Victory for Free Speech as Third Circuit Issues Ruling against Temple University

PHILADELPHIA, August 4, 2008—Today, the United States Court of Appeals for the Third Circuit issued an opinion in DeJohn v. Temple University upholding a decision by a federal district court that Temple University's former speech code is unconstitutional. Temple's code prohibited, among other things, "generalized sexist remarks and behavior." In September 2007, the Foundation for Individual Rights in Education (FIRE) filed a friend-of-the-court brief urging the Third Circuit to uphold the lower court's ruling.

"The Third Circuit's ruling today is a clear and crucial victory for freedom of speech at our nation's public colleges and universities," FIRE President Greg Lukianoff said. "The court's decision serves as unequivocal notice to university administrators across the country that the First Amendment still applies on campus. Today's victory demonstrates, yet again, that public universities maintain unconstitutional speech codes at their peril."

The lawsuit against Temple University was filed in the U.S. District Court for the Eastern District of Pennsylvania in February 2006 by attorneys from the Alliance Defense Fund (ADF) on behalf of Temple student Christian DeJohn. DeJohn's complaint alleged both that Temple had engaged in actions that violated his rights and that Temple was violating the free speech rights of all of its students by maintaining an unconstitutional speech code.

Temple finally revised its speech code more than a year into the lawsuit, but had argued on appeal to the Third Circuit that its original policy was constitutional despite the District Court's holding to the contrary. In today's ruling, the Third Circuit held that Temple's speech code was unconstitutional because it restricted speech protected by the First Amendment.

In DeJohn v. Temple University, the District Court had declared Temple University's former speech code unconstitutional. On appeal, Temple argued that the Supreme Court's 2007 ruling in Morse v. Frederick—a decision upholding the narrow right of high school administrators to regulate student speech "reasonably regarded as encouraging illegal drug use"—permitted Temple to place broad and onerous restrictions on the free speech rights of college students. In response, FIRE's brief argued that Temple's policy contradicts both decades of legal precedent and the guidance of the federal Department of Education's Office for Civil Rights, which is responsible for enforcing harassment laws on campus.

Today's ruling, authored by Judge D. Brooks Smith, unequivocally states that "[d]iscussion by adult students in a college classroom should not be restricted." In holding that Temple's former speech code "provides no shelter for core protected speech," Judge Smith found the policy to be facially overbroad.

"As adults, college students are entitled to the full protection of the First Amendment on campus," William Creeley, FIRE's Director of Legal and Public Advocacy, said. "Today's opinion makes clear that attempts to equate the rights of high school students with those of college students are without merit. Thankfully, the Third Circuit has dealt a devastating defeat to those seeking to infantilize our nation's college students."

FIRE's amicus brief was joined by a remarkable coalition of organizations including the ACLU of Pennsylvania, the Christian Legal Society, Collegefreedom.org, Feminists for Free Expression, the Individual Rights Foundation, Students for Academic Freedom, and the Student Press Law Center. The coalition was represented in the filing by attorney L. Theodore Hoppe, Jr.

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation's colleges and universities. FIRE's efforts to preserve liberty on campuses across America can be viewed at thefire.org.

CONTACT:

William Creeley, Director of Legal and Public Advocacy, FIRE: 212-582-3191; will@thefire.org