Modesto Junior College’s Lawyer: Colleges, Dump Your Speech Codes

Every advocate dreams of winning over an opponent, but it rarely happens. It’s just possible, though, that FIRE might have done so. David Urban of the law firm Liebert Cassidy Whitmore has written a thorough and insightful post on his firm’s blog advising colleges and universities to review their speech-related policies to insulate themselves from the threat of litigation—like FIRE’s new Stand Up For Speech Litigation Project.

Urban’s advice to schools to revise their speech codes to avoid litigation is significant and welcome, particularly because of his experience defending colleges against First Amendment claims. Most recently, Urban was counsel to Modesto Junior College (MJC), which infamously prevented student Robert Van Tuinen from distributing copies of the Constitution on Constitution Day last year. (That suit was the first in our Stand Up For Speech project.) It is a credit to Urban that he wants to spare his other clients MJC’s fate: national notoriety and a $50,000 bill to settle the case.

Urban cautions schools against maintaining “free speech zones” that are too small or inaccessible, harassment policies that are vague, and registration procedures for student expressive activity that impose a prior restraint on speech. He is right that such policies are unconstitutional on public campuses, and he is right to tell his peers that continued maintenance of such flawed policies exposes institutions to legal liability.

FIRE has been banging this drum for years, and we’ve recently decided to increase the pressure on institutions. Through our Stand Up For Speech Litigation Project, FIRE will support students and professors at public institutions who want to challenge a speech code that does not comport with the First Amendment. At FIRE’s Stand Up For Speech press conference on July 1, FIRE President Greg Lukianoff explained that our goal was simple: to use litigation to make it clear that there’s a price to be paid for violating students’ and faculty’s First Amendment rights—both in dollars and reputation.

Fortunately for schools who wish to stay out of court, reviewing and suggesting revised language for university policies is our specialty. To paraphrase the T-shirt at issue in the Stand Up For Speech case at Ohio University, FIRE gets colleges off for free—off “red light” status, that is. To name a few recent examples: My colleague Azhar Majeed recently worked with the University of Florida to eliminate its speech codes, and now UF has a “green light” rating. In May, the collaboration between FIRE and Georgetown College in Kentucky resulted in Georgetown College also receiving a green light. We were very pleased to publicize both of these positive developments with national press releases, and both the University of Florida and Georgetown College have excellent reason to feel proud of their new designations.

Urban tells his clients that FIRE has “ominously” warned of future lawsuits. Given the consistent clarity of the legal precedent with regard to the First Amendment obligations of public colleges and universities—precedent dating back more than two decades—we think administrators have had plenty of fair warning. It’s long past time for public institutions to honor their legal and moral obligations to comply with the First Amendment. And as Urban warns, institutions that fail to do so may soon face a lawsuit.