, founded in 2006, is an important arm of FIRE. The CFN advances FIRE's mission by providing resources and educational opportunities to students and faculty engaged in advancing individual rights on campus.
 As far as little things professors can do to help, besides joining the CFN, simply putting up one of our widgets on a Facebook page or website can make a significant contribution to FIRE's work. To find out more about our widgets go to: http://www.thecfn.org/widgets/
- Cracking the Speech Code, PDF, 88.9 KB , National Association of Scholars