5 Free Speech Threats to Watch Out for on Campus This Election Season
September 11, 2012
In its 13 years defending free speech on colleges campuses nationwide, the Foundation for Individual Rights in Education (FIRE), where I have worked since 2008, has won nearly 250 public victories on behalf of students and faculty. FIRE has been responsible for well over 100 reforms of unconstitutional and illiberal campus speech policies, with the total number of affected students reaching into the millions.
Needless to say, in all that time FIRE has seen certain types of violations committed over and over. Now, with the linens and seersucker put away and the new school year officially in business, I thought I would share withPolicyMic readers 10 of the most common types of free speech violations that we see throughout the year. In our estimation, these are the forms of rights violations that college students are most likely to see on their campuses this fall.
A couple of notes to begin:
First, these are by no means the only types of free speech violations we see on campus. A look at FIRE's case history shows the true extent of threats to free speech on campus, and the many ways they manifest themselves.
Second, speech code ratings of more than 400 universities around the country will provide you with a fuller appreciation of the many types of policies that infringe on the free speech rights of students.
Finally, most of my examples deal with cases at public universities, which are bound by the First Amendment. We've seen many of these same cases, however, at private universities — many of which, though not legally bound by the First Amendment, nonetheless make lofty promises of free speech to their students in their policies and materials.
Private institutions are bound by these promises, which courts in many states have interpreted as enforceable contracts. In California, private secular colleges are in fact required by law to afford students the same First Amendment rights they would have at any public university. Much herein, therefore, is every bit as applicable to Harvard and Yale as it is to UMass and UConn.
In no particular order, here are our first five. Be sure to come back tomorrow to read the rest!
1. Restrictions on Political Speech
Especially during election years such as this one, FIRE encounters universities that, in their quest to remain politically neutral as required by their non-profit status, bulldoze their students' and faculty members' First Amendment right to political expression.
This happened in 2008 at the University of Oklahoma, which prohibited students and faculty from using their university email accounts for partisan political expression, including "forwarding of political humor/commentary." Faculty and staff at the University of Illinois were prohibited from even such simple forms of political activity as wearing campaign buttons or placing bumper stickers on their vehicle.
Such abuses have prompted FIRE to issue a guiding statement on political activity on college campuses — recently updated for the 2012 elections — in the hopes of clarifying the legal principles involved.
2. Free Speech Zones
If your college has one, odds are it's unconstitutional or violates promises of free speech. The reason is simple: While colleges have a legitimate interest in making sure that the exercise of free expression doesn't substantially interfere with institutional operations, they frequently go far, far beyond what is acceptable in terms of striking this balance.
Take the free speech zone at the University of Cincinnati, which limited expression to a tiny zone taking up just 0.1% of its 137-acre West Campus, and required as much as 15 business days' notice if students wanted to use it. On top of this, a UC student group was told its members could face arrest if they went outside the tiny zone while collecting signatures for a statewide ballot initiative.
FIRE has successfully overturned these restrictive policies at colleges across the country. As for Cincinnati's, it went down the way numerous zones have before it: in court.
3. Unconstitutional "Harassment" Policies
While universities that accept federal funding — that is, virtually all universities, both public and private — are required to take action against genuine harassment on campus, countless institutions have stretched the legal definition of harassment to functionally include any speech that someone might find offensive, or that offends any of the politically-correct sensibilities that frequently hold sway over campus discourse.
Frequently forbidden by such policies (and thus subject to disciplinary action) are jokes, sexual references, and even anything that might "embarrass," "demean," or "harm" a student in any way. In Davis v. Monroe County Board of Education (1999), the Supreme Court set the bar for student-on-student harassment as conduct that is "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Despite this clear guidance and the fact that poorly-written policies have suffered numerous defeats in court, overbroad harassment policies may be the most common type of speech code FIRE encounters.
4. Viewpoint-Discriminatory Funding
The Supreme Court has twice ruled that in distributing the mandatory student fees that typically fund student activities, universities may not discriminate against student organizations on the basis of their viewpoint. You'd think two rulings from the highest court would be enough, but plenty of universities (and the student governments entrusted with doling out funds) get it wrong anyway.
Sometimes they ban entire categories of expression, as Northern Illinois University's student government did when it brazenly tried to deny funding to all political and religious student organizations.
Sometimes, they simply don't like the message of a particular group. When the University of California, Santa Barbara College Republicans brought conservative author and activist David Horowitz to campus last year, numerous student government officers cited their dislike of his views in their decision to decrease funding for the event.
5. Outrageous Security Fees
Charging student groups prohibitively high security fees for hosting speakers deemed to be controversial is a sneaky method of censorship FIRE has encountered often.
The formula is simple: Administrators, worried about possible protests that a speaker might draw, compel the student group to have numerous police or security officers present at their event, on their dime and usually at extravagantly high cost, or else be shut down.
Fortunately, this is unconstitutional, and it's not hard to see why. If it wasn't, a group of students dead-set against a speaker whom they despised being given a forum on campus could loudly announce plans to protest the event and saddle the host organization with security fees so high they would have to cancel.
This kind of censorship knows no partisan bounds, either. With FIRE's help, groups hosting speakers from Dutch politician Geert Wilders on the right to Bill Ayers on the left have fought back and won against this indirect but equally pernicious form of censorship.